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SERVICE TAX
2020-TIOL-1790-HC-MAD-ST
LCS City Makers Pvt Ltd Vs Customs, Excise and Service Tax
ST - Assessee availed the benefit of Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 and due Certificate for that has been issued by the Respondent Department on 12.2.2020 - in view thereof, applicant seeks for withdrawal of appeal and also submits that consequenlty the Cross appeal filed by the Revenue also deserves to be withdrawn in view of the provisions of the scheme - appeal(s) allowed to be withdrawn: High Court [para 3]
- Appeals dismissed: MADRAS HIGH COURT
2020-TIOL-1787-HC-DEL-ST
Sunder System Pvt Ltd Vs UoI
ST - The present petition was filed in challenge of adjudication proceedings initiated in respect of an SCN and hearing notice issued to the assessee - The assessee claimed that the adjudication was barred by limitation, considering the limitation period of one year for adjudication from date of SCN prescribed under Clause (b) of sub-section (4B) of Section 73 of the Finance Act, 1994 - The assessee also sought refund of duty amount deposited by it, along with interest from date of deposit.
Held - The court is of the view that even if no time limit is prescribed, the statutory authority must exercise its jurisdiction within a reasonable period and if it is not so done, it will vitiate the proceedings - Considering such mandate of law as well as the provisions of Section 73(4B) of the Finance Act 1994, it is clear that a statutory authority has to decide the show-cause notice within the time prescribed wherever it is possible to do so - In the present case, from the Revenue's list of dates, it is apparent that it was certainly possible for the adjudicating authority to adjudicate upon the SCN issued to the assessee within a period of one year at least from the conclusion of arguments - Hence the assessee's petition can be allowed on limitation alone - The SCN in challenge is quashed - The Revenue is also directed to refund the amount being claimed by the assessee: HC
- Assessee's writ petition allowed: DELHI HIGH COURT
2020-TIOL-1550-CESTAT-BANG
Scribetech India Healthcare Pvt Ltd Vs CCT
ST - Appellant is registered as 100% EOU and is in the business of rendering services of medical transcription for hospitals situated outside India and is registered as service provider under the category of Business Auxiliary Service under the Finance Act, 1994 read with Service Tax Rules, 1994 - For rendering the export of service, appellant is receiving input services on which service tax has been charged and paid and thereafter appellant have been availing cenvat credit of the same in their books of accounts - During the period in dispute, appellant has availed cenvat credit on input services used for export of services and filed refund applications with the Assistant Commissioner along with various documents - Thereafter, the Assistant Commissioner issued show-cause notices proposing to reject the refund claims filed by the appellant on various grounds - adjudicating authority rejected the refund claims and this order was upheld by Commissioner(A), hence assessee is before the CESTAT.
Held: There is no dispute with regard to the export of service and the receipt of foreign exchange - The only ground on which the refund has been rejected is that the closing balance of cenvat credit at the end of the quarter as per ST-3 return was 'nil' which was less than the refund amount for respective quarter - Objection of the Department that the appellant has not debited the cenvat credit account before filing the refund claim is not factually correct, in fact, the appellants have debited the cenvat credit account before filing the refund claim and the same is clearly shown in the ST-3 returns also - Further, the respondent while rejecting the refund claims has not properly appreciated the condition/limitation envisaged in paragraphs 2(g) and 2(h) in Notification No. 27/2012-CE(NT) dt. 18/06/2012 - The said paragraph only provides that the amount of refund claim shall not be more than the amount that lies in the cenvat credit account at the end of the quarter for which the claim is filed or at the time of filing of refund claim, whichever is less - This condition has been interpreted out of context by the respondent in the impugned order and the respondent has erred in not appreciating the facts as also the condition envisaged in Notification No.27/2012 - impugned order is set aside and appeals are allowed: CESTAT [para 6.2]
ST - Interest - As far as appellant's claim for interest on delayed refund is concerned, the issue has been settled by the Supreme Court in the case of Ranbaxy Laboratories Ltd. 2011-TIOL-105-SC-CX , wherein the Supreme Court has held that interest on delayed refund is payable under Section 11BB of Central Excise Act, 1944 on the expiry of period of three months from the date of receipt of application under Section 11B(1) ibid and not from the date of order of refund or Appellate Order allowing such refund - appellant is entitled for the interest: CESTAT [para 7]
- Appeals allowed: BANGALORE CESTAT
CENTRAL EXCISE
2020-TIOL-1551-CESTAT-HYD
Aptar Beauty & Home India Pvt Ltd Vs CCT
CX - Valuation - It is now well settled that the buyer's premises can never be the place of removal, therefore, the freight from the factory/depot/consignment agent up to the buyer's premises cannot be included in the assessable value, even if the goods are sold or delivered at the buyer's premises - Settled legal position is in favour of the appellants and against Revenue and the demands are unsustainable on merits and need to be set aside - impugned order set aside and appeal allowed with consequential relief: CESTAT [para 5, 6]
- Appeal allowed: HYDERABAD CESTAT
CUSTOMS
2020-TIOL-1557-CESTAT-KOL
Roz Mohammed Vs CC
Cus - Directorate of Revenue Intelligence, on the basis of specific information received by them, intercepted the appellants at Netaji Subhash Chandra Bose International Airport, Kolkata on 03.10.2015 - It was found that the said appellants were carrying high value electronic items, like, Mobile phone sets of different reputed brands, Sandisk pen drives, USB flash drives, RAM cards, Laptops, Watches of foreign origin in their checked in baggage; they had walked through the Green Channel without declaring the goods, which cannot be considered personal baggage, being in commercial quantity - Investigation revealed that the appellants have smuggled the goods on previous occasions - SCN was issued proposing confiscation of the goods totally valued in excess of Rs.1 crore and proposing imposition of penalty - Commissioner ordered confiscation of the goods but permitted redemption of the same on payment of fine - penalties were imposed, both in respect of the present imports as well as for the past - appeal filed to CESTAT.
Held: SCN states that the value of the recovered goods has been ascertained on the basis of reference value found in different product websites, however, addresses of those websites is neither given nor are screenshots made available - Similarly, there is no reasoning given for adoption of such values and the Rules under which the same is arrived at, either in the SCN or OIO, therefore, it is not possible for anyone to verify the claim of the department - This certainly amounts to violation of principles of natural justice and for that reason itself, in addition to the arbitrary manner in which the value was decided, renders the order not legally maintainable - However, it is also seen that the appellant in their respective statements have accepted the fact of carrying the goods in excess of free allowances permitted under baggage and have also accepted the facts of mis-declaration/non-declaration of the items in baggage - There is no doubt whatsoever as to the nature of the impugned goods being smuggled in nature, therefore, the goods are liable for confiscation and the persons involved are liable for penalty - However, while holding that the goods are liable for confiscation and the appellants are liable for penalty under Section 112(b), the request for reducing the redemption fine/penalties is accepted - redemption fine and penalties are reduced - Appeals disposed of: CESTAT [para 6 to 8]
- Appeals disposed of: KOLKATA CESTAT
2020-TIOL-1789-HC-MUM-CUS
Mumbai Fabrics Pvt Ltd Vs UoI
Cus - Petitioner had filed an application before the custom authorities requesting for mutilation of the imported goods in terms of Section 24 of the Customs Act, 1962 - By letter dated 9th October, 2020, Dy. Commissioner of Customs allowed the said request of the Petitioner with the clarification that mutilation should be carried out under the supervision of the custom authorities at the cost of the importer i.e. the Petitioner, further clarifying that this was to be treated as a one time permission – in view of the above permission, no live issue survives for adjudication in this case - Petition is accordingly disposed of: High Court [para 5, 6]
- Petition disposed of: BOMBAY HIGH COURT
2020-TIOL-1788-HC-MAD-CUS
Sri Amman Chemicals Vs Additional Secretary And Appellate Authority
Cus - Once the customs authorities became aware of the fact that the Appellant did not possess a valid licence, the goods were detained and, subsequently, auctioned by the customs authorities in accordance with the directions of the Chief Controller of Explosives, PESO - Appellant had filed an appeal against the order of the Chief Controller of Explosives, Nagpur, refusing to grant a P5 licence to the Appellant - appeal was rejected by the appellate authority and the Single Judge of the High Court had dismissed the writ petition filed against this order - This order is challenged in intra-court appeal.
Held: Ammonium Nitrate Rules came into force on 11.07.2012 - Rule 6(4)(a) of the Ammonium Nitrate Rules prohibits the import of ammonium nitrate without a licence - In the case on hand, the Appellant applied for a P5 licence on 05.08.2015, and the said application was rejected on 19.08.2015 - Once the application for a licence was rejected, the Appellant is not entitled to rely upon the proviso to Rule 5, which provides for additional time during the transitional period to enable persons dealing with ammonium nitrate, as of the date of entry into force of the Ammonium Nitrate Rules, to apply for a licence and to comply with the Rules - Upon perusal of the Ammonium Nitrate Rules, Bench does not find any provision that prohibits the grant of licence to a trader - However, it needs to be borne in mind that ammonium nitrate is an explosive - The Revenue counsel pointed out that the import licence has not been granted to any trader so far on the ground of national security; that ammonium nitrate is used in the manufacture of explosives and, therefore, it would be difficult to track the end use and end users of ammonium nitrate if traders are permitted to import ammonium nitrate for sale to their customers - Upon perusal of Rules 34 and 35 of the Ammonium Nitrate Rules, Bench finds that Rule 34 provides that the District Authority shall verify the antecedents of the applicant including the genuineness of the purpose before granting a no objection certificate - It is clear that considerable discretion is vested on the Licensing Authority with regard to the grant or rejection of a licence under the Ammonium Nitrate Rules - Keeping in mind the Ammonium Nitrate Rules, the facts of this case and the documents on record, Bench finds that the rejection of the Appellant's appeal is in order - Bench also finds that the single Judge duly considered the provisions of the Explosives Act, the Ammonium Nitrate Rules, the communication dated 16.09.2016 of the Chief Controller of Explosives and the order impugned in the writ petition while rejecting the writ petition - Considering all of the above, Bench finds that the said order does not warrant interference and there is no merit in the appeal - Appeal is dismissed: High Court [para 14, 16, 18, 19, 21, 22]
- Appeal dismissed: MADARAS HIGH COURT
2020-TIOL-1552-CESTAT-MUM
Prabhat Printing Works Vs CC
Cus - For non-fulfilment of export obligation as per the conditions of EPCG licence read with the Customs Notification No.64/2008-Cus., dated 09.05.2008, proceedings were initiated by the department and the adjudged demands were confirmed on the appellant - Appellant submits that it had already achieved the export obligation against the goods imported by it and, therefore, demands cannot be sustained – Bench agrees with the submission, however, since the facts regarding achievement of export obligation are required to be examined at the original stage, Bench is of the view that the matter should be remanded to the original authority for verification of the documentary evidences for a proper satisfaction of the fact that the export obligation in respect of the imports made under EPCG licence had already been achieved by the appellant – Matter remanded: CESTAT [para 6, 7]
- Matter remanded: MUMBAI CESTAT |
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