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2021-TIOL-905-HC-MAD-CUS
Innomit Mineral Projects Pvt Ltd Vs Addl. CC
Cus - Petitioner had placed orders for import of Remelted Lead Ingots from the supplier in China and also filed Bill of Entry in advance for assessments of the imported consignment and paid Customs duty for a sum of Rs. 13,58,794/- - At the time of inspection of the imported consignments by the Officers, it transpired that the Chinese exporter had cheated the petitioner and instead of exporting Remelted Lead Ingots, had exported packs of Caustic Soda Bags and Industrial Salt - Petitioner, initially, decided to clear the imported Caustic Soda Bags and Industrial Salt to recover the loss - However, on inspection of the imported consignment, it was found that the imported cargo was worthless and comprised of some Industrial Salt, Chalk Powder and lower grade Caustic Soda - Therefore, the petitioner decided to abandon the goods under Section 23 of the Customs Act, 1962 and requested refund of Rs. 13,58,794/-, paid as Customs duty by the petitioner - In the above circumstances, the SCN came to be issued asking the petitioner to pay the customs duty for the imported Caustic Soda - Petitioner has impugned the SCN and has sought refund of the duty initially paid.
Held : Petitioner is a victim of fraud perpetrated by the Chinese exporter - The petitioner has paid a sum of Rs. 13,58,794/- as Customs duty in good faith on the goods declared in the Bill of Entry namely Remelted Lead Ingots - That being the case, the petitioner is entitled for refund of the Customs duty paid in good faith - The amount that was paid for imported the Remelted Lead Ingots cannot be retained - The value of the imported goods is Rs. 6,37,107/- whereas the petitioner paid a sum of Rs. 13,58,794/- as customs duty paid in advance under bonafide belief on import of Remelted Lead Ingots - Therefore, there is no justification in not ordering refund of Rs. 6,85,687/- being the difference in the above amount to the petitioner - The respondent Customs Department can at best order confiscation of the imported Caustic soda and Industrial Salt with an option to the petitioner to pay fine in lieu of confiscation under Section 125 of the Customs Act, 1962 - However, it cannot force Customs Duty on the imported goods, on the petitioner - There is no justification in not refunding the aforesaid differential amount of Rs. 6,85,687/- to the petitioner - Since the amount of Rs. 13,58,794/- was paid before clearance of any goods, that refund of amounts pursuant to this order and orders to be passed will be outside the scope of Section 27 of the Customs Act, 1962, it is made clear that the petitioner shall not be subjected to any test of unjust enrichment - Balance amount of Rs. 6,73,107/- shall be held in lien in the hands of the respondent Customs Department and is to be refunded back to the petitioner subject to outcome of the impugned show cause proceedings - Petitioner is, therefore, directed to file appropriate reply to the impugned show cause notice and the authority is required to decide the case within a period of three months - such order passed is subject to appeal/revision etc. - Petition allowed with observations as above: High Court [para 18 to 21, 24, 25, 28]
- Petition allowed: MADRAS HIGH COURT
2021-TIOL-904-HC-MAD-CX
India Cements Ltd Vs CCGST & CE
CX - Adjudicating authority had called for verification report from the jurisdictional Range Officer, vide e-mail dated 21.12.2020 - After receiving the same, the jurisdictional range officer sent a communication dated 29.12.2020 calling upon the petitioner to furnish the details sought for - It is seen that on the very next day i.e. 30.12.2020, the petitioner submitted all the relevant details to the jurisdictional Range officer - However, it appears that even before receiving the petitioner's reply, the range officer informed the adjudicating authority vide e-mail dated 30.12.2020 that the noticee had not produced the called for documents for verification and that, therefore, the claim of the noticee could not be verified - Accordingly, the adjudicating authority chose to pass the impugned order which is challenged in writ proceedings. Held: Bench is satisfied that there was absolutely no delay on the part of the petitioner - On the other hand, the relevant materials furnished by the petitioner were not taken note of before passing the impugned order on 30.12.2020 - Therefore, the adjudicating authority has to necessarily revisit the issue by taking note of all the particulars and the materials furnished by the petitioner on 30.12.2020 - Interest of justice requires that personal hearing is afforded to the petitioner - Order impugned in the writ petition is quashed and the petition is allowed: High Court [para 5, 7]
- Petition allowed: MADRAS HIGH COURT
2021-TIOL-903-HC-MAD-ST
Executive Officer Vs CGST & CE
ST - Renting of Immovable property - Petitioner, a local body is held liable to pay a total sum of Rs. 24,44,383/- towards service tax liability along with appropriate interest and penalty - Since the amount payable under those orders had not been remitted, the impugned order of attachment of bank account came to be passed - Questioning the same, this writ petition has been filed - Petitioner submits that they would pay a sum of Rs. 1,00,000/- per month and thus, clear the liabilities. Held: When the primary orders are not under challenge, Bench cannot interfere with the consequential recovery action - Insofar as payment of liability in instalments is concerned, it is for the petitioner to move the adjudicating authority for appropriate relief - Petitioner is at liberty to challenge the primary order of assessment and certainly, relief would be given to the petitioner as far as the penalty portion is concerned since the petitioner is a local body - writ petition is dismissed: High Court [para 4, 5]
- Petition dismissed: MADRAS HIGH COURT
2021-TIOL-902-HC-MAD-ST
Regional Testing Laboratory Vs CESTAT
ST - Petitioner is coming under the direct control of the Industries and Commerce Department of the Government of Tamil Nadu and conducts laboratory testing of chemicals and materials for MSME and Government departments and issue test certificate - For doing the said work, the petitioner collects statutory charges as per Government norms - The petitioner was not sure as to whether, they are liable to pay service tax - After the position was clarified, the petitioner duly registered themselves with the respondent on 14.10.2004 and thereafter, the petitioner has been remitting the service tax and also filing the necessary returns - Respondent issued show cause notice dated 02.04.2007, calling upon the petitioner to explain as to why, no service tax was remitted for the period from 01.07.2003 to 13.10.2004 - demand issued and confirmed along with interest and penalty - as appellate authority only granted partial relief in the form of setting aside penalty, the present petition is filed. Held: The department obviously knew that the petitioner had not paid any tax for the period preceding October, 2004 - Therefore, nothing stopped the department from issuing a show cause notice immediately thereafter - There was absolutely no justification in waiting till 02.04.2007 to issue the show cause notice - Therefore, it is obvious that the impugned proceedings are squarely hit by limitation - order impugned in the writ petition is set aside and the writ petition is allowed: High Court [para 6]
- Petition allowed: MADRAS HIGH COURT
2021-TIOL-901-HC-GUW-CX
Gemson Melt Pvt Ltd Vs UoI
CX - The petitioner is challenging the rejection of Central Excise Duty refund claims as well as the demand of recovery of Central Excise Duty refunds along with interest and penalty imposed - The petitioner who considered itself eligible for the benefits in terms of Notfn 20/2007 CE submitted refund claims in respect of duty paid - The respondent No. 3, issued three refund orders in the months of May, 2009, June, 2009 and July, 2009 - Against these refund orders issued by respondent No. 3, the respondent No. 2, disagreed with views of respondent No. 3 and directed the respondent No. 3 to file appeals before the Higher Appellate Authority, namely, the Commissioner (A) - The Commissioner (A) by its order dated 26.02.2010 rejected the appeals filed by Department/revenue and held that adjudicating authority, namely, respondent No. 3 had correctly considered and granted the refund orders to the petitioner - The revenue carried the appeals before Tribunal - The Tribunal, however, by its order dated 27.11.2017 dismissed the appeals as the same were below the permissible monetary limits prescribed in respect of litigations to be pursued by Department/Revenue as per CBEC instructions - Against the rejection orders passed by Tribunal, no further appeal or review was preferred by Department and consequently the orders passed by Commissioner (A) upholding the refund orders issued by the respondent attained finality for those respective periods - The SCN dated 30.03.2012 was issued to the petitioner during the pendency of the matters before Tribunal, calling upon the petitioner to show cause as to why the amount of refund claimed by the petitioner in terms of said Notfn should not be rejected - The petitioner submitted its objections/reply in response to the said SCN issued by respondent No. 3 - The respondent No. 3 by the impugned order dated 27.01.2020 rejected the refund claims of the petitioner as well as refunds granted earlier against which the SCN dated 08.11.2010 was also issued - The findings of the Commissioner (A) in its order dated 26.02.2010 is not referred to in the said SCN issued by the respondent No. 3 - In the recital of the impugned order the respondent No. 3 refused to accept that the petitioner complied with the requirement of said Notfn 20/2007 regarding investments of fixed assets more than 25% towards expansion of the manufacturing unit - Although, the order of the Commissioner (A) is referred to, however, the respondent No. 3 did not elaborate as to why it disagreed with the findings of the Commissioner (A) although, the petitioners submitted their objections in response to the said SCN and had also referred to the findings of the Commissioner (A) therein - The respondent No. 3 in its order held that although the appeals before the Tribunals have been withdrawn on the basis of monetary limits, they were of the opinion that the Tribunal orders have not binding effect on the adjudication authority to take a particular stand in the matter - There is no discussion in the impugned order as to the effect of the findings of the fact which is reflected in the Commissioner (A) order - The impugned orders dated 27.01.2020 and 18.12.2019 passed by the respondent No. 3 cannot be allowed to sustain and the same is, therefore, set aside and quashed - Considering the fact that the disagreement by the respondent No. 3 with the findings of the Higher Appellate Authority, namely, the Commissioner (A) is on factual aspect, records of which are available in the Department, the matter is remanded back to the authorities and the respondent authority is directed to pass appropriate orders afresh in the matter after giving adequate opportunities to the petitioner within a period of three months: HC
- Writ petitions partly allowed: GUWAHATI HIGH COURT
2021-TIOL-900-HC-KAR-CX
Fosroc Chemicals India Pvt Ltd Vs CCT
CX - The appellant is engaged in business of manufacture of construction chemicals - They had factories in Kuluvanahalli, Ankleshwar and Rudrapur - The units of the appellant at Kuluvanahalli and Ankleshwar pay excise duty on the final products manufactured and cleared by the units - In respect of the unit of appellant at Rudrapur, on the final products, the excise duty is not paid as the same is exempted from payment of duty in view of the notification dated 10.06.2003 - The Head Office of the appellant distributed service tax paid by them to their two units at Ankleshwar and Kuluvanahalli equally and no part of the service tax paid was distributed to the unit situated at Rudrapur - A SCN was issued by which the appellant was asked to show cause in respect of the manner of distribution of credit as the same was not in consonance with Rule 7 of CCR, 2004 - On perusal of the order passed by Tribunal, it is evident that the aforesaid order is cryptic and suffers from vice of non-application of mind - The Tribunal has not assigned any reasons in respect of its finding and has merely recorded the conclusions - The Division Bench of this Court in ECOF Industries Pvt. Ltd 2011-TIOL-770-HC-KAR-ST has held that the registered input service distributor is entitled to distribute credit, subject to the conditions mentioned in Rule 7 of CCR, 2004 - The said decision which has a bearing on the controversy involved in appeal has also not been considered - The order passed by Tribunal is hereby quashed and the matter is remitted to the Tribunal for decision afresh and in accordance with law: HC
- Matter remanded: KARNATAKA HIGH COURT
2021-TIOL-216-CESTAT-CHD
HVR Industries Pvt Ltd Vs CCGST
CX - An investigation was conducted against the appellant and it was held that they are not entitled to take credit which appellant has reversed immediately stating that as they want to buy peace, they are depositing the amount - Thereafter, a SCN was issued to demand duty on the amount alleged to be taken inadvertently and to appropriate the same further demand of interest and imposed penalty on the appellant - Same was confirmed by lower authority - The matter travelled upto the Tribunal and this Tribunal has set aside adjudication order - Thereafter, the appellant filed refund claim in January, 2019 and the same was rejected in terms of section 11B of CEA, 1944 - Considering the fact that the appellant has reversed immediately the amount to buy peace under protest, the time limit prescribed under section 11B is not applicable to the facts of this case - The appellant is entitled to refund of amount as no time limit is applicable - The impugned order is set aside: CESTAT - Appeal allowed: CHANDIGARH CESTAT
2021-TIOL-215-CESTAT-CHD
Seville Products Ltd Vs CC
Cus - The appellant is supplying confectionary items to various importers of India - A case has been booked against one of the importer M/s Royal Import & Export on account of undervaluation by DRI - A penalty of Rs. 1 lakh was imposed on the appellant under Section 112(a) of Customs Act, 1962 - It was inquired from revenue about the decision of Larger Bench on this issue by Tribunal passed in 2021 - The revenue fairly accepted that he is not aware of the decision - It is very unfortunate that the departmental officers appearing before this Court are not updated with the latest judgments of this Tribunal - As there is a decision of the Division Bench of this Tribunal which is against the Revenue, but revenue said that he will rely on the decision of the Single Member Bench of this Tribunal, which is in their favour, but he will not rely on the decision of the Division Bench which is having higher value in the eyes of law - The said act of revenue cannot be appreciated at all being an officer of the court - As Section 1, sub-section (2) of Customs Act, 1962 admittedly is having jurisdiction in only within whole of India and its territories and cannot be extended beyond India and the appellant is located outside of India, therefore, no penalty can be imposed on the appellant under Customs Act, 1962, therefore, no merit found in the impugned order, the same is set aside: CESTAT
- Appeal allowed: CHANDIGARH CESTAT |
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