2020-TIOL-NEWS-029 Part 2, Dated: Tuesday, February 04, 2020

ST - Bench observes that the appellants have not responded to the notice issued to them for hearing in the matter or attended hearing any time when the matter was listed and thus, it appears, that they are not interested in pursuing the matter in appeal - Supreme Court has in case of B.N. Bhattachargee - 2002-TIOL-2003-SC-IT held that appeal does not mean only filing of memo of appeal but also pursuing it effectively - relying on the Bombay High Court decision in Chemipol - 2009-TIOL-676-HC-MUM-CESTAT, in terms of Rule 20 of the CESTAT (Procedure) Rules, 1982, after allowing more than three adjournments appeal is dismissed for non-prosecution: CESTAT [para 4, 5]

CX - Bagasse/Pressmud emerging as a by-product/waste during the manufacture of sugar and molasses and cleared without payment of duty - no cause for recovery of amount of 5% of the value of the bagasse sold in terms of rule 6 of CCR, 2004 - principle laid down in DSCL Limited's case - 2015-TIOL-240-SC-CX, has been accepted by the Department by issuance of Circular N. 1027/15/2016-CX dated 25.04.2016 - impugned order is set aside and the appeal is allowed with consequential relief: CESTAT [para 6, 7]

CUSTOMS

2020-TIOL-247-HC-MAD-CUS

LG Electronics India Pvt Ltd Vs ASST CC

Cus - Refund of SAD - Notification 102/2007-Cus - On the ground that the discrepancies pointed out in the deficiencies memos were not removed, respondent rejected the refund claims - said orders have been challenged by the petitioner - it is submitted that before rejecting the refund claim application, the respondent should have put the petitioner to notice even if the petitioner had failed to remove deficiencies pointed out in the respective memos - respondent submitted that the petitioner has an alternate remedy by way of an appeal before the Commissioner of Customs (Appeals).

Held: Refund claims have been rejected on account of purported failure on the part of the petitioner to correct the deficiencies pointed out in the respective memos issued to the petitioner on 10.07.2012 in terms of Public Notice No.39/2011 dated 14.06.2011 - Since the refund claims were to be rejected, Bench is of the view that the respondent ought to have issued proper notices to the petitioner and called upon the petitioner to show cause as to why the refund claims of the petitioner should be rejected, even if the deficiencies pointed out in the respective memos were not rectified by the petitioner - there is violation of principles of natural justice - in the circumstances, impugned orders dated 14.08.2012 may be treated as show cause notices and the petitioner is required to file its reply within a period of thirty days - respondent shall call upon the petitioner for a personal hearing and thereafter pass appropriate orders in accordance with law within a period of three months - Petitions disposed of: High Court [para 11 to 14]

- Petitions disposed of: MADRAS HIGH COURT

2020-TIOL-232-CESTAT-MUM

CC Vs Big Vision Pvt Ltd

Cus - Vide impugned order, the proceedings against the respondent company and penal action against ShriSantosh Nair (another respondent) were dropped - the Revenue first filed Appeal No.C/1084/2004 against the impugned order for dropping of the proceedings against the respondent company - subsequently, the Revenue filed another Appeal No.C/303/2005, along with application for application for condonation of delay making ShriSantosh Nair as respondent - the application for condonation of delay was allowed by the Tribunal vide Misc. Order dated 4.9.2019

Held - The matter in the case of Respondent 1 has been settled by the order of Settlement Commission as has been noted by the Commissioner in the impugned order - even the review order and appeal filed do not urge anything in respect of the dropping of the proceedings against them - in view of immunity granted by the Settlement Commission, no merits found in the appeal and the same is dismissed as infructuous -the entire case against the respondent 2, is vis-à-vis the Proforma Invoice dated 16.11.1998, signed and issued by him offering the discounted value of US$ 46,000 plus air freight of US$ 6320 totalling to US$ 55320/- for the machine for which the declared list price was US$ 305,000/- - in his statement recorded under section 108 of the Customs Act, 1962 [Act] while admitting that he had issued the said Proforma invoice, he clearly stated that the Proforma invoice was issued as per the directions of Shri Harry Gandy, Vice President (Sales) of the supplier M/s.Signtech USA for whom he was working as Indian sales agent - the fact that ShriSantosh Nair has issued the Proforma invoice as directed by Vice President (Sales) of the supplier, has not been controverted by the Revenue in the appeal filed - also, it is a fact on record that the import documents i.e. Bill of Entry was filed on the basis of Commercial Invoice 328 32686 dated 28.12.1998 issued by the supplier M/s Signtech USA - since the Proforma issued by the ShriSantosh Nair was not even the basis for filing the import documents, the relevance of the same in the current proceedings for imposition of penalty is not understood - in view of the above, it is found that Shri Santosh Nair was acting in course of normal business as sales agent of foreign supplier and had offered the sale price of the machine as directed by the foreign supplier to the Indian importer - there is nothing on record to establish that he had abetted in the evasion of duty by mis-declaring the value, for purpose of imposition of penalty under section 112(a) and/ or 112(b) of the Act -in view of the above, Appeal No.C/1084/2004 is dismissed as being infructuous and Appeal No.C/303/2005 is dismissed on merits, upholding the impugned order: CESTAT [para 4.1, 5.1, 5.2, 6.1]

- Appeals dismissed: MUMBAI CESTAT