BGR Energy Systems Ltd Vs ADDL CGST & CE

ST - Intra-Court appeals are filed aggrieved by the order of the Single Judge dismissing the writ petitions on merits and holding that Assessee was liable to pay Service Tax on the Services availed by the Bank viz., Indian Bank, Adyar, Chennai from the foreign parties for providing Performance Bank Guarantee in Iraq to the customer of the present Petitioner.

Held: Bench is satisfied that the Assessee ought not have invoked the Writ Jurisdiction straightway against the Assessment Order adjudicating the issue, which involves mixed questions of facts and law – that the Assessee ought to have filed regular Appeal under the Act before the first Appellate Authority and thereafter before the Tribunal in Second Appeal - That only on the substantial question of law arising in the order of the Tribunal, a regular Appeal could have been filed before the High Court – Appellant submitted that they may be permitted to withdraw the Writ Petition itself and move the Appellate Authority and the Appellate Authorities may be directed to decide the Appeal on merits in accordance with law without influenced by the observations of the Single Judge - Accordingly, Bench disposes of the Appeals with a liberty to the Appellant to withdraw the Writ Petition itself and move the Appellate Authority concerned - If a regular Appeal is filed within six weeks, without raising any objection for the delay in filing the Appeal, it shall be entertained and decided on merits in accordance with law - Such Appellate Authorities will decide the Appeals in accordance with law, uninfluenced by any observations made in the order of the Single Judge impugned - Writ Appeals are disposed of: High Court [para 7 to 9]

- Appeals disposed of: MADRAS HIGH COURT

2020-TIOL-2079-HC-MAD-CUS

ACC Vs Dalmia Cement Bharat Ltd

Cus - Department is in appeal against the order of the Single Judge directing refund of the Extra Duty Deposit of the year 2004 paid against various Bills of Entry - Single Judge held that there is no justification on the part of the Department in delaying the finalisation of the provisional Assessment with respect to these Bills of Entry for all these years despite there being Board Circular No.11/2001 dated 23.2.2001, referred to in para 9 and the Circular dated 16.7.2007 making it beyond the pale of doubt that no Cess or Additional Duty of Customs was leviable on import of Coal in question - Single Judge found that there was no justifiable cause to delay the refund for all these years merely on the ground that some investigation is pending and therefore, directed refund of the same with interest in terms of Section 27A of the Act 1962 from the date of Application viz., 17.12.2007 and directed such refund to be made within 4 weeks.

Held: Bench is satisfied that there is absolutely no merit in the present Writ Appeal and fails to understand the bona fide of the Customs Department to challenge even this kind of innocuous direction of the Single Judge while disposing of the Writ Petition and why the Department should file intra-court Appeals just for the sake of litigation - It is not at all justified and strong action deserves to be taken in this regard as the Government Department cannot be permitted to be a voluntary litigant in the Constitutional Courts especially to challenge the orders of the learned Single Judge without any valid rhyme or reason - Alleged reason assigned by the Department that there was some investigation pending, of which no details are placed on record, is not at all a justifiable reason in the light of Board's own Circular - No such material has been placed before this court to justify the action of the Customs Department not to finalise the Provisional Assessment for 16 years - Direction of the Single Judge, is, therefore, perfectly justified and does not call for any interference by this court in the present intra-court Appeal – Bench directs refund of the EDD amount to the Petitioner/ respondent herein forthwith within a period of 4 weeks with interest at the rate of 6% from 17.12.2007 till the actual refund and if there is a delay in making the refund of EDD beyond 4 weeks, interest at the increased rate of 9% would be payable by the Appellant Department and the excess interest in such case would be recovered from the Officer concerned who delays the matter any further – Writ appeal of Revenue dismissed: High Court [para 7 to 11]

- Appeal dismissed: MADRAS HIGH COURT

2020-TIOL-2078-HC-MAD-CUS

ACME Ware Housing Pvt Ltd Vs Principal Commissioner

Cus - Aggrieved by the observation of the Singe Judge in paragraph 2 of the order dated 25.08.2020, the present intra-court writ appeal is filed – appellant submits that they are not aggrieved by the dismissal of their writ petition but by the observation of the Single Judge in paragraph 2 of the said order, which gives a finding that the third respondent, Mr. Paneerselvam , is already in possession of the warehouse and is granted full liberty to take action as he may deem fit and necessary to obtain gainful use thereof – Appellant submits that Single Judge ought not to have made these observations which will unduly affect the appellant's right in the pending suit filed by the appellant against the respondent, in which injunction suit, admittedly the Customs Department is not a party.

Held: The appellant cannot take any exception to the said observation of the Single Judge, because, in the eye of law, after 31st March 2020 with the lease period being over, there is no legal right vested with the lessee to remain in possession and that the goods lying in the said bonded warehouse after cancellation of license by the Customs Department have to be removed - Therefore, the appellant cannot hold over the vacant possession of the warehouse in question, which admittedly belongs to the third respondent – Bench observes that multiplying the litigation by availing the remedies in different forums is a deliberate effort on the part of the petitioner to abuse the process of law - If the licensee under Customs Act does not have a valid possessory title or right of possession over the bonded warehouse, the Customs Authorities cannot permit the same to be operated as a bonded warehouse to keep the goods of the importers against whom adjudication of duties is yet to take place and clearance of goods is yet to be made – Bench does not see any reason for the appellant/ petitioner to have invoked the writ jurisdiction of this Court on the basis of a status quo order granted by the trial Court in a civil Suit in which Customs Department was not at all a party - Nothing prevented him to even implead Customs Department also as Defendant in that very suit, so that all related issues could be adjudicated by one Court - This is what, the abuse of process of law is and if an observation of a single Judge in this process is given against the appellant/petitioner, he cannot be permitted to raise a plea against that in the intra court appeal – No merit in the writ appeal, hence same is dismissed: High Court [para 11, 12, 14, 19]

- Appeal dismissed: MADRAS HIGH COURT

2020-TIOL-1664-CESTAT-MUM

Lotus Beauty Care Products Pvt Ltd Vs CC

Cus - Assessee is in appeal against impugned order wherein the order of original authority for recovery of Rs. 99,958, as differential duty on import of 'myristic acid' in three bills of entry, was upheld along with the confiscation of goods imported against one bill of entry under section 111 (m) of Customs Act, 1962, though permitted to be redeemed on payment of fine and imposition of penalty under section 112 of Customs Act, 1962 - The eligibility of impugned goods for concessional rate under notfn 46/2011-Cus is not in dispute - The specific entry within said notfn appears to have been erroneously claimed and, upon it being pointed out, the importer accepted the error in bill of entry - That this error is, as claimed by assessee, inadvertent would appear to be tenable as the possibility of confusion between numbers corresponding to the claimed entry and the eligible entry cannot be ruled out - The declaration of tariff item, as well as description of goods, would also make it apparent that there has been no misdeclaration within the meaning of section 111 of Customs Act, 1962 and that such a patent error cannot be seen as an attempt at misleading the system - The invoking of section 111 and section 112 of Customs Act, 1962 is not warranted: CESTAT

- Appeal allowed: MUMBAI CESTAT