2021-TIOL-451-HC-MUM-ST Siddhikumar Infrastructure Pvt Ltd Vs UoI (Dated: February 17, 2021)

ST - SVLDRS, 2019 - By the order dated 04.03.2020, the declaration filed by the petitioner was rejected by respondent No. 4 on the ground of ineligibility with the remarks that the amount of service tax liability was not quantified finally before 30.06.2019 and that investigation was going on.

Held: Bench does not find any acknowledgment or admission by the petitioner of its service tax liability for the period under investigation prior to 30.06.2019 which is the cut-off date under the scheme - In fact, at page 43 of the paper book, Bench finds a note that the said service tax liability was not acceptable to the petitioner - In such circumstances, decision of respondent No. 4 dated 04.03.2020 to reject the declaration of the petitioner dated 31.12.2019 on the ground that service tax liability of the petitioner was not quantified prior to 30.06.2019 cannot be faulted - Writ petition is accordingly dismissed: High Court [para 13, 14]

- Petition dismissed :BOMBAY HIGH COURT

2021-TIOL-450-HC-DEL-NDPS

Mokibe Mr Leepile Moses @ Patrick Umechukwu Vs Narcotics Control Bureau

NDPS - Appellant has filed the present appeal, inter alia , impugning a judgment dated 27.01.2016 whereby he was convicted of committing an offence punishable under Sections 21(c) and 23(c) read with Section 28 of the NDPS Act, 1985 - Appellant also impugns an order dated 30.01.2016, whereby he was sentenced to undergo ( i ) ten years of rigorous imprisonment for the offence punishable under Section 21(c) of the NDPS Act along with a fine of Rs. 1 lakh.

Held: There are a number of issues that raise doubts regarding the alleged recovery of 180 grams of Heroin from the premises let out to the appellant - First of all, all the material witnesses were not examined - There is also material inconsistency in the testimony of the two independent witnesses - Sh. G.S. Bhinder (PW14) did not testify as to exactly from which spot in the house the contraband was recovered inasmuch as he merely stated that it was recovered from the middle room - There was no explanation whether the contraband was kept in an almirah, kept in a drawer or any cupboard - According to G.S. Bhinder , it was kept in a bag in the room, which would mean that it was lying on the floor - According to examination-in-chief of PW 15, the said contraband was recovered near a chair, which would be in the first room, where some chairs and tables were kept - Sh. Devinder Singh, PW13 stated that the recovery was made from the middle room - The bag was kept in a corner of that room - Although the raiding team had sufficient opportunity to take photographs and record the search, the same had not been done - Apart from the above, there is also an issue as to the receipt of secret information - Clearly, there was no secret information that was received by PW4 and there is no evidence to such effect - Yet, secret information had been recorded on a slip and put up before the Superintendent, who accepted the same and issued the authorisation for the search - The witnesses had testified that a number of persons had collected at the spot however, the reason as to why large number of persons would have collected at the spot has not been explained - According to NCB, it was a surprise raid, thus, there was no reason for a crowd of persons, including the husband of the landlord, to be present at the spot when the NCB team arrived there - according to PW15, the contraband was recovered from the first room and not in the manner as testified by PW14 - Court is unable to accept that there are no doubts as to the recovery of 180 grams of Heroin from the premises in question as asserted by NCB - Court is of the view that NCB has failed to meet the standard of proof for convicting the appellant for the offence for which he was charged - In view of the above, the appeal is allowed and the appellant is acquitted of the offence for which he was charged - He is directed to be released forthwith: High Court

- Appeal allowed :DELHI HIGH COURT

2021-TIOL-449-HC-MAD-ST

ST - Respondent-assessee had filed a writ of declaration to declare the provisions of Section 65(105)(zzze) and Section 67(3) of the Finance Act, 1994 as ultra vires Article 14, 19(1)(g) and 265 of the Constitution of India - The respondent-assessee has also filed a writ of prohibition to prohibit the Commissioner of Service Tax, Chennai from taking action pursuant to the Show Cause Notice No. 212/07 dated 22.10.2007 - The writ petitions were heard by the Single Bench and by order dated 09.03.2012, this Court directed that the personal hearing of the respondent-assessee scheduled to be held on 09.03.2012, shall not go on until further orders - When this matter was brought to the notice of the Tribunal, the Tribunal has disposed of the appeal by the impugned order with liberty to the parties to file an application to reopen the matter – Revenue is in appeal against this final order of CESTAT.

Held: Bench is of the considered view that the correct approach would be to keep the appeal pending before the Tribunal because the interim order is only to the effect that the personal hearing should not go on – Revenue appeal is allowed and the impugned order is set aside and the substantial question of law viz. Whether the Hon'ble CESTAT, Chennai is correct in closing this case for the purpose of statistics holding that the both sides are at liberty to file application before the Tribunal to reopen the matter as and when the case is disposed by the Hon'ble High Court or in case of any change of circumstance? , is answered in favour of the Department and the appeal is restored to the file of the Tribunal awaiting the orders passed in the writ petitions, either interim or final orders: High Court [para 5, 8]

-Appeal allowed :MADRAS HIGH COURT

Cus - Appellant had filed the writ petition challenging the correctness of the order passed by the second respondent dated 16.04.2008, in and by which, the request for waiver of Cost Recovery Charges made by the appellant was rejected and the appellant was directed to remit the said charges for the period from 12.03.2001 to 31.12.2004 being a sum of Rs. 6,51,271/- and since the appellant had already paid a sum of Rs. 1,23,012, the balance amount of Rs. 5,28,259/- is to be recovered by enforcing two Bank Guarantees executed by the appellant - As the said Writ petition was dismissed, the present appeal is filed.

Held: In the proceedings before the department, the Appellant had specifically sought for an opportunity of personal hearing - It is not the case of the Department that there is no necessity for affording an opportunity of personal hearing - In fact, in taxing statutes, when decisions are taken, an opportunity of personal hearing could go a long way to resolve very complicated issues, apart from giving satisfaction to the assessee that all materials, which are available with them, were placed for consideration before the adjudicating authority - One more fact which is to be noted is that the request made by the appellant was kept pending for several years and only after an order was passed in the earlier writ petition on 05.03.2008, the second respondent Department had passed an order dated 16.04.2008 - Therefore, Bench is of the considered view that if an opportunity of personal hearing had been granted to the appellant and the various circulars issued by the CBEC were placed for consideration, then a more informed decision could have been arrived at by the second respondent - Therefore, for such a reason alone, Bench is inclined to interfere with the order passed by the second respondent and remand the matter back to the second respondent for taking a fresh decision, after affording an opportunity of personal hearing - Above exercise may be completed within a reasonable time, preferably within a period of four months: High Court [para 12, 13, 15]

-Writ Appeal allowed :MADRAS HIGH COURT