2021-TIOL-1012-HC-DEL-CUS
Hapag Lloyd India Pvt Ltd Vs Hotel Needs India
Cus - Trial Court has failed to appreciate even one single argument of defendant nos. 5 and 6 while passing the impugned order - The said order, at its best, can be termed as an ex- parte order solely based upon the submissions of the plaintiff; passed without caring for the reply or the written submissions filed by defendant nos. 5 and 6, who have no option but to challenge the said order before this court by filing this appeal - It is to be noted that merely stating in the impugned order by the Trial Court that "plaintiff has been able to show a prima facie case in his favour Balance of convenience is also in favour of the plaintiff and irreparable loss and injury would be caused to the plaintiff if interim injunction is not granted to him" does not satisfy the sacrosanct test of law and equity, where stand of the contesting defendants was totally ignored - Since no findings have been given by the Trial Court on the stand of the contesting defendants, Bench refrains from arriving at any findings on the same and the only option left is to remand the matter back – Bench requests the Trial Court to make every endeavour to dispose of the interim application at the earliest after giving sufficient opportunity to the contesting parties to address arguments and till that time, impugned order dated 19.11.2020 shall remain suspended: High Court [para 16, 17, 19, 20]
- Matter remanded : DELHI HIGH COURT
2021-TIOL-1011-HC-MAD-CUS
ACC Vs Kurian Abraham Pvt Ltd
Cus - Tribunal took note of the decision in M/s. Vijirom Chem. Pvt. Ltd. = 2005-TIOL-1669-CESTAT-BANG , wherein it was held that the legal fiction of manufacture incorporated in the Chapter note of the Excise Tariff cannot be invoked to interpret a notification under the Customs Tariff Act. Therefore, it held that the Adjudicating Authority, though referred to the decision in Vijirom's case (supra), did not follow the same. Further, it was observed that no extraneous conditions can be introduced in the notification, which has to be interpreted on its own wording and Notification No. 102/2007-Cus uses the expression "subsequently sold", which has been done by the assessees and that on account of the activities like repacking and sterilization, the imported gloves have not undergone any change and therefore, there is no justification for the denial of SAD. The Revenue is aggrieved by the order passed by the Tribunal - Civil miscellaneous appeal was admitted on the following substantial questions of law viz. Whether the CESTAT is correct in holding that processes viz., sterilization, re-packing, re-labelling etc., defined as manufacture in the Chapter Note under Chapter Heading 4015 of Central Excise Tariff w.e.f. 11.07.2014, cannot be invoked to interpret a Notification under Customs Tariff Act?; Whether the CESTAT is correct in allowing refund of SAD under Notification No. 102/2007-Cus dated 14.09.2007 when the importer has not fulfilled the conditions 2(d) and 2(3)(ii) stipulated in the said Notification?; Whether CESTAT is correct in allowing the refund on the ground that there is no such condition viz., imported goods to be sold as such in the Notification No. 102/2007-Cus. Dated 14.09.2007, in spite of the clarification under CBEC Circular No. 34/2010- Customs, dated 15.09.2010?".
Held:
++ The Adjudicating Authority, namely, Commissioner of Customs has taken note of Circular No. 34/2010 . However, the Tribunal has not considered the correctness of the order passed by the Adjudicating Authority qua the applicability of the Circular, which explains the intention of the Notification. The Tribunal found fault with the Adjudicating Authority in not granting relief in respect of the imports after 11.07.2014 and while granting the relief to the assessees proceeded on the basis that the earlier Notification No. 56/1998 required the imported goods to be sold "as such" and it had a more stringent condition and there is no such requirement in the Notification No. 102/2007. This finding prima facie appears to be not sustainable as the issue whether the Notification No. 102/2007 was in supersession of Notification No. 56/1998 was required to be considered and decided. [para 48]
++ From the reply given by the assessees to the show cause notice, dated 01.10.2015, it appears that the assessees did not raise the plea that the Notification No. 102/2007 was in supersession of the earlier Notification nor there was any argument made by the assessees with regard to the effect of the Circular No. 34/2010-Customs , dated 15.09.2010. Thus, the matters requires to be re-examined, for which purpose, we are inclined to remand the matter back to the Commissioner of Customs to reconsider the entire issue afresh. [para 49]
++ In the preceding paragraphs, Bench has held that the writ petitions filed by the assessees challenging the orders of the Assistant Commissioner of Customs rejecting the refund claim was not maintainable. Those orders passed by the Assistant Commissioner of Customs were based upon the order in original No. 1/2016, dated 19.04.2016, which is to be set aside and the matter to be remanded back to the file of the Commissioner of Customs for fresh decision.
++ In such circumstances, Bench is of the considered view that the writ petitioners should not be left without any remedy and since Bench is remanding the matter back to the file of the Commissioner of Customs for reconsideration, after setting aside the order passed by the Tribunal, Bench deems it appropriate that the orders passed by the Assistant Commissioner of Customs rejecting the refund applications are required to be set aside and the refund applications should stand restored to the file of the Assistant Commissioner of Customs to be taken up for fresh consideration after the Commissioner of Customs completes de novo adjudication based on the order of remand in this appeal. [para 50]
- Appeals disposed of : MADRAS HIGH COURT
2021-TIOL-256-CESTAT-AHM
Bundy India Ltd Vs CCE & ST
CX - Issue relates to denial of interest on the penalty refunded to appellant - It is noticed that the observations of Commissioner (Appeals) in para 5.4 are not directory in nature whereas the findings in para 5.6 are specific and directory in nature - It is also in notice that para 5.7 clearly mentions that since the matter is being remanded; no opinion is expressed on the legal and factual maintainability of appellant's case - Thus, all issues remain open - The Apex Court in the case of CORONATION SPINNING INDIA has held that interest of refund on penalty is not admissible under Section 11BB of Central Excise Act, 1944 - As a result, Tribunal do not find the appellants are entitled to any refund of interest on penalty amount under Section 11BB ibid- As regard, the appellant's contention that the revenue cannot recover the same, as no SCN has been issued - The said issue cannot be decided in the present proceedings: CESTAT
- Appeal dismissed: AHMEDABAD CESTAT
2021-TIOL-255-CESTAT-AHM
Solvay Specialities India Pvt Ltd Vs CCE & ST
CX - The issue arises is, whether the appellant is entitled for Cenvat Credit in respect of Group Insurance Services for insurance of staff - The adjudicating authority as well as the Commissioner (Appeals) denied the Cenvat Credit on the ground that the input services were not used either in or in relation to the manufacture of final product and it is not covered under inclusion category of input services and it fall in the exclusion category provided from 01/04/2011 - Very same issue even for the period post amendment in Rule 2(l) of Cenvat Credit Rules, whereby certain services were excluded from the ambit of input services has been considered by Madras High Court in case of M/s Ganeshan Builders Ltd. wherein after interpreting the term 'Group Insurance' with the exclusion clause held that the group insurance service is admissible input service and credit was allowed - Therefore, there is nothing more to add after the aforesaid judgment was passed - Accordingly, following the said judgment, Group Insurance Service is admissible for Cenvat Credit - The impugned order is set aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
2021-TIOL-254-CESTAT-AHM
Asahi Songwon Colors Ltd Vs CC
Cus - This appeal is filed against impugned order whereby the Commissioner (Appeals) has dismissed two appeals on the ground of time-bar as the appeals were filed beyond the period of 90 days - Since the appeal was filed beyond 90 days, Commissioner (Appeals) has no power under the statute to condone the delay over and above 90 days, accordingly the appeal was dismissed - This issue has been considered by various Courts including the Supreme Court and it was consistently held that the statutory time period of 90 days, i.e., 60 days plus 30 days, is provided and beyond 90 days no power is vested with Commissioner (Appeals) to condone the delay - The Supreme Court also, in the case of Singh Enterprises 2007-TIOL-231-SC-CX , held that appeal to be filed within 60 days from the date of communication of order - Further delay of 30 days is condonable on sufficient cause being shown - The appellate authority has no power to condone the delay beyond the said 30 days - Since the Commissioner (Appeals) has no power to condone the delay beyond 90 days, the impugned order does not bear any infirmity - Accordingly, the impugned order is upheld: CESTAT
- Appeal dismissed: AHMEDABAD CESTAT
2021-TIOL-253-CESTAT-BANG
Continental Automative Components India Pvt Ltd Vs CC
Cus - The appellant has imported LCD modules and accordingly filed bill of entry giving the details of same and the goods were physically examined by officers of SIIB and the stand of the appellant from the very beginning was that as per the technical write up, which was submitted to the Department, clearly shows that these LCD are used in instrument cluster manufacture by the appellant and which instrument cluster in turn disclosed the main Kilometer reading, Day Trip reading and Clock and all these details are matched with the details in bill of entry - The original authority, in spite of technical details given by the appellant, did not seek technical opinion before passing O-I-O and has also failed to explain in its Order as to why the subject goods are different from plain LCDs - The O-I-O was passed without issuing SCN which is also in violation of principles of natural justice - LCDs are specifically provided in Tariff Item No. 9013 and as per Note 2(a) attached to Chapter 90, parts and accessories which are goods included in any of the Heading of the said Chapter 90 are to be classified in their respective Headings - Appellants have been earlier importing the said items and vide its letter informed the Customs Authorities that since April 2009, they had seven instances of import of LCD and in five of them, the item was correctly dispatched as Liquid Crystal Display and in the remaining two, though, the imported item was merely a Liquid Crystal Display which was mentioned as LCD module incorrectly and that the imported LCDs were used in the manufacture of instrument cluster and that these are not part of speedometer - By following the ratio of Apex Court's decision in case of Secure Meters 2015-TIOL-100-SC-CUS the impugned order classifying the said goods under Tariff Item 9029 90 00 of Customs Tariff Act, 1975 is not legally sustainable and the same is set aside: CESTAT
- Appeal allowed: BANGALORE CESTAT |
