2021-TIOL-875-HC-DEL-CUS

Gopal Gupta Vs Pr Additional Director General Directorate of Revenue Intelligence

Cus - Petitioner challenges the Show Cause Notice dated 26th September, 2019 issued subsequent to the arrest, search and seizure dated 24/25 April, 2019 and also seeks setting aside of the proceedings under Sections 104, 100, 102, 105, 110 and 124 of the Customs Act and the proceedings emanating therefrom, in view of the decision of the Supreme Court rendered in M/s Canon India Private Limited = 2021-TIOL-123-SC-CUS-LB , wherein the Supreme Court categorically held that if it was intended that officers of the Directorate of Revenue Intelligence who are officers of Central Government should be entrusted with functions of the Customs officers, it was imperative that the Central Government should have done so in exercise of its powers under Section 6 of the Act; that the notification which purports to entrust functions as proper officer under the Customs Act has been issued by the CBEC in exercise of non-existing power under Section 2(34) of the Customs Act, hence was invalid.

Held: Notice issued - Petition to be listed on 26th July, 2021 - Till the next date of hearing, the proceedings pursuant to the Show Cause Notice dated 26th September, 2019 arising out of file bearing No. F.No . DRI/HQ-GI/338/VI/ENQ-2/INT-NIL/2019 before the respondent are stayed: High Court [para 5, 6]

2021-TIOL-211-CESTAT-MAD

CX - The appellant is inter alia challenging the order of First Appellate Authority who refused the refund claim of appellant purportedly under Section 142 (3) of the C.G.S.T. Act, 2017, in cash - Crux of the appellant's case is refund of unutilised credit, in cash, under Section 142(6) of CGST Act, 2017 and not under Section 11B and not even under Rule 5 of the CCR, 2004 - To decide the issue of refund under said section, CESTAT is not having jurisdiction since it pertains to examination and interpretation of a claim under the C.G.S.T. Act and to decide the eligibility or otherwise of the claimant under the C.G.S.T. Act - It, however, appears that the appellant has an arguable case for refund under Central Excise Act, but since the claim is clearly under CGST Act, 2017 the jurisdiction over which is not vested with CESTAT, the present appeal is dismissed for want of jurisdiction: CESTAT

- Appeal dismissed :CHENNAI CESTAT

2021-TIOL-210-CESTAT-BANG

CX - The appellant is a 100% EOU and engaged in the manufacture and export of sheet metal enclosures and parts and had availed cenvat credit of duty and service tax paid by the suppliers of goods and services - As the appellant had exported to overseas and cleared predominant part of the manufactured goods to other EOUs, they filed refund claims under Rule 5 of CCR, 2004 r/w Notfn 27/2012 CE (NT) - All the 7 refund claims were disposed of vide different OIOs wherein the cash refunds were restricted to the extent of goods physically exported by appellants out of India and refund claims in respect of goods cleared to EOUs under Inter Unit Transfer (IUT) were rejected - This Tribunal in case of Wave Mechanics Pvt. Ltd. 2019-TIOL-3178-CESTAT-BANG has held that cash refund is not admissible under rule 5 of CENVAT Credit Rules read with Notfn 27/2012-CE in respect of clearances made by one EOU to another EOU on IUT basis - Further it is very clear that as per subsection (6)(a) of Section 142 of CGST Act, every proceeding of appeal, review or reference relating to a claim for CENVAT credit initiated whether before, on or after the appointed day under the existing law shall be disposed of in accordance with the provisions of existing law, and any amount of credit found to be admissible to the claimant shall be refunded to him in cash, notwithstanding anything to the contrary contained under the provisions of existing law other than the provisions of sub-section (2) of section 11B of CEA, 1944 - The appellant had already debited the entire amount in their cenvat account and the said amount was debited under a bona fide belief that the cash refund would be sanctioned to them and the very fact that cenvat credit was never disallowed, hence the cenvat credit lying in the balance of cenvat account are liable to be refunded in cash to the appellant as per the provisions of sub-section 3 or sub-section (6)(a) of the Section 142 of CGST Act - This issue is no more res integra and has been held in favour of the appellant by various decisions - Hence, the impugned order denying the cash refund is not sustainable in law and the appellant is entitled to cash refund as per sub-section 3 and sub-section 6(a) of Section 142 of CGST Act: CESTAT

- Appeals allowed BANGALORE CESTAT