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SERVICE TAX
2020-TIOL-753-CESTAT-MAD
K Elango Packiaraj Vs CCE
ST - It was noted that appellants have rendered services of construction of residential units (police quarters to Tamil Nadu Police Housing Corporation) but have not discharged service tax on the consideration received - service tax demand issued and confirmed along with penalty, which order was upheld by Commissioner(A) - aggrieved, appellant is before CESTAT.
Held: Issue whether the construction of residential units for Tamil Nadu Police Housing Corporation would be subject to levy of service tax was considered by the Tribunal in the case of N.Rangasamy & Co. Vs CCE Salem and held in favour of assessee - impugned order, therefore, cannot sustain - same is set aside and appeal is allowed with consequential relief: CESTAT [para 5]
- Appeal allowed: CHENNAI CESTAT
2020-TIOL-752-CESTAT-MAD
Transworld Garnet India Pvt Ltd Vs Commissioner of GST & CE
ST - Refund - 41/2012-ST - Appellants who are 100% EOU filed refund claim dated 15.6.2017 for refund of Rs.2,40,996/- being the service tax paid on taxable services availed by them for export of the goods - refund claim was rejected by the department on the ground that consequent to allegation of illicit mining of beach sand, the Government of Tamil Nadu vide GO dated 8.8.2013 and 17.9.2013 had banned mining of beach sand miners and also formed District level committee to verify the allegation - Committee has recorded in their minutes that the appellant had unlawfully mined the raw sand and other minerals and transported in excess of the permitted quantity of mining during the period 2008 -09 to 2012-13 - as order of rejection was upheld by the Commissioner(A), the appellant is before the Tribunal.
Held: Ground for rejection is that the appellant has done unlawful mining of raw sand and other minerals in excess of the permission granted to them - This aspect has to be looked into by the Govt. of Tamil Nadu as well as the committee formed for this purpose - The provisions of Mines and Minerals Act of the State has to look into the legal consequences of unlawful mining - When the appellant has exported the goods by paying service tax on the services availed for exporting the goods, the department cannot deny the refund stating reasons beyond the Customs Act as well as Finance Act, 1994 - Notification 41/2012-ST emanates from the Finance Act and, therefore, only if there is violation under the said Act as well as the notification, refund can be rejected - Since the department does not have a case that the appellants have violated provisions of the Finance Act, 1994 or the impugned notification, rejection of refund claim cannot sustain - impugned order is set aside and the appeal is allowed with consequential relief: CESTAT [para 5, 6]
- Appeal allowed: CHENNAI CESTAT
CENTRAL EXCISE
2020-TIOL-751-CESTAT-MUM
Capital Controls India Ltd Vs CCE
CX - Appellant had been clearing manufactured goods viz. chlorinators/ vacuum regulators and parts thereof under the brand name 'ADVANCE' which allegedly belonged to the joint venture partner in the United States of America and the use being that of an ineligible brand name, it was concluded that duty liability should be discharged without the benefit of the SSI exemption notification - appellant pointed that the trade mark was assigned to the appellant in terms of agreement dated 9th January 1996 and that it was registered under the Trademarks Act, 1958 on 30th August, 2005 with effect from 18th August 1999 for which the application was moved with the registry of Trade Marks.
Held: Tribunal, in the case of the appellant, for the period from April 1998 to June 2000 has held that registration certificate issued to them by the competent authority under the Trade and Merchandise Marks Act clearly mentions that it will have effect from the date of application, i.e., 18-8-1999 and, therefore, for the prior period, benefit of SSI exemption would not be available since the brand name 'Advance' should be considered to have been registered in the name of the assessee from 18-8-1999 only - present dispute pertains to the period from April 2003 to November 2003 and from May 2004 to December 2004, therefore, in view of the decision of the Tribunal, the benefit of SSI exemption is available for the disputed period involved in the appeal - impugned order of Commissioner(A) is set aside and appeal is allowed: CESTAT [ para 5 to 7]
- Appeal allowed: MUMBAI CESTAT
2020-TIOL-750-CESTAT-DEL
Balkrishna Industries Ltd Vs CCE & ST
CX - The assessee-company is engaged in manufacturing tyres - It availed CENVAT credit during the relevant period - The same was sought to be denied by the Revenue and SCN was issued in this regard - Later, the Tribunal held that the CENVAT credit was admissible - Thereafter, the assessee claimed refund of the duty deposited by it in course of investigation - While entertaining the refund claim in question, the Adjudicating Authority held that although refund claim is admissible in full but is required to be adjudicated against the pending demand - Hence only a part of the refund amount was sanctioned to the assessee - Such findings were sustained by the Commr.(A) on grounds that as various demands were pending for calculation, the appeal was premature - Hence the present appeal.
Held - While the adjudicating authority observed that part of the refund claim is to rejected on account of being inadmissible, no finding is recorded on as to how such amount was calculated - Hence the adjudicating authority is required to provide the details of admissible refund claim sought by the assessee - Hence the order rejecting the refund claim in part is set aside and the matter is remanded back to the adjudicating authority to give details of the admissible and not admissible refund alongwith co-relation sheet: CESTAT
- Case remanded: DELHI CESTAT
CUSTOMS
2020-TIOL-945-HC-DEL-CUS
Kanak Exports Vs UoI
Cus - Gujarat High Court in the matter of WP filed by Adani Exports Ltd. concluded that the main purpose of the Notification 28 dated 28.01.2004 was to prevent transfer of the export orders from one group company to another company belonging to the same group in order to show enhanced export performance of such another company and, therefore, it was clarificatory in nature; that the submission of the petitioner therein that the Notification or the Public Notice had the effect of the taking away of the vested right of the petitioner was rejected by stating that they merely sought to exclude exports which were never intended in the first place to be covered by the Special Scheme; misuse of the said scheme by mere paper growth in exports is not to be countenanced - Petitioner herein also filed a writ petition before the Bombay High Court, being Writ petition no.2397/2004, challenging the Notifications dated 28.01.2004 and 21.4.2004 as amended by the Notification dated 23.04.2004 as also the Public Notice dated 28.01.2004 and the Bombay High Court by its judgment dated 04.07.2005 partly allowed this writ petition Inasmuch as it upheld the validity of the Notification dated 28.01.2004 holding it to be clarificatory in nature, and set aside the Public Notice dated 28.01.2004 as being ultra vires - It further held that the Notifications dated 21.04.2004 and 23.04.2004 can have only prospective operation, which means that exports made by the exporters prior to April 21, 2004 in respect of the classes of goods covered by Notification dated 21.04.2004 were entitled to be taken into consideration for the purposes of determining the entitlement of duty free imports Both these decisions were challenged before the Supreme Court and the Court - & To put it precisely, the effect of the aforesaid discussion would be to uphold the decision of the Gujarat High Court, though on different ground, thereby dismissing the appeals of the exporters against the said judgment except to the extent indicated in para 114 above while the appeals of the Government are allowed. Likewise, appeals of the Union of India against the judgment of the Bombay High Court are allowed to the aforesaid extent and the appeals of the exporters/writ petitioners are dismissed. - Review Petition filed by the petitioner was dismissed by the Supreme Court - petitioner thereafter filed a revised application dated 21.11.2016 before the respondent, contending therein that out of the total exports of Rs.1070.35 crores made by the petitioner between 01.04.2003 to 31.03.2004, exports of Rs. 355.69 crores had become ineligible in view of the exclusion set out in Notification dated 28.01.2004, leaving the eligible exports at Rs.714.66 crores entitled for the benefit of the DFCE Scheme - respondent no.3, however, by its Impugned Order/Letter dated 28.12.2017 has rejected the application of the petitioner relying upon the judgment of the Supreme Court and observing that in terms thereof, the petitioner is not eligible to any benefit under Duty Free Credit Entitlement Scheme (DFCE Scheme) as claimed. This order dated 28.12.2017 passed by the respondent no.3 is challenged by the petitioner in the present Writ Petition.
Held: Supreme Court in its judgment dated 27.10.2015 had inter alia considered the letter dated 13.10.2003 addressed by the Joint Secretary, Govt. of India, Central Board of Excise and Customs, addressed to the DGFT as also various other contemporaneous letters/Circulars/Minutes of Meeting leading up to the issuance of the Notifications dated 21.04.2004 and 23.04.2004 - It also took note of the counter affidavit filed by the Union of India, giving details of the modus operandi used by the exporters in inflating their exports to claim benefit of the DFCE Scheme - Findings of the Supreme Court, clearly show that the Supreme Court was particularly considering the case of M/s Adani Export as also the petitioner herein - For both these firms, the Supreme Court found them to have resorted to blatant misuse of the provisions of the Scheme and set aside the direction of the Bombay High Court granting relief to the petitioner under the said Scheme - In the counter affidavit, specific reference was made by the respondents to contend that the petitioner has shown an exponential growth in its exports of 3816% against the National Growth of Export of merely 18% - The petitioner in fact, filed a Review Petition seeking review of the said judgment, which was also dismissed by the Supreme Court - The petitioner certainly could not have been allowed to re-agitate its eligibility under the Scheme in the guise of a fresh/revised application after the judgment of the Supreme Court and subsequent dismissal of its Review Petition - As far as seeking parity with M/s Adani Export Ltd. is concerned, there can be no equality achieved in the violation of law - There is no right stipulated under Article 14 of the Constitution of India in the negative, therefore, merely because the respondents have granted some relief to M/s Adani Export Ltd. or have not made any recoveries from it, cannot entitle the petitioner, by itself, to claim benefit under the DFCE Scheme in spite of the clear and categorical judgment of the Supreme Court holding it to be not entitled for the sam - Petition is dismissed and the petitioner is directed to pay a cost of Rs.1 Lac to be deposited in PM CARES Fund within a period of four weeks: High Court [para 14, 17, 20 to 24, 32, 33, 35, 36, 38, 39]
- Petition dismissed: DELHI HIGH COURT
2020-TIOL-940-HC-MUM-CUS
Elan Fashions Pvt Ltd Vs UoI
Cus - The assessee filed the present writ seeking that Deputy Commissioner of Customs concerned be directed to permit the assessee to amend the shipping bill - Such representation was allowed by the High Court on a previous occasion - The counsel for the Revenue claimed that though the power existed to correct a shipping bill u/s 149 of the Customs Act, a proper application is to be made by the assessee in this regard - The assessee undertook to file such application within one week from the date of passing of this order - If filed in such time, the Revenue undertakes to decide upon the same within four weeks' time: HC
- Writ petition disposed of: BOMBAY HIGH COURT
2020-TIOL-749-CESTAT-DEL
Anil Gadodia Vs CC
Cus - During the relevant period, the DRI detained 5 consignments bound for export - The goods had been declared as marble slabs - Out of 5 containers, 4 were found to contain red sander wood concealed behind crates of marble slabs - As the export of red sanders wood is prohibited as per the Foreign Trade Policy, the red sanders as well as the marble were all seized - Thereafter, search operations were conducted at various premises whereupon some more quantity of red sander wood and various documents were seized - In course of investigation, the DRI recorded statements of various persons - The Department then concluded that the appellant along with other persons was attempting to illegally export several MTs of red sanders wood through CFS Mundra - A separate SCN was issued to the appellant, alleging that he attempted to export prohibited goods and so was liable to face penal action - The seized quantity of wood was proposed to be confiscated u/s 113 of the Customs Act along with the seized currency being confiscated u/s 121 of the Customs Act - Penal action u/s 114 of the Customs Act was also proposed - On adjudication, penalty was imposed on the appellant and the quantity of red sanders wood seized from his premises and godown was confiscated - Some quantity of the seized wood was not confiscated, on grounds that the same was sandalwood and not red sanders wood whilst another quantity of red sanders wood was saved from confiscation as it was found to be duly recorded in the appellant's stock - On appeal, such findings were sustained by the Commr.(A) - Hence the present appeal.
Held - The entire case against the appellant was made out by the Department on the charges that the appellant attempted to export the prohibited goods namely Red Sanders which were kept in its premises - For making such charge the Department heavily relied upon various statements of various persons - Most of the statements recorded u/s 108 of the Customs Act were retracted - The assessee despite the fact that the statements were retracted also requested for cross examination of the deponents, but such request was not acceded to by the adjudicating authority - It is a settled law that even any statement the Adjudicating Authority, intend to rely upon and the same is disputed by the person against whom the said statement is likely to be used, it is necessary for the adjudicating authority to grant the cross examination of such witnesses in terms of section 138(B) of the Customs Act, 1962 - It is settled law that when the appellant sought for cross examination of the witness and if the request is not acceded to the adjudicating authority should not have relied upon the statements of such witness - The appellants case is on better footing as their request for cross examination is reinforced with the retraction of the most of the statements, therefore, since the adjudicating authority has not granted the cross examination, all the statements have no evidentiary value and case could have been decided without the support of such statements - In the present case except statements there is no evidence to show that the goods allegedly kept with intention to attempt the export thereof - No documents show that the red senders stored were meant for export it is undisputed fact that the appellant is a licensed trader of red senders who purchase the red senders in Government auction and trade within the country, therefore, by any stretch of imagination it cannot be construed that the goods laying with the appellant were attempted to the export - in order to establish that there is attempt to export it is necessary that either the goods have entered into port area or if it is outside port area there should be some documents such as invoice/shipping bill/LR for transportation of goods to the port - This requirement too is not satisfied - Hence the confiscation of the red sanders wood and the cash seized from the appellant's premises, is unwarranted, as is the imposition of penalty: CESTAT
- Appeal allowed: DELHI CESTAT |
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