UoI Vs Manoj Kumar Gautam

Service Matter - The respondent served as a CIT during the relevant period - He had outstanding gradings during his entire tenure - Later, Departmental Promotion Committees (DPCs) were held for the post of PCIT - Though the respondent's senior officers were promoted, the respondent was not - Another DPC was held some years later & though the respondent's case was considered, he yet did not receive promotion, even though his junior officers got promoted - The respondent served a notice to the UoI but still was not informed of the grounds for his being superseded - Thereafter, the respondent approached the CAT, which directed that he be promoted since he had been found fit by the DPC in its recommendations - Hence the respondent's promotion was granted from the date on which his juniors were promoted and it was directed that he would retain his seniority - Thus the present appeal by the UoI.

Held - The counsel for the petitioner-UoI claimed that the respondent had been charge-sheeted, on account of which he was not eligible for promotion - However, the charge memorandum does not mention that the allegations made against the respondent surfaced recently - It was alleged that the respondent was instrumental in suppressing the uncovering of alleged misconduct - Such misconduct pertains to directions issued by the respondent in relation to shares of a certain company - It was claimed that the respondent had not assessed the value of a trademark owned by the defunct company & that he permitted the sale of shares of this company on first-come-first-serve basis - Perusal of charge sheet and Articles of Charge leave no doubt that the present case is a witch-hunt of the respondent - The inordinate delay in issuing charge memorandum after the alleged misconduct is not explained - The charge memorandum was not issued before holding the DPC or till pendency of the respondent'd application before the CAT - It was issued well after the CAT passed its order - Besides, the charge memorandum does not even mention that the respondent's replies were found unsatisfactory - Hence the present petition lacks merit: HC

- Writ petition dismissed: DELHI HIGH COURT

2019-TIOL-1904-HC-MAD-VAT

Aishwaryaa Chemicals Vs CTO

Whether assessment orders passed are invalid where they contravene the mandate of Section 22(3) of the TNVAT Act of first serving notices to the assessee & also of calling for production of requisite records - YES: HC

Assessee's writ petition allowed: MADRAS HIGH COURT

SERVICE TAX

CENTRAL EXCISE

CUSTOMS

International Lease Finance Corporation Vs UoI

Cus - The assessee-company approached the high court seeking directions to the third respondent (CELEBI) to refund demurrage amount, paid by it pursuant to directions of the court, to secure the release of its aircraft engine - The assessee owns and leases aircrafts, had entered into a transaction with M/s Kingfisher Airlines, whose defaults led to detention of some aircrafts by various Revenue authorities including the Customs Department, as a consequence of which, the engine of one of these aircrafts was removed - No doubt the penalty imposed by Customs authority contemplated by clause 10.1.10 (a) was set aside by CEGAT - However, that per se in the opinion of the court is not conclusive of the issue, because Clause 10.1.10 (b) visualizes a situation that is answered by the facts of this case - It states, in effect that demurrage cannot be waived if there is delay “by reason of dispute in the assessable value or for revalidating or correcting the license in ordinary course of appraisal” - The assessee denied, categorically its liability to pay duty and said that the goods were exempt because of some notification - The adjudicating officer's findings were otherwise; even CEGAT did not disturb them; rather it went on to hold that detention was justified - The High Court held that in these circumstances, CELEBI acted within its rights to refuse and turn down the request for demurrage waiver and consequent refund of money deposited - Waiver of demurrage charges cannot be issued for the asking; therefore a court in judicial review cannot issue a direction without considering the reasons - if they are apparent, that underlie rejection of a request for exemption or waiver - After all, warehousing and at the behest of the law is a commercial activity, for which the warehouseman or service provider (like CELEBI) invests with its resources, deploys manpower and creates infrastructure - The fee or consideration payable are determined by duration or period for which warehousing is necessary, the kind of storage provided- including the safety and security to the goods - Unless the rules or relevant policy clearly mandate waiver from such services, courts cannot issue directions to such service providers - CELEBI relied on Clause 10.1.10 (b) to say demurrage waiver was precluded - In so saying, CELEBI was consistent with its policy - The petition was dismissed with directions to the assessee to pay the costs of these proceedings to CELEBI.

Held - Issue notice, returnable in four weeks' time: SC

- Notice issued: SUPREME COURT OF INDIA

2019-TIOL-2400-CESTAT-BANG

Ismail Ibrahim Vs CC  

Cus - During the relevant period, the DRI received intelligence that the appellants herein would arrive into India at the Bengaluru Airport & were likely to smuggle Gold without declaring the same or paying duty on them - The DRI officers intercepted the appellants and recovered two Gold bars from their possession - The markings on the bars indicated their foreign origin - The Gold bars were undeclared and were attempted to be smuggled into India for illicit gains - The Gold bars were seized u/s 110 of the Customs Act - Both appellants admitted their guilt & factum of concealment - SCN was issued to both appellants, proposing confiscation of the bars and imposing penalty u/s 112 & 114AA - Such proposals were confirmed upon adjudication - Such findings in the O-i-O were confirmed upon Commr.(A) - Hence the present appeals.

Held - As per the appellants' statements, they confessed their guilt - As far as their retraction by executing sworn affidavits is concerned, such affidavit was not filed before the Commr.(A) - Besides, the affidavits & statements record that the appellants made no statement of having retracted their statements - Hence the appellants confessed their guilt by specifically confessing the same in their statements - In light of the the relevant judgments at hand, there is no infirmity in the order as far as absolute confiscation of the goods is concerned - There is no violation of Section 110(2) r/w Section 153 of the Customs Act - Regarding penalty imposed u/s 112, the same is on the higher side & so its quantum merits being reduced - Regarding penalty imposed u/s 114AA, it can be imposed only if the person knowingly or intentionally makes, signs or uses or causes to be made, signed or used, any declaration, statement or document which is false or incorrect in any manner - In the present case, the appellants did not intentionally make any false sign or declaration so as to attract penalty u/s 114AA - Hence the same merits being set aside: CESTAT

- Appeals Partly Allowed: BANGALORE CESTAT