SERVICE TAX

2019-TIOL-2694-HC-DEL-ST

Paramount Propbuild Pvt Ltd Vs UoI 2019-TIOL-3430-CESTAT-DEL

Superintendent of Police Vs CCE

ST - Whether when service is provided by Police to banks or other commercial concerns and charges a fee as per the rates determined by the Government, whether service tax can be charged under "Security Agency Services" on such fee or otherwise - lower authorities have held since the term "business concern" in the definition of "Security Agency Service" has been replaced with "any person" even the Police are covered under the "Security Agency Service" - A perusal of the definition of "Security Agency" shows that it has to be "any person engaged in the business of providing security" - Police provide security as a part of their statutory obligations - In most cases they do not charge any fee for such security but in some cases they charge a fee as determined by the State Government - Merely because they are charging a fee, Police do not become "person engaged in the business of providing security" - As per clarification issued by the CBEC Circular No. 89/07/2006-ST dated 18/12/2006, charges recovered by any sovereign or public authority for carrying out any statutory function will not be liable for service tax fees if three conditions are fulfilled - The first condition is that the statutory authority must perform a duty which is in the nature of statutory or mandatory obligations to be fulfilled in accordance with law - Bench has no doubt that the police has a statutory duty to provide security - The Second condition is that the fee should be collected as per law - Section 46 of the Police Act provides for the State Government providing Police Force for fee for user charges in some cases - The present demand is on the amounts collected as user fee which are levied upon the Section 46 of the Police Act, and, therefore, the second condition is also fulfilled - The third condition is that the amount so collected must be deposited into the Government treasury - There is no doubt in the entire proceedings the amount so received was deposited in the Government treasury - In view of above, all conditions required in the above circular of CBEC are fulfilled - Therefore, no service tax is chargeable under Security Agency Services upon the Appellant - CBEC circular being binding on the department, a demand to the contrary is not sustainable and needs to be set aside - Impugned order set aside and appeal allowed with consequential relief: CESTAT [para 15, 16, 18]

- Appeal allowed: DELHI CESTAT

2019-TIOL-3429-CESTAT-MAD

Satyam Auto Components Pvt Ltd Vs Commissioner of GST & CE

ST - Appellant as a service receiver has paid service tax to the intermediary/service provider/SIPCOT on 05.10.2016 - In terms of section 104 (1) of Finance Act, 2017, service tax paid on development charges is exempted - amendment introduced vide Section 104 (1) did not clarify as to who has to apply for the refund claim - Since SIPCOT had collected the amount, appellant was under bonafide belief that SIPCOT would file refund claim and pass the amount to the appellant - Only on 13.06.2018, SIPCOT issued a letter to the appellant stating that they have not claimed refund of the amount - Accordingly, Refund claim was filed on 27.06.2018 but the same has been rejected as being time barred - appeal to CESTAT. Held: SIPCOT has intimated the appellant vide letter dt. 13.6.2018 informing the appellant that they have not claimed refund of the amount of Rs.30,64,199/- - SIPCOT being the service provider, the amount is collected from the appellant herein and is to be deposited with the government - Only if it is established by the appellant that the amount has been deposited by SIPCOT with the government, the appellant would be eligible for refund - For this, appellant has to get assistance from SIPCOT and only thereafter they would be able to file refund claim - In the present case, SIPCOT though was aware of the amendment by which the exemption to service tax on development charges was extended to the beneficiaries, has been in a slumber and has not taken any initiative to inform the beneficiary about the exemption - Had SIPCOT taken action within the time prescribed, appellant would have filed the refund in time - Thus, it is established that delay was not due any reasons on the part of appellant - Tribunal vide Final Order No.40927/2019 dt. 09.07.2019 has analyzed the very same issue and relying upon the decision of the Bombay High Court in the case of JSW Dharmatar Port Pvt. Ltd. - 2018-TIOL-2644-HC-MUM-ST held that rejection of refund claim on the ground of time bar is unjustified - Impugned order is, therefore, set aside - Appeal is allowed with consequential benefits: CESTAT [para 5, 6]

- Appeal allowed: CHENNAI CESTAT

 

 

 

 

 

 

CENTRAL EXCISE

2019-TIOL-3428-CESTAT-CHD

Domino Printech India Pvt Ltd Vs CCE & ST

CX - The assessee is engaged in the activity of manufacturing, trading of coding and marking equipment involving different types of technologies, inks and consumables, trading in spares and providing after sale service - The appellant have also undertaken the activity of ink refilling, relabeling and manufacturing facility in Manesar, Gurgaon where inks related to the coding and marking equipment manufactured and traded by it are sold - Various SCNs were issued to the assessee - As per Chapter Note 7 to Chapter 32, the activity undertaken by assessee does not amount to manufacture - Therefore, the assessee is not entitled to avail credit of CVD paid by them at time of import - But as per the decision of High Court of Bombay in case of Ajinkya Enterprises , by upholding the finding of this Tribunal that if the activity does not amount to manufacture and the goods have been cleared on payment of duty, in such case, the duty paid by the assessee which has been accepted by the department and more than the credit availed, the duty paid by assessee shall amount to reversal of credit and the assessee is not required to reverse the credit - Admittedly in this case, the assessee cleared the said imported goods after refilling on payment of duty - Therefore, if the activity does not amount to manufacture, in that case, the duty paid by assessee shall amount to reversal of credit - Therefore, the assessee is not required to reverse the credit of CVD availed by them at the time of import - The demands are not sustainable against the assessee and no penalty is imposable against them - The impugned order is set aside: CESTAT

- Appeals allowed: CHANDIGARH CESTAT

2019-TIOL-3427-CESTAT-KOL

SAIL Vs CCE

CX - The issue involved in all the seven appeals filed by the assessee [SAIL] is the correct classification of the product Coal Tar Partially Distilled (in short, "CTPD") manufactured by SAIL in its Coke Oven and Coal Chemical Plant at its steelworks at Durgapur, West Bengal -according to SAIL, CTPD is correctly classifiable under Tariff Heading 27060090 of the CET -however, by the impugned adjudication orders the Commissioner has held that the said goods are correctly classifiable under Tariff Heading 27081010 of the CET and has confirmed accordingly differential duty demands as specified in the respective adjudication orders, along with interest and has also imposed penalties upon SAIL - in respect of the adjudication order dated 29.7.2005, the Revenue has also filed an appeal, being aggrieved by the penalty of Rs.1.00 crore imposed and seeking enhancement thereof. Held: From the Tariff Headings 2706 and 2708, it transpires that Tar is distilled from coal and from coal or from other minerals while pitch is obtained by blending with creosote oil or other coal tar distillates and both the goods are distinct and different in nature - Coal Tar Pitch is a residue product when the solvent has been completely extracted out of Tar whereas Pitch is the last residue in the process of destructive distillation of coal and in this process the distilled products like High and Low Naphtha, High Creosote Oils are obtained- once a product is Pitch, it is no longer Tar -the Apex Court, in the appellant's own case [ 2004 (164) ELT 387 (SC) ], has held that Pitch Creosote Mixture [PCM] is a "pitch" and not a "partially distilled tar", hence it is classifiable under sub-heading 2708.11 of the CET and not under Heading 27.06- once "pitch" is obtained, it is a completely different product from "Tar" -once a product is "Pitch", it is no longer "Tar" -pitch can, under no circumstances, fall under the Tariff Item 27.06 - partially distilled tar would be Tar which has not yet become "Pitch" - once the product becomes "Pitch", it is no longer "partially distilled tar" and is, therefore, correctly classifiable under subheading 2708.11 of the CET -it is found that the lower adjudicating authority in his discussion and findings has stated that "The said Noticee is just dragging the scenario towards classification dispute of CTPD which has already been settled by the Apex Court -in this regard, it is pertinent to point out on record that the Noticee in its submission dated 25.3.1998 had confessed that PCM and CTPD are same products -the classification of a similar product, vis., PCM (Pitch Creosote Mixture) has been well settled by the Apex Court under six digit S.H. No. 2708.11 (which now corresponds to 8 digit Tariff Item No. 27081010) vide judgment in the Noticee's own case, setting at rest the dispute of classification of PCN (Pitch Creosote Mixture)" -however, it is found that SAIL in its grounds of appeal has insisted that what was stated by an officer in the preliminary reply of SAIL dated 25.3.1998 to a particular SCN, which was unrelated to the cases arising after 1987 involved herein was incorrect and contrary to records and that this was evident from the final consolidated reply dated 15.10.2004 to the 22 SCNs, filed on behalf of SAIL (in Appeal No. E/503/05), wherein it was clarified that this final reply is to be considered as the only reply, ignoring any other reply or replies submitted earlier -there is no finding of the Commissioner as to why this contention has been found to be acceptable -no corroborative material has also been disclosed to show the incorrectness of the contention of SAIL that the same goods were not being manufactured during the material period and, therefore, the decision of the Supreme Court in SAIL's case continues to be applicable -SAIL has also contended that the test report of Chemical Examiner of Department clearly evidences the correctness of its classification of CTPD under Tariff Sub-heading 27060090 -but it is found that the said test report dated 21.4.1989 is not conclusive -moreover, the periods involved herein also covers subsequent periods from May 1999 to November 2015, whereas the said test report is of 21.4.1989 -it is also found that SAIL has contended that they are not having pitch plant and have submitted photographs to prove this -it is also their contention that they never manufactured pitch of any type since 1987 nor had any facility to manufacture pitch -further, it is evident from the end use certificates received from SAIL's customersthat they manufacture Coal Tar Pitch out of CTPD purchased from SAIL - correctness of these contentions have not been verified or dealt with in any of the impugned orders -they are required to be verified -findings thereon have important bearing on the correct classification of the product involved herein -it is also found that no independent evidence has been disclosed in the adjudication orders to discharge the onus cast upon the Revenue to establish the correct classification of the impugned goods, as contended by them, and is covered by the Apex Court's decision the appellant's own case - in the light of the above, the matters need to be remanded back to the Adjudicating Authority for fresh de novo decision upon due consideration of the evidences produced and to be further produced by SAIL and upon following the principles laid down by the Apex Court [in the case of Hindustan Ferodo Ltd. - 2002-TIOL-782-SC-MISC and observing the principles of natural justice and affording SAIL a personal hearing -if deemed necessary the Department should send fresh sample of the impugned goods for testing to the Chemical Examiner so that the exact chemical properties of the product can be found out to determine the correct chapter heading thereof -all the appeals of both SAIL and the Revenue are, therefore, allowed by way of remand : CESTAT [para 6.2, 6.3, 6.4, 6.5, 6.6, 6.7, 6.8, 6.9]

- Matter remanded: KOLKATA CESTAT

 

 

 

 

CUSTOMS

2019-TIOL-2692-HC-MUM-CUS

Vishal Bhavsar Vs UoI

Cus - This Petition challenges the communication dated 4 April 2019 passed by Commissioner of Customs under section 28(9A)(a) of Customs Act, 1962 - Besides, at the hearing of petition for admission, the petitioner pointed out that his applications dated 9 January 2019 and 16 April 2019 seeking relief in regard to the abandonment of five containers of imported goods in terms of provisions of section 23(2) of the Act, have not yet been disposed of and therefore seeks early disposal of the applications - The impugned communication dated 4 April 2019 does not reflect / indicate the basis for exercise of powers under Section 28(9A)(a) of the Act - Therefore, unable to fathom the reasons for keeping the present proceedings in abeyance - The impugned communication dated 4 April 2019 is set aside - So far as the petitioner's applications dated 9 January 2019 and 16 April 2019 are concerned, the Respondent No.3 will dispose of the same as expeditiously as possible within a period of three weeks: HC

- Petition disposed of: BOMBAY HIGH COURT

2019-TIOL-2686-HC-KAR-CUS

AS Impex Vs Shree Durga Traders

Cus - By the impugned order passed by the single Judge, the process of registering sales contract for import of Poppy sees from China in response to the public notice has been stayed- appellant has been adversely affect by the impugned order - ad interim order passed by the single Judge is appealed against - The appellant has not been impleaded as a party in the writ petition and the impugned order has been passed without affording an opportunity of being heard to him -Since the impugned order has been passed without affording any opportunity of hearing to the appellant, therefore, the appellant being an aggrieved person has right to challenge the impugned order in this appeal.

Held: The respondent No.1 has filed an application along with which Annexure-V has been filed subsequently before the single Judge which discloses the names of the persons whose applications for registration are pending for sales contract for import of the Poppy seeds, which are submitted in response to the public notice dated 4.10.2019 -however, the aforesaid persons were not impleaded as respondents in the writ petition -the aforesaid order aversely affects the persons including the appellant whose applications are pending in response to the public notice dated 04.10.2019 -in other words, the impugned order has an adverse impact on the persons who are vitally interested and have stakes in the matter as their applications for registration for sales contract are pending for registration in response to the public notice dated 4.10.2019 -since the impugned order has been passed without hearing the parties including the appellant, which would be adversely affecting it's interests, and the impugned order, in fact, tantamount to violation of principles of natural justice, the Court is inclined to quash the order dated 24.10.2019 insofar as it pertains to the appellant herein and direct the respondent no.1 herein to implead the appellant as respondent in the writ petition - let necessary amendment be carried out in the writ petition on or before 18th of November 2019 -the single Judge is requested to afford an opportunity of hearing to the petitioner as well as to the appellant herein who shall be impleaded as respondent and request him to take up the prayer for consideration of interim relief on 19th November 2019 -with the aforesaid directions, this writ appeal is disposed of: HIGH COURT [para12, 13, 14, 15]

- Writ Appeal disposed of: KARNATAKA HIGH COURT

2019-TIOL-2685-HC-MP-CUS

Neo Corp International Ltd Vs UoI

Cus/CX - The petitioner has filed this present petition being aggrieved by the order dated 20.5.2010 passed by the Additional Commissioner, Customs, Central Excise & Service Tax, Indore - the first ground raised is that the authority issuing the SCN was not competent to issue the SCN and the second ground raised is that the person, who has passed the impugned order, was transferred to Mysore vide order dated 23.4.2010 by the Department and he was relieved on 21.5.2010 and before one day, he has passed the impugned order i.e. on 20.5.2010.

Held - In the present case, the most important aspect is whether the SCN was issued by the competent authority or not -undisputedly, in the present case, two SCNs were issued by the Additional Director General, DGCEI Ahmedabad -one of the SCNs was answerable to the Commissioner (Customs), Exports, Uran - District - Raigarh and the other was answerable to the Additional Commissioner, Customs & Central Excise, Indore -the respondent no.4 has issued a SCN dated 30.1.2004 to the petitioner to show cause the respondent no.3 as to why the duty drawback amounting to Rs.6.40 crores wrongly availed by the petitioner should not be disallowed under rule 16 of the Customs, Central Excise and Service Tax Drawback Rule, 1995 [Drawback Rules] and recovery of CE Duties amounting to Rs.2.25 lakh under rule 12 of the Cenvat Credit Rules and recovery of Rs.5.72 lakhs under the proviso to section 11-A along with penalty and interest be not recovered - another SCN was issued to the petitioner to show-cause to respondent no.2 as to why DBK amount to Rs.26.08 lakhs should not be allowed under rule 16 of the Drawback Rules along with penalty and interest -in view of the notification dated 7.7.2019 issued in exercise of the power conferred by sub-section (1) of the section 4 of the Customs Act, 1962 and another notification issued in exercise of the powers conferred by Clause - B of Section 2 of the Drawback Rules, the Additional Director General, Central Excise Intelligence holds and enjoys the powers of the Commissioner of Customs also, and therefore, the SCNs were issued by the competent authority and the order has also been passed by a competent authority -this Court in almost similar circumstances while deciding W.P.No.4136/2016 (M/s.Uttam Impex v/s Union of India & Others) dated 27.06.2017 has passed the following orders: "………….. In light of the aforesaid fact as it is an appealable order, a liberty is granted to prefer an appeal, in accordance with law" - in another case i.e. W.P. No.267/2017  (Sanjeet Kumar Sharma v/s Directorate of Revenue Intelligence Mumbai)  again, as the order therein was appealable order, the petition was disposed of with a liberty to prefer an appeal -this Court again in W.P. No.266/2017  (Sashi Ranjan Kumar v/s Directorate of Revenue Intelligence)  decided on 8.5.2017 has disposed of the writ petition, as there was a remedy of an appeal -in the case of Jaya Satya Marine Exports (P) Ltd. - 2002-TIOL-100-SC-CUS-LB, it has been observed that the High Court should not have entered into the merits of the case, as a remedy of appeal was available -in the present case, there is a remedy of appeal and the petitioner on some pretext or the other is delaying the matter -he could very well raise all grounds by filing an appeal -recovery, which is running in crores, is pending against the petitioner - the SCN can never said to be a vague SCN or a SCN issued by an authority not competent to issue the SCN -the Apex Court in the case of Kunisetty Satyanarayana [2006 (12) SCC 28] has held that "14………….. A mere show-cause notice or charge-sheet does not infringe the right of anyone. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance.15. Writ jurisdiction is discretionary jurisdiction and hence such a discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge-sheet." - in light of the aforesaid, the question of interference by this Court does not arise - in the considered opinion of this Court, it is certainly true that alternative remedy is not an absolute bar, but the fact remains that the petitioner is having equal efficacious alternative remedy -the order has been passed after following the principles of natural justice and fair play, the SCNs were issued by the competent authority, and therefore, the question of interference by this Court, in light of alternative remedy, does not arise -in light of the aforesaid judgments, this Court is of the considered opinion that the petitioner is having an alternative remedy and as the department has not been able to recover the due amount since 2004, the question of interference by this Court does not arise -accordingly, the present writ petition stands dismissed: High Court [para 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 41, 42] - Writ Petition dismissed: MADHYA PRADESH HIGH COURT

2019-TIOL-2684-HC-DEL-NDPS

Sandeep Kumar Vs Central Bureau of Narcotics

Narcotics Drugs and Psychotropic Substances Act, 1985 [NDPS Act] –This appeal assails judgment, dated 3.8.2015, as well as order, dated 4.8.2015, whereby the Additional Sessions Judge [ASJ] has convicted the appellant for having committed the offences punishable under section 21(c), and section 23(c) read with section 28 of the NDPS Act - the appellant stands sentenced to 10 years' rigorous imprisonment (RI) and a fine of Rs.1 lakh, with default sentence of 6 months' simple imprisonment (SI), for the offence under section 21(c), and to 10 years' RI and a fine of Rs.1 lakh, with 6 months' SI as default sentence, for the offence under section 23(c) read with section 28, of the NDPS Act, both the sentences having been directed to run concurrently - (i) whether the seizure of heroin, from the slippers in the parcel at the office of Aramex, stood proved, (ii) whether the parcel, seized at Aramex, New Delhi, was the parcel originally consigned at the office of AOL, Ludhiana and (iii) whether it was established that the appellant had tendered the said parcel at AOL, Ludhiana

Held - Re. presence of heroin in the seized parcel The fact that the parcel, seized by the CBN team at the premises of Aramex on 30.3.2010, contained slippers, in the soles and heels of which heroin was concealed, cannot be doubted, in view of the report of the CRCL, (Ex. PW-2/C) which confirmed that the powder was found to be heroin of purity 1.4% W/W - the said report was proved by the Chemical Examiner of the CRCL A.K. Maurya(PW-2), who testified, during trial, stating that testing of the sample had been done using colour test and TLC - the credibility of the said position remained undisturbed in cross-examination -PW-2 A.K. Maurya also identified the remnant sample, when shown to him in Court -equally, the fact that the parcel containing the slippers, in which the heroin was concealed, had been booked at AOL, from where it had been forwarded to the office of Overseas Logistics in Delhi and, further, to Aramex, for onward export to Spain, can also not be denied, as the relevant documents were all exhibited, supported by the statements of Ramandeep Singh, the owner of AOL (PW-6), Manoj Gupta of Overseas Logistics (PW-12) and Harihar Thakur and DevenderNegi of Aramex, who deposed as PW-7 and PW-8 respectively - these witnesses also proved their respective statements, recorded under section 67 of the NDPS Act - the statements remained undisturbed in cross-examination and, not having been recorded either in the premises of the CBN or in any Police Station, are admissible and relevant in evidence, in view of section 53-A of the NDPS Act -it was sought to be contended, by the appellant, that there had been fatal infraction, on the part of the CBN, of section 42(2) of the NDPS Act, as there was no evidence to indicate that the information, received by PW-1 M. K. Gupta had been forwarded to his immediate Superintendent within 72 hours –the impugned order and judgment discloses that no such ground was ever taken, by the appellant, before the ASJ -no such ground is to be found, even in the grounds of appeal filed in the present case -PW-1 M. K. Gupta was, admittedly, a Superintendent in the CBN, at the time when the search, in the present case, was conducted by the raiding team - the judgment of the Supreme Court in UOI vs Satrohan - 2008-TIOL-136-SC-NDPS is also relevant in this context, inasmuch as the said judgment holds that, where the search is itself conducted by a gazetted Officer, no further compliance with section 42 of the NDPS Act, is necessitated -in view thereof, this contention, advanced by the counsel for the appellant is rejected -except for contending that there had been non-compliance with the provisions of section 42(2) of the NDPS Act, the counsel for appellant has been unable to demonstrate any prejudice that has resulted to the appellant, as a consequence thereof -even on this score, therefore, this ground of challenge has necessarily to fail Was the applicant complicit ? The findings of the ASJ on this aspect of the matter, eminently merit acceptance - as has been rightly found by the ASJ in the impugned judgment, the photograph of the appellant was reflected on the PAN card, which was tendered at the time of booking of the parcel at the AOL office at Ludhiana – the contention of the counsel for appellant that the case was founded solely on the statement of Ravi (PW-23) cannot, be said to be correct -there is ample evidence, including and excluding the said statement, to link the appellant to the parcel, which was seized at the Aramex office at Delhi, and found to contain heroin concealed in slippers The sequitur The sequitur, of the above discussion has, necessarily and inevitably, to be the confirmation of the decision, of the ASJ, to convict the appellant of having committed the offences under section 21 and 23, read with section 28 of the NDPS Act -however, in the opinion of this Court, the ASJ has erred in invoking sub-section (c) of the said sections 21 and 23; rather, the opinion of this Court is that the appellant would require, instead, to be indicted under clause (b) of either section. this, necessarily, would also entail interference with the sentence awarded, to the appellant, by the ASJ -in the absence, however, of any justification, to award, to an unsuccessful accused, under the NDPS Act, more than the minimum sentence prescribed for the offence committed by her/him, the Court is bound to award only the minimum prescribed sentence -the allegation against the appellant – which has been found, by this Court, to be substantiated by the material on record – is not that the appellant exported heroin from India, but that he had attempted to export heroin, as the heroin was intercepted and seized before it could leave India -the appellant could not, therefore, directly be convicted under section 23 of the NDPS Act -the act of attempting to export a narcotic drug from India would, however, be punishable under section 23 read with section 28 of the NDPS Act, inasmuch as section 28 covers punishment for attempts to commit offences -as this Court has concurred, with the ASJ insofar as the impugned judgment holds that the appellant had, in fact, booked the heroin, at AOL, Ludhiana, for export to Spain, from the office of Aramex, New Delhi, and as the consignment was intercepted and seized before it could be exported, the appellant, undoubtedly, would be guilty of having committed the offences committed by section 21, and section 23 read with section 28 of the NDPS Act Basis for the above findings – How the quantity of heroin is to be worked out

Applying, to the facts of the present case, the ratio that emerges from the reading of the various decisions, the substance in question being heroin, the law as enunciated in E. Micheal Raj (supra), as concretized in the recent decision of the Supreme Court in Hira Singh (supra), would stand attracted -applying the said law, the quantity of heroin recovered from the appellant, in the present case, would be 1.4 % of 460 grams i.e. 6.44 grams and not 460 grams as the ASJ has held -this is only marginally in excess of 5 grams, which has been notified as the quantity which would be liable to be treated as "small", for the purpose of applicability of, inter alia, sections 21 and 23 of the NDPS Act, vide Notification S.O. 1055 (E) dated 19th October, 2001, issued by the Department of Revenue, Ministry of Finance - the finding of the ASJ, on this aspect, is, therefore, necessarily liable to be faulted both factually as well as legally -the corollary emerging from this factual position, applying the extant law in respect thereof, would be that the appellant would be liable only to the minimum sentence which could be awarded to a person dealing with heroin which was more than the "small" but less than "commercial" quantity, as stipulated in the Notification dated 19.10.2001 -dealing in heroin of small quantity attracts a maximum punishment of 1 year (at the relevant time) RI, whereas dealing with heroin of commercial quantity, or more, attracts a minimum of 10 years' RI -intermediate quantity, i.e., between the stipulated "small" and "commercial" quantities, would, therefore, attract punishment between one year and ten years, but could not be pegged at ten years, unless there was wealth of adequate reasons supporting the said decision -the judgment in RafiqQureshi[ 2019 SCC Online SC 666 ] observes that the quantity of the offending drug, with which the accused was found to be dealing, is a valid factor, to be taken into consideration while determining the quantum of sentence to be awarded -tested on this touchstone, the present case clearly does not warrant awarding, to the appellant, of the maximum punishment of 10 years' RI, which would be impossible, under clause (b), whether of Section 21, or of Section 23 read with Section 28, of the NDPS Act - as per the Nominal Roll provided by the jail authorities, the appellant has already suffered incarceration of seven years and eight months -in the opinion of this Court, the punishment suffered by the appellant is, therefore, more than adequate, for the offence with which he had been charged and of which he had been convicted -in the above circumstances, the impugned judgmentand the order on sentence stand modified by upholding the conviction of the appellant, but under (i) clause (b) of section 21 and (ii) clause (b) of section 23 read with section 28 of the NDPS Act, rather than clause (c) of the said sections, whereunder the ASJ has convicted the appellant -the sentence awarded to the appellant shall stand reduced to the period of incarceration already undergone by him - the appeal is allowed to the above extent -the appellant would be entitled to be released forthwith, unless his incarceration is required for any other reason: High Court [para30, 31, 32, 34, 36, 40, 41, 42, 43, 46, 55, 56, 57, 95, 96, 97, 98, 99, 100, 101]

- Appeal partly allowed: DELHI HIGH COURT

2019-TIOL-3426-CESTAT-HYD

Indian Oil Corporation Ltd Vs CC

Cus - The issue is with regard to rejection of request of assessee for conversion from Advance Authorization Scheme to duty drawback scheme - The dispute relates to the disallowance of conversion of 2178 shipping bills only - The Commissioner has applied the Board Circular No.36/2010-Cus. to hold that since the let export order is issued beyond the time limit of three months, the request for conversion of the shipping bill cannot be granted - During the relevant period, there was no provision under Customs Act, 1962 prescribing the time limit for conversion of shipping bill - In the case of Global Calcium Pvt. Ltd. - 2017-TIOL-1012-CESTAT-MAD , the request of assessee was for conversion of free shipping bills to drawback shipping bills - The Tribunal after considering the submissions observed that the time limit specified in said circular cannot be applied to deny the request for conversion of free shipping bills to drawback shipping bills - In the present case, it is for conversion from Advance Authorization scheme to duty drawback scheme - The decision of Tribunal though appealed by assessee before the High Court as the assessee entertained a view that the adjudicating authority may subject to the claim of conversion to the Board circular, the High Court observed that the Tribunal having clearly held that the time limit provision will not apply, there is no scope for interfering the order - Thus, it is abundantly clear from the said decision of Tribunal as well as the judgment of High Court, that the request for conversion of shipping bill cannot be disallowed by pressing into the application of time limit prescribed by the Board in its circular dated 23.9.2010 - The impugned order cannot sustain and the same is set aside - The appeal is allowed by way of remand to the original authority for conversion of the shipping bills from Advance Authorization Scheme to duty drawback scheme: CESTAT

- Appeal allowed: HYDERABAD CESTAT