2020-TIOL-NEWS-027 Part 2, Dated: Friday, January 31, 2020

2020-TIOL-218-CESTAT-BANG

3G Consultants Vs CST

ST - Appellant was registered under the category of 'Consulting Engineering Services' - During the period 2003 to 2006, Appellant had provided technical support services to civil engineering projects undertaken by the Government agencies such as Rural Panchayath Engineering Department, Irrigation Department and Public Works Department - Alleging that the appellant is liable to pay service tax for the services rendered, demand notice was issued and the service tax of Rs.5,37,577/- was confirmed along with interest and penalty of Rs.100/- Commissioner(A) allowed the appeal party and, therefore, the appellant is before the CESTAT.

Held: It is not disputed that the appellants during the relevant period were providing technical support service to civil engineering projects undertaken by the Government agencies and therefore, by the definition of taxable service as provided under Section 65(105)(zzzc), the activities undertaken by the appellants are excluded from the scope of taxable service of Survey and Map-making - this has also been clarified by the Circular issued by the Board dated 27.7.2005 - Further, Bench has also examined the definition of 'Consulting Engineering Service' and the activities carried out by the appellant do not fall in that category - If the activities of the appellant fall under the 'Consulting Engineering Service', then there was no necessity to carve out specific service of Survey and Map-making Service with effect from 16.6.2005 - In the case of Board of Control of Cricket in India - 2007-TIOL-684-CESTAT-MUM , it was held that the assessee's service cannot be taxed prior to 16.6.2005 - Tribunal has held therein that a subsequent entry having been enacted covering the activity without any change of the existing entry, the same has to be interpreted as if the earlier existing entry did not cover the subsequently created entry - Further, in the case of Geo Foundations and Structures (P) Ltd. - 2009-TIOL-916-CESTAT-BANG , it has been held that the Survey and Map-making other than by Government Department are liable to service tax with effect from 16.6.2005 and not under 'Consulting Engineering Service' - Following the ratio of the above said decisions, Bench is of the considered view that the impugned order is not sustainable in law - same is set aside and the appeal is allowed: CESTAT [para 6.1]

- Appeal allowed: BANGALORE CESTAT

CX - Appellant imported PVC film/aluminium in rolls and after slitting such rolls as per the required sizes, cleared the same under their brand name on payment of appropriate central excise duty - Alleging that the cenvat credit availed on the duty paid imported Reflex PVC film and aluminium rolls is not admissible, SCN was issued for recovery of the credit amounting to Rs.72,32,675/- for the period from May 2007 to December 2007 with interest and penalty; personal penalty was also proposed on the Director - demand confirmed with interest and penalty and a personal penalty of Rs.25 lakhs was imposed on Director - appeal to CESTAT.

Held: Issue is no more res integra being clarified by issuance of Notification No. 24/2012-CE(NT) dated 19.04.2012 wherein it is ordered that CENVAT credit taken or utilised, of the duty or tax or cess paid on inputs, capital goods and input services used in the making of the said final product, shall not be required to be reversed, notwithstanding that the process of cutting, slitting and printing of aluminium foils have been held as not amounting to manufacture - in view of the clear wording of the notification, no merit in the impugned order - same is set aside and appeal is allowed with consequential relief: CESTAT [para 5, 6]

CUSTOMS

2020-TIOL-202-HC-MUM-CUS

Dry Nut Enterprises Vs CC

Cus - The Petitioner imported four consignments of Areca Nuts from Sri Lanka - the goods were claimed to be covered by the benefits conferred by the Indo-Sri Lanka Free Trade Agreement - an investigation was launched by the DRI in respect of the said goods on an allegation that the goods, though imported claiming the benefit of the Indo-Sri Lanka Treaty, they were not originating from Sri Lanka - SCN issued - proceedings dropped - the Petitioner thereafter made various representations to the Respondent to release the goods, however, since there was no response, the Petitioner has filed the present petition.

Held: There is no dispute that in the normal circumstances, the Petitioner's goods will be entitled to be cleared under section 47 of the Customs Act [Act] - what is being put forth by the Respondent is pendency of appeal - the Court has not been shown any statutory provision that pendency of appeal by itself would amount to a stay or mere pendency of appeal without even moving any application for stay would mean that the authorities need not to take any steps under section 47 of the Act - no application for stay has been moved by the Respondent - therefore, the Petitioner is entitled to direction to the Respondent to take steps as per section 47 of the Act for clearance of the goods - the Respondent is directed to take necessary steps as envisaged under section 47 of the Act for clearance of the goods in question within a period of six weeks - if there is any judicial order passed in the appeal granting stay to the O-I-O dated 28.3.2019 during this period, then this mandate would cease to operate - Writ petition is accordingly disposed of in the above terms : HIGH COURT [para 7, 8, 9]

- Petition disposed of: BOMBAY HIGH COURT

2020-TIOL-201-HC-MAD-CUS

Nana Desi Ainnurruvar Vs Revisionary Authority

- Petition disposed of: MADRAS HIGH COURT

2020-TIOL-200-HC-DEL-NDPS

Teo Kok Siong Vs NCB

NARCOTICS Drugs and Psychotropic Substances Act, 1985 [NDPS Act] - Vide impugned judgment dated 6.10.2012 and subsequent order on sentence dated 11.10.2012, the appellants were convicted under section 20(b)(ii)(c) read with section 29 of the NDPS Act and sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.1 lakh each and in default thereof to undergo simple imprisonment for 6 months - appeals against this order.

Held: Appellants have not opted to challenge the findings of the Trial Court on conviction under section 20(b)(ii)(c) read with section 29 of the NDPS Act - hence, the judgment on conviction of the Trial Court dated 6.10.2012 is affirmed - as regards the order on quantum of sentence, the appellants have almost served the substantial sentence - the conduct of the appellants has been reported to be satisfactory as per the nominal roll received from the jail authorities - the appellants have not been previously convicted nor are they involved in any other criminal case - hence, taking into consideration, section 30 of the Code of Criminal Procedure, 1973 and the judgments passed in the matters of Shahejadkhan Mahebubkhan Pathan v. State of Gujarat - 2012-TIOL-97-SC-NDPS, Unice Ada Jemor v. Customs [ 2014 (9) RCR (Cri) 819 ] and Raj Kumar v. State [ 2013 LawSuit (del) 838 ], the default sentence of the appellants is reduced from six months to two months - it is ordered that the appellants shall pay a fine of Rs.1 lac each and in default of payment of fine, the appellants shall have to further undergo simple imprisonment for two months - the appeals filed by the appellants are disposed of in the above terms: HIGH COURT [para 6, 7, 8, 9]

- Appeals disposed of: DELHI HIGH COURT

2020-TIOL-217-CESTAT-KOL

Arjun Sah Vs CC

Cus - Smuggling - It is undisputed fact that the gold bars under seizure are smuggled into India - None has claimed ownership of the gold - The persons from whom those were recovered are not in appeal even, thus, the confiscation of seized gold not being challenged, the only matter for consideration is imposition of penalty under Section 112 of the Customs Act, 1962 - law laid down by the Apex Court in the case of Collector of Customs, Madras & Others V. D. Bhoormull, - 2002-TIOL-253-SC-CUS is that the Department is not required to prove its case with mathematical precision to a demonstrable degree and all that is required is the establishment of such a degree of probability that a prudent man may, on its basis, believe in the existence of the fact in issue is applicable to the present issue - Bench, however, finds that the Department has not been able to establish/distinguish the specific role played by the family members namely Ankur Kumar Jain and Saurav Kumar Jain - Also, the Department has not been able to establish the involvement of Arjun Sah in the case and the penalty imposed upon them i.e. Saurav Kumar Jain alias Raja, Ankur Kumar Jain alias Vicky Jain and Arjun Sah is not sustainable and accordingly ordered to be set aside with consequential relief, if any -Insofar as penalty imposed of Rs.10 lakhs each on Krishna Kumar Jain and Santosh Kumar Jain is concerned, Bench is of the considered view that penalty of Rs.5,00,000/- only on each of them would serve the ends of justice - appeals allowed in above terms: CESTAT [para 12 to 14]

- Appeals partly allowed: KOLKATA CESTAT