2021-TIOL-526-HC-MUM-ST

Abhyudaya Cooperative Bank Ltd Vs UoI

ST - Petitioner seeks quashing of order dated 14.08.2020 passed by the Commissioner of Central Goods and Services Tax (CGST) and Central Excise (Appeals-II), Mumbai i.e. respondent No.3 whereby appeal of the petitioner was rejected as being time barred and further seeks a direction to the said respondent to hear and dispose of its appeal on merit - Facts are that the order in original dated 03.09.2019 was received by the petitioner on 07.09.2019, therefore, the appeal was required to be filed within two months from 07.09.2019 i.e. within 07.11.2019, adding one more month to this to bring in the additional period of limitation, then the outer date for filing the appeal would be 07.12.2019 - In the instant case petitioner filed the appeal on 17.07.2020 way beyond 07.12.2019 and hence the same was dismissed as barred by limitation in view of the fact that in view of the provisions of sub-section (3A) of section 85 of the Finance Act, 1994 respondent No.3 had no power or there is no provision for condonation of delay beyond the additional one month - Aggrieved, present writ petition has been filed seeking the reliefs.

Held: It is trite that when the statute prescribes a period of limitation along with the period for extending the period of limitation, provision of section 5 of the Limitation Act, 1963 would not be applicable - It has been settled by decisions of this Court as well as of the Supreme Court that when the law prescribes a period of limitation as well as an extended period of limitation, there is no provision for condonation of delay beyond the extended period of limitation - Upon due consideration, Bench does not find any error or infirmity in the view taken by respondent No.3 - In such circumstances, the present is not a fit case where Bench should exercise its extra ordinary jurisdiction under Article 226 of the Constitution of India to interfere with the impugned order passed by respondent No.3 - No merit in the writ petition, hence dismissed: High Court

2021-TIOL-525-HC-MAD-CX

Same Deutz Fahr India Pvt Ltd Vs CCE

CX - Writ petition was filed challenging the Order-in-Original dated 28.05.2015 passed by the respondent, the Commissioner of Central Excise, Chennai - III Commissionerate - When the writ petition was entertained in the year 2015, an order of interim stay was granted on 17.9.2015, which continued to remain in force till the writ petition was disposed of by observing that there is no acceptable explanation from the Petitioner for not having resorted to the alternative remedy of preferring an appeal before the appellate authority as provided under the statute ; therefore, the petition cannot be entertained and is dismissed - Appeal is filed against this order of the Single Judge.

Held: It is no doubt true that when a case arises under the Taxation Statute, the assessee should be relegated to avail the appeal remedy - However, this is a rule of discretion by exercising self-restraint by the Constitutional Courts - There have been several decisions of the Supreme Court which have held that when writ petitions are pending for several years and when they are taken up for final hearing, the Court should seldom relegate the party to avail the alternative remedy as it would be very harsh on the party to approach the statutory authority after several years - Precisely, in the instant case, this has happened and after nearly six years, the petitioner has been directed to avail the appeal remedy - Bench is of the view that at this juncture, no useful purpose would be served in directing the appellant to file an appeal before the Tribunal and more particularly when an argument was made before the adjudicating authority: High Court [para 3, 4]

CX - In the matter of benefits of exemption notification issued u/s 5A of Central Excise Act on the goods cleared into DTA by EOUs, a clarification has been issued on 02.04.2008 and it would be necessary for the Adjudicating Authority to examine as to the applicability of the said clarification qua the appellant's case - Therefore, Bench is inclined to remand the matter to the Adjudicating Authority for de novo adjudication and take a fresh decision on merits and in accordance with law - Writ Appeal is allowed and consequently, the writ petition is also allowed: High Court [para6, 7]

- Appeal allowed: MADRAS HIGH COURT

2021-TIOL-524-HC-MUM-ST

Magnum Management And Services Pvt Ltd Vs UoI

ST - SVLDRS, 2019 - In terms of the scheme, petitioner submitted declaration dated 25.12.2019 under the category of 'voluntary disclosure' covering the period from 01.04.2016 to 31.03.2017 declaring service tax dues for the said period at Rs. 39,26,235.00 - Vide email dated 21.01.2020, the aforesaid declaration of the petitioner was rejected on the ground of ineligibility - Reason for rejection was mentioned as being ineligible under section 125(1)(f)( i ) read with section 121(m) of the Finance (No. 2) Act , 2019 - It is further stated that under the scheme, there is no requirement or provision for giving opportunity of personal hearing to a declarant before rejection - Petitioner submitted representation on 03.02.2020 before the Assistant Commissioner, CGST & CX, Belapur Commissionerate requesting to withdraw the rejection order and thereafter to accept the declaration filed - however, since nothing was forthcoming, the present writ petition is filed.

Held: For determining eligibility under the category of 'voluntary disclosure', a great deal of discretion is vested on the designated committee, who has to decide eligibility on a case to case basis - Needless to say, when a discretion is conferred upon an authority to decide an issue which has civil consequences upon the party concerned, such discretion has to be exercised in a just, fair and reasonable manner complying with the principles of natural justice - Thus, while deciding eligibility, the designated committee is required to consider all relevant materials and also hear the declarant concerned - Though we do not find any such express provision in the scheme laying down requirement of hearing before rejection of the declaration, we find from section 127, more particularly under sub-sections (3) and (4) thereof that if the designated committee upon verification, determines the amount payable by the declarant to be higher than what is declared by the declarant, then an opportunity of hearing should be granted to a declarant - Summary rejection of a declaration without affording any opportunity of hearing to the declarant would be in violation of the principles of natural justice impeaching the decision making process thus rendering the decision invalid in law - Since Bench finds that impugned rejection of the declaration of the petitioner is in violation of the principles of natural justice which has impacted the decision making process thus rendering the decision invalid, it may not be necessary for the Bench to enter into the merits of the challenge as to whether the declaration of the petitioner was in fact valid or not under the category of 'voluntary disclosure' - This is a matter which should be best left to the designated committee to decide after granting opportunity of hearing to the petitioner - Order dated 21.01.2020 is set aside and the designated committee is directed to decide afresh the declaration of the petitioner dated 25.12.2019 in terms of the scheme under the category of 'voluntary disclosure' after giving due opportunity of hearing - exercise to be completed within eight weeks - Petition disposed of: High Court [para 19 to 23]

ST - SLVDRS, 2019 - Till such decision is taken by the designated committee, respondents shall not proceed further with the show cause cum demand notice dated 24.12.2020: High Court [para 25]

- Petition disposed of: BOMBAY HIGH COURT

2021-TIOL-522-HC-MUM-CUS

Portescap India Pvt Ltd Vs UoI (Dated: March 02, 2021)

Cus - Petitioner has sought to challenge the rejection of its applications filed under the Merchandise Exports from India Scheme ("MEIS") by the respondents on the ground of mis-declaration of intent by the petitioner and thereby depriving the petitioner benefit under the said scheme - There has been denial of MEIS reward due to the petitioner on the grounds viz. In respect of shipping bills wherein inadvertently, petitioner has marked "N" (for No) in the reward column instead of "Y" (for Yes); In respect of shipping bills where benefit though not claimed by the petitioner, the DGFT portal is reflecting that such benefit has already been claimed; In respect of shipping bills where the petitioner has successfully downloaded the E-BRC form, but while availing MEIS benefit the petitioner is unable to upload the application form due to an error message.

Held:

+ The objective of the MEIS scheme is to provide rewards to exporters to offset infrastructural inefficiencies and associated costs.

+ In other words, the objective of Merchandise Exports from India Scheme (MEIS) is to promote manufacture and export of notified goods/products to notified markets and once this is done, such exporter is required to be rewarded by duty credit scrips which can be utilized by the exporter.

+ There is no ambiguity or doubt that the petitioner has not exported the goods; petitioner in fact has carried out its export obligations fully and is, therefore, eligible for the reward under MEIS; this has been accepted by the respondents also. However, due to inadvertence and erroneous mistake committed by the petitioner, it has been denied the incentive.

+ On a thorough consideration of the matter, Bench holds that the petitioner is entitled to the reward under MEIS in respect of its shipping bills wherein exports of notified goods/products with ITC (HS) code to the notified markets have been carried out by the petitioner under the FTP 2015-20 .

+ Orders passed accordingly with directions.

+ Writ petition is accordingly disposed of.

- Petition disposed of :BOMBAY HIGH COURT