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2020-TIOL-177-SC-NDPS-LB
Issak Nabab Shah Vs State of Maharashtra
NDPS - Appellant was found to be in possession of 6.300 kilogram of Ganja - Narcotic Substance, which is above the small quantity and below commercial quantity - Additional Sessions Judge, Kopargaon, convicted the appellant - original accused for the offences punishable under Section 8(c) and 20(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentenced him to undergo 10 years rigorous imprisonment and a fine of Rs.1,00,000/- - Bombay High Court dismissed the appeal preferred by the appellant against this order, therefore, the present appeal before the Supreme Court - It is submitted that the appellant has already undergone six years rigorous imprisonment out of the ten years rigorous imprisonment - It is, therefore, prayed to modify the sentence imposed by the trial Court, confirmed by the High Court, to the sentence already undergone, considering the fact that at the relevant time the appellant was aged 24 - 25 years of age and he has learnt a lesson and that there were no antecedents and is married and having children and the family depends upon him.
Held: In the facts and circumstances of the case, more particularly when the Ganja recovered from the appellant was 6.300 kilogram, which is between small quantity and commercial quantity and considering the fact that the maximum punishment for such offence is 10 years rigorous imprisonment, out of which the appellant has already undergone six years rigorous imprisonment, Bench allows the present appeal in part and modifies the impugned judgment and order passed by the trial Court, confirmed by the High Court, to the extent of imposing the sentence of six years rigorous imprisonment in place of ten years rigorous imprisonment as imposed by the trial Court and confirmed by the High Court - appeal is allowed: Supreme Court [para 5, 6]
- Appeal allowed :SUPREME COURT OF INDIA
2020-TIOL-2074-HC-AHM-ST
Airlink Communication Pvt Ltd Vs UoI
ST - SVLDRS, 2019 - Competent authority directed the petitioners to pay differential service tax demand of Rs.82,26,42,852/- vide communication dated 20.05.2019 - petitioners found that the quantification as stated vide communication dated 20.05.2019 was incorrect - They accordingly submitted to the Assistant Director, DGCEI, Vapi on 23.11.2019 requesting to recalculate the amount as the quantification had included the transactions of the period after April, 2015 which could not have been done - office of the Directorate General of Goods and Services Tax Intelligence, Regional Unit, Vapi communicated vide letter dated 27.12.2019 to the petitioners that there was apparently a mistake and the revised quantified amount was much less at Rs.4,99,03,524/- - Pursuant to the above intimation of the correction of the quantified amount, the petitioners submitted on the online portal of the Scheme on 31.12.2019 expressing their willingness to avail the benefit, however, the application of the petitioners under the Scheme was not accepted for the reason as stated in the Form SVLDRS-1 that "the service tax liability was not quantified and communicated finally before 30.06.2019 i.e. cut-off date for SVLDRS" - Petitioner submits that there was no fault of theirs in the quantification and it was the department that had committed mistake which it subsequently rectified, and therefore, the petitioners' application under the Scheme ought to be accepted and entertained - When no further communication was received by the petitioners, they approached this Court by way of the present petition.
Held: In the present case, the admitted position is that the original quantification made by the Department on 20.05.2019 was incorrect - A huge demand of more than Rs.82 crores came to be raised towards the service tax and at that stage there was no Scheme in existence - Department realized its mistake and ultimately corrected the demand raised from Rs.82,26,42,852/- and reduced it to Rs.4,99,03,524/- vide communication dated 27.12.2019 - The amount had been wrongly quantified for no fault of the petitioners - It was an apparent mistake made by the Department - The Department thus ought not to have rejected the application of the petitioners by alleging that the quantification had been made after the cut-off date - The quantification had been made much prior to the cut-off date on 20.05.2019 and according to the Department that was the final quantification and not provisional quantification, but definitely it was an erroneous quantification - The Department realized its mistake, but much later and accordingly corrected it, therefore, in all fairness the Department ought to have treated the quantification made on 27.12.2019 to be substituting the figure communicated vide communication dated 20.05.2019 - If this had been done, apparently the application of the petitioners under the Scheme would be entertained and the petitioners would be entitled to claim its benefit - The quantification communication on 20.05.2019 was a final quantification according to the Department - If the Department had committed an error and it is corrected subsequently, then such quantification or the revised figure should relate back to the original quantification and it would only be substituting the figures and nothing more - The mistake committed by the Department was also an apparent mistake and a glaring mistake that they included the taxable services subsequent to the period of investigation and because of the said reason, a huge amount of liability had been raised - Depriving the petitioners for the fault of the Department, would be unfair and unreasonable - Bench holds that the quantification communicated on 27.12.2019 to be a quantification substituting the figures in the communication dated 20.05.2019 thus the quantification being prior to 30.06.2019 - application of the petitioners under the Scheme deserves to be treated as within time and should be processed accordingly - Reason for rejection as communicated vide Annexure-I is set aside - Petition allowed: High Court [para 9, 11, 13, 14, 15, 16]
- Petition allowed : GUJARAT HIGH COURT 2020-TIOL-2073-HC-MUM-CUS
Nikom Copper And Conductors Pvt Ltd Vs UoI
Cus - Petitioner seeks quashing of seizure memo dated 09.01.2020 issued by Intelligence Officer, Directorate of Revenue Intelligence, Sub-Regional Unit, Vapi - Petitioner had imported copper wire rods 8 MM electrolytic tough pitch copper wire rod as per ASTM B49 in two consignments - In the course of import, petitioner contemplated high seas sale of the imported goods to M/s. Chandrashekhar Industries, subsequently added as respondent No.4 to the present proceeding in terms of order dated 29.09.2020 - Respondent No.4 was required to pay the agreed amount for the high seas sale by entering into a written agreement - It is stated that after filing of the bills of entry, respondent No.4 declined to make the agreed payment and instead requested for cancellation of the high seas sale orally agreed upon by and between the parties - Following the same, joint request was made by both the petitioner and respondent No.4 for amendment to the two bills of entry by substituting the name of the petitioner in place of respondent No.4 - It is stated that office of respondent No.2 allowed such amendment and name of the petitioner was entered as the importer in the two bills of entry - Further, clearance of the imported goods was sought for by the petitioner on payment of duty on merit without seeking any exemption - Following the same, petitioner approached the office of respondent No.2 for permitting clearance of the consignments on payment of customs duty on merit - It is stated that petitioner had informed the office of respondent No.2 that because of delay in clearance of the imported goods, it was incurring heavy detention and demurrage charges - Thereafter office of respondent No.3 seized the imported goods vide seizure memo dated 09.01.2020 - Petitioner has questioned the legality and validity of such seizure.
Held: Sub-section (1) of s.110 of the Customs Act, 1962 makes it abundantly clear that if the proper officer has reason to believe that any goods are liable to confiscation under the Customs Act, he may seize such goods - Therefore, formation of 'reason to believe' by the proper officer that the goods in question are liable to confiscation under the Customs Act is the condition precedent for invoking the jurisdiction under section 110 to seize such goods - Having reason to believe by the proper officer that any goods are liable to confiscation is the sine qua non for exercise of the power of seizure - From a conjoint reading of the seizure memo and the panchnama, both dated 09.01.2020, it is apparent that seizure was made by one officer (Uma Nath Chaudhary) whereas the panchnama was drawn by another officer (Amit Kumar Sharma) - Assuming that both the officers are 'proper officers' in terms of section 110(1) of the Customs Act, there is no recording or mentioning by Uma Nath Chaudhary in the seizure memo that he had reasons to believe that the goods in question were liable to confiscation and hence may be seized - Similarly, the other officer in the panchnama mentioned that the imported goods had contravened Notification No.25/99-Customs dated 28.02.1999 and thus were liable to be seized under the Customs Act - Even here also, there is no mentioning or recording by Amit Kumar Sharma that he had reasons to believe that the goods were liable to be confiscated and hence may be seized - Firstly, the belief as above has to be of the proper officer who had made the seizure - It cannot be that seizure is made by one officer and the reasons to believe are recorded by another officer - Secondly, the proper officer who made the seizure must have reasons to believe that the seized goods are liable to confiscation - Seizure of goods is not an end in itself - It is a discretionary power vested upon the proper officer who has reasons to believe that the goods to be seized are liable to confiscation - No such reasons to believe is discernible in the panchnama, not to speak of in the seizure memo - I t is, therefore, apparent that on the date of seizure, the bills of entry were in the name of the petitioner and the petitioner had not (and still has not) claimed any benefit under the Notification No.25/99- Customs dated 28.02.1999 - It may be mentioned that Office of the Commissioner of Customs had informed DRI authorities that the amendments were allowed because NOC was submitted by both the parties i.e., buyer and seller of the high seas sale - It was also mentioned that amendment was allowed as there was no change in the original bills of lading and IGM - Standing Order No.10 of 2017 dated 03.05.2017 issued by the Commissioner of Customs, Nhava Sheva-IV prescribes the essential documents necessary for registration of high seas sale contract / transaction - The documents are high seas sales contract, non-negotiable copy of bill of lading, high seas sale invoice and commercial invoice, authority letter for customs broker from high seas sales buyer and copies of importer exporter code of both buyer and seller - From the above, it is evident that a high seas sale has to be in writing in the form of an agreement / contract which has to be signed by both the buyer and the seller and duly notarized - Therefore, respondents have rightly contended that the high seas sale entered into by and between the petitioner and respondent No.4 was no sale in the eye of law as it was done orally - If the high seas sale was not a sale in the eye of law, then respondent No.4 could not have filed the two bills of entry relating to the two import consignments - This is more so when the bills of lading and IGM were in the name of the petitioner - In such circumstances, the customs authorities at Nhava Sheva had rightly allowed the amendments prayed for - As on the date of seizure i.e., 09.01.2020, the two bills of entry were in the name of the petitioner and the petitioner had not sought any concession or exemption or benefit under Notification No.25/99- Customs dated 28.02.1999 - In such circumstances, there could not have been any reason to believe that the said imported goods had contravened any of the provisions of section 111 dealing with confiscation and hence liable to seizure under section 110 - That apart, all the developments mentioned above are post seizure developments which could have no bearing on the validity or invalidity of the impugned seizure - I t is evident from the seizure memo as well as the materials as on that date i.e. 09.01.2020 that there could not have been any reason to believe by the proper officer that the goods seized were liable to confiscation - Therefore, the very action of seizure is devoid of jurisdiction and hence illegal - If the very act of seizure is illegal, all consequential actions would have no legal sanction - However, it cannot be said that the amendments so carried out to the two bills of entry were undeserving or ought not to have been carried out in view of what is discussed - Furthermore, the cancellation of amendment was not carried out by the authority which had allowed the amendment after due application of mind - It was carried out as per the direction of DRI, Zonal Unit, Ahmedabad - Such cancellation certainly resulted in adverse civil consequences upon the petitioner who was the beneficiary of the amendment - Without putting the petitioner to notice and without giving an opportunity of hearing to the petitioner, the amendments which were carried out on 18.12.2019 could not have been unilaterally cancelled after 4/5 months - Such cancellation of amendment would, therefore, be a nullity having no legal sanctity - Therefore, subsequent cancellation of the amendments to the two bills of entry would make no material difference at all to the illegality of the seizure - I mpugned seizure memo dated 09.01.2020 cannot be legally sustained - The same is hereby set aside and quashed - As a consequence, the seized goods shall be released to the petitioner on payment of the requisite duty and comple tion of necessary formalities - Petition allowed: High Court [para 21, 21.1, 31, 34, 36, 37, 39 to 41]
Maintainability - It is a well settled proposition of law that if an order is a nullity then it is invalid and its invalidity can be set up anywhere and everywhere when such order is sought to be executed or enforced: High Court [para 38]
- Petition allowed :BOMBAY HIGH COURT 2020-TIOL-2069-HC-KAR-ST
Scorpio Event Management Pvt Ltd Vs JCCT
ST - VCES, 2013 - s.110 - Grievance of the petitioner is that the respondent No.1 - Department has communicated the notice of recovery to the respondent No.6 - Bank, which in turn has sent mail to the present petitioner indicating that there is a notice for recovery of sum of Rs.17,29,765/- which is towards interest amount on the declared amount - Being aggrieved by this impugned recovery notice has filed the top noted writ petition.
Held: On perusal of payments made at different dates, this Court would find that the recovery notice issued by the respondent No.4-Authority directing the petitioner to make payment of Rs.17,29,765/- prima facie appears to be incorrect - On perusal of the payments made by the petitioner, prima facie, this Court finds that the interest is computed on the declared amount - Court is of the view that the interest should have been computed on unpaid dues and not on declared amount - Since the impugned notice clearly gives an indication that interest is levied without taking note of partial payments, Bench is of the view that the order under challenge is not sustainable and the same needs to be quashed with a direction to the respondent No.4 to re-compute the interest by taking note of the payments made on various dates towards the declared amount - Petitioner also submits that interest computation comes to Rs.7,03,733.58 and the Authority has already recovered an amount of Rs.4,06,781/- - Keeping open the contentions raised by the petitioner, writ petition is disposed of directing the respondent No.4 to re-compute the interest by taking note of the payments made on various dates by the petitioner towards the declared amount - The impugned recovery notice issued vide Annexure-M is quashed. The respondent - Bank is directed to permit the petitioner to operate the Bank Account over and above Rs.5 lakhs - Petition disposed of: High Court [para 5 to 7]
- Petition disposed of: KARNATAKA HIGH COURT
2020-TIOL-2066-HC-MAD-CUS Deccan Organics Vs ACC
Cus - Respondent has passed Order-In-Original dated 02.03.2016 rejecting the refund claim filed by the petitioner under the Customs Act, 1962 - respondent department claims that the order has been despatched on 10.03.2016 - The Petitioner was entitled to prefer appeal against that order under Section 128 of the Act, within a period of 60 days from the date of its receipt before the Commissioner (Appeals), who has been empowered to condone delay in filing such appeal for an extended period of 30 days - However, the Petitioner did not prefer any such appeal before that Appellate Authority, but has instead filed this Writ Petition on 10.01.2017 challenging the order passed by the Respondent beyond the maximum limitation period of 90 days from the date of receipt of copy of that order.
Held: Supreme Court of India in Assistant Commissioner (CT) LTU, Kakinada -vs- Glaxo Smith Kline Consumer Health Care Limited = 2020-TIOL-93-SC-VAT has emphatically laid down that the High Court in the exercise of powers under Article 226 of the Constitution of India ought not to entertain Writ Petition assailing the order passed by a Statutory Authority which was not appealed against within the maximum period of limitation before the Appellate Authority concerned - In the result, the Writ Petition, which cannot be entertained, is dismissed: High Court [para 3, 4]
- Petition dismissed: MADRAS HIGH COURT
2020-TIOL-1663-CESTAT-MUM
Dhariwal Industries Ltd Vs CCE
CX - The appeal of assessee challenges the rejection of their claim for refund, deposited during investigations into evasion of duties of central excise as being premature in view of proceedings pending before the adjudicating authority - The disposal of application for refund itself has been premature - The assessee has sought refund of amounts deposited during investigation - Whether such amount is available for disposition by central excise authorities or not, any confirmation of recovery under section 11A of CEA, 1944, along with interest and penalty, is recoverable under appropriate provisions of CEA, 1944 - The amount deposited is not a limiting factor nor the only source of such recovery - Even if it was considered essential to retain the amount in deposit till conclusion of adjudication proceedings, it would have been appropriate for competent authority to have withheld any decision on application for refund till completion of process - Under section 11B of CEA, 1944, rejection of refund claim can arise only on ineligibility in accordance with provisions - There is no reference to 'premature' claim as ground for rejection: CESTAT
- Appeal allowed: MUMBAI CESTAT
2020-TIOL-1662-CESTAT-MUM
Hindustan Construction Company Ltd Vs CST
ST - The non-taxability of consideration received in composite contracts prior to incorporation of 'Works Contract Service', as determined in re Larsen & Toubro Ltd. - 2015-TIOL-187-SC-ST, has been followed by the Tribunal in several decisions thereafter - Consequently, the differential tax computed on the contracts pertaining to the period prior to 1st June 2007, amounting to Rs.1,26,76,165/- is set aside - Further, none of the notices have proposed disallowance of the method of discharge of tax on service component of the three contracts entered into after 1st June 2007 - There is also no evidence on record that the tax paid by them on the consideration received for these contracts was incorrect discharge of tax liability - The adjudicating authority could not, therefore, have taken up these contracts for determination of tax liability by applying the rate under the composition scheme to the entire value of the contract - The demand of Rs.18,69,97,952 is not sustainable in law - Insofar as the ineligible CENVAT credit of Rs.47,62,93,311 is concerned, the impugned order has noted the reversal of the same - Consequently, there is no scope for recovery and the appropriation ordered by the adjudicating authority is more for satisfaction than recourse to enforcement mechanism - The charging of interest and imposition of penalty for such credit that has not been utilised and, admittedly, remained as a mere entry in the CENVAT credit account till reversal is not justifiable - Impugned order is set aside and appeal is allowed: CESTAT [para 10 to 12]
- Appeal allowed: MUMBAI CESTAT
2020-TIOL-1661-CESTAT-MUM
Nyk Line India Ltd Vs CC
Cus - The assessee had imported one 'tug master with goose neck' and upon being informed that the said goods, procured on lease, would not be registered under Motor Vehicles Act, 1988 sought re-export of goods - However, while holding the goods liable to confiscation for violation of provisions of FTP, the adjudicating authority did not consider it necessary to impose a fine for redemption but, nevertheless, invoked the penal provision under section 112 of Customs Act, 1962 - It would appear that the awareness of ineligibility for import came to the attention of assessee only upon it be pointed out to them - In any case, the goods could not have been deployed, under any circumstances, without proper registration by competent authority - There is, therefore, no evidence that the assessee would have been complicit in attempting to import goods that could be concealed from registering authorities - No reason found for burdening the importer with penalty, intended by law for deterrence, under section 112 of Customs Act, 1962: CESTAT
- Appeal allowed: MUMBAI CESTAT |
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