2021-TIOL-101-SC-CX-LB

CCE & ST Vs Patanjali Yogpeeth Trust

CX - Revenue is in appeal against the judgment and order dated 09.01.2020 passed by High Court of Uttarakhand at Nainital.

Held: High Court had, relying upon the decision in Calcutta Club Limited = 2019-TIOL-449-SC-ST-LB proceeded to allow the special appeal without adjudicating, much less recording a clear finding on the factum of applicability of the doctrine of mutuality in the fact situation of the present case - To observe sobriety, we would only note that the impugned judgment does not stand the test of judicial scrutiny - same is set aside and the appeal is restored to the file of the High Court, to be considered afresh on its own merits and in accordance with law - appeal disposed of: Supreme Court Larger Bench

-Appeal disposed of :SUPREME COURT OF INDIA

2021-TIOL-357-HC-MAD-CUS

SPK Impex Vs CC

Cus - The petitioner, a 100% Export Oriented Unit had imported 1914.256 metric tons of scrap under 77 Bills of Entry and had allegedly cleared the same in violation of Letter of Permission and In Bond Manufacturing License - Therefore, benefit of Customs Notification No. 53/97-Cus dated 3.6.1997 extended at the time of import of 1609.326 metric ton of scrap cleared under various bills of entry were sought to be denied to the petitioner - The petitioner was therefore called upon to pay an amount of Rs. 1,64,80,526/- on 1156.326 Metric ton of scrap cleared under various Bills of Entry by the petitioner - The SCN also called upon the petitioner to pay an amount of Rs. 64,56,373/- being the proportionate duty on 453 metric tons of scrap that was lying in the petitioner's bonded premises when a Mahazar dated 24.01.2003 was drawn - The respondent denied the benefit of Notification No. 53/97-Cus dated 3.6.1997 to the petitioner - It is out of the 453 metric tons of scrap about 297.06 metric ton of scrap which had apparently gone missing for which the petitioner is seeking compensation and interest in this writ petition.

Held: It is not clear as to when the alleged theft had taken place - It appears that the lock and key of the bonded premises was with the petitioner - The petitioner was the custodian of the seized and confiscated quantity - The investigation caused by the Judicial Magistrate also records that RC's Final Report had been received from the police treating the case as undetected - The insurer has also disowned the liability - It should be remembered that the authorities acting under the provisions of the Customs Act, 1962 are not covered by strict rules of evidence - They go by preponderance of probability based on the available records - The quantum of 453 M.Ts. was arrived based on the documents and not on physical measurement - As the respondent had not taken physical control of the seized quantity and that seized quantity which was ordered to be confiscated continued to be in possession of the petitioner, petitioner was responsible for the loss of such seized/confiscated goods - In any event, as mentioned above, the jurisdiction of this court under Article 226 of the Constitution of India cannot be abused by converting it into a Civil Court to order compensation for the alleged loss with recording of evidence - A Writ Court cannot be converted into a Civil Court to determine disputed question of facts and the extent of compensation to be paid to the petitioner - To claim compensation for the alleged loss suffered by the petitioner, a proper trial and recording of evidence is a sine-qua non and it is only thereafter a Court can order compensation to the plaintiff - A writ Court under article 226 of the Constitution of India is not competent to decide such disputed questions of facts - The petitioner should have, therefore, filed a civil suit in the first instance - Further, the respondent had given an option to the petitioner to pay redemption fine u/s 125(1) of the Customs Act, 1962 while passing Order in Original dated 20.04.2004 - It was open for the petitioner to pay the redemption fine and agitate the issue before the Tribunal questioning the imposition of such redemption fine on the petitioner - no merits in the petition, hence dismissed: High Court [para 30, 32, 35, 37, 38]

- Petition dismissed: MADRAS HIGH COURT

2021-TIOL-356-HC-MUM-CUS

Shine Star Exports Vs UoI

Cus - The basic allegation is that the exporter is not operating its business from the notified address and is existing only on paper, therefore, under the reasonable belief that the exporter is indulging in "some fraudulent practices" the seizure has been made - From the definitions given in section 2(3A) and 2(20) of "beneficial owner" and “exporter” respectively, it is evident that the definition of "exporter" under the Customs Act is both elastic as well as wide - Exporter would include the owner or a beneficial owner or any person holding himself out to be the exporter - Viewed in the above context, condition No. (c) in the provisional release orders dated 2nd February, 2021 does not appear to be justified - Inasmuch as any person whether the owner, beneficial owner or an agent (including a customs house agent) can seek release of the goods on production of the relevant papers and on payment of the duty - In so far condition No. (b) is concerned, Bench is of the view that insistence on bank guarantee or revenue deposit equal to the amount declared free on board of the goods plus the probable redemption fine and penalty is not only harsh and oppressive but also amounts to prejudging as to what the adjudicating authority would do upon adjudication - Presupposing that adjudicating authority will impose redemption fine and penalty will amount to taking a view beforehand as to what decision the adjudicating authority would render - It goes without saying that an adjudicating authority while adjudicating post seizure of goods exercises quasi-judicial powers, therefore, there can be no interference, either implicit or explicit, in the exercise of such power by the adjudicating authority - Conditions imposed by the Principal Commissioner of Customs in the orders dated 2nd February, 2021 while ordering provisional release of the exportable goods of the petitioners is modified - seized goods to be provisionally released within seven days after satisfying the modified conditions - Matter listed on 22 nd March 2021: High Court [para 15, 17, 18, 19, 20, 21]

- Petition disposed of: BOMBAY HIGH COURT

2021-TIOL-355-HC-MUM-ST

Finbros Marketing Vs Jurisdictional Designated Committee

ST -  Issue raised in the present writ petition i.e. eligibility of the petitioner or maintainability of its declaration to avail the benefits of the scheme under the category of investigation, enquiry or audit on the ground that amount of the service tax dues of the petitioner for the related period was not quantified on or before 30th June, 2019 is no longer res-integra - It is evident from the decisions in Thought Blurb  2020-TIOL-1813-HC-MUM-ST , G.R.Palle Electricals  2020-TIOL-2031-HC-MUM-ST & Saksham Facility P Ltd.  2020-TIOL-2108-HC-MUM-ST that all that would be required for being eligible under the above category is a written communication which will include a letter intimating duty demand or duty liability admitted by the person concerned during inquiry, investigation or audit – Insofar as the present case is concerned, in his first statement recorded on 06.07.2018, the petitioner categorically admitted that the total service tax liability of the petitioner for the period 2013-14 to 2017-18 (up to June, 2017) would be around Rs.1.93 crores - While petitioner did not give the exact figure of total service tax dues, he nonetheless admitted such dues to be around Rs.1.93 crores which was subsequently enhanced in his statement dated 25.09.2019 to Rs.2,08,29,640.00 - From a conjoint reading of section 121(r) of the Finance (No.2) Act, 2019, Circular of the Board dated 27.08.2019 and answers to question Nos. 3 and 45 of the FAQ, a view can legitimately be taken that the requirement under the scheme is admission of tax liability by the declarant during inquiry, investigation or audit report - It is not necessary that the figures on such admission should have mathematical precision or should be exactly the same as the subsequent quantification by the authorities in the form of show-cause notice etc. post 30.06.2019 - The object of the scheme is to encourage persons to go for settlement who had bonafidely declared outstanding tax dues prior to the cut-off date of 30.06.2019 - The fact that there could be discrepancy in the figure of tax dues admitted by the person concerned prior to 30.06.2019 and subsequently quantified by the departmental authorities would not be material to determine eligibility in terms of the scheme under the category of inquiry, investigation or audit - What is relevant is admission of tax dues or duty liability by the declarant before the cut-off date - Petitioner had fulfilled the said requirement and, therefore, he was eligible to make the declaration in terms of the scheme under the aforesaid category - Rejection of his declaration therefore on the ground of ineligibility is not justified - Order dated 31.01.2020 is set aside and matter is remanded back to respondent No.1 to consider the declaration of the petitioner dated 24.12.2019 afresh as a valid declaration in terms of the scheme under the category of investigation, inquiry and audit and thereafter grant the consequential relief(s) to the petitioner – aforesaid exercise to be carried out within a period of eight weeks – Writ petition allowed : High Court [para 17, 21, 22, 24] 

- Petition allowed : BOMBAY HIGH COURT