2021-TIOL-616-HC-MUM-ST

Skoda Auto Volkswagen India Pvt Ltd Vs Commissioner Appeals

ST - The petitioner is engaged in the business of import, manufacturing, assembling and sale of motor vehicles and motor parts - A SCN was issued to the petitioner alleging that there was short payment of service tax by not including the amount of TDS and the amount of R&D cess in payment of royalty - Petitioner was also called upon to show cause as to why interest and penalty should not be levied - In the impugned order by holding that respondent No.1 had no power to condone the delay beyond the period of one month after the normal period of limitation of two months, the appeal was found to be time-barred - Consequently, the application for condonation of delay was rejected - Petitioner received the O-I-O sent by speed post on 30.08.2019 - As per section 9 of the General Clauses Act, this date would have to be excluded while counting the limitation period of two months which would then commence from 31.08.2019 - If the extended period of limitation of further one month will be added, it would mean that delay could be condoned till 31.11.2019 because the total period of three months had commenced from 31.08.2019 and would be available till 31.11.2019 but because there is no 31 days in November, the extended period of limitation would spill over to 01.12.2019 - This is more so because the word 'to' is not used in section 85(3A) to cap the limitation period on 30.11.2019 - Therefore, the appeal was required to have been dispatched by 01.12.201 but it was dispatched on 02.12.2019 - As 01.12.2019 was a Sunday, benefit of this public holiday would be available to the petitioner in terms of section 10 of the General Clauses Act - Accordingly, the appeal presented on 02.12.2019 would be construed to be within the extended period of limitation - Thus, dispatch of the appeal by the petitioner on 02.12.2019 was within the extended period of limitation of one month and, therefore, without considering the prayer for condonation of delay of the petitioner, respondent No.1 ought not to have rejected the appeal as being time barred by taking the ground that he had no jurisdiction to condone the delay beyond the extended limitation period of one month - Consequently, the impugned order is set aside and matter is remanded back to the respondent No.1 to consider afresh the application of the petitioner for condonation of delay in filing the related appeal: HC

- Matter remanded: BOMBAY HIGH COURT

2021-TIOL-615-HC-MUM-CUS

Nbu Bearings Pvt Ltd Vs UoI

Cus - The petitioner has filed bills of entry for clearance - Without issuing any order of confiscation and in violation of provisions of Rule 7 of Intellectual Property Rights Enforcement Rules, 2007 and the provisions of Copyright Act, 1957 respondent Nos. 2 to 5 have suspended clearance of imported goods - Petitioners sought release of its consignment i.e. bearings having "TR" mark / brand - Petitioner and respondent No. 6 are litigating against each other to establish their respective right, title and entitlement to the ownership of "TR" brand - Both parties have been unsuccessful in obtaining any interim order of injunction / restraint against the other party from using the "TR" trademark - Though various proceedings are pending in courts, neither the petitioners nor respondent No. 6 have been in a position to obtain any order from the civil court and produce the same before the customs authorities to take benefit of the statutory provisions - Unless there is finality to the suit proceedings between the petitioners and respondent No. 6 pending in the civil courts i.e. Delhi High Court and Bombay High Court or any interim order is passed by the said courts, both the parties having referred to and relied upon several documents which cannot be adjudicated or veracity of which cannot be gone into in the present writ proceeding, such documents produced by both the parties will have to be accepted as prima-facie evidence supporting the case of each party by this Court - Further, in the absence of a court order as contemplated under sub-section (4) of section 53 of Customs Act, 1962 would not be justified for respondent Nos. 2 to 5 to withhold the consignment imported by petitioners until respondent No. 6 i.e. owner of the copyright obtains an order / interim order from the civil court declaring respondent No. 6 as the owner of the mark "TR" brand and places the same before the customs authorities - Since there has been no finality to the proceedings which are pending between the petitioners and respondent No. 6 in the Delhi High Court and Bombay High Court in respect of ownership of "TR" brand, the imported goods suspended from clearance will have to be released to the petitioners subject to the petitioners executing such bond with such surety or security and such conditions as may be specified in the bond in accordance with law: HC

- Writ petition disposed of: BOMBAY HIGH COURT

2021-TIOL-151-CESTAT-KOL

IOC Ltd Vs CCGST & CE

CX - A SCN was issued to the appellant in respect of Company Owned Company operated (COCO) outlet alleging short payment of duty - The appellant accepted the default in payment of duty and paid the same along with applicable interest - The Appellant filed the appeal contesting penalty imposed under Section 11AC of CEA, 1944 - However, the Commissioner (Appeals) rejected the same - It has been contended by appellant that all the transactions were reflected in monthly returns from time to time and therefore, the question of alleging fraud, mis-statement and suppression of facts cannot be invoked - Besides, it is also on record that short payment occurred due to clerical error - These are the facts, which cannot be challenged by Department - The appellant was all along filing statutory returns and being pointed out, they paid the duty and interest without disputing the same - There was no intention on their part to evade payment of duty - By respectfully following the ratio of decision of Supreme Court in case of Rajasthan Spinning & Weaving Mills 2009-TIOL-63-SC-CX , penalty imposed under Section 11AC of CEA, 1944 cannot be sustained and the same is set aside: CESTAT

- Appeal allowed: KOLKATA CESTAT

AK Rajavel And Company Vs CC

Cus - The vessel carrying "Laird Lentils" arrived at Tuticorin Port on 27.04.2019 covered under IGM in the name of M/s. Moorthy Traders - M/s. Moorthy Traders did not come up to clear the consignment which made the shipper to identify a new buyer - The appellant was contacted by shipper who accepted the offer and the consignment was sold by shipper without changing the invoice number and date - The appellant itself informed the Department on 06.06.2019 that they are the new consignee and the IGM amendment is under process and also advised their Customs Broker to file Bill-of-Entry immediately after receiving the necessary documents - The appellant had requested for waiver of penal charges for late filing of Bill-of-Entry - The Adjudicating Authority did not waive the penal charges, which on appeal also came to be upheld vide impugned O-I-A - The Bench has deleted the late fee in the case of M/s. ECOM Gill Coffee Trading Pvt. Ltd. 2019-TIOL-3231-CESTAT-MAD which is not disputed by the Department - Accordingly, the impugned order is not sustainable and same is set aside: CESTAT

- Appeal allowed: CHENNAI CESTAT