2021-TIOL-260-HC-MAD-CX
CCE Vs Visteon Automotive Systems India Pvt Ltd
CX - Appeal filed by Revenue against order of CESTAT setting aside the equal penalty imposed u/s 11AC of the CEA, 1944 – Revenue seeks to withdraw the case on account of low tax effect in terms of the Board circular dated 22.8.2019 wherein the monetary limit for filing or pursuing any matter before the High Court has been increased to Rs. 1 Crore and in the present case the tax effect is less than the threshold limit.
Held: Civil Miscellaneous Appeal is dismissed on the ground of low tax effect and the substantial question of law raised is left open: High Court [para 5]
- Appeal dismissed: MADRAS HIGH COURT
2021-TIOL-259-HC-MAD-ST
Sutherland Global Services Pvt Ltd Vs Asstt Commissioner
ST - Refund of unutilized input service tax credit in terms of Rule 5 of the CENVAT Credit Rules, 2004 - In the two claims in question, the petitioner has, admittedly, not enclosed the Foreign Inward Remittance Certificates (FIRCs) that are to accompany the claim, to evidence bank realization – This was made impossible by virtue of a Notification issued by the Reserve Bank of India in Circular No. 74 dated 26.05.2016 inasmuch as the procedure for filing of physical FIRCs has been done away with and the exporters were required to use only electronic FIRCs or the Inward Remittance Unique Number (IRM Unique number) or any other documents to the satisfaction of the Authorities to evidence remittances towards export of services - In the present case, the Authorities have really had no occasion to go into this issue, as the petitioner has waived a personal hearing prior to adjudication - Had the authorities issued a show cause notice, the petitioner will have had occasion to raise the plea that though the FIRCs were not available, or other contemporaneous documents were available to evidence the exports – Petitioner challenges the orders rejecting the refund claims.
Held: Section 33A of the Act sets out the procedure for adjudication and Section 33A(1) states that the Adjudicating Authority shall give an opportunity of being heard to a party in a proceeding, if the party so desires - In this case, the desire of the party to be heard is clear and it is only if the authority were convinced with its written submissions and the decisions of the appellate authority that the personal hearing stood waived - Thus, it was incumbent upon the authority to have proceeded to issue show cause and personal hearing notice to the petitioner, frame the issues for resolution and thereafter pass an order-in-original - This has not been done in the present case and the impugned order dated 07.01.2019 is thus set aside - The Authority will issue a show cause notice on all aspects of the matter including on the sufficiency/adequacy or otherwise of the evidences for realization of remittances, within a period of four (4) weeks from date of uploading of this order - After hearing the petitioner and considering all the materials that may be filed by the petitioner, an order of adjudication shall be passed within a period of four (4) weeks from date of conclusion of personal hearing - Writ Petitions are allowed in the aforesaid terms: High Court [para 8 to 10]
- Petitions allowed: MADRAS HIGH COURT
2021-TIOL-258-HC-MUM-CUS
Sahaj Impex Vs Balmer Lawrie & Company Ltd
Cus - Petitioner is engaged in the business of import and export of plastic granules and regrind - By filing this petition, petitioner seeks a direction to the respondents to release the container containing the imported goods of the petitioner declared vide bill of entry dated 07.08.2018 without paying rent, demurrage and other charges for re-export as per customs order dated 28.11.2018.
Held : It is not disputed that the goods imported by the petitioner vide bill of entry dated 07.08.2018 were detained by the proper officer of the customs department for the period from 14.08.2018 to 06.02.2019 which has been certified by the Superintendent of Customs in the prescribed format further mentioning that the certificate was issued as per public notice No. 26/2010 dated 02.03.2010 - Therefore, for the period from 14.08.2018 to 06.02.2019, respondent No. 1 is under a legal obligation not to charge any rent or demurrage on the goods of the petitioner or on the container in which the goods have been stored and kept under its custody - Following the certificate dated 31.01.2019, it was also under a legal obligation to release the goods kept under its custody on or before 06.02.2019 to enable the petitioner to re-export the goods - Failure to do so has not only caused prejudice to the petitioner but would also disentitle respondent No. 1 from claiming any rent and demurrage for the period beyond 06.02.2019 till release of the goods because such retention of goods would be clearly unlawful being in violation of Regulation 6(1)(l) of the Regulations and the public notice dated 02.03.2010 - Bench does not agree with the submissions that the dispute between petitioner and respondent No. 1 being contractual, petitioner should be relegated to the forum of civil court for obtaining relief - That apart, respondent No.1 being a Government of India enterprise has to act in a responsible manner - Moreover, being a Customs Cargo Service Provider, it is subject to the control of the officers of the customs department and cannot act in defiance of the law and of lawful directions of the customs authorities - Bench directs respondent No.1 to release the goods imported by the petitioner vide bill of entry dated 07.08.2018 kept in Container forthwith to enable the petitioner to re-export the same in terms of letter dated 28.11.2018 of the Deputy Commissioner of Customs, Special Investigation and Intelligence Branch - Writ petition is accordingly allowed: High Court [para 20 to 24]
- Petition allowed: BOMBAY HIGH COURT
2021-TIOL-257-HC-MAD-CX
CCE Vs Aswin Textiles Pvt Ltd
CX - Revenue is in appeal against the order dated 07.01.2016 made in Final Order No. 40660/2015 = 2015-TIOL-2189-CESTAT-MAD passed by the CESTAT dropping the mandatory penalty.
Held: Tribunal took note of the overall facts and circumstances of the case and found that availment of CENVAT credit without payment of CVD was done by an employee of the Company and it was a bona fide mistake - Furthermore, the Department took more than 2 ½ years to issue show cause notice when they were fully aware that the CENVAT credit was wrongly availed by the respondent - Therefore, the finding rendered by the Tribunal on the facts and circumstances cannot be termed to be perverse for us to interfere in an appeal filed under Section 35G of the Act - Bench does not find any substantial question of law arising for consideration in this appeal to interfere with the factual finding recorded by the Tribunal - Civil miscellaneous appeal is dismissed: High Court [para 10 to 12]
- Appeal dismissed: MADRAS HIGH COURT
2021-TIOL-72-CESTAT-DEL
Oriental Insurance Company Ltd Vs Commissioner
ST - The appellant is providing general insurance services and issues various kinds of insurance policies like motor vehicle insurance, fire insurance and marine insurance - They claimed that because of the requirement set out under section 101A of Insurance Act and as a prudent business practice it has been availing re-insurance services from Indian as well as foreign reinsurance companies in respect of insurance policies - Reinsurance, by its nature, pertains to insurance of business of appellant - Reinsurance services have never been availed by appellant in respect of a particular motor vehicle - In such a case, said exclusion clause has no applicability to the present case and denial of CENVAT credit on basis of such a clause is not sustainable - The submission made by appellant, therefore, deserves to be accepted - The contention also finds support from the decision of Tribunal in Shriram General Insurance Company wherein the Bench examined whether the amendment made in the definition of "input service" w.e.f. April 01, 2011 in rule 2 (l) of the CENVAT Rules would affect the eligibility of the Appellant to CENVAT credit on reinsurance services - Thus, even after the amendment of the definition of 'input service' in rule 2(l) of CENVAT Rule w.e.f. April 01, 2011, the appellant would be eligible to avail CENVAT credit on both the aforesaid reinsurance services - It would, therefore, not be necessary to examine the contentions raised by appellant that by confirming the demand for period w.e.f. April 01, 2011, the order has gone beyond the scope of the allegation made in SCN or that extended period of limitation could not have been invoked - Thus, it is not possible to sustain that part of the order of Commissioner that confirms the demand of CENVAT Credit of Rs. 196,46,97,360/- with interest and penalty - It is accordingly, set aside: CESTAT
- Appeal allowed: DELHI CESTAT
