SERVICE TAX

2019-TIOL-2575-CESTAT-ALL

ST - The Commissioner (A) has gone through the condonation of delay application and has observed that the date of the order shown in the said application is 20.09.2016 - As such it becomes clear that the assessee is not talking about the order impugned before him, but is referring to some other O-I-O - As such he has observed that inasmuch as the assessee is talking about the date of receipt of the said O-I-O as on 03.10.2016 and the date of receipt of the order impugned before him, which was dated 23.08.2016 is incorrect - On examining the COD application, it is noted that reference therein stands made to O-I-O - It is only at one place in the next paragraph that date has been shown wrongly by assessee as 20.09.2016 - There is no verification of factual aspect of receipt of impugned order by assessee - As such, matter is remanded to Commissioner (A) for verifying date of receipt of the order and in the absence of any evidence to the contrary, to accept the date of receipt as 03.10.2016, in which case the delay would be only of 28 days and would be within the powers of Commissioner (A) to condone: CESTAT

- Matter remanded: ALLAHABAD CESTAT

2019-TIOL-2574-CESTAT-MUM

ST - SCN issued to appellant demanding amount of Rs.9.69 lakhs for alleged wrong availment of CENVAT credit in respect of ST attributed to services such as Works Contract Service, Membership of Clubs, Event Management, Construction of Residential Complex Service and Commercial Construction Service, Credit Card Services, International Air Travel Agent & Event Management Services -demand confirmed alongwith interest and penalty imposed -appeal to CESTAT.

HELD: By virtue of the letter dated 29.9.2017, the appellant placed additional written submissions before the Commissioner with a request to grant some more time to submit additional detail - a perusal of the said additional written submissions, prima facie , show that the total amount of the impugned services comes only to Rs.4.06 lakhs but still the Commissioner confirmed the demand of Rs.9.69 lakhs without rejecting or discussing the aforesaid submissions filed by the appellant - although, the hearing was concluded on 13.9.2017, the order was delivered in the month of April, 2018, therefore, in between the Commissioner could have given some more time to the appellant to submit additional details as desired by them vide their letter dated 29.9.2017 - justice need not only be done but it should be seen to be done - the appellant must produce the documents in support of the aforesaid submissions - the adjudicating authority is the appropriate authority to verify these documents -the impugned order is not sustainable due to failure on the part of Commissioner to take into consideration the additional written submissions filed by the appellant -matter remanded back to the adjudicating authority for de novo adjudication - the Appeal is, therefore, allowed by way of remand : CESTAT [para 4, 5]

- Matter remanded: MUMBAI CESTAT

CENTRAL EXCISE

CCGST Vs Delton Cables Ltd

CX - Application for exemption from filing certified copy of impugned order is allowed: SC

- Application allowed: SUPREME COURT OF INDIA

2019-TIOL-2093-HC-AHM-CX

Bhagwati Spherocast Pvt Ltd Vs CCE

CX - Case of department is that since patterns which are owned by buyer of goods were used for manufacturing goods sold to the buyer, the amortization cost of pattern so used in manufacture of raw casting should be included in value of raw casting; that differential duty is payable in view of rule 6 of the Valuation Rules, 2000; that there is a clear suppression of facts and mis-declaration on the part of assessee, therefore, extended period has been rightly invoked in both the SCNs - demand upheld by the CESTAT on both counts, hence appeal to High Court.

Held: All the show cause notices were issued on basis of audit verification of balance sheets only and, therefore, there was no suppression in respect of demand raised in fourth and fifth show cause notices - Thus, the basis on which the impugned order is passed is not only illegal, but is also contrary to the final decisions rendered by the Tribunal in previous cases of the appellant herein, and hence unreasonable also - The Tribunal was not justified in holding that it was permissible to the Revenue to invoke larger period of limitation vide show cause notices dated 22.10.2007 and 14.11.2007 when three show cause notices for larger period of limitation had been issued to the appellants in past for the same cause of dispute - reference to intelligence in the impugned show cause notices is of no consequence, since all the said facts were already before the central excise authorities at the time when the earlier show cause notices came to be issued - Therefore, it cannot be said that the impugned show cause notices are based on new or different facts than the earlier ones - case is squarely covered by the decision of the Supreme Court in the case of Nizam Sugar Factory - 2006-TIOL-56-SC-CX - Appeals allowed: High Court [para 6.07. 6.08, 7]

- Appeals allowed: GUJARAT HIGH COURT

2019-TIOL-2573-CESTAT-AHM

CX - During investigation, it was established that the assessee had shown paper transactions of duty free goods procured from supplier M/s. Hema Exports without physically receipt of goods on monetary considerations from said supplier who used to divert goods to local market - The diversion of goods in open market could not have been possible without involvement of present assessees - Therefore, even though the goods were not dealt with physically but there is no dispute that the assessees were involved in dealing with the goods in a manner by which the supplier was facilitated in diversion of goods in open market - Therefore, the ingredients of Rule 26 are existing in the offence committed by assessees - M/s. Al-Amin Exports and M/s. Sunshine Overseas were rightly imposed with the penalties under Rule 26 - Once the penalty was imposed on a partnership firm, no separate penalty should be imposed on partners separately for the reason that the partnership firm itself is consisting of partners - This issue has been considered by jurisdictional High court in case of Jai Prakash Motwani 2009-TIOL-121-HC-AHM-CUS wherein it was held that once penalty was imposed on the partnership firm no separate penalty should be imposed on the partners - The penalties imposed on the partners are set aside: CESTAT

- Appeals partly allowed: AHMEDABAD CESTAT

2019-TIOL-2572-CESTAT-ALL

CX - The duty stands confirmed against Ghaziabad unit of assessee on the allegations and findings of clandestine removal - Such findings are primarily based upon the investigations made at the Roorkee Units and the statements of Managing Director and four employees of Roorkee Unit - As per the Revenue, the goods shown to have been manufactured and cleared from Rookee unit, so as to avail the benefit of area based exemption Notification, were in fact manufactured and cleared from their Ghaziabad unit - Though the Ghaziabad unit was engaged in manufacture of altogether different items than the Roorkee unit of assessee and though the factory premises of Ghaziabad unit were also put to search along with Roorkee unit, but no discrepancy in the stock of either the inputs or final product was found at Ghaziabad unit - No stock of major inputs meant for bigger machines like compressors and motors were found in premises of Ghaziabad unit, which were the requisite inputs for manufacture of bigger machines at Roorkee unit - No statement of any employee of Ghaziabad unit was recorded - The Managing Director in his statement has clearly stated that the Ghaziabad unit was engaged only in manufacture of smaller machines and the bigger machines were being manufactured at Roorkee unit - Further the Managing Director in his statement has admitted clearance of goods to Director General, Border Roads Organisation having been cleared from Ghaziabad unit - The assessee's contention is that the said statements were given under coercion and in the absence of examination of deponent of said statement, the same cannot be admitted as an evidence - On the other hand, assessee have shown documentary proof in form of GRs showing dispatch to Rishi Kesh, Chandigarh and Pathankot - Revenue has not made any efforts to counter-check this factual aspects either from the transporters or from D.G. Border Roads Organisation - They have placed two affidavits to that effect before adjudicating authority which do not stand considered by adjudicating authority - It is well settled law that the findings of clandestine removal are required to be established on the basis of positive and sufficient evidences - As already observed, the demand is being confirmed agasint Ghaziabad unit, without producing any evidence against the said manufacturing unit - There is not even an iota of evidence indicating that the clearances stand effected from the said unit - No justifiable reasons found to uphold the impugned order confirming the demands and imposing penalties: CESTAT

- Appeals allowed: ALLAHABAD CESTAT

CUSTOMS

2019-TIOL-2096-HC-KERALA-CUS

Data Enterprises Vs CC

Cus - Petitioner imported Multifunctional Digital Photocopiers and Printers ('MFD') - The respondent ordered for absolute confiscation by treating MFD as prohibited goods - The respondent did not extend the option of redemption to petitioner and imposed penalty for MFD imported in violation of mandatory provision of law - Goods ordered for confiscation by the lower authorities were allowed for clearance on payment of redemption fine and penalty by the Tribunal - Since the respondents had not allowed clearance as ordered, Petitioner is before the High Court and prays for a direction to respondent to issue detention certificate as per Regulation 6(1) of Handling of Cargo in Customs Area Regulation, 2009 to enable the petitioner to claim waiver of demurrage charges from the Warehouse Corporation - Petitioner, as an alternative relief, prays for declaration that the petitioner is entitled for suitable compensation for the alleged loss and damage suffered by the petitioner on account of depreciation value of subject goods and detaining the goods for unreasonably long period - respondent is not disputing various circumstances stated by the petitioner but the defence of respondent is that there cannot be a direction to release or comply with the final order before the period available for statutory remedy of appeal expires.

Held: From the limited objection taken by the respondents, Court is constrained to observe that the respondent is not justified in waiting till the last date of limitation for filing appeal and then proceed to decide whether CESTAT order could be implemented or not - For the petitioner and its customers the goods imported is a simple commercial transaction - The law enables petitioner to lawfully sell the imported goods only upon obtaining customs clearance and payment of applicable duties to respondents - The approach of respondent that it can wait up to the expiry of 180 th day is untenable and, accordingly, the limited objection raised by the respondent is not appreciated - When the above observation is made, it shall not be understood that, by implication, the Court is preventing the respondent from working out the statutory remedies available to respondent - With a view to balancing the competing interests of petitioner and the statutory right of respondent to appeal, if so advised, the writ petition is disposed of by directing respondent to implement Tribunal judgment within four weeks, unless and until the judgment is stayed or suspended by Court of competent jurisdiction - Petition disposed of: High Court [para 8]

- Petition disposed of: KERALA HIGH COURT

2019-TIOL-2092-HC-KERALA-CUS

Dark Line Copier Vs CC

Cus - Petitioner imported Digital Multifunction Machines (DMM) through Cochin Port - respondent detained the goods imported alleging illegality - petitioner was informed that as per the amended provisions of law the petitioner is required to produce Extended Producers (EPR) certificate as per E-waste Management Rules (EMR), 2016 which, the petitioner complied - however, upon request for provisional release of imported goods, the respondent insisted to get examination of imported goods by a Chartered Engineer appointed by Director General of Foreign Trade (DGFT) which too the petitioner agreed with a view to avoiding delay in customs clearance - respondent, in spite of said report did not release the goods imported - respondent issued restrain order to the Customs Freight Station on the ground that imported goods are liable for confiscation - while alleging arbitrary approach of respondent, the present Writ petitions were filed - petitioner states that the continued inaction in clearing the goods is at the instance of multi-national companies engaged in the import and trading of virgin machines in India - respondent denies the allegation of petitioner that the action of respondent is on the influence of multinational companies as baseless; that the importer is trying to mislead the facts to get the prohibited goods cleared from import and if DMM if are dumped in India to avoid accumulation of defective and used goods in exporting countries, such dumping results in e-waste accumulation beyond salvation; that the developed countries are using India as a dumping ground; that as per the concept of Extended Producer Responsibility (EPRA), which has been in existence in developed countries, the producers ought to buy back e-waste/goods and handle/disposal of the goods in a safe manner - To avoid the responsibility and the expense involved in such process these types of goods are exported to other countries in the guise of used electronic goods.

Held: It is clear that inspection of goods imported under the Bill of Entry has not been taken so far by the respondent - There is a serious dispute on whether the subject goods comes under 'restricted' category or 'prohibited' category under various Enactments, Rules and Regulations referred to above - This Court, without determination on the aspect by the authorities in accordance with law ought not to accept one view or the other strenuously canvassed by the parties - The allegations in the writ petition are to the effect that there is complete inaction notwithstanding the decision of Courts of competent jurisdiction on the very same point - While arguing the writ petition an attempt was made on one hand by the petitioner to get a declaration from this Court that the goods imported are entitled to be provisionally released albeit payment of applicable tariffs - On the other hand, an attempt is made by the respondent to get a decision on the goods imported, that the goods imported come under 'prohibited' category - In the considered view of this Court if either of these requests are taken note of and adjudication undertaken in this writ petition, such exercise amounts to this Court discharging primary function fastened by law on the respondent and the other officers authorized in this behalf by FTP, H&OW Rules, 2016, E-waste (Management) Rules, 2016 and EITG Order 2012 - In other words, without physical inspection by the authorities concerned and/or assistance from the reports of Chartered Engineers, Central Pollution Control Board (CPCB) etc, this Court ought not to express a view on the goods imported; whether it comes under 'restricted' or 'prohibited' category - But, at the same time, the Court is not convinced with the continued inaction on the part of respondent in taking up the goods imported for inspection or get the goods inspected by authorities empowered by various Rules and Regulations, receive their reports and then pronounce its view/order - A situation resulting in stalemate is presented by the inaction of respondent - Writ petition is disposed of by issuing directions and which exercise is to be completed within four weeks: High Court [para 11, 12, 13]

- Petition disposed of: KERALA HIGH COURT

2019-TIOL-2571-CESTAT-ALL

Cus - Issue relates to penalty imposed upon assessee in terms of provisions of section 112 of Customs Act - Proceedings were initiated against assessee as also against Shri Raju Awasthi resulting in confiscation of gold biscuits and imposition of penalties upon both the noticees - Admittedly the assessee was caught red handed while trying to smuggle gold biscuits from Napal to India - However, according to him he was paid Rs.50,000/- for the said act by his father's friend - It is also seen that search of his house did not result in recovery of any contraband item thus indicating that the assessee was himself not the owner of the goods and was acting only as a carrier - The penalty imposed upon the assessee is reduced from Rs.3.00 Lakhs to Rs.25,000/- : CESTAT

- Appeal partly allowed: ALLAHABAD CESTAT