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2021-TIOL-1005-HC-AHM-CUS
ONGC Ltd Vs RR Pawar
Cus - Refund - Application for contempt under the Contempt of Courts Act - Applicant had filed a petition claiming refund of Rs.5,51,82,641.08 along with interest thereon - Pending the petition, on 29.11.2019, the amount of refund was directed to be credited to the Consumer Welfare Fund and the claim for interest was rejected - In the pending petition, after making an amendment, challenge was made to the said order also and eventually, the Court allowed the petition by issuing certain directions vide order dated 20.02.2020 - In the present application, the applicant has raised the grievance that a bare perusal of the order dated 20.02.2020 passed by this Court would indicate that this Court had not only not set aside the order directing credit of the refund amount but grant of refund to the Consumer Welfare Fund, it, had also remanded the matter to the authority for taking appropriate decision on the aspect of payment of interest on the refund amount - It is the submission of the petitioner that in a deliberate and wilful disobedience, the respondent authority re-examined the aspect of enrichment and directed the amount of refund to be credited to the Consumer Welfare Fund under Section 27(2) of the Act by order dated 04.11.2020 - It is emphatically urged that the Court had set aside the order dated 29.11.2019 directing credit of the amount to the Consumer Welfare Fund, which is indicative of the fact that the applicant was entitled to refund and that the aspect of interest was to be examined, which the said authority has misconstrued and therefore, for this wilful disobedience, the present application is preferred under the Contempt of Courts Act - ASG emphatically urged that the recourse of contempt jurisdiction is not available to the applicant in the wake of availability of other statutory remedy where all the issues can be raised and decided.
Held: It is quite clear from the observations made in paragraph-13 of the order dated 20.02.2020 that the Court had directed the respondent authority to decide the aspect of payment of refund along with interest - The respondent authority passed a fresh order based on the material, which was already available on record and after affording opportunity of production and hearing to the applicant and after considering the entire material available on record - The order passed by the respondent authority is a speaking order - Bench notices that presently, it is dealing with not an order in appeal but it is a matter under the contempt jurisdiction - What has been alleged is that there has been a deliberate misinterpretation of the order of the Court - Court finds that the act, alleged to be wilful and in complete defiance of the Courts directions, is an act which is based on the interpretation of the order and on law and the same cannot be said to be in wilful disobedience of the order of this Court - The jurisdiction under the Contempt of Courts Act is not to be invoked unless the Court finds that the act on the part of the authority is deliberate and in wilful disobedience of the order of this Court - Unless a real and serious prejudice is shown, which can be regarded as a substantial interference with the due course of justice, this jurisdiction would not be available - Court while passing the earlier order could have remanded the matter for the purpose of interest alone, however, it has chosen not to so do it and instead has asked the authority to decide "the aspect of payment of refund along with interest” without insisting for any additional material and hence, the conclusion is not as contemplated by the applicant - The authority concerned surely and definitely cannot be said to have acted either contrary to the law or in breach of directions of the Court while addressing both the aspects of refund and interest - application is, accordingly, dismissed: High Court [para 6, 7, 8, 10, 12]
- Application dismissed: GUJARAT HIGH COURT
2021-TIOL-996-HC-MUM-ST
Phil Corporation Ltd Vs CC, CE & ST
ST - Penalty - The appellant is in the business of producing or printing photographs and render services to the customers who want their photographs to be taken in its studio or to bring the film rolls for development and printing - The appellant is stated to have 42 outlets where the cameras, films, photo frames and albums are available for sale - A duty was alleged to be not paid on the material sold during the rendering of service and the said amount was demanded under Section 68 r/w Section 73(1) of Finance Act along with interest imposed under Section 75 and also penalty levied under Section 76, 77 and 78 of the Finance Act, 1994 - However, the Tribunal set aside the penalty imposed under Section 78 of Finance Act - The case of the appellant is that he had a bonafide belief that for the purpose of Section 67 of Finance Act the value of services in relation to the photography would be the gross amount charged excluding the cost of goods and material used and consumed in rendering of such services - It is only when the larger Bench of Tribunal in case of Agarwal Colour Advance Photo System 2011-TIOL-1208-CESTAT-DEL-LB held that the value of the service in relation to the photography, would be the gross amount charged including the cost of goods and materials used and consumed in rendering such services for the purpose under Section 67 of Finance Act, 1994, the divergence of opinion of the point was straightened out - It was categorically held that the cost of photo paper, chemical would be included - The appellant is justified in his belief and he was supported by a reasonable ground to the effect that he was not liable to pay service tax on cost of such material - The benefit of this belief for him is receiving a favourable consideration at the instance of the Tribunal while granting the relief qua the penalty imposed under Section 78 - No reason found why the said benefit cannot be extended to the penalty imposed under Section 76, since both the Sections are to be read along with Section 80, which gives an overriding effect over Sections 76 to 78 - The impugned order passed by Tribunal which denied the said benefit to the appellant qua the penalty imposed under Section 78 is therefore a gross injustice and deserve to be set aside on account of non-consideration of Section 80 of the Act - Resultantly, the penalty imposed on the appellant under Section 76 of the Finance Act, in the assessment proceedings is set aside: HC
- Appeal allowed: BOMBAY HIGH COURT
2021-TIOL-248-CESTAT-MAD
Agni Steels Pvt Ltd Vs CGST & CE
CX - The appellant, aggrieved by the rejection of refund in its first appeal, has filed the present appeal - The O-I-O has been passed undoubtedly without the issuance of SCN - The Commissioner (A) in the impugned Order has also observed that one Shri P. Veera Kumar appeared before the Adjudicating Authority, but however, both the authorities below are silent as to whether the said person, who is alleged to have been heard, was well-versed with the law and the change in law and whether the said person was authorized by appellant-company to argue before the authorities - It is the basic tenet of our Constitution that “justice should not only be done, but should manifestly and undoubtedly be seen to be done”. The above fundamental principle has to be followed along with the principles of audi alteram partem and any Order which creates a doubt as to the manner in which it was passed, has to be held as having passed without adhering to the above principles, which view is also supported by various decisions relied upon by the appellant - The Orders have been passed without affording proper and reasonable opportunities to the appellant - Accordingly, the impugned order is set aside and the matter is remanded to the file of the Adjudicating Authority to pass a fresh order: CESTAT
- Matter remanded: CHENNAI CESTAT
2021-TIOL-247-CESTAT-BANG
Kirloskar Ferrous Industries Ltd Vs CC
Cus - The appellants imported Low Ash Metallurgical Coke (LAM Coke) from China - Admittedly, the duty was paid under protest by appellant and has paid excess duty and thereafter the appellant vide his letter requested the Deputy Commissioner of Customs to pass an appealable reassessment order but the same was not done and thereafter, the appellant filed the refund claim which was rejected by O-I-O on the ground that the appellant has not challenged the assessment of Bill of Entry nor got it reassessed before or after out of charge of goods - Though the refund has been rejected by original authority but in findings, the original authority has observed that the importer had an option to file an application for amendment of Bill of Entry under Section 149 of Customs Act, 1962 to rectify any mistake in the Bill of Entry based on the documents available at the time of importation but the Commissioner while passing the impugned order denied the right of appellant to seek amendment of Bill of Entry as permissible under Section 149 of Customs Act, 1962 - The Revenue has not challenged the SCN as well as the O-I-O allowing the option to the appellant to seek an amendment in the Bill of Entry as permissible under Section 149 of Customs Act, 1962 but the same was suo moto set aside by Commissioner which is against law - Hence, the said finding of Commissioner is not sustainable - An identical issue has been considered by two Division Benches of Tribunal in case of Calisons Fibres Pvt. Ltd. 2020-TIOL-645-CESTAT-MUM and Sakthi Sugars Ltd. 2020-TIOL-645-CESTAT-MUM - By following the ratio of said decisions, the impugned order is not sustainable in law and is set aside by allowing the appeal of the appellant with the direction to the original authority that the request of the appellant for reassessment be treated as an application under Section 149 of the Customs Act, 1962 for amendment of Bill of Entry and appropriate order be passed in accordance with law after giving an opportunity of hearing to the appellant: CESTAT
- Appeal allowed: BANGALORE CESTAT |
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