2020-TIOL-1185-HC-MUM-IT

Sesa Goa Ltd Vs JCIT

Whether it is settled position in law that a tax cannot be imposed on a subject, without clear legislative intent which seeks to lay a burden on such subject - YES: HC

Whether there is neither scope for any intendment in a tax statute nor any equity or presumption about a tax & that nothing is to be read in or implied into provisions not provided by the legislature - YES: HC

Whether the legislature did not intent to prevent allowing deduction in respect of amounts paid as cess or education cess, when computing income taxable under heading Profits and gains of business or profession - YES: HC

- Assessee's appeals allowed : BOMBAY HIGH COURT

2020-TIOL-1183-HC-MUM-IT

Pr.CIT Vs Mangalore Refinery And Petrochemicals Ltd

Whether discount received on settlement of sales tax deferment loan can be counted as taxable income - NO: HC

Whether when there was no deliberate or intentional failure on part of taxpayer to pay advance tax on the book profit, no interest is chargeable u/s 234B & 234C - YES: HC

- Revenue's appeal dismissed: BOBAY HIGH COURT

2020-TIOL-1167-HC-MAD-IT

S Gengaraman Vs CIT

Whether payment of additional amount in pursuance of application under the Kar Vivad Samadhan Scheme, beyond 30 days limitation, but also within a reasonable time can be allowed for purpose of accepting such application - YES: HC

- Writ petition allowed: MADRAS HIGH COURT

2020-TIOL-820-ITAT-DEL

Chander Mohan Merwah Vs ACIT

Whether the connection between expenditure and earning income need not to be direct as even an indirect connection could prove the nexus between expenditure incurred and income - YES: ITAT

- Assessee's appeal allowed: DELHI ITAT

2020-TIOL-819-ITAT-DEL

Blackrock Securities Pvt Ltd Vs ACIT

Whether penalty notice is invalidated if it does not specify the exact charge against the assessee for initiating penalty proceedings, between concealment of income or furnishing inaccurate particulars thereof - YES: ITAT

- Assessee's appeal allowed: DELHI ITAT

2020-TIOL-818-ITAT-JAIPUR

Chouhan Trading Company Vs ITO

Whether it is fit case for remand where AO frames addition of entire cash deposited in bank account without examining the source & if such additions are sustained by CIT(A) without examination on merits - YES: ITAT

- Case remanded: JAIPUR ITAT

2020-TIOL-817-ITAT-INDORE

ACIT Vs Jai Mata Di Bullion & Jewellers

Whether when cash credit was found in assessee's books & it is established that amount had been invested by a particular person, there is no requirement on part of assessee to further show whether amount invested had been properly taxed in creditor's hands – YES : ITAT

- Revenue's appeal dismissed: INODRE ITAT

2020-TIOL-1182-HC-P&H-GST

Vij Engineers And Consultants Pvt Ltd Vs UoI

GST - Constitutional validity of Section 16(2)(C) of the CGST Act, 2017 and Rule 86A of the CGST Rules, 2017 has been challenged on the ground that ITC credit in the electronic ledger of the purchaser dealer cannot be blocked in the light of fulfillment of all the statutory conditions except ensuring that the errant supplier/seller does deposit the tax collected from the purchaser, over which the bonafide purchaser has no control - Petitioner submits that although the entire tax liability of the petitioner stands extinguished using the credit liability, however, the electornic portal did not permit filing of returns till the extended date of 30.06.2020 without payment of tax and blocking of the electronic credit ledger - It is urged that the petitioner has to urgently dispatch consignment of goods for construction of bridges in Leh-Ladakh region for the Indian Army pursuant to the contract awarded by GREF, which is impeded in view of Rule 138 E of CGST Rules not permitting to issue electronically generated e-way bills - Petitioner pleads for permitting the filing of returns and issuance of e-way bills and have made an interim offer for securing the revenue, while simultaneously permitting the execution of the contract for the Indian Army - ASG of India is not averse to such a solution - Petitioner prays for two days' time to place the offer in writing on record with an advance copy to the ASG of India - Matter to be listed on 14.07.2020 for interim directions: High Court

- Matter listed: PUNJAB AND HARYANA HIGH COURT

2020-TIOL-1181-HC-KOL-GST

JS Pigments Pvt Ltd Vs State Of West Bengal

GST - Petitioner submits that unless they are allowed to make copies of the seized documents by the respondent no.3, DG GSTI, the appellant/petitioner is not in a position to participate in the proceedings - that they had already approached the authority vide letter dated 20.02.2020 and 16.06.2020 for supplying the certified copy of the seized documents but till date no step has been taken by the authority to supply the same - counsel for respondent Revenue submits that as per law the petitioner can approach the respondent for making copies of seized documents but no step has been taken to that effect; that without availing, exhausting that provision, straightaway they have filed the writ petition and which is not maintainable.

Held: There is a provision in law that 'the person from whose custody documents are seized under sub-section (2) shall be entitled to make copies thereof” but unfortunately till date the appellant/petitioner failed to avail that opportunity - appellant/petitioner is directed to take steps in terms of s.67(5) of the CGST Act, if he is so advised - and if the appellant/petitioner takes such step, then respondent no.3 is directed to allow the appellant/petitioner to make copies of seized documents - appellant/petitioner is directed to give written reply to the SCN by 20 July 2020: HC

- Appeal/petition disposed of: CALCUTTA HIGH COURT

2020-TIOL-174-AAR-GST

Hazari Bagh Builders Pvt Ltd

GST - Rail Land Development Authority (RLDA) is not awarding industrial plots to applicant but a portion of land over which some residential infrastructures are meant to be built - An industrial plot is the one in which the developer is granted permission by competent authority (Central or State government) in reference to some scheme of development - These plots are for a specific purpose and if plot-holders in future tries to engage in some other work or lease conditions of agreement are breached, then the developer has every right to eject that plot-holder - RLDA is just providing a parcel of land which is in its ownership, therefore, the lease of the same cannot be categorised as meeting condition of industrial plot and for the purpose of financial business - RLDA has leased ordinary plots for residential purpose and consequently the conditions of the notification [Sr. no. 41 of 12/2017-CTR as amended] and read with Circular 101/20/2019-GST dated 30.04.2019 are not satisfied - Also, the entry no. 41B inserted in 12/2017-CTR by amending notification 04/2019-CTR is also not applicable as the notification clearly mentions that it will be applicable for upfront amount payable on or after 01.04.2019 but in the instant case the amount of  Rs.15,86,57,105/- was deposited by the applicant during the month of February 2019 which is prior to the applicable date of 01.04.2019  - Lease agreement between the applicant company i.e the lessee and RLDA for a period of 99 years is not exempted from levy of GST in view of notification(s) 04/2019-CTR, 12/2017-CTR - Such leasing services supplied by RLDA to applicant falls under HSN 997212 attracting GST @18% - Moreover, amount of Rs.15,86,57,105/- which is transferred by applicant/SPV in pursuance to the tender and lease agreement dated 08.11.2019 is not exempted under GST in view of  notification(s) 04/2019-CTR, 12/2017-CTR - this amount deposited during February 2019 is not exempted from GST by notification(s) 04/2019-CTR, 12/2017-CTR: AAR

- Application disposed of: AAR

2020-TIOL-173-AAR-GST

Springfields India Distilleries

GST - Applicant, a distillery, has sought a ruling on the classification of goods namely “Hand sanitisers” manufactured by them - They also wish to know as to whether Hand Sanitisers are classifiable as essential commodity and exempt from GST.

Held: Hand Sanitisers manufactured by the applicant are of the category of Alcobased hand sanitisers and are classifiable under heading 3808 of HSN to which rate of GST applicable is @18% - Furthermore, although the Ministry of Consumer Affairs, Food and Public Distribution have classified the hand sanitisers as essential commodity, exemption of goods from GST is available only if the same are exempted by notification 2/2017-CTR; that mere classification of goods as essential commodity is not a criteria for exempting them from leviability of GST: AAR

- Application disposed of: AAR

2020-TIOL-172-AAR-GST

High Tech Refrigeration And Air Conditioning Industries

GST - Whether the supply made by the applicant from Goa on behalf of a third person who is not in the taxable territory of Goa to a place in Goa is to be taxed as Inter State supply or intra state supply.

Held: Since the location of the supplier is Goa but goods are supplied on behalf of a registered person outside Goa to a place in Goa, the place of supply would be outside Goa as per section 10(1)(b) of the IGST Act - Nature of supply made by the applicant is to be treated as a supply of goods in the course of interstate trade or commerce and tax is to be charged accordingly: AAR

- Application disposed of: AAR

2020-TIOL-121-SC-VAT

Sujata KC Vs Kalyani Motors Pvt Ltd

Whether where an assessment order is found to be erroneous, can such fact per se form grounds to hold that such order suffers from malice in fact and in law, so as to warrant imposing costs on the officer who passed such order & that such cost be recovered from the officer's personal resources - NO: SC

- Special Leave to petition disposed of: SUPREME COURT OF INDIA

2020-TIOL-1171-HC-MAD-VAT

Cosmopolitan Club Vs ACCT

Whether members' clubs in the incorporated form which were created by a body of persons with some common objective in mind, can be brought under purview of VAT liability - NO: HC

- Writ petition allowed: MADRAS HIGH COURT

2020-TIOL-1174-HC-MAD-ST

V Thangavel Vs UoI

ST - Single Judge dismissed the writ petition on the ground of alternative remedy of an appeal being available against such orders - Appellant contends that since he has raised a jurisdictional issue viz., very levy of service tax itself, therefore, the writ petition was rightly filed and since it has taken a long time for this Court to hear the same, the writ petition could not be thrown on the ground of alternative remedy.

Held: Bench is of the view that the writ petition ought to have been dismissed at the outset on account of availability of alternative remedy, however, there is nothing on record to indicate that the appellant himself was very much vigilant in getting his writ petition disposed of - Merely delay in taking up of the writ petition does not impell the Division Bench to entertain the aforesaid arguments for the reason that even if the contention is that the appellant was not liable to service tax, it was a question of fact, which had to be determined on the strength of the contract agreement and the documents which have been relied on by the parties - Bench does not find any error in the approach of the Single Judge in allowing the appellant to seek the remedy of appeal, which has been extended to the appellant even after a lapse of such a long time by giving the benefit of limitation: High Court [para 7, 8]

ST - Tamil Nadu Civil Supplies Corporation, admittedly, is a Corporation registered under the Companies Act and is basically a Corporation for transacting food and civil supplies through various projects, where certain subsidies are also extended - In the opinion of the Bench, merely because the Corporation is working on the principle of “No profit No loss" basis, the same cannot tenure to the benefit of the appellant, who is a Contractor, extending his service as Contractor for the purpose of raising construction for the Corporation - The activity of the Corporation will have no impact on the claim of any such benefit under the provision aforesaid that has been pressed into service by the appellant - The service rendered by the appellant and the activity of construction by the appellant is not an activity of charity and is rather a contract for profit - The appellant is doing construction work not for any loss by raising constructions for the Corporation - no merit in the appeal: High Court [para 11, 12]

- Appeal rejected: MADRAS HIGH COURT

2020-TIOL-1013-CESTAT-MUM

Nuclear Power Corporation of India Ltd Vs CCE & ST

ST - It was observed that the services received by the appellant were liable to service tax under the category of Consulting Engineer Services as defined by Section 65(105)(g) of the Finance Act, 1994 - Since the service provider was located outside India and was not having any permanent establishment or office in India, appellants as service receiver were required to discharge the service tax liability in respect of the services so received by them as provided by Section 67 of the Finance Act, 1994 – accordingly, demand notice issued and demand of Service Tax amounting to Rs.18,11,23,250/- confirmed along with penalty and interest – amounts paid also appropriated – appeal to CESTAT.

Held: There is no merit in the submissions made by the appellant to effect that since the value of services received by the Appellant from the overseas suppliers was included in the value of the goods imported by them, as per the decision of Apex Court in case of Associated Cement Company, - 2002-TIOL-08-SC-CUS-LB , these services could not be subjected to service tax leviable under Finance Act, 1994, the reason being the decision rendered by the apex court in the case of Imagic Creative Pvt Ltd - 2008-TIOL-04-SC-VAT – There is also no merit in the submission of the appellant that the demand is hit by limitation – However, taking note of the fact that Appellants are a public sector undertaking and that the amounts demanded as service tax will be admissible to the Appellants as CENVAT Credit and keeping in view the provisions of Section 80 of the Finance Act, 1994, Bench is of the opinion that though the penalties under Section 76, 77 & 78 are imposable, they should be waived by the application of Section 80 - appeal is partly allowed to the extent of setting aside the penalties imposed on the Appellant – however, demand of service tax along with interest is upheld: CESTAT [para 4.5, 4.6, 4.8, 4.10, 5.1]

- Appeal partly allowed: MUMBAI CESTAT

2020-TIOL-1012-CESTAT-KOL

S Kumar Handling Agency Vs CCE, C & ST

ST - During the period under dispute, assessee executed composite contracts for local transportation of Iron Ore from mines dump yard to the Rail Track Heads/Railway Siding in Automated Tipping Trucks (goods carriage), with incidental loading into such tipping trucks & automated unloading at the Railway Track Head/Railway Siding - The tipping trucks are fitted with Hydraulic Jack facility and the unloading is done without human intervention - The rates are composite and no loading/unloading charges is collected separately by assessee - They raises their bills for local transportation on their client - Service tax is demanded only on the local transportation/shifting charges collected by assessee which is inclusive of loading of tipper, transportation upto Railway Track Head and automated unloaded of tipper at the Railway Track Head - The contract in dispute is essentially for the transportation of goods which incidentally involving loading of tipper/unloading of tipper at Railway Track head/Railway Siding which cannot be taxed under category of Cargo Handling Service simply because rates for loading of tipper at Dump Yard and unloading of tipper at Railway Siding is not provided separately - The Commissioner (A) has erred in placing reliance on Circular B11/1/2002-TRU which does not apply to the facts of the instant case - Further, so far as the transaction of transportation is concerned, it is nobody's case that the assessee is a Cargo Handling Agent to attract the levy under category of Cargo Handling Services - Recently, while dealing with similar fact situations in case of S.K.Mineral Handling P. Ltd. 2019-TIOL-3514-CESTAT-KOL this Tribunal has held that the activity of transportation/shifting of Iron Ore involving incidental loading of tipper/unloading of tipper at Railway Track head/Railway siding cannot be taxed under category of "Cargo Handling Service" - It is further held that Circular B11/1/2002-TRU cannot be applied to such cases - It is also held that when it is nobody's case that the assessee is a Cargo Handling Agent, Service Tax under the category of "Cargo Handling Service" cannot be demanded: CESTAT

- Appeal allowed: KOLKATA CESTAT

2020-TIOL-1011-CESTAT-ALL

Kanpur Ban Moonj Store Vs CCE & ST

CX - Revenue has confiscated the seized goods on the sole ground that they were removed clandestinely by M/s Kanpur Plast Industries to their trading unit M/s Kanpur Ban Moonj Store and if the value of the same is included in the clearance value of M/s Kanpur Plast, they would have crossed the exemption limit - The identical issue raised against the same assessee based upon the same set of facts and circumstances stands decided by Commissioner (Appeals) inasmuch as he has held that benefit of Small Scale Exemption Notification cannot be denied to the assessee and had accordingly set aside the duty confirmed against the manufacturing unit – Since the issue has attained finality, there is no justification to confiscate the goods or to impose penalty upon the present appellant – impugned orders are set aside and appeals are allowed with consequential relief: CESTAT [para 6]

- Appeals allowed: ALLAHABAD CESTAT

2020-TIOL-1010-CESTAT-KOL

Terai Foods Pvt Ltd Vs CGST & CE

CX - The assessee is a manufacturer of bakery items like cakes and pastry at its factory - A portion of manufactured goods are removed on stock transfer basis to its retail outlet owned by it, on the strength of Excise cum inter-unit transfer note, on payment of applicable central excise duty in accordance with Central Excise Valuation Rules - The assessee incurs rental charges for said retail outlet, on which service tax is charged by landlord, of which credit is availed by assessee - The department has denied the availment of said credit and has also confirmed interest as applicable thereon along with penalty of equal amount under Rule 15 of CCR, 2004 r/w Section 11AC of CEA, 1944 - An identical issue has been decided by Tribunal in case of Cantabil Retail India Limited 2017-TIOL-3551-CESTAT-DEL wherein it has been held that the assessee is legally eligible for credit of service tax paid on rent amount paid for company run retail outlets used for storage and sale of duty paid goods for the reason that the said retail outlets will be considered as "place of removal" since the company remains the owner of goods till the excisable goods are sold from the said premises after payment of duty from the factory - Accordingly, assessee is entitled to credit of said services - In so far as the second issue regarding imposition of penalty is concerned, it is noted that the assessee is in appeal for seeking waiver of penalty imposed on them which is equivalent to the duty amount - The assessee relied on the decision in case of Rajasthan Transfer & Switchgear Ltd. to plead that imposition of penalty is unwarranted in their case - He also submitted that no positive evidence of wilful suppression has been adduced in proceedings to show that credit has been wrongly availed with an intent to evade payment of duty - The assessee is entitled to waiver of penalty in terms of Section 11A(2) of Central Excise Act - The duty demand with interest and penalty thereon are set aside since the credit is held to be legally eligible - The penalty is set aside: CESTAT

- Appeal allowed: KOLKATA CESTAT

2020-TIOL-1009-CESTAT-AHM

Precise Engineer Vs CCE & ST

CX - Appellants have supplied Expansion Bellow which is used as joints for the pipes used from the source of water to water treatment plant and claimed exemption under Notification No. 3/2004-CE dated 08.01.2004 – Department viewed that the Expansion Bellow is used for jointing the pipes while laying the pipeline, therefore, it is not covered under the said notification – SCN was issued and demand confirmed along with imposition of penalty – as the lower appellate authority upheld this order, the Appellant is before the CESTAT.

Held: Expansion Bellow is not part of water treatment plant and, therefore, it is not covered in description serial No. 7(1) and it is also not a pipe which can be covered under serial No. 7(2) of exemption notification 3/2004-CE dated 08.01.2004 - Therefore, it is therefore, not eligible for exemption – However, since the issue relates to interpretation of the notification, there is no malafide on the part of the appellant and no penalty is imposable – penalty is set aside – furthermore, cum-duty benefit is available and, therefore, the adjudicating authority should recompute the duty liability – appeal is partly allowed: CESTAT [para 4, 5]

- Appeal partly allowed: AHMEDABAD CESTAT

2020-TIOL-1176-HC-MUM-NDPS

Innocent Amaeme Maduabuchukwi Vs State Of Goa

NDPS - On 30th December, 2008 the Petitioner, a Nigerian national who had arrived in India in the year 2006 was arrested by Pernem Police and eventually charge-sheeted under the provisions of Narcotic Drugs and Psychotropic Substances Act, (NDPS) for being allegedly found in possession of 4.5 grams of cocaine - The Petitioner was released on bail on 20th January, 2009 by the Special Court - Petitioner claims that renewed passport was issued to the Petitioner, having validity upto 7th February, 2012 - In this petition, the Petitioner, challenges the order dated 12th May, 2020 made by the Superintendent of Police, Foreigners Regional Registration Office (FRRO), Panaji Goa ordering the detention of the Petitioner in the detention centre at Mapusa, as being null and void - The impugned order refers to imposition of restrictions under clause (e) of sub section (2) of Section 3 of the Foreigners Act, 1946 and paragraph 11(2) of the Foreigners Order, 1948 - validity of this order has been extended from time to time.

Held: The Foreigners Act, 1946 basically confers upon the Central Government certain powers in respect of foreigners - There is no dispute whatsoever that the Central Government, in exercise of powers under Section 12 of the said Act has delegated to the State Government or its officers, the powers referred to in Section 3(2)(e) of the said Act [ (e) shall comply with such conditions as may be prescribed or specified- ] - Equally, there is no dispute that the Central Government has not delegated to the State Government or its officers the powers referred to in Section 3(2)(g) of the said Act [(g) shall be arrested and detained or confined] - Therefore, the principal issue which arises for determination in these matters is whether the impugned orders are relatable to the exercise of powers under Section 3(2)(e) of the said Act or whether they are relatable to exercise of powers under Section 3(2)(g) of the said Act - If the impugned orders are relatable to the exercise of powers under Section 3(2)(g) of the said Act as contended by the Petitioners, then obviously, such orders will be ultra vires the powers of the State Authorities - If however the impugned orders are found to relate legitimately to the exercise of powers under Section 3(2)(e) of the said Act, then, the challenge that the impugned orders are ultra vires will fail - Bench notes that the impugned orders require the Petitioners to reside at the detention centre until travel arrangements are made for the Petitioners eventual deportation - The impugned orders refer to the Petitioners being found staying in India without passport and VISA and a request from Anti Narcotics Cell for imposition of restrictions on the Petitioners movements until deportation - Section 3(2)(e) of the said Act admittedly empowers the Central Government and now that the powers have been delegated, even the State Authorities, to require a foreigner to reside in a particular place and further impose restrictions upon their movements - This is different and distinct from placing a foreigner under arrest and detaining and confining him in terms of Section 3(2)(g) of the said Act - The communication dated 9th September, 2014 addressed by the Ministry of Home Affairs to the Principal Secretaries (Home) of all the State Governments and Union Territory Administrations refers to the provisions of Section 3(2)(c) of the said Act which empowers the Central Government to make orders providing that the foreigner shall not remain in India or in any prescribed area therein - There is also reference to Section 3(2)(e) of the said Act which empowers the Central Government to issue orders requiring the foreigner to reside in a particular place and imposing restrictions on his/her movements - The communication records that these powers have been delegated to the State Governments and Union Territory Administrations - The communication refers to advisability to restrict the movements of foreign nationals who are awaiting deportation after completion of sentence awarded to them pending the confirmation of their nationality in the detention centres/camps to ensure their physical availability at all times for expeditious/deportation as soon as the travel documents are ready. The communication refers to earlier communication dated 23rd November, 2009 addressed to all the State Governments/Union Territory Administrations conveying the detailed procedure to be adopted for deportation of illegal immigrants and setting up of sufficient number of detention centres - Ministry of Home Affairs has issued the Model Detention Centre/Holding Centre/Camp Manual, 2019 - The Manual inter alia points out to the distinction between internee foreigner and foreigner on parole by reference to the provisions of Section 4 of the said Act to be read alongwith the provisions of Sections 3(2)(g) and 3(2)(e) of the said Act - The Manual leaves it to the discretion of the State Authorities/Union Territory Administrations to name the place whether the foreigner on parole may be required to reside i.e. whether as detention centre or holding centre or camp - Finally, the Chapter -3 of this Manual makes reference to the categories of persons who may be placed in detention centre/holding centre/camp - Upon conjoint reading of the provisions in Sections 3 and 4 of the Foreigners Act, 1946 and paragraph 11 of the Foreigners Order, 1948, Bench is unable to accept the petitioner's contention that the impugned orders relate to exercise of powers under Section 3(2)(g) of the said Act and since such powers have not been delegated to the State Authorities the impugned orders are ultra vires - Full Bench of the Madras High Court in the case of Latha Vs The Secretary to Government, Public (SC) Department has taken the view that any direction requiring a foreigner who has no valid travel documents or any subsisting right to remain in India to reside in special camp or detention centre, does not amount to arrest or detention of such person; rather, such orders are relatable to exercise of powers under Section 3(2)(e) of the said Act and paragraph 11 of the Foreigners Order, 1948 - Bench is, therefore, unable to accept the petitioner's first contention to hold the impugned orders as ultra vires - Bench also does not accept the second contention that the existence of deportation order is a sine qua non for exercise of powers under Section 3(2)(e) of the said Act - In any case, the Petitioners cannot claim any special consideration on account of the circumstance that they were allegedly found involved in offences under the NDPS Act for which, they are facing trial for last several years - However, Bench agrees that the trials against the Petitioners ought not to be unduly prolonged - Expeditious conclusion of trial against the foreigners who may be involved in offences under the NDPS Act or any other Act, is not only in the interest of such foreigners but also in public interest, because it cannot be ruled out that some foreigners would like to unduly prolong their stay in India, taking advantage of the pendency of criminal proceedings against them - Bench is informed that the trial is presently not proceeding on account of COVID-19 situation, however, Bench directs that no sooner the situation improves and Courts begin to function on regular basis, the NDPS Judge seized of these matters will endeavour to dispose of the trials against the Petitioners as expeditiously as possible and in any case within a period of four months from the date of regular functioning of the Courts - Petitions dismissed with aforesaid directions: High Court [para 16, 17, 23, 26, 27 to 32, 34, 42 to 47]

- Petitions dismissed: BOMBAY HIGH COURT

2020-TIOL-1175-HC-KAR-NDPS

Shivaraj Urs Vs UoI

NDPS - Petitioner had moved his first bail application before the High Court prior to Narcotics Control Bureau filing its complaint before the Special Judge – Said application was dismissed on 11th October 2019 = 2019-TIOL-2508-HC-KAR-NDPS - Second application was also dismissed on 28th May 2020 – The present petition is the third petition - It is argued that Intelligence Officer does not have power to conduct search and seizure; that the search and seizure was conducted based on an authorization given by the Superintendent and which authorization appeared to have been prepared after the search, therefore, all proceedings conducted by the Intelligence officer are vitiated.

Held:

(i) Whether successive bail petitions are maintainable?

Re: Successive bail petitions

+ It is settled that successive bail applications can be moved with change in circumstances. The present application is presented after NCB filing its complaint before the designated Court. Complaint filed by NCB under Section 36A(1)(d) of NDPS Act is akin to a charge sheet filed under Section 173 Cr.P.C.

(ii) Whether the plea of illegality during search entitles petitioner for grant of bail?

Re: Illegality in search and seizure operation

+ In the case on hand, charge-sheet papers include authorization under Sub-section (2) of Section 41 of NDPS Act. In the earlier bail petition(Criminal Petition No.4448/2019) = 2019-TIOL-2508-HC-KAR-NDPS , it was urged on behalf of the petitioner that the Panchanama dated 1st May 2019 is contrary to law. NCB had placed on record the authorization issued by the Superintendent and the same has been considered in paragraph No. 15 of the order passed on first bail petition.

+ Therefore, it would not be open for the petitioner to re-agitate the same again in this petition. Undisputedly, the authorization forms a part of the documents annexed to the complaint. It's veracity can be examined only during the trial.

+ The main ground on which this bail application is moved is that the authorization given under Sub-Section (2) of Section 41 of NDPS Act by this Superintendent to Shri.Virender Singh, Intelligence Officer, to conduct search and seizure is not issued in the ordinary course of official business, but appears to be a created document. Thus, the main ground that the entire search and seizure operation is illegal and it vitiates the trial and hence, petitioner is entitled to be released on bail is accepted, it amounts to pre-judging the issue with regard to validity of authorization before trial. On the contrary, the panchanama contains the signature of the Superintendent also. Therefore, the presumption in law that official acts have been regularly performed as held in Paulsamy [ (2000) 9 SCC 459 ] must weigh in favour of prosecution. Viewed from this angle, presence of the Superintendent at the time of search and seizure would not vitiate the trial as held in S.Mohanty (2000) 2 SCC 170 .

(iii) Whether petitioner is entitled for bail on the ground of parity?

Re: Parity

+ It was argued that accused No. 1 and 3 have been granted bail. Therefore, petitioner is also entitled for bail on the ground of parity.

+ It is relevant to record that, it is alleged in the complaint that petitioner herein handed over a bag containing contraband to accused No.1, J.Kannan. This Court while allowing the bail petition of Accused No.1 has held as follows:

'In other words, petitioner was acting as a carrier for the seized Ketamine material, which ('he' Sic.) was transporting in collusion with accused Nos. 2 and 3."

+ So far as accused No.3 Putta Venkateshwarulu is concerned, this Court while considering his bail petition has recorded that the material seized from his possession was not Ketamine.

+ Thus, there is a classic difference between the case of petitioner and accused No. 1 and 3.

+ While rejecting petitioner's first bail application (Criminal Petition No.4448/2018) = 2019-TIOL-2508-HC-KAR-NDPS , this Court has recorded elaborate reasons from paragraphs No. 22 to 31 of the said order as to why the satisfaction of the Court cannot be recorded under Section 37 of NDPS Act.

+ This is the third bail petition. It can be considered only if there are any change in circumstances. What is mainly argued is, legal infirmity with regard to the authorization and search and seizure operation. As recorded herein above, the authorization was placed on record by the prosecution in Criminal Petition No.4448/2018 and considered by this Court in paragraph No.15 of the said order.

+ Therefore, firstly there is no change in circumstance as far as the petitioner is concerned except that complaint has been filed by the NCB before the Trial Judge. Secondly the grounds raised in this petition, are all matters of fact and require to be proved during trial. If any finding is recorded with regard to the legal infirmities pointed out by the petitioner, it would amount to pre-judging the issue.

+ Petition fails and is accordingly dismissed. [para 11, 20, 21, 33 to 36, 39 to 42]

- Petition dismissed: KARNATAKA HIGH COURT

2020-TIOL-1008-CESTAT-DEL

Varaha Infra Ltd Vs CCGST, C & CE

Cus - The assessee had imported bitumen 60/70 packed in iron drums and sought clearance of same - In all the Bills of Entry, the classification of imported consignment was declared under CTH 2714 9090, the unit CIF value of imported consignment was at USD 380 PMT - At the time of import, it was suspected that the imported consignment has been mis-declared with regard to imported price of the consignment as NIBD data for the similar goods imported during contemporary time period showed the import value of bitumen 60/70 at USD 570 PMT - The samples sent for testing confirmed that the imported consignments were of bitumen 60/70 - The original adjudicating authority finalised the provisional assessment of imported consignment accepting the assessment value of imported consignment at USD 380 PMT - The Commissioner (A) has proceeded to decide the issue as per the directions of this Tribunal issuing a detailed SCN to the assessee - However, the grounds of rejection of impugned value i.e. the transaction value have not been delivered in SCN - The value given in two Bills of Entry which have been relied upon by Commissioner (A) showed a much higher value of import consignment than declared by assessee - However, the assessee since very beginning have been contesting that there have been at least 8 contemporary import consignments where the contemporary import price from the same country of original have been accepted at USD 380 MT - The Commissioner (A) has not dealt with these imports in his O-I-A - The SCN issued in pursuance to Tribunal's order dated 26.05.2014 does not even gave details as to why the transaction value declared by assessee is not acceptable for the purpose of levy of Customs duty - The SCN is the foundation on the basis of which any demand can be confirmed as held by Apex Court in case of M/s. Precision Rubber Industries P. Ltd. 2016-TIOL-28-SC-CX - Since the declared value matches with the already accepted assessable value of goods at different ICDs, only because two consignments of JNCH, Nhava Sheva were imported at higher prices, same cannot be taken as the contemporary import value of imported items namely, bitumen 60/70 for rejection of the transaction value of imported consignments when similar value of identical goods have been accepted by the Department - Tribunal also rely on the decision of Supreme Court in case of M/s. Paul Industries (India) 2004-TIOL-132-SC-CUS - Since declared value match with the lower accepted contemporary value, there is no ground for rejection of the same - There is no valid ground for rejecting the transaction value of imported consignments ands therefore, the impugned order is without any merit: CESTAT

- Appeals allowed: DELHI CESTAT

2020-TIOL-1007-CESTAT-BANG

Liberty Oil Mills Ltd Vs CC

Cus - Appellants imported about 2000 MTs of RBD Palmolein and filed various Bills of Entry at the Port of Cochin - In terms of Notification 39(RE-2007)/2004-09 dated 16th October 2007 import of Palm oil and its fractions was not permitted through Kochi Port – Writ petition filed by the importer staying the operation of the notification was dismissed, however, during the interregnum, Bills of Entry were provisionally assessed and the imported Palm oil was cleared for home consumption – SCN was issued seeking confiscation of 1999.695 MTs of RBD Palmolein and to impose penalty u/s 112 of the CA, 1962 – in adjudication, penalty was imposed but AA refrained from imposing redemption fine on the ground that the goods were already released – aggrieved, both importer as well as Revenue are in appeal.

Held: Importer has not made out any case to show the compelling circumstances under which they could not either cancel the Contract or alter the Port of discharge - High Court of Kerala has restored the position existing as on the date of import by quashing the Writ Petition, therefore, the importer was required to comply with the Notification dated 16.10.2007 – since they could not produce an irrevocable commercial letter of credit as required by the Notification, the impugned goods are liable for confiscation in terms of Section 111(d) of Customs Act, 1962 - However, looking into the long legal process undergone by the appellants and looking into the circumstances of the case, Bench is inclined to reduce the penalty to Rs.38 Lakhs from Rs.80 Lakhs – Importer's appeal is disposed of accordingly – Insofar as Departmental Appeal is concerned, Bench finds that there is force in the argument of the department inasmuch as the Commissioner had erred in holding that no redemption fine could be levied as the goods were not physically available – Since the goods were provisionally released in terms of a bond submitted by the importers, redemption fine is liable to be imposed and the same is imposed of Rs.5 lakhs – appeals disposed of: CESTAT [para 5, 6]

- Appeals disposed of: BANGALORE CESTAT