2021-TIOL-654-HC-MAD-CX

CCE & ST Vs Ultratech Cement Ltd

CX - Revenue is in appeal against the Tribunal order dated 10.04.2014 holding that the appellant is eligible to avail Cenvat Credit for service tax paid on freight for outward transportation from the place of removal - Now, the Department seeks to withdraw the case on account of low tax effect in terms of the Instruction dated 22.8.2019 issued by the CBIC and whereby the monetary limit for filing or pursuing any matter before the High Court has been increased to Rs.1 Crore - It is further submitted that the tax effect in this case is less than the threshold limit.

Held : Civil Miscellaneous Appeal is dismissed on the ground of low tax effect and the substantial questions of law raised are left open - In the event the tax effect is above the threshold limit fixed in the said circular, liberty is granted to the Revenue to file a petition to restore the matter to be heard and decided on merits: High Court [para 5]

- Appeal dismissed: MADRAS HIGH COURT

2021-TIOL-651-HC-DEL-NDPS

Manoj Gupta Vs NCB

NDPS - Seizure of 3.8 Kg. of Pseudoephedrine - Petitioner seeks regular bail - Petitioner was arrested on 27.09.2020 for offences under Sections 9A, 25A, 22, 23 and 29 of NDPS Act.

Held: Pseudoephedrine is a controlled commodity and, therefore, the petitioner is correct in stating that the rigor of Section 37 NDPS Act is not applicable to the present case - The petitioner is in custody for about 4 months now and does not have any criminal antecedents - Court is not inclined to go on the merits of the case as it will cause prejudice to the parties - Court is inclined to grant bail to the petitioner on furnishing a personal bond in the sum of Rs.1,00,000/- with one surety of the like amount by a relative of the petitioner to the satisfaction of the Trial Court - Petition is allowed: High Court [para 6 to 8]

- Petition allowed: DELHI HIGH COURT

2021-TIOL-649-HC-MAD-CUS  

DGFT - Since the petitioner Company stands liquidated by order of National Company Law Tribunal, this writ petition is closed - Notice has been issued by Resolution Professional to the Joint Director General of Foreign Trade (JDGFT) and the JDGFT has not chosen to enter appearance - Nothing further need be said in this regard and the DGFT is at liberty to take such efforts, as may be necessary, in accordance with law: HC

- Writ petition closed: MADRAS HIGH COURT

Cus - The petitioner sought for a mandamus directing the department to release electronic consumer goods i.e. iPhones/iPads upon payment of an appropriate duty, redumption fine and penalty as directed by the first Appellate Authority - The request for release is justified particularly seeing as the items for which the release is sought are electronic goods that are prone to speedy obsolescence - There is a direction to respondent to release the goods within one week from the date of petitioner remitting duty, fine and penalty: HC

- Writ petition allowed: MADRAS HIGH COURT

2021-TIOL-642-HC-MAD-CUS  

Cus - The petitioner, a company established as a 100% EoU in an electronic software technology park for manufacture of several products including CDROMs - The issue in the present matter is whether the product manufactured qualifies as a computer software - When the matter was before the CESTAT, it referred to the technical opinion given by professors from the IIT & other institutions - It then held that the issue is highly technical matter and that just reading over the expert opinion at the time of personal hearing could not be taken to be giving an effective opportunity to the petitioner to explain their stand in the facts and circumstances of the case - Therefore, the Tribunal held that the matter should be reconsidered by the Adjudicating Authority in de novo proceedings.

Held - The short question to be decided is as to whether the Tribunal should have exercised its power under Section 129B(2) of the Customs Act, 1962 and as to whether there was a mistake apparent on the face of the record for the Tribunal to exercise such power - Writ petition allowed - Order rejecting the Misc Petition is quashed - The findings rendered by the Judicial Member stating that the miscellaneous petition is maintainable and that the mistake should be rectified are upheld - Matter remanded to Adjudicating Authority to take a decision on merits: HC

+ The concept of mistake, which is capable of being rectified under Section 129B(2) of the Customs Act, 1962 has been explained to mean that it is not confined to clerical or arithmetical mistakes alone. At the same time, the mistake to be rectified must be one apparent from the record and it should not be a mistake, which can be discovered by long drawn reasoning. While analyzing the legal principle for exercise of power under Section 129B of the Act in the said decision, the Court also noted the power given under the Civil Procedure Code where the words are "an error apparent on the face of the records". It was pointed out that the power of Tribunals under Section 129B(2) of the Act to rectify "any mistake apparent from the record" is undoubtedly not more than that of the High Court to entertain a writ petition on the basis of "an error apparent on the face of the record". Further, it was pointed out that mistake is an ordinary word, but in taxation laws, it has a specific and special significance, that it is not an arithmetical or clerical error alone that comes within its purview and that it comprehends errors which,after a judicious probe into the record from which it is supposed to emanate, are discerned. It was also held that in order to attract the power to rectify under Section 129B(2) of the Act, it is not sufficient if there is merely a mistake in the order sought to be rectified; and the mistake to be rectified must be one apparent from the record: HC (Para 11)

+ if we examine the order, we are of the view that the reasons assigned by the Judicial Member at the first instance to allow the miscellaneous petition was the correct approach. We say so because the Tribunal, in the earlier part of the order, held that the issue to be decided is highly technical in nature. Certain materials were placed when the Tribunal was hearing the matter for the first time and therefore, the Tribunal opined that adequate opportunity was not granted to the assessee and thought fit to remand the matter for de novo consideration. Having arrived at such a conclusion, the Tribunal ought not to have ventured to give a finding on the very same issue, which the Tribunal though fit to remand to the Adjudicating Authority for a fresh consideration. Therefore, the Judicial Member, who agreed with the petitioner, rightly held that if the observations made in the other portion of the impugned order were not eschewed, it would be fatal to the case of the petitioner. Furthermore, the mistake is clearly visible from the records and it does not require any long drawn reasoning for a prudent man to come to a conclusion that there is a mistake. Hence, we are of the opinion that the Tribunal ought to have exercised its power under Section 129B(2) of the Customs Act, 1962 and deleted the conclusive observations made by the Tribunal on the issue, which it thought fit to remand for de novo consideration because the issue is an open issue. Had the Tribunal done so, it would not be a case of re-writing the order, but only rectifying a mistake, which is apparent from the records. (Para 12)

- Writ petition allowed: MADRAS HIGH COURT

ST - The appellants are house labour contractors of M/s. Larsen and Toubro Ltd. which is engaged in the processing of goods involving the activity of fabrication of tower parts including shearing, punching, numbering, cutting, notching, marking drilling, debarring and getting inspection through QA on raw materials/ inputs, purchased and supplied by L&T - The issue involved in these appeals, is squarely covered by the decision rendered by a Division Bench of Tribunal in Anil Kumar - The appeals are, therefore, required to be decided in terms of the said decision of Division Bench of the Tribunal - Resultantly, the appeals are allowed in part and it is held that the activity carried out by the appellant is that of "manufacture" - The benefit of Notfn 08/2005 is confirmed but the benefit of Notification No. 06 of 2005 is denied: CESTAT

- Appeals partly allowed: DELHI CESTAT