2021-TIOL-983-HC-KAR-ST
Designated Committee Sabka Vishwas Vs Jagadish Advertising
ST - SVLDRS, 2019 - Designated Committee had disallowed the Cenvat credit of Rs.4,15,14,081/- and aggrieved with this decision the applicant had filed the Writ petition - Single Judge held that the action of the Designated Committee in coming to the conclusion that the petitioner was disentitled to tax paid through input credit by inserting a remarks column in Form Nos. SVLDRS-2 and 3 was one which was totally without jurisdiction - Further, held that the Designated Committee cannot embark upon an exercise of adjudication and state that it was not permissible for the declarant to claim that he had paid the tax through input credit - Writ appeal filed against this order dated 19.08.2020 passed by the Single Judge.
Held:
++ Single Judge has not at all considered the impact of Rule 6 of the CENVAT Credit Rules, 2017 as invoices were of the year 2013-2014 which is much beyond the period of one year and, therefore, the claim of the respondent could not have been appropriated in respect of the amount of ? 4,15,14,081/-. [para 25]
++ Designated Committee under the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 does not have any authority to modify the SVLDS-3 at all. When, once the appellants have adjusted the claim of respondent as the CENVAT credit of Rs.4,15,14,081/- availed by the respondent and subsequently, utilized, is an inadmissible CENVAT credit and availment of the same is proposed to be denied in show cause notice. In the light of Rule 6(1) of the CENVAT Credit Rules, 2017, by no stretch of imagination the respondent was entitled to claim CENVAT credit. [para 26]
++ CENVAT credit is a concession and not a vested right and it has to be claimed keeping in view the CENVAT Credit Rules and therefore, the Single Judge has erred in law and in facts in allowing the writ petition by directing the Designated Committee to adjust the amount which was the subject matter of CENVAT credit. [para 28]
++ I t is true that the basic thrust of the Scheme is to unload the baggage of pending litigations centering around service tax and excise duty. But at the same time, the statutory provisions as contained under the CENVAT Credit Rules, 2017 cannot be given a complete go-by. The claim of CENVAT credit which has become time barred cannot be adjusted in the matter in the manner and method it has been done by the Single Judge. [para 30]
++ In the present case, the respondent is not entitled to claim CENVAT credit in the manner and method it has been done. CENVAT Credit cannot be carried forward as input tax credit and there cannot be any adjustment on predeposit as the respondent has not filed GST TRAN-1. Therefore, the CENVAT credit cannot be transformed into input tax credit.
++ It is an undisputed fact that the respondent has not filed ST-3 returns till the intervention of the department and the assessee however filed a declaration in the year 2019, after introduction of GST. As the respondent has not filed the GST TRAN-1, he is not eligible on account of Rule 6(1) of the CENVAT Credit Rules, 2017.
++ The Designated Committee was justified in passing the order which was subject matter of challenge in the writ petition and, therefore, this Court is of the opinion that the order passed by the learned Single Judge deserves to be set aside and is accordingly set aside. [para 33]
- Writ appeal allowed: KARNATAKA HIGH COURT
2021-TIOL-981-HC-DEL-NDPS
David Collin @ Madhuabuchi Okoro Vs NCB
NDPS - Bail - Two parcels were detained at DHL Courier Company at Kirti Nagar which were booked by co-accused Sita @ Priya Mandal @ Christina Rozaria at the instance of petitioner - Both the parcels were examined and 245 grams and 425 grams of Heroin respectively were recovered - Thereafter search was also conducted at the residence of petitioner which also resulted in the recovery of 12 grams Cocaine and 20 gm Methamphetamine- The allegations against the petitioner are that of dealing with the commercial quantity of contraband and therefore, rigors of Section 37 of NDPS Act are applicable - There is nothing before this Court to believe that the petitioner/accused is not guilty or he would not commit the offence once granted bail - The statements recorded U/s 67 of the NDPS Act are not exculpatory - Thus, no ground for bail is made out, the bail application is, therefore, dismissed: HC
- Application dismissed: DELHI HIGH COURT
2021-TIOL-239-CESTAT-BANG
Autokast Ltd Vs CCT & CE
CX - The appellant who is a State Government Undertaking has inadvertently availed the cenvat credit which on being pointed out by audit reversed the same along with interest which fact is not in dispute and the O-I-O appropriated the amount and the interest paid by appellant - It is a settled position of law that no suppression of material to evade payment of duty can be alleged against the State Government Undertaking - The issue has been consistently considered by Tribunal in various decisions and it has been held that once the duty is paid before the issuance of SCN along with interest, the SCN need not be issued and question of imposition of penalty does not arise - Further, the Karnataka High Court in case of Vilax Industrial Fabrics 2018-TIOL-1363-HC-KAR-CX has upheld the decision of Tribunal dropping the penalty on the ground that when the duty is paid along with interest before the issue of SCN, then no penalty is imposable - By following the ratio of said decision, the impugned order imposing penalty is not sustainable in law and therefore the same is set aside: CESTAT
- Appeal allowed: BANGALORE CESTAT
2021-TIOL-238-CESTAT-DEL
Al Jamshed Tour And Travels Vs CCGST & CE
ST - The appellants are the private tour operators providing services to the pilgrims for Hajj and Umrah - Refund claim was filed by appellants being the amount of service tax paid on services which got specifically exempted from the payment of service tax in terms of Rule 3 (1) (ii) of the Export Service Rules, 2005 - The said refund claim was sanctioned to them and the amount was refunded by cheque - However, an appeal was preferred against the said refund on the ground that the amount has been erroneously refunded without appreciating as to whether the claimant is unjustly enriched - Accordingly, SCNs were served upon the appellants proposing recovery of amount so refunded to them - The said proposal was confirmed vide O-I-O - The appeal thereof has been rejected vide the impugned O-I-A on the ground of limitation - There is no denial that the impugned appeals were filed before Commissioner (A) after a delay of one month and 20 days - There is also no denial to the fact that no sufficient reason was explained to Commissioner (A) for the said delay - The prescribed period for filing appeal before Commissioner (A) is two months, however, delay of one month is condonable by the Commissioner subject to a sufficient cause being shown to him by the appellant - As is apparent from the impugned order, there is no such sufficient cause shown - No infirmity found in the order under challenge where the Commissioner (A) has followed the statutory mandate of Section 35 of Central Excise Act: CESTAT
- Appeals dismissed: DELHI CESTAT
2021-TIOL-237-CESTAT-DEL
Transworld Cargo And Travels Vs Addl. CC
Cus - Seizure of sandal wood - It has been brought to the notice and has been acknowledged by Department that the amount of pre-deposit stands already paid by appellant which includes 7.5% thereof as was required to be deposited at the time of filing appeal before Commissioner (A) and 2.5% thereof as is required at the time of filing appeal before this Tribunal - Keeping in view that there is no denial to the submission that no defect memo was given to the appellant nor any opportunity of being heard was ever provided, the same is held to be the non-compliance of principal of natural justice - The Gujarat High Court in the matter of KLJ Plasticizers Ltd. 2018-TIOL-1927-HC-AHM-CX has held that it is the settled law that the opportunity of personal hearing irrespective of the demand thereof has to be given by the courts/quasi judicial authorities to the parties to a 'Lis' before them - Relying upon the said decision, matter remanded to Commissioner (A) with the directions to decide based upon the merits of the present case: CESTAT
- Matter remanded: DELHI CESTAT |
