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2021-TIOL-121-SC-CX-LB
Westinghouse Saxby Farmer Ltd Vs CCE
CX - The assessee-company is wholly owned by the State of West Bengal & is engaged in manufacture of relays used as part of the Railways signalling system - A ‘Relay' is generally an electrically operated switch, used to control a circuit - They may also be used where several circuits must be controlled by one signal - Though essentially relays are electrical equipment, they may also form part of Railway signaling equipment - While the normal electrical relays fall under Tariff Item No. 8536.90, ‘Railways and Railways signaling equipment' fall under No. 8608 - On 27.08.1993, the appellant submitted a classification list for the approval of the Assistant Collector, Central Excise. This list provided details of the products manufactured by the appellant as Railway signaling equipment, including relays and claimed that they should be classified under sub-heading 8608 and not under 8536 in the First Schedule to the Central Excise Tariff Act - Admittedly this classification list was approved by the competent authority - On 23.04.1996 the Central Board of Excise and Customs issued a circular indicating that ‘plugin type relays' merited classification under the Chapter Heading 85.36 - Thereafter, the Assistant Commissioner of Central Excise issued nine different show cause cum demand notices calling upon the assessee to show cause as to why the goods should not be classified under the sub-heading 8536.90 and why the differential duty should not be collected together with the interest and penalty - The Assistant Commissioner passed 9 separate Orders-in-original on 20/21.12.2001 confirming the demand - On appeal, the Commr.(A) allowed partial relief - The assessee's appeal to the CESTAT was dismissed.
Held - One of the issues arising are whether the “Relays” manufactured by the assessee used only as Railway signaling equipment would fall under Chapter 86, Tariff Item 8608 as claimed by the assessee or under Chapter 85 Tariff Item No.8536.90 as claimed by the Department - In this regard, it is conceded by the Revenue that the relays manufactured by the assessee are used solely as part of the railway signaling/ traffic control equipment - Therefore, the invocation of Note 2(f) in Section XVII, overlooking the “sole or principal user test” indicated in Note 3, is not justified - Consideing the decision in the case of A. Nagaraju Bros Vs. State of A.P.1994 Supp (3) SCC 122, the Department ought not to have overlooked the ‘predominant use' or ‘sole/principal use' test acknowledged by the General Rules for the Interpretation of the Schedule - As pointed out by the Commissioner (Appeals), the goods were previously classified (before 1993) under Sub-heading 8536.90, but a revised classification list, classifying them under sub-heading 8608, submitted by the assessee, was approved by the competent Authority on 27.08.1993. After such specific approval of the classification list, it is not proper on the part of the Authorities to invoke Note 2(f) of Section XVII - Hence this question is answered in favor of the assessee: SC LB
Held - Another issue arising is whether the show cause cum demand notices issued by the Department on various dates during the period 19951998 were not barred by time under Section 11A of the Central Excise Act,1944, in the absence of any fraud, collusion, willful misstatement or suppression of facts, especially since the classification list submitted by the appellant have been approved on 27.08.1993 - It is observed that all SCNs were of a date prior to 12.05.2000 and hence the normal period of limitation was only six months; and that at least a couple of SCNs were issued in respect of a period partly or fully beyond the period of limitation - Unfortunately neither the Appellate Authority nor CESTAT took care to analyze the show cause notices individually with reference to the period covered by them - In any case all the show cause notices were issued only on and after 30.08.1995, raising a classification dispute, after having approved the classification list submitted on 27.08.1993 - The dispute in the case on hand was one of classification alone, applicable to the product manufactured during the entire period after 27.08.1993 & the dispute was not invoice-centric - What was sought to be done by the Original Authority was actually to review the approval of the classification list submitted on 27.08.1993 by cleverly issuing separate notices covering certain specific periods - What is to be seen here is that the attempt to undo the effect of the approval of the classification done on 27.08.1993, was actually time barred - Therefore, despite the fact that some of the individual notices were issued within the period of limitation either in respect of the part of the period or in respect of the whole of the period covered by them, the very invocation of Section 11A, in the facts and circumstances of the case, cannot be said to be within time - Both issues answered in favor of the assessee: SC LB
- Assessee's appeal allowed :SUPREME COURT OF INDIA
2021-TIOL-561-HC-DEL-ST
Karan Singh Vs Desinated Committee
ST - SVLDRS, 2019 - Petitioner is aggrieved by the rejection of his declaration for the settlement of the tax dues - Petitioner seeks direction to the respondents to issue discharge certificate and also quash the SCDN dated 20 March 2020 issued by respondent for the period in dispute - Petitioner in the form SVLDRS-1 against the column "Quantified Amount details", declared that duty/tax of Rs. 20,08,334/- was quantified, as declared by it in its letter dated 18.06.2019 - The said application/declaration under FORM SVLDRS-1 was rejected on the ground of ineligibility, with the remarks -"Demand has neither been quantified nor has been communicated to the assessee'' and " Submit SVLDRS-4 of main noticee'-
Held: In terms of the provisions of s.121, 123, 124 of the Finance Act, 2019, the quantification of the amount has to be before 30th June, 2019 - Moreover, in terms of Section 121(r) of the Act, the word 'quantified' has been defined to mean a written communication of the amount of duty payable under the indirect tax enactment - Further, Section 124(1)(d)(ii) provides that in respect of cases where the tax dues are linked to an enquiry, investigation or audit against the declarant, the relief shall be calculated on the amount quantified on or before the 30th day of June, 2019 - Question that arises for consideration is whether the communication dated 18th June, 2019 issued to the Superintendent, Anti Evasion Group-1, Central Excise & Service Tax, can be considered to be as an admission of duty liability so as to render the petitioner eligible under the SVLDRS - Petitioner's case falls within the ambit of 'enquiry or investigation', as the Petitioner was issued summons dated 10.05.2019 by the Anti-Evasion Group 4, Central Excise & Service Tax - In respect of such cases, by virtue of the Board circulars, the Respondents have clarified that the benefit of SVLDRS can also be given to those cases where the duty involved is quantified before 30.06.2019 - Since quantification has co-relation and is interlinked with tax relief under the scheme and the Petitioner has not made a voluntary disclosure, but has rather approached for settlement in respect of case under investigation, Bench finds merit in the submission of the Revenue that unilateral quantification by the Petitioner by writing the letter/communication dated 18.06.2019 cannot render him eligible - It would only be an admission of service tax liability of that amount, and such admission in itself would not render the petitioner eligible under SVLDRS - In the category of cases where investigation or audit was continuing as on the introduction of SVLDRS, the benefit of the scheme would be available to only such cases, where, during investigation, the department quantifies the amount and not vice versa - There is not much difference between the amounts as mentioned in the communication dated 18.06.2019 and the SCN issued by the department subsequent to the completion of investigation - However, in the opinion of the Bench, that in itself, cannot be a measure to interpret the concept of 'quantification' - Since amount could not be said to have been 'quantified', the petitioner was not eligible and, therefore, the reasoning given by the respondent in rejecting the application does not call for any interference - Challenge to the SCN is also not maintainable as the petitioner still has its statutory remedies under the Act to impugn the same - No merit in the petition, hence dismissed: High Court [para 12 to 17]
- Petition dismissed: DELHI HIGH COURT
2021-TIOL-559-HC-MAD-CUS
CC Vs Altec Corporation Ltd
Cus - Tribunal had remanded the matter back to the Assessing Officer to verify the claim made by the assessee that they exported over 14 tonnes of goods with the imported aluminium ingots, which were cleared by the respondent through the customs, without payment of duty under the DEEC Scheme - Since there was no material available with the Department at the relevant point of time to rebut the plea raised by the assessee that they exported over 14 tonnes utilizing the imported material, the Tribunal thought it fit to remand the matter to the Assessing Officer for a fresh consideration - Bench finds no error in such direction being issued by the Tribunal - There is no question of law, much less substantial question of law arising for consideration in this Revenue appeal - Civil Miscellaneous Petition stands dismissed: High Court [para 5]
Cus - Counsel for Revenue submitted that the Tribunal had set aside the confiscation of the goods, interest and the penalty imposed on the Managing Director, which is incorrect - Bench notes that since the Tribunal thought it fit to remand the matter back to the Assessing Officer, it has to necessarily interfere with the order of the Assessing Officer - No infirmity in the order of the Tribunal: High Court [para 7]
-Petition dismissed : MADRAS HIGH COURT
2021-TIOL-558-HC-MAD-CUS
Iocee Exports Ltd Vs CCE
Cus - Reason for issuance of the Show Cause Notice is by reference to the standard input-output norms fixed in respect of the industrial activity concerned.
Held : Bench is of the view that the standard input-output norms can be treated as an indicator and that may not be a sole reason for initiation of proceedings - Standard input-input norms (SION) cannot be a sole basis for giving a cause of action for issuing the Show Cause Notice for determination of the wastage when there is no allegation of diversion made against the appellant - Reframed two substantial questions of law are answered in favour of the appellant - Appeal filed by the assessee is allowed on a different ground than what was raised by the assessee - The order passed by the Tribunal vacating the penalty is sustained: High Court [para 6, 7, 11]
-Appeal allowed : MADRAS HIGH COURT
2021-TIOL-557-HC-MAD-CX
Sabari Tmt King Pvt Ltd Vs JCCE(GST)
CX - Petitioner is seeking a rectification of the error in the petitioner's registration certificate - It is mentioned therein that the registration was issued based on incorrect PAN given by the applicant - It is true that the authorities have not been approached immediately - It is also true that this writ petition has not been filed immediately after it became clear that the representation was not being considered.
Held: Respondents do not contend that they cannot rectify the mistake - When the power to rectify the mistake is available, as and when the error is pointed out, the rectification ought to be done - Bench is satisfied that the registration certificate pertaining to Saga Steels Private Limited is containing an error - Of course, the petitioner is responsible for the error, but that is not a ground to deny relief sought for by them - Since M/s. Sabari TMT King Private Limited/the writ petitioner herein has taken over Saga Steels Private Limited, M/s. Sabari TMT King Private Limited is very much having locus standi to maintain the writ petition - Therefore, the second respondent, who is said to be the nodal officer is directed to rectify the petition mentioned error and issue a revised registration certificate for Saga Steels Private Limited - This exercise shall be carried out within a period of six weeks - Writ petition is allowed to this extent: High Court [para 7]
-Petition allowed : MADRAS HIGH COURT |
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