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2021-TIOL-1099-HC-KAR-CX
CCE Vs ITC Ltd
CX - This appeal under Section 54G of CEA, 1944 has been preferred by revenue against the order 2018-TIOL-1172-CESTAT-BANG passed by Tribunal - For the reasons assigned in the judgment passed in C.E.A.No. 72/2016, the order passed by Tribunal does not suffer from any infirmity - The substantial questions of law are answered against the revenue and in favor of the assessee: HC
- Appeal dismissed : KARNATAKA HIGH COURT
2021-TIOL-1097-HC-MAD-ST
PSTS Logistics Pvt Ltd Vs Designated Committee
ST - SVLDRS, 2019 - Issue raised on merits is that no opportunity of hearing has been granted to the petitioner prior to the impugned rectification.
Held: Impugned rectifications do not fall within the ambit of an arithmetic or clerical error and enhance the quantification of tax dues under Section 127 - Hence, a notice ought to have been issued to the petitioner in this matter, prior to revising the SVLDRS - However, detailed submissions have been heard by the Bench on the nature of the dispute and the difference in computation and Bench believes that it would not be appropriate that it remands these matters on the technical issue of lack of opportunity - Finance Act, 1994, in terms of which service tax is levied, provides for a half yearly return - Petitioner's contention that applicant is required to quantify the tax dues payable month-wise since the half yearly returns filed take into account the tax payable per month is unsustainable - The ‘tax dues' under SVLDRS would thus be as per Section 124(1)(c)(B) and not 124(1)(c)(A) as computed by the petitioner - Stand of the petitioner has no legal sanction and the interpretation put forth does not merit acceptance - Bench, therefore, sees no justification to relegate the petitioner to the authority, particularly since this litigation pertains to an amnesty scheme where proceedings should, as far as possible, be fast tracked and not delayed - Writ petitions are dismissed - Liberty is granted to the petitioner to approach the authorities seeking some more time to remit the dues contemplated under the revised SVLDRS: High Court [para 9 to 13]
- Petition dismissed : MADRAS HIGH COURT
2021-TIOL-1096-HC-AHM-CUS
Jay Sudhirbhai Vaidya Vs Pr.Commissioner
Cus - Section 129DD of the Customs Act, 1962 - Alleged smuggling of gold, jewellery and some foreign currency notes - On completing inquiry, a show cause notice had been issued by the DRI on 28.01.2014 proposing confiscation of gold and foreign currency of USD 10,000/- and motor vehicle and also for the imposition of penalty - This was adjudicated by the adjudicating authority - When the appeal was preferred against the order in original, the Commissioner of Customs (Appeals) under section 128A had reduced the penalty from Rs.10 lakhs to Rs. 1 lakhs, against which the revision application under section 129DD of the Customs Act was preferred where the DRI approached for revision of the said order in appeal and penalty under section 112(a) of the Customs Act, as imposed in the order in original, has been revived - Petitioner is essentially and predominantly making a grievance that he was never served with any intimation of hearing before the revisional authority; that he was served with only one hearing and on a single hearing notice, two dates were given, therefore also, it can be said that there was insufficient notice.
Held: Revision being a continuance of original order, there could not have been a need for a separate issuance of the show cause notice in a literal sense at the time of the matter having travelled to the revisional authority - The challenge made by the petitioner and the issues raised of non-issuance of the show cause notice merit no assistance, inasmuch as, aggrieved by the order in appeal of the appellate authority that the department had chosen to question it before the revisional authority - It was in continuity that this litigation had eventually culminated into revival of the order of penalty of Rs. 10 lakhs - Neither on merit nor on legal aspect, there appears to be any justification for interference when the three authorities having concurrently held against the petitioner by an elaborate discussion of facts and we do not deem it appropriate to interfere in absence of any justifiable ground to so do it so far as the order of revisional authority is concerned - Role of the petitioner in the act of smuggling the gold and currency notes is quite apparent and established from plethora of materials, which have been duly and satisfactorily proved on the strength of the documentary as well as oral evidence as required by the law - From the admissible and conclusive evidence recorded by the respondent, the petitioner has been rightly and unfailingly held liable for committing the act in total contravention of law and hence, imposing of the penalty is found justifiable and, therefore, this petition having been found meritless, is dismissed: High Court [para 14, 15]
- Petition dismissed: GUJARAT HIGH COURT
2021-TIOL-1095-HC-AHM-CX
Garden Silk Mills Ltd Vs UoI
CX - Petition preferred against the order of the revisionary authority denying the petitioner the rebate claim on the ground of limitation.
Held: It is well settled position of law that the procedural requirement cannot defeat the substantial right of the party, as in absence of shipping bill, insistence on the shipment certificate was inevitable - Therefore, obtaining of the shipment certificate was the very fundamental requirement on the part of the petitioner - Soon after getting the copy of the shipment certificate, it has chosen to file the rebate claim with all requisite documents and, therefore, the same ought not to have been rejected on the ground of limitation - The view adopted by the Revisional Authority of the department of being bound by the period of limitation, despite there being a specific provision of paragraph No. 2.4 of the CBEC Manual, which is a circumstance as held by the Court in Cosmonaut Chemicals 2008-TIOL-473-HC-AHM-CX to mitigate an warranted hardship resulting from reading the provision of limitation in absolute terms - Even while considering the provision of acceptance of claim by the Authority when sole responsibility of supply of document is of the department, the fact remains that overall requirement is of furnishing of particular documents and in absence thereof, to deny the entertainment of such rebate claim and, therefore, waiting for the shipping bill to be delivered by the department cannot in any manner be held against the petitioner - More so, when the amendment has come on 01.03.2016 by way of Notification No. 18 of and the claim is of the year 2010 and, therefore, also, this being a subsequent change applying the period of limitation of one year at a later date; the decision of Cosmonaut Chemicals (supra) and also of other High Courts would need to be regarded - Order No. 18-20/2019-CX(WZ)/ASRA/Mumbai dated 30.08.2019, whereby the claim of the petitioner has been rejected on the ground of being barred by the law of limitation under section 11B of the Act is quashed and set aside - The petition is allowed accordingly - Let the rebate claim be processed and sanctioned by the authority concerned within 12 weeks: High Court [para 38 to 40]
- Petition allowed: GUJARAT HIGH COURT
2021-TIOL-272-CESTAT-CHD
Aadil Majeed Banday Vs CC
Cus - The appellant is in appeal against impugned order wherein the gold recovered from them has been absolutely confiscated and penalty has been imposed under Section 112 of Customs Act, 1962 - The gold in question has been seized when the appellant was travelling in domestic flight from Jammu to Srinagar, the goods in question cannot be said as imported goods - Admittedly, if revenue is having a reasonable belief that they are smuggled goods, then the burden of proof that the goods are not imported lies on the appellant - But firstly, there should be a reasonable belief that the gold in question is smuggled one is to be established by revenue to invoke Section 123 of Customs Act, 1962 - In the impugned order as well as adjudication order, nowhere it has been established that there was a reasonable belief that the goods in question are smuggled goods which is the bone contention to invoke Section 123 - Further, the appellant has also brought on record that the marking on gold in question is freely available in the Indian market and at the website www.indiamart.com, the goods can be purchased by any Indian - No fact has been brought on record by way of testing of the goods in question that the marking made on goods are genuine or not - As no such investigation has been done to establish that the goods in question are of foreign origin, therefore, the provision of Section 123 is not applicable - The appellant has never admitted that the goods are of foreign origin or has been smuggled - Further, the SCN is vauge as no particular provisions of Section 111 of Customs Act for confiscation of gold and no provisions of Section 112 of Customs Act for imposing penalty has been brought on notice - The proceedings against the appellant are bad in law, the impugned order is set-aside: CESTAT
- Appeal allowed: CHANDIGARH CESTAT |
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