2018-TIOL-98-HC-MAD-CX
TABLETS INDIA LTD Vs ASSISTANT COMMISSIONER: MADRAS HIGH COURT (Dated: January 2, 2018)
CX - Petitioner availed the benefit of exemption notification No.29/88-CE applicable to single ingredient formulation and cleared medicaments by payment of concessional rate of duty at 10% adv - In the SCNs, it is alleged that the concessional rate of duty at 10% claimed based on the said exemption notification is allowable only if the pharmaceutical aid employed in the manufacture of single ingredient is therapeutically inert and the diluent in question called as di-calcium phosphate used in the manufacture of the tablets concerned is not only found to be a calcium supplement, but also an active ingredient - differential duty demanded on the clearance of the tablets during the period between April 1992 and February 1994 – Petitioner challenges the SCNs dated 14.11.1995 and 09.12.1995.
Held: Respondent seeks to justify their action in attempting to adjudicate the show cause notices after a period 22 years by referring to the expression 'where it is possible to do so' in section 11A(11)(a) & (b) of CEA, 1944 - It is seen that there has been an audit conducted by the CERA and that the audit report pointed out that the petitioner is not entitled to the benefit of Notification which has led to the issuance of the impugned SCNs - Impugned SCNs do not state that the proceedings have been initiated based upon the audit report - What is interesting to note from the counter affidavits is that the Department/Assessing Officer did not accept the audit objections, but contested the same - In other words, the Department was of the firm view that the availment of the benefit of the said exemption notification as approved by the Department in the petitioner's case was proper - Nevertheless, on such contest, the audit objections were converted into Statement of Fact Verification (SFV) - This conversion appears to have taken place during the period 1994-95 as could be seen from SFV No.313/94-95 i.e. much before the opportunity of personal hearing granted to the petitioner on 19.1.1996 - Even at that juncture, the respondent did not put the petitioner on notice about the audit objections and the contest by the Department on such audit objections - it has been further stated that since the settlement memo was not received from the CERA, the case was kept in the Call Book - Once again, the petitioner was kept in dark and was not intimated about these proceedings, which were taking place administratively - For 22 years, the matters remained in cold storage and all of a sudden, a notice was issued to the petitioner on 28.2.2017 directing them to appear for a personal hearing on 22.3.2017 - This has necessitated the petitioner to come before this Court - for 22 years, the respondent has not passed an order of adjudication though the personal hearing concluded on 19.1.1996 - From the counter affidavits, it is seen that on the date when personal hearing was conducted, the matter has already been transferred to the Call Book and was kept pending - If that be so, the assessee ought to have been put on notice in respect of the factual position, which was not done - Thus, it is clear that the respondent proceeded with the adjudication despite the fact that they were contesting the audit objections - The reason now sought to be given for resurrecting the matter after 22 years is absolutely fallacious and cannot be accepted - merely because an audit party had raised an objection, ipso facto , that cannot be the sole reason for issuing the show cause notices, as the Adjudicating Authority is a Quasi Judicial Authority and is legally bound to adjudicate the case independently and judiciously taking into consideration the audit objections by the CERA/CRA, reply of the Department, reply of the party, relevant legal provisions, case laws on the subject and relevant circulars of the Board, if any - Hence, the impugned show cause notices are liable to be quashed – Writ Petitions are allowed: High Court [para 10, 12, 13, 14, 19, 23]
Petitions allowed
2018-TIOL-97-HC-MAD-ST
COMMISSIONER Vs CCE: MADRAS HIGH COURT (Dated: January 2, 2018)
ST - Commissioner (Appeals) is empowered to condone the delay of thirty days over and above the 60 days, beyond which he has no power to condone the delay - The ninety days period came to an end on 22.03.2015, but the petitioner filed the appeal only on 21.08.2015, hence appeal rejected – Writ Petition filed. Held: There can be no quarrel about the legal position that when a statute prescribes a outer time limit for the purpose of condonation of delay then the statutory authority exercising jurisdiction under particular statute cannot suo motu extend the period of limitation prescribed in the statute - However, in the instant case, Court is inclined to make a slight departure considering the peculiar facts and circumstances - Firstly, the petitioner Municipality, a local authority who is vested with a constitutional obligation to take care of the citizens residing in its locality and every service done by the Municipality has an element of public interest attached to it and, therefore, some latitude can be granted to such a local authority - Secondly, the petitioner Municipality has paid the entire tax as demanded and also complied with the conditional order passed by this Court at the time of entertaining the writ petition by remitting a sum of Rs.5 lakhs towards penalty - indulgence is being granted to the petitioner to go before the Appellate Authority to contest the appeal petition on merits as the right of appeal is a very valuable right - Court is inclined to remand the matter to the First Appellate Authority for fresh consideration - It is made clear that this order has been passed considering the peculiar facts and circumstances of the case and shall not be treated as a precedent – Writ petition partly allowed: High Court [para 3, 5]
Petition partly allowed
2018-TIOL-96-HC-MAD-CUS
CMA CGM AGENCIES INDIA PVT LTD Vs CC: MADRAS HIGH COURT (Dated: January 4, 2018)
Cus - Additional Commissioner had adjudicated the case - Commissioner of Customs (Appeals-II), by order dated 25.09.2017, allowed the appeal in part and against this order petitioner has filed a revision application before the Central Government u/s 129DD of the Customs Act, 1962 - In the meantime, since the petitioner's licence was expiring on 04.01.2018, the petitioner is before this Court by way of writ petition for the aforementioned relief to forthwith renew the licence issued to the petitioner by exercising the powers under the Customs Brokers Licensing Regulations, 2013 by considering the petitioner's application and renew the licence for a period of ten years from 04.01.2018.
Held: No action has been taken by the Department under the Customs Brokers Licensing Regulations, 2013 against the petitioner - In such circumstances, to renew the licence of the petitioner for shorter periods would result in not only prejudice being caused to the petitioner, but also leading to multiplicity of proceedings, which definitely should not be at the behest of the Department - Court takes notice of the fact that the revision application filed before the Central Government under Section 129DD of the Customs Act, 1962 invariably takes more than two years for it being disposed of - Therefore, under the facts and circumstances of the case, the petitioner is atleast entitled for renewal of licence for a period of two years from 04.01.2018 - writ petition is partly allowed by directing the first respondent to renew the petitioner's customs brokers licence for a period of two years with effect from 04.01.2018 onwards and pass orders to the said effect within a period of one week: High Court [para 8, 9]
Petition partly allowed
2018-TIOL-95-HC-MAD-CUS
GREAVES COTTON LTD Vs UoI: MADRAS HIGH COURT (Dated: January 4, 2018)
Cus - Petitioner had re-exported one Hydraulic Motor to Germany under Shipping Bill dated 18.03.2004 as the buyer who wanted the motor refused to purchase the same - Petitioner filed a drawback claim in terms of Rule 5 of the Re-export of Imported Goods (Drawback of Customs Duties) Rules, 1995 - However, the said application was rejected by an order in original on the ground that it has not been filed within the prescribed time limit or allowable period of further period of three months – as the revisionary authority also confirmed the orders passed by the Appellate and Original Authority, therefore, the petitioner is before this Court.
Held: It is an admitted fact that the petitioner did not file the drawback claim within a period of three months as provided under Rule 5(1) of the said Rules nor the claim was filed within the period of further three months as provided in the proviso to Rule 5 - Therefore, the original authority as well as the appellate authority could not have been blamed for having rejected the petitioner's application as being time barred – however, the petitioner prayed before the first respondent that in terms of Rule 7A, relaxation of Rule 5 may be allowed and the benefit of drawback may be extended – since the aforesaid alternate plea has not been adjudicated, to that extent, the matter requires reconsideration and re-examination by the first respondent – Writ Petition allowed by way of remand: High Court [para 11, 12]
Matter remanded
