2021-TIOL-401-HC-DEL-COFEPOSA
Harmeet Singh Vs UoI
COFEPOSA - Smuggling of drones, gold and cigarettes - Present writ petition assails the Detention Order dated 05.06.2020 issued against the petitioner by Respondent No. 2- Joint Secretary, COFEPOSA, Government of India under Section 3(1) of the COFEPOSA, ACT - Only submission advanced is that the impugned Detention Order was issued after an inordinate delay of 1 year and 4 months, or about 490 Days, and that this long delay is fatal to the Detention Order; that the contraband items having been found in the petitioner's belongings were seized on the intervening night of 1st and 2nd February 2019, whereas the present Detention Order was issued only on 5th June 2020.
Held:
+ Considering the fact that the forensic examination of the petitioner's mobile phone was undertaken on 20.01.2020, whereafter the documents retrieved therefrom would have been studied and analyzed , in our view, it cannot be said that there was any inordinate delay in sending the fresh proposal by the Sponsoring Authority for the petitioner's preventive detention.
+ The respondents have explained that after the proposal was sent, consideration of the same by the Central Screening Committee was delayed due to the nation-wide Lockdown on account of the Covid-19 Pandemic. The proposal was approved by the CSC on 29.05.2020 and the Detaining Authority, after careful consideration of the facts and circumstances of the case and the material placed before it, passed the Detention Order on 05.06.2020. In view of this prevalent circumstance, in our view, it cannot be said that there was inordinate delay in consideration of the matter by the CSC, or even by the detaining authority. [para 33]
+ Mere passage of time between the date of the prejudicial activity and the date on which the detention order came to be passed - when the said passage of time has been sufficiently explained by the respondents, cannot lead to the definite conclusion with regard to the snapping of the nexus between the two. [para 34]
+ When one looks at the fact that the petitioner was found to be involved in similar prejudicial activity, in the year 2016, and again in February, 2019, that is over a period of three years, there is no reason to assume that the petitioner would not indulge in similar activity after his involvement discovered in February, 2019. This also shows that the petitioner is habituated and a hardened violator of laws relating to customs. [para 35]
+ The petitioner also cannot take shelter of the argument regarding the time lapse between the detention order passed against his brother Mr. Gaganjot Singh, and the detention order passed against himself. The brother of the petitioner is purported to be the kingpin of the smuggling ring which allegedly caused immense economic loss to the country. The CSC and the Detaining Authority found the evidence against him to be sufficient to proceed against him in 2019 itself, which resulted in the passing of the Detention Order dated 11.03.19 against him.
+ To justify the preventive detention of the petitioner in the assessment of the Detaining Authority, the Respondents had to collect evidence against the present petitioner, including recovering the relevant data from his mobile phone instrument, which took considerable time for reasons attributable primarily to the petitioner himself. [para 36]
+ Reasoning given in Mohd . Nashruddin Khan v. Union of India & Ors = 2020-TIOL-1530-HC-DEL-COFEPOSA is squarely applicable to the present case as well. [para 37, 38]
+ No merit in the assertions of the petitioner, hence petition dismissed: High Court
- Petition dismissed : DELHI HIGH COURT
2021-TIOL-400-HC-MAD-ST
Vamsee Overseas Marine Pvt Ltd Vs CST
ST - SVLDRS, 2019 - In the course of investigation, the petitioner deposited a sum of Rs.66,05,012/- towards tax liability and a sum of Rs.16,58,328/- towards interest - An order-in-original was passed on 16.09.2014 confirming the proposals in the notice and an appeal is pending before the CESTAT - In the matter of declaration filed under SVLDRS, 2019, according to the respondent, only the sum of Rs.66.05 lakhs remitted towards tax would be given credit to but not the sum of Rs.16.58 lakhs as the latter was remitted towards interest, and accounted for by the Department under that head and is, therefore, not liable to be taken into the reckoning in the computation under the Scheme - Aggrieved by this order, Petitioner is before the High Court and relies on the provisions of Section 125(2) of the Finance Act, 2019 as per which 'any amount' paid as a pre-deposit or prior to issue of Show Cause Notice should be taken into account and given credit to in quantifying the amount liable to be paid under the Scheme.
Held:
+ Section 124(2) comes to the aid of the petitioner. It envisages two kinds of deductions: firstly, that any pre-deposit made at the stage of appellate proceedings under an indirect tax enactment be given credit to or secondly, any deposit made during enquiry, investigation or audit, be deducted when finalising the computation.
+ In the present case, the amount was not remitted towards pre-deposit. It was remitted during investigation and even prior to issuance of show cause notice and thus is, in my view, covered by the second limb of Section 124(2).
+ The rejection of the petitioner's computation is on the ground that the amount of Rs.16.58 lakhs accounted by the Department under a different accounting head. However, the fact that it has, in fact, been remitted and is available to the credit of the petitioner, is not denied. In such circumstances, the objection raised by the Revenue appears to be hyper-technical to say the least.
+ Accounting methodology cannot, and must not dictate or stand in the way of substantive relief that is otherwise available to an assessee. Accounting standards and methods are only formulated to aid proper recording of transactions and have limited relevance in deciding upon a substantive issue, such as the present.
+ Moreover, the object of the scheme should not be lost sight of, as the scheme has itself been formulated for the smooth settlement of disputes. Interpretation of the provisions thereof should be to carry forward the object rather than to frustrate the same, giving rise to more litigation.
+ Interestingly, had the declaration filed by the petitioner been accepted, there would have been a total waiver of interest liability, as per the Scheme. Thus if only petitioner had remitted the entire amount of Rs.82,63,340/- (Rs.66.05 plus Rs.16.58 lakhs) towards tax, the respondent would have simply given credit to the entire amount, waiving interest liability in full. It is the apportionment that has given rise to the present situation and the petitioner must not be made to suffer on account of this, irrelevant fact.
+ Writ Petition is allowed
- Petition allowed: MADRAS HIGH COURT
2021-TIOL-399-HC-AHM-CUS
Anil Kumar Bansal Vs Addl. CC
Cus - There is no formal order of denial of cross examination of witness, pursuant to the applications made by the petitioner dated 20.10.2020 and 02.11.2020 – Bench directs that order be passed by the officer concerned, FIRSTLY, on the aspect of cross-examination of witness and as regards non-supply of certain documentary evidences, being the facet of the principles of natural justice, the same shall be regarded by the officer concerned and shall be decided ALONG WITH the application, seeking cross-examination of witness – Application disposed of: High Court [para 2.1, 2.2]
- Application disposed of: GUJARAT HIGH COURT |
