2021-TIOL-131-SC-CUS

Rahul Rajvaidya Vs C, CE & ST

Cus - The High Court upheld the order passed by the Tribunal as the mandatory requirement of pre-deposit as provided under Section 129(3) of the Customs Act, 1962 has not been fulfilled - The other important aspect of the case is that in another connected matter also similar order has been passed dismissing the appeal - There is no error apparent on the face of the record warranting review - In the present case, there is no error apparent on the face of the record and the petitioner, in fact, under the guise of review is challenging the order passed by this Court, which is under review - In the present case the petitioner has not been able to point out any error apparent on the face of the record, on the contrary this Court has decided the case on merits – Supreme Court has held that re-appreciation of evidence and rehearing of case without there being any error apparent on the face of the record is not permissible in light of provisions as contained U/s 114 and Order 47 Rule 1 of Code of Civil Procedure, 1908 - Court does not find any reason to review the order dated 30/09/2019 passed in OTA No.04/2019 - The Review Petition was dismissed by High Court.

Held - Issue notice on the application for condonation of delay, prayer for interim relief and on the Special Leave Petition - List the matter alongwith SLP(C) No. 7579 of 2020 after three weeks: SC

- Notice issued: SUPREME COURT OF INDIA

2021-TIOL-130-SC-NDPS

UoI Vs Prateek Shukla

NDPS - In the relevant period, the NCB had received an intelligence tip off about a large quantity of Acetic Anhydride being purchased by a company - Such company had not filed its quarterly returns as required under the arcotic Drugs and Psychotropic Substances (Regulation of Control Substances) Order 2013 - An NCB team visited the premises of the company, which were searched & 896 gms of acetic anhydride and 1.885 kg of amphetamine is alleged to have been found in the premises - During the course of the search, documents relating to a company by the name of M/s Griffin International were found and it was revealed that the respondent and an Afghan national by the name of Bismillah Khan Ahmadzai were the Directors of the Company. Notices were issued to the respondent & his statements were recorded - It was alleged that the disclosure revealed that a huge quantity of the controlled substance, acetic anhydride, was purchased and diverted to a godown situated at Village Karheda, Ghaziabad. During the search and seizure of the premises, a quantity of 9650 kgs of acetic anhydride was alleged to have been recovered and empty drums of acetic anhydride were also found - SCN u/s 67 of NDPS Act were issued to the respondent & to three other persons, alleging that they all had been managing the affairs of the company - Search was conducted at the resident of one of these persons, whereupon 500 gms of acetic anhydride was allegedly recovered - It was alleged that all the accused were members of an international drug syndicate and had entered into a conspiracy for diversion, illegal storage, sale, purchase and export of the controlled substance - The respondent was arrested but later released on bail.

Held - Ex facie, there has been no application of mind by the High Court to the rival submissions and, particularly, to the seriousness of the allegations involving an offence punishable under the provisions of the NDPS Act - Merely recording the submissions of the parties does not amount to an indication of a judicial or, for that matter, a judicious application of mind by the Single Judge of the High Court to the basic question as to whether bail should be granted - The provisions of Section 37 of the NDPS Act provide the legal norms which have to be applied in determining whether a case for grant of bail has been made out - There has been a serious infraction by the High Court of its duty to apply the law - The order granting bail is innocent of an awareness of the legal principles involved in determining whether bail should be granted to a person accused of an offence under the NDPS Act - The contention of the respondent that he had resigned from the Company, Altruist Chemicals Private Limited, must be assessed with reference to the allegations in the criminal complaint which has been filed in the Court of the District and Sessions Judge - The application for bail which had been filed before the High Court as well as the counter affidavit which has been filed in the present proceedings suppress more than what they disclose - The High Court was clearly not justified in granting bail and the reasons provided by the High Court do not reflect application of mind to the seriousness of the offence which is involved - Indicating that the respondent as an educated person with a Bachelor of Technology "may not commit any offence" is an extraneous circumstance which ought not to have weighed with the High Court in the grant of bail for an offence under the NDPS Act - The High Court has mis-applied the law to the facts in arriving at a decision for the grant of bail - The order granting bail is set aside & the respondent is directed to surrender upon cancellation of bail: SC

- Appeal allowed/In favor of appellant: SUPREME COURT OF INDIA

2021-TIOL-129-SC-ST

Pr.CCGST Vs Comparex India Pvt Ltd

ST - Refund - CENVAT - Dispute relates to the refund claims made by the respondent under Rule 5 of the CENVAT Rules 2004 - The respondent is in the business of software trading - To meet the demand, it purchases software, mainly through imports on which it pays service tax on reverse charge mechanism and the same is claimed as CENVAT Credit - The purchase of software, according to the respondent, becomes an input service for providing output service and therefore, eligible for CENVAT Credit - According to the Revenue, respondent is only an 'intermediary' for the reason that the nature of business of the respondent is arranging, facilitating and transmitting the main services from Microsoft India to the overseas clients and, therefore, the said services cannot be treated as "export service" and so the respondent would not be entitled to refund of CENVAT Credit - Later the CESTAT held that it was a case where the respondent provides the service or supplies the goods on his own account - the respondent, therefore, has provided service on its own account and would not be an "intermediary" as defined in Rule 2(f) of the 2012 Rules - This apart what needs to be noticed is that the respondent was also selling the product to customers situated within India and was paying service tax under the category "Information Technology Service" - It was not paying service tax as an 'agent', for which a much lesser amount of service tax would have been levied, because service tax would be paid on the margin i.e. sale price of software minus the Purchase price of software - for all the reasons stated above the provision of service provided by the respondent has to be treated as "export of service" under Rule 6A of the 1994 Rules - The two reasons pressed by the Appellant Revenue for not treating it as export of service cannot be accepted - Rule 9(c) provides that in the case of 'intermediary services', the place of provision shall be the location of the service provider, however, this Rule would not be applicable as the respondent is not an ‘intermediary' - On the other hand, Rule 3 that provides that the place of provision of a service shall be the location of the recipient of service would be applicable & since location of recipient of service is outside India, the place of provision of the service would be outside India - Hence Revenue's appeal was dismissed.

Held - Delay of 191 days in filing the present civil appeal & there is not sufficient explanation for the same - Hence civil appeal is dismissed on limitation: SC

- Revenue's SLP dismissed: SUPREME COURT OF INDIA

2021-TIOL-128-SC-ST

CCE Vs APM Terminals India Pvt Ltd

ST - The Appellant carries on with 'maintenance, management or repair services' undertaken by their Equipment, Maintenance and Repair Division for the shipping line of the AP Moller-Maersk Group whose containers may undergo damage while being handled or during voyages - Normally, steel sheets, wood, steel articles, compressors and similar parts of refrigerated containers are utilised for effecting repairs - It is common ground that liability as provider of 'management, maintenance or repair' service is discharged on the labour component of the contracted activity - The appellant was proceeded against in three show cause notices to recover amounts collected towards materials utilised in rendering the service - All three were adjudicated in a single order-in-original by CCE, Raigad confirming the demand of Rs. 13,75,68,767/- along with penalty and interest – On appeal, the Tribunal held that while discarding the taxability as provider of 'works contract service', owing to the non-conformity with the specific activity enumerated therein, the adjudication order has not been able to establish that the claim of being 'works contract' is not tenable - On the contrary, the supply of goods that lose their identity in the object worked upon is a foundation that has been accepted - It was held that the transaction is, undoubtedly, in pursuance of 'works contract' and though, by lack of jurisdiction, not taxable under Finance Act, 1994 is yet saved from total exclusion owing to voluntary vivisection of the service simpliciter - Hence it was also held that there was no need to ascertain eligibility for abatement of cost of materials and excludability of the demand by the bar of limitation.

Held - There was 388-day delay in filing appeal against the order of the CESTAT - If the orders of the CESTAT are being uploaded on the website in the electronic form, there should be no reason why they should not be obtained by the competent authorities so as to facilitate the filing of appeals expeditiously - In order to enable the Court to have a full perspective, the Registrar (Judicial) is requested to remit a copy of this order to the President of the CESTAT, for filing report explaining position & steps taken by CESTAT to make available its orders to the litigating parties expeditiously - Matter listed for hearing on 5 April 2021: SC

- Notice issued: SUPREME COURT OF INDIA

2021-TIOL-149-CESTAT-MAD

Cholamandalam MS General Insurance Company Ltd Vs CGST & CE

ST - Issue relates to input Service Tax credit on Accommodation Services and Cleaning Services - A Statement of Demand was issued to the assessee proposing to recover ineligible input Service Tax credit under Rule 14 of CCR, 2004 r/w Section 73(1) of FA, 1994 along with interest at appropriate rates and penalty - Issue stands covered by order of this Bench of Tribunal in assessee's own case 2019-TIOL-85-CESTAT-MAD wherein, under similar circumstances, this Bench followed an earlier Final Order of CESTAT in assessee's own case , wherein the matter was remanded to the file of Adjudicating Authority - This appeal also requires re-adjudication - Accordingly, matter is remanded back to the file of Adjudicating Authority to re-adjudicate the issue: CESTAT

- Matter remanded: CHENNAI CESTAT

HLG Trading Vs CC

Cus - The appellant is in appeal against impugned order wherein the refund claims filed under Notification No. 102/2007-Cus were granted but interest has not been paid on delayed refunds as the same were released after 3 months - The said issue has been settled by Tribunal in appellant's own case for the earlier period - Therefore, following the decision in appellant's own case, appellant is entitled to claim interest of delayed refund after 3 months from the date of filing of refund claims: CESTAT

- Appeals allowed: CHANDIGARH CESTAT