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2020-TIOL-2249-HC-MAD-ST
Sree Gokulam Chit And Finance Company Pvt Ltd Vs CGST & CE
ST - Supreme Court of India in Union of India -vs- Margadarshi Chit Funds (P) Ltd. = 2017-TIOL-240-SC-ST has held that service tax cannot be levied on the foreman of chit fund business for the period from 15.06.2007 to 14.06.2015 - Inasmuch as service tax has been levied on the Petitioner from October 2014 to May 2015, which falls during the said period, the impugned order cannot be sustained - It is not possible to sustain the impugned order, which shall stand set aside - Respondent shall not be entitled to recover the service tax demanded from the Petitioner in the impugned order: High Court [para 2, 3]
- Petition allowed: MADRAS HIGH COURT
2020-TIOL-2248-HC-MAD-CUS
Stalin Joseph Vs CC
Cus - Petitioner challenges the Order in Original dated 30.11.2012 passed by the Respondent determining the liability of the Petitioner for the year 2010-2011 under the provisions of the Customs Act, 1962 - Petitioner was entitled to prefer appeal against that order under Section 129-A of the Act but did not prefer any such appeal before that Appellate Authority, but has instead filed this Writ Petition on 25.02.2013.
Held: There is no acceptable explanation from the Petitioner for not having resorted to that alternative remedy provided under the statute - It is also not the case of the Petitioner that the contentions raised in this Writ Petition could not be agitated in the appeal before the Appellate Authority - Supreme Court of India 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 – it is inter alia held that the Court must have good and sufficient reason to by-pass the alternative remedy provided by statute; that matters involving the revenue where statutory remedies are available are not such matters - Writ Petition, which cannot be entertained, is dismissed: High Court [para 3, 4]
- Petition dismissed: MADRAS HIGH COURT
2020-TIOL-2247-HC-MAD-CUS
Zaheer Hussain Vs CC
Cus - Petitioner challenges the Order in Original dated 30.11.2012 passed by the Respondent determining the liability of the Petitioner for the year 2010-2011 under the provisions of the Customs Act, 1962 - Petitioner was entitled to prefer appeal against that order under Section 129-A of the Act but did not prefer any such appeal before that Appellate Authority, but has instead filed this Writ Petition on 06.02.2013.
Held: There is no acceptable explanation from the Petitioner for not having resorted to that alternative remedy provided under the statute - It is also not the case of the Petitioner that the contentions raised in this Writ Petition could not be agitated in the appeal before the Appellate Authority - Supreme Court of India 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 – it is inter alia held that the Court must have good and sufficient reason to by-pass the alternative remedy provided by statute; that matters involving the revenue where statutory remedies are available are not such matters - Writ Petition, which cannot be entertained, is dismissed: High Court [para 3, 4]
- Petition dismissed: MADRAS HIGH COURT
2020-TIOL-2245-HC-AHM-CUS
Super Spintex Pvt Ltd Vs UoI
Cus - Court in the case of M/s. Prince Spintex Pvt. Ltd. = 2020-TIOL-422-HC-AHM-CUS . had held that the amendment of Notification No.16/2015-Cus. vide Serial No.1 of Notification No.79/2017-Cus dated 13th October, 2017, would also apply to imports made during the period 1.7.2017 to 13.10.2017 - Trade Notice 11/2018 dated 30.6.2017 to the extent it is stated therein that under Chapter 5, importers would need to pay IGST is hereby quashed and set aside - It is held that the petitioner is entitled to refund of the amount of Rs.2,38,83,203/- paid by it towards IGST with interest at the statutory rate.
Held: After the present writ-application was filed Section 49 of the CGST came to be amended w.e.f . 01/02/2019 and new Section 49A and Section 49B were inserted in the said Act - By virtue of power under Section 49B, Rule 88A was inserted w.e.f.29/03/2019 in the CGST Rules vide Notification No. 16/2019-CT , dated 29/03/2019 - In such circumstances, w.e.f . 01/02/2019, the ITC available on account of IGST has to be first utilized for the payment of IGST or CGST or SGST - This provision was amended w.e.f. 01/02/2019, but the GST portal started functioning as per the amended provisions w.e.f. 01/06/2019, therefore, w.e.f . 01/06/2019, the accumulated ITC of IGST of Rs.4,47,43,682/- (Additional Customs duty paid by the writ-applicants, EPCG holder) started getting utilized automatically during the pendency of the petition - Writ-application is allowed - The respondents are directed to sanction and pay the refund of Rs.4,47,43,681/- after first reversing the entries of utilization of the subject credit and debiting the said amount from the credit ledger consequently available to the writ-applicant - exercise be undertaken within four weeks: High Court [para 3 to 5]
-Petition allowed :GUJARAT HIGH COURT
2020-TIOL-2244-HC-AHM-ST
Siddharth Infra Power Pvt Ltd Vs Disignated Committee
ST/CX - Due to COVID pandemic situation, the writ applicant was not able to make the necessary payment against the SVLDRS-3 for the purpose of availing the benefit under the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - In such circumstances, the writ applicant addressed a letter dated 15th July 2020 to the respondent No.1 with a request to grant him time till 30th September 2020 - Such request was made in light of the fact that even the CBIC vide the Notification dated 27th June 2020 extended the time limit for compliance of action under the Customs Excise and Service Tax - Ultimately, the request came to be declined, hence the present writ application.
Held: In view of the Instructions F. No.267/65/2020-CX-8 dated 14 July 2020, writ applicant should take up this issue with the Chairman, CBIC by filing an appropriate application or representation - Chairman, CBIC look into the issue at the earliest and take an appropriate decision - Writ application disposed of: High Court [para 6, 7]
-Application disposed :GUJARAT HIGH COURT
2020-TIOL-2243-HC-AHM-CUS
Ramratna Wires Ltd Vs State of Gujarat
Customs - The issue raised in this writ application as regards the legality and validity of collecting the stamp duty on the Bills of Entry is no longer res- integra in view of the pronouncement of this Court in the case of State of Gujarat and others Vs. Reliance Industries Ltd. (Letters Patent Appeal No. 6 of 2011 and allied appeals) decided by a Division Bench of this Court vide judgment dated 08.09.2011 - In the said litigation also, the writ petitioners had challenged the notices issued by the authorities and the guidelines issued for charging the stamp duty on the Bills of Entry - The State of Gujarat lost before the Single Judge and accordingly, various appeals were filed and which too were dismissed by the Division Bench - In view of the aforesaid, the impugned communication vide letter dated 25.08.2020 is hereby quashed and set aside - The respondents are directed to refund the amount of Rs.22,41,866/- to the writ applicant No.1 (M/s. Ramratna Wires Ltd.) and Rs.1,18,47,859/- to the writ applicant No. 2 (M/s. R.R. Kabel Ltd.) - These two amounts as referred to above were collected from the respective writ applicants as a stamp duty on the "Bills of Entry" filed for the goods imported by them, which otherwise could not have been recovered - Payment is to be made to the writ applicants within a period of 4 weeks: High Court [para 4, 5]
-Application disposed of :GUJARAT HIGH COURT 2020-TIOL-2240-HC-AHM-ST
Falcon Fighter Force Services Pvt Ltd Vs UoI
ST - The controversy in the present case is whether the Bench should issue directions to the respondents to permit the writ applicant to make payment physically or electronically under the SVLDRS scheme, in view of the fact that although the writ applicant was able to generate the challan, yet was not able to make the payment, as the portal reflected an error on the ICEGATE.
Held: This is a very peculiar litigation, because either we believe the case of the writ applicant as regards the technical glitch he is talking about or we do not believe - This again be a disputed question of fact - Having regard to the letter F.NO.267/65/2020-CX-8 dated 14 July 2020 , the writ applicant should take up this matter with the Chairman, CBIC at the earliest by filing an appropriate application or representation - if the writ applicant is ready and willing to deposit the requisite amount, then, the Chairman, CBIC should look into the matter and try to resolve the dispute - Ultimately, the revenue is going to be benefited with the amount, that the writ applicant may deposit for the purpose of seeking the benefit under the Scheme, if found eligible - we shall appreciate if some viable solution is found out in the matter - writ application stands disposed of: High Court [para 6, 8, 9, 10]
- Application disposed :GUJARAT HIGH COURT 2020-TIOL-1713-CESTAT-KOL
Mould Equipment Ltd Vs Commissioner of CGST & CE
ST - The issue arises for consideration is, whether assessee is required to pay 5%/6% of exempted services provided by them in terms of Rule 6(3)(i) when the assessee paid the actual credit attributed to exempted services in terms of Rule 6(3A) along with interest - The assessee did not maintain separate accounts for input services used in or in relation to provision of taxable service as well as exempt service - Therefore, two options were available to them, i.e., either to pay 6% of value of exempted service or pay an amount equal to the credit attributable to the input services used in or in relation to exempt services subject to the provisions of Sub-rule (3A) - When the mistake was pointed, assessee reversed the proportionate common credit taken on input services used in provision of exempted services - Therefore, Rule 6(3) (i) will not have any application, when a credit is taken wrongly and the same is reversed as it tantamount to nonavailment of the credit - In view of the decision in case of M/s MERCEDES BENZ INDIA (P) LIMITED 2015-TIOL-1550-CESTAT-MUM , the impugned order cannot be sustained and the same is set aside: CESTAT
- Appeal allowed: KOLKATA CESTAT
2020-TIOL-1712-CESTAT-KOL
Jai Balaji Industries Ltd Vs Commissioner of CGST & CE
CX - Clandestine removal - On the basis of information received from DGCEI, the officers of Commissionerate have asked the assessee to furnish documents related to clearances of their finished goods, i.e MS billets - On scrutiny of invoices submitted, it appeared that none of them tallied with the entries recovered from premises of M/s. SPRML - Therefore, it was concluded that the assessee have not issued any Central Excise invoices for these clearances and have clandestinely and deliberately removed the same without accounting and without payment of applicable duty - The assessee submit that they would have required huge quantity of raw materials like iron ore, lam coke, steam coal, manganese and scrap - No evidence has been gathered to show the illegal and clandestine procurement of said raw materials - There is force in the argument of assessee - In addition, Department did not produce evidence of consumption of electricity, deployment of labour and production of such billets - Without any investigation conducted in that direction, thereto without taking stock of raw materials and finished goods immediately after evidence was found at the end of M/s SPRML, allegation of clandestine removal cannot be sustained - Reliance cannot be placed only on the evidence available with Third Party as held in Vishnu & Co. Pvt. Ltd. 2015-TIOL-2792-HC-DEL-CX - The assessee contended that commissioner has not examined the witnesses under provisions of Section 9D of CEA, 1944 - Further, assessee have alleged that while obtaining the electronic record at M/s SPRML, department did not adhere to the provisions of section 36(B) of CEA, 1944 and a certificate as required under Section 36B(4) is not issued - Neither the SCN nor the adjudication order have dealt with the facts relating to this issue and from the records of case, it cannot be made out whether the same were followed - The commissioner did not controvert the allegations in adjudication order - Therefore, reliance on the records thus seized from M/s SPRML alone, do not help the case of department, unless the same are corroborated by other evidence - Not even single evidence has been brought on record to show clandestine removal, conclusively establishing at least in a sample transaction - Assessee contended that DGCEI issued another SCN, alleging clandestine removal by assessee and that the period covered therein also includes the period covered in the instant case and therefore, the SCN in the instant case does not survive - Though, there is no bar in issuing SCNs for the same period covering different aspects backed by different set of evidence, it is not understood as to why the Department chose to issue different SCNs to assessee on the allegation of clandestine removal when the genesis of both the cases was in the investigation conducted by DGCEI against M/s SPRML - However, the present SCN is not sustainable on merits - The assessee have also raised an issue that while they have been issued a SCN alleging clandestine removal to M/s SPRML on the basis of documents alleged to have been recovered from M/s SPRML, M/s SPRML have not been made party to the impugned SCN and thereby, the case suffers from the principle of non-joinder - Assessee have also alleged that penalty has been imposed on Shri Aditya Jajodia, Managing Director even though his statement has not been recorded - For the reasons mentioned, Tribunal is not giving any finding on these issues: CESTAT
- Appeals allowed: KOLKATA CESTAT
2020-TIOL-1710-CESTAT-AHM
Unibourne Food Ingredients Llp Vs CC
Cus - The issue involved is, whether the assessee is entitled to claim DFIA benefits for import of "Wheat Gluten" against input product description "Wheat Flour" (11010000) post amendment of SION E-5 amending Serial No.1 of product description "Wheat Flour'" (11010000) vide Public Notice No. 41 - As regard preliminary issue of maintainability of appeal before this Tribunal, it is found that the decision against which this appeal was filed, was admittedly taken by Principal Commissioner of Customs which was merely communicated by lower officer - As per Commissioner's decision, it was categorically decided that the assessee is not entitled to clear imported goods against DFIA Licences and also directed to pay applicable custom duty - In this undisputed position, the only remedy left with assessee is to file appeal before Tribunal - The appeal is maintainable in terms of Section 129 (1) of Customs Act, 1962 - The case is squarely covered by judgement in case of S.S. Offshore Pvt. Ltd. 2018-TIOL-53-HC-MUM-CUS - As regard merit of case, the DFIAs produced by assessee are post export entitlements - The DFIA's are issued for import of wheat flour against Export of Biscuits as per SION E-5 - As per the provision of Para 4.27 (ii) of FTP- 2015-20, DFIA is issued for products for which Standard Input output Norms are notified - It is settled law that a DFIA is governed by SION which is notified for relevant export product - There is no provision either in Policy or in Hand book to say that DFIA benefits can be claimed on the basis of ITC (HS) numbers - Even SION does not prescribe any ITC (HS) Numbers - The 'Wheat Gluten' is not only capable of being used but invariably used for manufacture of biscuits - Moreover, as per various technical opinions, the Wheat Gluten is used in manufacture of biscuits - Therefore, there is no dispute that Wheat Gluten is correctly covered under description of goods i.e. Wheat Flour as mentioned in annexures annexed along with DFIA Scheme as well as specified in SION - Accordingly, assessee is entitled for DFIA Scheme in respect of import of Wheat Gluten which is part of wheat flour - There is no Actual user condition mentioned against any of inputs mentioned in aforementioned DFIA's - The DGFT vide Public Notice 41 has amended SION E-5 by amending the description of goods against Serial No. 1 as Wheat Flour (11010000) - The DFIA's contains two Annexures 'A' & 'B' - While Annexure 'A' contains list of input items for the Exports made prior to 02.11.2016 & Annexure 'B' contains list of input items for the Exports made after 02.11.2016 - Against import item Wheat Flour (Serial No.1) , ITC (HS) No. 11010000/11090000 is mentioned - The licensing authorities has allowed import either Wheat Flour (11010000) or Wheat Gluten (11090000) within the quantity and value mentioned in DFIA - In any event, ITC (HS) Number 11090000 which pertains to Wheat Gluten is specifically mentioned in DFIA - As per Policy Circular 72/2008, flexibility has been given to import alternative inputs or goods which are capable of using in export product - Therefore inputs which are covered under description are entitled for DFIA exemption for claiming DFIA benefits by either exporter or transferee or importer under Transferable DFIA Scheme - As per Policy Circular No. 22, even a transferee of the license can apply for amendments in ITC (HS) Numbers of inputs from regional licensing authorities - Therefore, it cannot be said that if specific name of input 'Wheat Gluten' is not mentioned in the licence or in export shipping bill, benefit of DFIA cannot be extended particularly when the broad description as wheat flour is specified in SION as well as in annexure to the DFIA licence - The imported goods "Wheat Gluten " or "Wheat Flour" are not specified under Sensitive items under Para 4.30 of FTP- (2015-2020) of DFIA's - Therefore the exporter is not required to give a declaration of the technical specification, quality and characteristics of inputs used in the resultant product - The CBEC vide Circular No. 46 of 2007 had earlier clarified the provisions which existed under previous policy period under Para 4.55.3 of HBP - It is settled law that Board Circulars are bindings on customs authorities as held by Gujarat High Court in case of F.S. Enterprise 2019-TIOL-819-HC-AHM-GST - The assessee is entitled for benefit of DFIA for import clearance of Wheat Gluten: CESTAT
- Appeal allowed: AHMEDABAD CESTAT |
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