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2020-TIOL-2124-HC-MUM-CUS
Exim Incorporation Vs UoI
Cus - Petition has been filed seeking a direction to respondent Nos. 2 to 6 to unconditionally clear the goods [pistachio nut in-shell & Phthalic Anhydride Naphthalene Based] imported against bill of entry dated 17 & 24.05.2019 - It is stated that customs authorities decided that the goods imported by the two bills of entry dated 17.05.2019 and 24.05.2019 were required to be examined 100% - However, acting on instructions of the Directorate of Revenue Intelligence (DRI), Zonal Unit, Kolkata, petitioner was informed that such examination would be carried out only in the presence of proprietor of the petitioner - In this backdrop, when the legal representative of the petitioner had appeared before the Customs authorities on 11.06.2019 for examination of the consignments, the Joint Commissioner did not allow him to participate in the examination proceedings - Request of the petitioner for warehousing of the goods under section 49 of the Customs Act, 1962 was also not responded to - Aggrieved by the illegal detention of the imported goods and non-examination of the same on the ground of non-appearance of the proprietor, the present writ petition has been filed seeking the relief as indicated above - Primary contention of the petitioner is that the imported goods were detained for more than six months but without issuing show-cause notice under section 124 of the Customs Act though there is no seizure of the goods under section 110 of the Customs Act; that there is no provision in the Customs Act for detaining imported goods, therefore such detention is illegal and liable to be appropriately interfered with.
Held: If the view of Tribunal in Ramnarain Bishwanath Vs. Collector of Customs, Calcutta (1988) 34 ELT 202 is accepted, then detention would be at a stage post seizure - First there has to be seizure of the goods only whereafter the goods can be detained - In the instant case, admittedly there is no seizure, therefore, there can be no detention - Upshot of the discussion is that firstly, there is no provision in the Customs Act authorising detention of goods - Secondly, even if the understanding of the customs department as discussed in Ramnarain Bishwanath (supra) is accepted, then also detention would be at a stage after seizure - Detention and seizure, therefore, cannot be used interchangeably meaning one and the same thing - Detention cannot be taken resort to or the Customs authorities cannot take the plea of detention to avoid consequences of seizure under sub section (2) of section 110 of the Customs Act - If no show-cause notice under section 124(a) is issued, Customs authorities cannot retain the seized goods for more than six months though the aforesaid period of six months can at best be extended for a further period not exceeding six months - Therefore beyond the period of one year at the maximum, there cannot be any detention of goods even in the case of seizure without issuing show-cause notice under section 124(a) of the Customs Act - It is glaring to the naked eye that the respondents have committed two illegalities - First illegality is they have detained the goods without affecting seizure - Secondly, they have exceeded the time limit for detention of the goods even if it is construed to be a case of seizure - In such circumstances, the impugned action cannot at all be justified and is liable to be appropriately interfered with - Non-clearance seriously affects rights of lawful importer and fair procedure being a constitutional mandate, no authority can plead unlimited power of non-clearance - Officers of the Customs department are not immune from accountability against abuse of power by detaining goods for indefinite period - If respondent No.3 has any grievance regarding non-response of the petitioner to its summons, it can certainly raise the issue before the Calcutta High Court but that cannot be a justification for detaining the goods at Nhava Sheva for more than one year - This is a case where having regard to the unauthorised nature of prolonged detention Bench had considered imposing cost on the respondents but after thoughtful deliberation Bench has refrained from doing so for the moment - However, respondents are put on notice that henceforth Court may consider imposition of cost if any instance of misuse of power or such unauthorised and unlawful action is found on adjudication - Respondents are directed to forthwith release the imported goods of the petitioner covered by the bill of entry dated 17.05.2019 and dated 24.05.2019 on completion of the necessary legal formalities and in any case within a period of two weeks - Writ petition is accordingly allowed to the above extent: High Court [Para 26.1, 31, 32, 33, 34, 35, 36]
- Petition allowed: BOMBAY HIGH COURT
2020-TIOL-2123-HC-DEL-ST
Supreme Motors Pvt Ltd Vs UoI
ST - Present petition has been filed for quashing of letter dated 28th August 2020 issued by Designated Committee as bad in law - Vide the said letter, the Petitioner's application under SVLDRS, 2019 has been treated as lapsed for failing to make payment by 30th June 2020 in terms of Section 127 (5) of the Finance Act 2019 read with section 7(iv) of the Taxation and Other Laws ordinance, 2020 - Petitioner submits that though the petitioner had made the required payment on 19th March 2020, yet the same was reversed to his bank account to due to some internal banking error and that the petitioner had no reason to suspect that such an error had occurred; that a certificate to this effect dated 05.12.2020 issued by the bank is enclosed - That petitioner immediately upon knowledge of such inadvertent error, voluntarily submitted a demand draft of Rs.97,555.70 in favour of 'DESIGNATED COMMITTEE, NORTH DELHI COMMISSIONERATE SVLDRS' in discharge of the liability determined in the demand/statement issued in FORM SVLDRS 3 under the Amnesty Scheme explaining the inadvertent error, however, his application was treated as lapsed without affording him an opportunity of personal hearing.
Held: Error is at the end of the petitioner's agent i.e. petitioner's bank and no fault can be attributed to the respondent no. 3/Designated Committee - Accordingly, the decision taken by the Designated Committee is in accordance with Section 127(5) of the Finance Act 2019 read with section 7(iv) of the Taxation and Other Laws Ordinance, 2020 - If the petitioner has any grievances with its bank, it shall be at liberty to proceed against the same in accordance with law - Petition dismissed: High Court
- Petition dismissed: DELHI HIGH COURT
2020-TIOL-2122-HC-ALL-CX
Indian Oil Corporation Ltd Vs UoI
CX - Petition has been filed inter alia seeking quashing and setting aside of the SVLDRS-3 dated 26.02.2020 passed by the Designated Committee ; Mandamus directing the respondent No.1 to delete SKO from Fourth Schedule of Central Excise Tariff Act, 1944, retrospectively, w.e.f 1.7.17;Or in the alternative declaring continued existence/non-deletion of SKO from the Fourth Schedule of Central Excise Tariff Act, 1944, after 1.7.17, to be violative of section 174 of Central Goods and Services Tax, 2017 and also violative of Entry No.84 of List – I (Union List) of the Seventh Schedule to Constitution of India, which has been amended by the Constitution (One Hundred and First) Amendment Act, 2016 -Petitioner submits that their application seeking benefit of the SVLDRS, 2019 scheme has been arbitrarily rejected on the ground that as per section 125(1)(h) of the Finance Act, 2019, the product Superior Kerosene Oil (SKO) is set forth in the 4th Schedule of the Central Excise Act, 1944 and, therefore, application to avail benefits of SVLDRS scheme cannot be accepted.
Held:
+ Perusal of the Fourth Schedule to the Central Excise Act, 1944 and the provisions of Section 2(d) read with Section 2(f)(ii) leaves no manner of doubt that Superior Kerosene Oil is an excisable goods under the Central Excise Act, 1944, even if no rate of duty has been notified by the Central Government under the Act, 1944. Section 125(1)(h) of the Finance (No.2) Act, 2019 (Sabka Vishwas Scheme) specifically excludes applicability of the "Sabka Vishwas Scheme" with respect to excisable goods set forth in the Fourth Schedule to the Central Excise Act 1944. Since the 'SKO" is an excisable goods set forth in the Fourth Schedule to the Central Excise Act, 1944, therefore, the petitioner was not eligible to make a declaration under the Scheme in view of Section 125 of the Finance (No.2) Act, 2019.
+ Perusal of the Fourth Schedule shows that against the goods Superior Kerosene Oil "......" is appearing under the column rate of duty. Clause 4 of the additional notes to the Fourth Schedule provides that "......" against any goods denotes that Central Excise Duty under this Schedule is not leviable on such goods. It means that S.K.O. is an excisable goods as defined in Section 2(d) read with Section 2(f) and Section 3 (Charging Section) of the Central Excise Act, 1944 but presently no duty is leviable in the absence of rate of duty in the Fourth Schedule to the Act, 1944.
+ Thus, if the "additional notes" to the Fourth Schedule is read together with Section 2(d), Section 2(f)(ii), Section 3 of the Act, 1944 and Section 125 (1) (h) of the Finance (No.2) Act, 2019, it is clear that Section 125(1)(h) merely makes a person not eligible for declaration with respect to the excisable goods which are set forth in the Fourth Schedule to the Act, 1944.
+ Undisputedly, Superior Kerosene Oil is mentioned in the Fourth Schedule although no rate of duty has been provided. If rate of duty has not been provided it shall merely mean that no duty is leviable in the absence of rate of duty. It does not mean that such goods are not excisable. All the goods mentioned in Fourth Schedule to the Act, 1944 shall continue to be excisable goods unless the goods is removed from the Schedule by an amendment. Section 174 of the CGST Act has not repealed the Central Excise Act, 1944 as respect to the goods included in entry 84 of the Union List of the Seventh Schedule to the Constitution. The Central Excise Act, 1944 as amended by Act 18 of 2017 has been enacted with respect to the goods included in entry 84 of the Union List of the Seventh Schedule to the Constitution which includes S.K.O.
+ The petitioner has sought the relief No. (c) and (d) to delete SKO from the Fourth Schedule of Central Excise Tariff Act, 1944. There is no such Act. The relief sought is without substance. Apart from this, inclusion of SKO in the Fourth Schedule of the Act, 1944 is not violative of Section 174 of the CGST Act, 2017.
+ "Sabka Vishwas Scheme" is a complete code in itself. In substance, it is a scheme for recovery of duty/indirect tax to unlock the frozen assets and recover the tax arrears at a discounted amount. Thus, "Sabka Vishwas Scheme", although a beneficial scheme for a declarant, is statutory in nature which has been enacted with the object and purpose to minimise the litigation and to realise the arrears of tax by way of settlement at discounted amount in an expeditious manner. In other words, the scheme is a step towards the settlement of outstanding disputed tax liability.
+ The discussion made leaves no manner of doubt that the petitioner/declarant could avail benefit of the "Sabka Vishwas Scheme" only in accordance with the provisions of the Scheme. Section 125(1)(h) of the Act 2019/"Sabka Vishwas Scheme" has specifically excluded persons seeking to make declarations with respect to excisable goods set forth in the Fourth Schedule to the Central Excise Act, 1944. Undisputedly, S.K.O. is an excisable goods set forth in the Fourth Schedule to the Act, 1944. The petitioner was not eligible to make a declaration under the "Sabka Vishwas Scheme" with respect to "S.K.O.". Therefore, non-acceptance of the declaration of the petitioner by the respondents does not suffer from any manifest error of law.
+ No merit found in the writ petition. Consequently, Writ Petition fails and is hereby dismissed. [para 18 to 22, 25 to 27]
- Petition dismissed: ALLAHABAD HIGH COURT
2020-TIOL-2121-HC-MUM-CUS
Sab Agency Vs PR CC
Cus - Petitioner seeks quashing of Public notice No.28/2020-21 dated 07.09.2020 and further seeks a direction to the respondent to allow the petitioner to resume its customs business on customs broker license - Present writ petition has been filed primarily on the ground that no notice or hearing was granted before such withdrawal of license.
Held: Grievance of the petitioner stands covered by a decision of this Court rendered on 03.11.2020 in the case of M/s. S. K. Freight Lines Pvt. Ltd. Vs. Union of India, Writ Petition (L) No.4418 of 2020 = 2020-TIOL-1888-HC-MUM-CUS - In that case also petitioner had challenged legality and validity of a public notice dated 07.09.2020 withdrawing customs broker license and it was held therein that an order withdrawing a benefit must give reasons why the benefit has been withdrawn and non-furnishing of reasons would vitiate such an order - Following the same, the public notice No.28/2020-21 issued on 07.09.2020 is set aside and the matter is remanded back to the respondent who shall give an opportunity of hearing to the petitioner and thereafter pass an appropriate order in accordance with law within a period of three weeks – Till such decision is taken within the period aforesaid, status-quo as on today shall be maintained - Petition disposed of: High Court [para 9, 11]
- Petition disposed of: BOMBAY HIGH COURT
2020-TIOL-2118-HC-MAD-ST
Gita Power And Infrastructure Pvt Ltd Vs CGST & CE
ST - Respondent by Order-in-Original dated 26.02.2018 had passed an order under the provisions of the Finance Act, 1994 - The said order itself specifically mentions that the Petitioner is entitled to prefer appeal against that order within a period of three months before the Appellate Tribunal - However, the Petitioner did not prefer any such appeal before that Appellate Authority, but has instead filed this Writ Petition on 17.07.2018 challenging the order passed by the Respondent.
Held: There is no acceptable explanation from the Petitioner for not having resorted to that alternative remedy provided under the statute - Supreme Court in Assistant Collector of Central Excise -vs- Dunlop India Limited = 2002-TIOL-156-SC-CX-LB has succinctly explained the legal position relating to the exercise of discretionary powers under writ jurisdiction by holding that it is only where statutory remedies are entirely ill-suited to meet the demands of extraordinary situations as for instance where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice require it that recourse may be had to Article 226 of the Constitution; that matters involving the revenue where statutory remedies are available are not such matters – In the result, Writ Petition, which cannot be entertained, is dismissed: High Court [para 3, 4]
- Petition dismissed: MADRAS HIGH COURT
2020-TIOL-1673-CESTAT-MUM
Swastick Shipping Agency Pvt Ltd Vs CC
Cus - Two consignments were imported by assessee with description 'plastic parts of toys' but on examination it was found actually containing 4,00,000 pieces of Analog Watches, the approximate value of which was Rs.68,00,000/- which was seized by department - In De-novo adjudication, penalty of Rs.1,00,000/- against Director of CHA Company was increased to Rs.2,00,000/- and CHA Company was also penalised for Rs.1,00,000/- - It is observed that enhanced punishment was awarded without following the due process and CHA was also penalised against whom no specific direction was available in order of CESTAT for initiation of adjudication process - It is learnt during course of hearing that in departmental appeal for enhancement of penalties, CESTAT Mumbai had passed an order remanding the matter back to the original adjudicating authority - This being the facts on record, in the adjudication order, penalty should not have been increased and a new party should not have been held guilty in the absence of specific direction by CESTAT - Assessees could not be placed in worse off situation for having preferring appeal before CESTAT - Hence, the impugned order is set aside that confirmed such an order: CESTAT
- Appeals allowed: MUMBAI CESTAT |
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