| SERVICE TAX 2019-TIOL-2726-CESTAT-BANG
V3 Engineers Pvt Ltd Vs CCT
ST - Appeal is directed against the impugned order whereby the Commissioner (A) has partially allowed the appeal of the appellant and imposed the penalty of Rs.3.84 lakhs for suppression of fact with intent to evade payment of duty under first proviso to section 78 of the Finance Act, 1994 [Act].
Held: In the impugned order, the Commissioner (A) has set aside the demand of Rs.50.43 lakhs on the ground that the appellant has been paying the ST by debiting their CENVAT account every month - further, the Commissioner (A) has also found that the appellant has paid Rs.7.69 lakhs being the short-paid ST for the month of October 2014 and December 2014 along with interest in May 2015 but still the Commissioner (A) imposed the penalty of Rs.3.84 lakhs under section 78 - once the appellant has paid the ST along with interest,it is not required to pay penalty under section 78 - therefore, by following the ratio of the decisions in the cases of Adecco Flexione Workforce - 2011-TIOL-635-HC-KAR-ST, Galaxy Construction P. Ltd. [2017 (48) STR 37 (Bom.)], Krishna H. T. - 2018-TIOL-1819-CESTAT-BANG and Calderys India Refractories Ltd. - 2013-TIOL-2134-CESTAT-MUM , the impugned order is not sustainable in law and, therefore, the same is set aside by allowing the appeal of the appellant : CESTAT [para5, 6]
- Appeal allowed: BANGALORE CESTAT
2019-TIOL-2725-CESTAT-MUM
Upper Crust Pvt Ltd Vs CC & GST
ST - During course of Audit, it came to notice that the appellant has incurred foreign currency expenditure for receipt of franchise services from the service provider located outside India and, accordingly, they were required to discharge ST under reverse charge mechanism under section 66A of the Finance Act, 1994 read with Notification No.30/2012 dated 20.06.2012 - the appellant prior to the issue of SCN, on being pointed by the audit, did not dispute and paid the ST as calculated at Rs.12.97 lakhs - SCN issued, invoking extended period of limitation - demand confirmed along with interest, penalties u/s 76, 77, 78 imposed - Commissioner(A) held that suppression of facts cannot be alleged and that bonafide belief of the appellant is evident; that no penalty is imposable u/s 77 and 78 of the FA, 1994 - appellant before CESTAT in the matter of invocation of extended period and confirmation of demand, penalty u/s 76 and interest.
Held: No case of misconduct is made out against the appellant and as such the SCN invoking the extended of limitation is not maintainable -in view of the above, the demand of interest under section 75 of Finance Act, 1994 is set aside as also the penalty - the amount of tax deposited is not interfered with - the appeal is allowed as above: CESTAT [para 8]
- Appeal allowed: MUMBAI CESTAT
2019-TIOL-2703-CESTAT-HYD
CCT Vs DVR Infra Tech Pvt Ltd
ST - The assessee is engaged in providing works contracts service - They were issued SCN proposing to demand short paid service tax along with interest and also for imposing penalties - After due process of law, the original authority confirmed the demand along with interest and imposed penalty - However while quantifying the demand, the benefit of composition scheme for payment of service tax as also exclusion of value of free supplies was extended to the assessee - The first ground raised in the appeal is that the Commissioner ought not to have extended the benefit of paying service tax under composition scheme - The issue as to whether free supplies has to be included in the total taxable value for discharge of service tax liability, is decided by Apex Court in the judgment of Bhayana Builders - 2018-TIOL-66-SC-ST - Respectfully, following the same, the impugned order does not call for any interference, same is upheld: CESTAT
- Appeal dismissed: HYDERABAD CESTAT
2019-TIOL-2702-CESTAT-DEL
Dewsoft Overseas Pvt Ltd Vs CST
ST - A raid had been conducted at the premises of assessee on the basis of an intelligence that the assessee was providing online information and database access and retrieval service and was collecting service tax but was not depositing the same with the Department - It is not in dispute that the assessee had deposited Rs. 1 Crore when the raid was conducted on 6 October, 2003 and subsequently an amount of Rs. 11,36,840/- on 27 October, 2003 - Both the amount were deposited much before the issuance of SCN - It is not in dispute that on the application filed by assessee for refund of this amount, the adjudicating authority did sanction the refund of Rs. 1,11,36,840/- but it directed the said amount to be deposited in Consumer Welfare Fund because of the principles of unjust enrichment - This Order was upheld by Commissioner (A) for the same reason - This view is apparently contrary to the consistent view of High Courts in Pricol Ltd. - 2015-TIOL-515-HC-MAD-CX and EBIZ. Com Pvt. Ltd. - 2016-TIOL-3240-HC-ALL-ST and the Tribunal in Motorola India Pvt. Ltd . - 2006-TIOL-1325-CESTAT-BANG - The assessee would, therefore, be clearly entitled to the refund of Rs. 1,11,36,840/- - An important issue, however, will arise and which needs to be examined - This concerns the allegation of Department that the assessee had collected service tax from consumers during the period in question but had not deposited it with the Government - Though the assessee has vehemently contended that only 'service charges' were collected towards administrative expenses from the consumers and no 'service tax' had been collected from the consumers but this is an issue that is required to be examined in appropriate proceedings because if the assessee had actually collected 'service tax' then it cannot be permitted to retain it - It is however the contention of assessee that notice was not issued to them under sub-section (3) of section 73A of the Act and, therefore, this amount cannot be recovered from assessee - It shall, therefore, be open to the Department to proceed strictly in accordance with the provisions of Sections 73A and 73B of the Act to recover the amount alleged to have been collected by the assessee as service tax after issuance of SCN - The assessee shall be given an adequate opportunity to substantiate its case that it had not collected 'service tax' but had only collected 'service charges': CESTAT
- Appeal partly allowed: DELHI CESTAT
CENTRAL EXCISE 2019-TIOL-2724-CESTAT-MUM
Maharashtra State Electricity Distribution Co Ltd Vs CCE & C
CX - Exemption under Notification No.74/93-CE dated 28.2.1993 on 'PSC poles' - Appellant filed application dated 5.6.2008 for refund of Rs.1.06 crores for the period from January 1993 to December 2002 and January 2003 to September 2006 - SCN dated 5.9.2008 issued to the appellant for denial of the same - application for refund rejected - on appeal, the Commissioner (Appeals), taking note of the clarification issued by the jurisdictional central excise authority, allowed refund for the period from January 2003 to September 2006 without impediment of bar of limitation as endorsement of 'payment under protest' was found in the challans - in the absence of such endorsement for the payments for the earlier period, the rejection of refund claim was upheld to that extent - appeal to CESTAT.
Held: First appellate authority has affirmed the decision of the original authority that such payments as were made 'under protest' alone are eligible for refund and none other - nothing found on record placed by the appellant to contest this finding of operation of bar of limitation - in view of the above circumstances, no reason found to entertain this appeal which is consequently dismissed : CESTAT [para 3, 4]
- Appeal dismissed: MUMBAI CESTAT
2019-TIOL-2723-CESTAT-MAD
JPP Mills Pvt Ltd Vs CGST & CE
CX - Alleging contravention of the provisions of rule 6(1), 6(2) and 6(3) of the Cenvat Credit Rules 2004 [CCR], a SCN dated 6.5.2013 was issued by the Original Authority since the appellant appeared to have cleared the final products on payment of duty under notification no.29/2004-CE dated 9.7.2004 as well as without payment of duty under notification no.30/2004-CE dated 9.7.2004; that the appellants have availed common input/input service credit; that they have not exercised their option as per the requirements of rule 6(3A) of CCR, and that, therefore, they are liable to pay an amount equivalent to 5%/10% of the value of exempted goods cleared during the period from 1.4.2008 to 30.9.2010 in terms of rule 6(3)(i) ibid, etc. - proposals in the SCN confirmed - appeal to CESTAT.
Held: Issue of applicability of rule 6(3)/6(3A) of the CCR has already been discussed by this Bench in the case of Castrol India Ltd. - 2018-TIOL-2358-CESTAT-MAD wherein it is held that the requirements of Rule 6(3)/6(3A) are not mandatory but procedural; a lapse in not following the procedure is condonable and the denial of a substantial benefit for non-compliance of the procedure is unjustified - in the light of the findings therein, the present issue is no more res integra - the ratio laid down in the above case squarely applies to the present case as well - therefore, following the above ratio decidendi, the impugned order is set aside and the appeal is allowed on merits as well as on limitation: CESTAT [para 7, 8]
- Appeal allowed: CHENNAI CESTAT
2019-TIOL-2722-CESTAT-MUM
Laxmandas Bachumal Parchani Kadoli Vs CCE
CX - These appeals of M/s. Shiva Steel Inds (Nagpur) Ltd. pertain to alleged clandestine production and clearance of 'mild steel ingots' based on the premise that in the production of one metric ton of the finished product, electrical energy of 687 units is required and that certain slips pertaining to production and consumption that had been seized during search supported the conclusion thereto – appeal to CESTAT.
Held: The period in dispute is from 2003-04 to 2007-08 and beyond -the derivation of the average power consumption for manufacture of ingots is based on the study conducted by Indian Institute of Technology, Kanpur which may not be applicable for the disputed period in the regime of Central Excise Rules, 2002 -the technical report of Dr.NK Batra, which has been relied upon, may have been relevant at the point when norms for consumption could be fixed under rule 173E of the erstwhile Central Excise Rules, 1944 – the Bench is unable to fathom the acceptability of reliance on the data pertaining to an earlier period [2001 and 2002] - more importantly, it would appear that the jurisdictional central excise officers did carry out a trial production which, as recorded in a panchnama, elicited power consumption figures that were almost double of that adopted for the computation of alleged excess production and clearance - in these circumstances, the rejection of this experiment for determining the correctness of declared production is not acceptable –considering that there is no evidence of any payments having been received from customers of the goods that were allegedly manufactured clandestinely and as the norms applied for computation of production are not applicable to the period of dispute, the consequence arising from shortage of raw materials of various types would not unerringly lead to confirmation of the allegations proposed in the SCN - the finding that evasion of duty did occur based on circumstances that are not established and other supplementary evidence is not maintainable – accordingly, the impugned orders lack factual support and, therefore, must be set aside -appeals are allowed: CESTAT [para 4, 5, 6, 7]
- Appeals allowed: MUMBAI CESTAT
2019-TIOL-2721-CESTAT-MUM
Machine Crafters Vs CCE
CX - Whether the value of the clearances of the appellant M/s. Durable Drums, be added to the value of clearance of M/s. Machine Crafters in computing the aggregate value of the clearances for the period 2000-2001 in extending the benefit of SSI exemption ?
Held: Finished goods viz. slotted angles/brackets etc. emerge after carrying out the processes of shearing, punching, bending, welding and painting - the processes of shearing, punching and welding were carried out on job work basis by sending the raw materials to various job workers has been fairly established by the appellant M/s.Machine Crafters enclosing the relevant challans sending raw materials and receipt of the processed goods, in the appeal paper book - the appellant M/s.Machine Crafters categorically submitted in their reply as well as before the Commissioner (Appeals) that the machines which were available in their factory premises were not used for the purpose of processes of shearing, punching and welding etc. - besides, the Commissioner (Appeals) has also denied the benefit of SSI exemption for the goods manufactured on job work basis on the ground that the appellant M/s.Durable Drums did not have the manufacturing facility other than the process of painting - the process of painting is the ultimate and final process which makes the product marketable and hence, it is the process ancillary and incidental to manufacture of the finished goods, hence M/s.Durable Drums also is a manufacturer and eligible to the benefit of said notification -further, no substance found in the observations recorded by the Commissioner (Appeals) in upholding the confirmation of demand by clubbing the clearances of M/s.Durable Drums to that of M/s.Machine Crafters in absence of free-flow of finance, control of the manufacture of the product and clearances of the finished goods, procurement of raw material, procurement of work force etc. by M/s.Machine Crafters in establishing the fact that M/s.Durable Drums also either belongs to M/s Machine Crafters or is a dummy unit created on paper only -in the result, the impugned order is set aside and the appeals are allowed: CESTAT [para7, 8, 9]
- Appeals allowed: MUMBAI CESTAT
2019-TIOL-2720-CESTAT-MUM
Sumo Polyconverters Vs CCE
CX - Whether the value of the clearances of the appellant M/s. Durable Drums, be added to the value of clearance of M/s. Machine Crafters in computing the aggregate value of the clearances for the period 2000-2001 in extending the benefit of SSI exemption ?
Held: Finished goods viz. slotted angles/brackets etc. emerge after carrying out the processes of shearing, punching, bending, welding and painting - the processes of shearing, punching and welding were carried out on job work basis by sending the raw materials to various job workers has been fairly established by the appellant M/s.Machine Crafters enclosing the relevant challans sending raw materials and receipt of the processed goods, in the appeal paper book - the appellant M/s.Machine Crafters categorically submitted in their reply as well as before the Commissioner (Appeals) that the machines which were available in their factory premises were not used for the purpose of processes of shearing, punching and welding etc. - besides, the Commissioner (Appeals) has also denied the benefit of SSI exemption for the goods manufactured on job work basis on the ground that the appellant M/s.Durable Drums did not have the manufacturing facility other than the process of painting - the process of painting is the ultimate and final process which makes the product marketable and hence, it is the process ancillary and incidental to manufacture of the finished goods, hence M/s.Durable Drums also is a manufacturer and eligible to the benefit of said notification -further, no substance found in the observations recorded by the Commissioner (Appeals) in upholding the confirmation of demand by clubbing the clearances of M/s.Durable Drums to that of M/s.Machine Crafters in absence of free-flow of finance, control of the manufacture of the product and clearances of the finished goods, procurement of raw material, procurement of work force etc. by M/s.Machine Crafters in establishing the fact that M/s.Durable Drums also either belongs to M/s Machine Crafters or is a dummy unit created on paper only -in the result, the impugned order is set aside and the appeals are allowed: CESTAT [para7, 8, 9]
- Appeals allowed: MUMBAI CESTAT
2019-TIOL-2719-CESTAT-MUM
Tata Steel Ltd Vs CCE
CX - Whether CENVAT credit is admissible on various input services [Repair & Maintenance, Rent-a-cab, Catering, Telephone, Courier, Cargo Handling, C&F service, C.A. Certification service, GTA service for transportation of goods upto the customer's premises]availed at their depot and subsequently the credit has been distributed in favour of the manufacturing unit?
Held: It is found that all these services have been held to be input service within the definition of 'input service' as prescribed under rule 2(l) of CENVAT Credit Rules, 2004 - force found in the contention of the Revenue that credit availed on GTA service is not admissible -but, since the claim of the appellant is that they have not availed credit on the GTA service in the present case, therefore, the said question does not merit any consideration - in these circumstances, the impugned order is set aside and the appeal is allowed : CESTAT [para 6, 7, 8]
- Appeal allowed: MUMBAI CESTAT
2019-TIOL-2718-CESTAT-MUM
United Engineering Works Vs CCE
CX - Duty demand not contested but only imposition of equal penalty u/s 11AC inasmuch as option of reduced penalty not given.
Held: Appeals allowed to the limited extent of including the option of reduced penalty under section 11AC subject to fulfillment of appurtenant conditions: CESTAT
- Appeal partly allowed: MUMBAI CESTAT
2019-TIOL-2701-CESTAT-BANG
Bannari Amman Sugars Ltd Vs CCT
CX - The assessee-company manufactures Sugar as well as dutiable, non-dutiable/exempted goods - It availed Cenvat credit of common inputs used on both dutiable and exempted goods - The assessee reversed some amount of credit as per Rule 6(3A), which was credit attributable to manufacture of exempted/non-dutiable goods for the relevant period - The assessee filed refund claim towards credit reversed in excess u/r 6(3A) of CCR 2004 - The refund claim was rejected on grounds of limitation - The Commr.(A) too sustained such findings - Hence the present appeal.
Held: The provisions of Rule 6(3A)(f) do not provide for any time limit for claiming the credit - Further, the relevant date as per Section 11B of the CEA is also to be counted from the date of adjustment of duty after the final assessment, which is specifically provided for in Section 11B(eb) - In the present case, the final adjustment happended on 30.11.2017, which was the relevant date for the purpose of reckoning the period of limitation as provided in Section 11B - Considering such date, the refund claim filed on 4.07.2018 is within the limitation period - Hence both the lower authorities wrongly interpreted the relevant date as provided in Section 11B as well as Rule 6(3A)(f) - Hence the order merits being set aside: CESTAT
- Assessee's appeal allowed: BANGALORE CESTAT
2019-TIOL-2700-CESTAT-BANG
Agarwal Sponge and Energy Pvt Ltd Vs CCT
CX - The assessee-company manufactures Sponge Iron falling under Chapter 72 of the CETA & cleared goods on payment of duty - During the relevant period, the officers of the DGCEI conducted searches at the official premises of various entities as well as at the premises of the proprietors of such entities, whereupon various documents were seized - Statements of the assessee-company's proprietor were recorded, wherein it was admitted that the company indulged in clandestine clearance of sponge iron as well as clandestine manufacture and clearance of MS Ingots - Upon completion of the investigation, the assessee was issued SCN by the DGCEI, proposing to raise duty demand with interest and penalties - The SCNs culminated into an O-i-O - The assessee appealed to the Commr.(A) against such O-i-O, but was unsucessful - However, the quantum of the penalty imposed u/r 26 of the CER was reduced.
Held: The entire case against the assessee was built based on the statements taken from its director - There is no other evidence to establish the factum of clandestine clearance - Besides, the charges of clandestine clearance cannot be established based merely on the statements of the director, more so, who alleged coercion and undue influence for extracting a confession - It is settled law that duty demand cannot be sustained solely on statements recorded during the course of investigation and in the absence of any corroborative evidence such as consumption of electricity, purchase of raw-material, electricity consumption, manpower, capacity of the factory to produce the alleged quantity, mode of transportation and sale of goods, receipt of sale proceeds and other documentary evidences - Moreover, the statements of the director do not mention the name of the assessee-company - Besides, there is a discrepancy in the quantity of sponge iron allegedly purchased from the assessee - It is settled law that burden lies with the Revenue to prove the charges against the assessee with cogent evidence - However, the Revenue has not conducted complete investigations and relied merely on the statement of the Executive Director - Hence the duty demand is unsustainable - Consequently, the penalty is not imposable as well: CESTAT
- Assessees' appeals allowed: BANGALORE CESTAT
CUSTOMS
2019-TIOL-2198-HC-DEL-NDPS
T Letminlen Haokip Vs Customs
NDPS - Petitioners seek directions to set aside the order passed by the ASJ, Special Judge (NDPS) whereby charges have been framed.
Held: It is a settled principle of law that "ignorance of law is not an excuse" and that illegality if committed cannot be allowed to continue - However, the trial court in haste to charge the petitioners, seems to have completely overlooked the said principle of law - trial judge failed to realise that NDPS Act and its provisions have been in existence since 1985 and that the court is bound by the provisions of said Act and it is incumbent upon the trial court to apply the same but the trial court continued to charge the petitioners for the offences mentioned in the charge sheet - trial court also ignored the fact that the bail granted to the petitioners was upheld by this court on the ground that sampling was done more than once and there were discrepancies on the reports of the same - It is pertinent to mention that it is the duty of the courts, in the interest of justice, to understand that why the fresh samples were drawn on a date which was not in the knowledge of the petitioner/accused - Thus, raising a doubt on the entire process and bonafide case of the prosecution and that such discrepancy and illegality would ultimately result into the acquittal of the accused and therefore, there is no purpose of charging the accused and exposing them to the further harassment of trial which they have been facing since 03.12.2010 - Since the first three samples totally failed, therefore, there was no occasion for sending the fourth sample for retesting - It is not out of place to mention here that a third sample was tested by CFSL Hyderabad, whereby it was stated that there is no substance except caffeine in it - The same laboratory in the fourth report stated that there are two substances i.e., caffeine and phenobarbitone, thus, it creates doubt on the prosecution whether the samples were sent of the same substance - order on charge dated 04.08.2017 is hereby set aside and the petitioners are discharged from the offences mentioned - petition is accordingly allowed with costs of Rs. 50,000/- to be paid by the Respondent in favour of 'Delhi High Court Legal Services Authority' within 2 weeks, failing which, the Registrar General shall ensure the recovery of the cost amount as per law: High Court [para 14, 15, 17, 18, 19, 20, 21]
- Petition allowed: DELHI HIGH COURT
2019-TIOL-2196-HC-HP-NDPS
Karam Singh Vs State Of Himachal Pradesh
NDPS - Appellant is assailing the judgment of conviction dated 10th June, 2011 passed by Special Judge, Mandi, Himachal Pradesh, in Sessions Trial convicting the accused for commission of an offence of possessing 4 kg and 850 grams of charas punishable under section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 - Supreme Court remanded the matter to the High Court - Convict applied u/s 389 CrPC for suspension of sentence - Vide order dated, 5.3.2018, passed in Cr.M.P No. 218 of 2018, a bench of this Court suspended the sentence of imprisonment - As per the order of the trial Court, dated 16-07-2018, the appellant had deposited the amount of fine of Rs. 1,20,000/- and thus the appellant is out of custody from the date of his release, i.e. 26-11-2014.
Held: Findings returned by the trial Court, convicting the accused, are not based on the correct and complete appreciation of testimonies of prosecution witnesses - It does not lead to an irresistible conclusion of the guilt of the accused, beyond reasonable doubts - Appreciation of the evidence and application of law takes this Court to only one conclusion that the possibility of the investigating team not revealing the true and correct facts cannot be ruled out - After careful scrutiny, the evidence of the police officials, does not inspires confidence, being neither trustworthy nor reliable, and it cannot from basis of conviction - The prosecution has miserably failed to prove its case beyond reasonable doubts - Hence appeal is allowed and the judgment of conviction and sentence, dated 10th June 2011 is set aside and the accused is acquitted of the charged offence - The fine amount be refunded to the accused and the Bail bonds furnished are discharged: High Court [para 13, 15, 16]
One question which will always come to the mind of the Court is that such a considerable quantity would not be planted unless there is animosity against the accused - In answer to the statement under Section 313 CrPC, accused did not level any such allegations against any of the police officials, therefore, it cannot be said that the police had falsely planted this kind of charas on the accused - But then it does not mean that the prosecution need not prove its case simply because such type of assumption would always be there in the mind of the Court - The quantity involved in this case is commercial quantity, which will provide a minimum ten years of imprisonment, without any remission - Law is settled that graver the punishment, the stricter is the proof and higher the obligation upon the prosecution to prove the charges: High Court [para 14]
- Appeal allowed: HIMACHAL PRADESH HIGH COURT
2019-TIOL-2195-HC-PATNA-CUS
JK Traders Doturi Vs UoI
Cus - Petitioner seeks issuance of a writ in the nature of mandamus commanding the authorities to release Betel Nuts (Arecanuts) and truck seized vide seizure memo, unconditionally; direct the Respondent Authority to upkeep the condition and safety of goods so as to prevent deterioration in it's value as the seized goods is a perishable goods etc. - Petitioner submits that the goods have been seized with reference to Notification No. 09/1996-Cus (NT) dated 22.01.1996 issued under Section 11 of the Customs Act read with Section 3(2) of the Foreign Trade (Development and Regulation) Act, 1992; that the notification prohibits the imports from Nepal to India of goods which have been exported to Nepal from countries other than India.
Held: Court has taken note of the two reports as stated in paragraph '8' and '9' of the counter affidavit of the respondents - The samples of Arecanuts are of very bad qualities and more than 50% of the nuts are infected with moulds inside - The petitioner no. 1 is, therefore, unable to make out a case for a direction to release the betel-nuts - The prayer as regards release is, thus, refused - nonetheless, as regards the release of vehicle in question, it will be open for petitioner no. 2 to make an appropriate application before the competent authority who will consider the same and pass an appropriate order thereon within a period of 30 days - Petition disposed of: High Court [para 13, 14]
- Petition disposed of: PATNA HIGH COURT
2019-TIOL-2727-CESTAT-DEL
Jindal Stainless Ltd Vs Designated Authority
Cus - Anti-dumping duty - Principles of natural justice not only require the Designated Authority to grant an opportunity to the party to show cause but the order passed by the Designated Authority should also give reasons for arriving at conclusions and any violation of these two facets can vitiate the order - It is seen that the Designated Authority, without examining whether the anti-dumping duty should be levied retrospectively from the date of initiation of the investigation, recommended that the anti-dumping duty will be applicable from the date of its notification by the Central Government - The Central Government issued the Notification No. 52/2017 that was published in the Gazette of India, Extraordinary on 24 October, 2017 imposing anti-dumping duty from the date of publication in the Gazette - The matter, therefore, needs to be remitted to the Designated Authority to record a specific finding as to whether the anti circumvention duty should be levied retrospectively from the date of initiation of the investigation - without disturbing the imposition of levy of anti-dumping duty in the Notification published in the Gazette, it is considered necessary to remit the matter to the Designated Authority to record a finding whether the Central Government should levy anti-dumping duty from the date of initiation of investigation or from the date of publication of notification in the Gazette - The anti-circumvention proceedings were initiated on 19 February, 2016 and the Notification was issued by the Government on 24 October, 2017 - It is, therefore, a fit case where a further direction needs to be issued to the Designated Authority to pass an appropriate order expeditiously and preferably within three months - Appeal is allowed to the extent indicated above: CESTAT [para 32 to 34]
- Matter remanded: DELHI CESTAT
2019-TIOL-2704-CESTAT-KOL
Pankaj Surana Vs CC
Cus - The appeal has been filed by assessee against impugned Order whereby confiscation and imposition of redemption fine on Micro SD Cards was upheld - It is an admitted fact that these are the goods purchased from Delhi by duly VAT paid bills through Tax Invoice for the entire quantity of Micro SD Cards from the supplier M/s Deepak International - Ledger and Bank Statement of the assessee shows that he paid the Supplier M/s Deepak International, an amount of Rs.20,40,000/- by two Cheques from his Bank Account - There was wide discrepancy in Inventory List prepared by Customs officers and findings of "Joint Inspection" where the assessee also participated - If Revenue had doubt about these goods being smuggled, they should have taken some action against the supplier but no such action was taken - These goods are not notified and do not fall under ambit of Section 123, but even then the Department has sought to shift the onus on assessee to prove that the goods are legally imported by not taking any action against the supplier - The contention of assessee that CTH 85235220 or 8235100 does not create any additional Customs Duty in view of Exemption Notfn 24/2005-Cus read with CBEC Instruction F. No 528/43/2016-STO(TU) is to be considered - The Custom Duty sought to be imposed after redemption under Section 125 has not been quantified when SCN was issued under Section 124 of Customs Act - Similar view has been taken by Delhi High Court in case of R.K. International - 2018-TIOL-1762-HC-DEL-CUS - It is also not clear that whether the boxes were changed by suppliers or if these were domestic goods - In view of the decisions cited, the confiscation, redemption fine and demand of duty is therefore set aside: CESTAT
- Appeal allowed: KOLKATA CESTAT | 
