2021-TIOL-1107-HC-AHM-CUS
Raj And Company Vs UoI
Cus - MEIS - It is averred by the petitioner that the policy permits the eligibility of the goods which had been exported by the petitioner under the MEIS scheme and it is only the procedural lapse which has resulted into his being denied the benefit of the said scheme - Appropriate writ is sought by the petitioner to set aside the order of respondent No. 3 bearing No. VIII/4847/ EXP/MEIS/CHM/1920 dated 10.06.2019.
Held: In the instant case, there is no doubt with regard to the exports having been made under the FTP 2015-20 where, initially, Sri Lanka was not one of the countries where such reward was available on export to the said country - The petitioner has already exported its product 'vitrified tiles' to Sri Lanka and 73 shipping bills have also been produced before the respondent authorities - What has been pleaded all through out by the petitioner is of lack of knowledge of subsequent public notices which had included Sri Lanka as a country for seeking the reward under the MEIS and entire procedure having been simplified, instead of getting the declaration produced for the purpose of the reward, the ticking of N/Y would suffice in case of the EDI - The ticking itself had been made equivalent to such declaration - It is quite clear that for the purpose of the reward, the EDI has been simplified more particularly, by way of the Public Notice No. 9 of 2015 dated 16.05.2016 and the marking of tick in pursuance of the earlier Public Notice No. 47 dated 08.12.2015 had been treated as a declaration of intent in case of EDI shipping bills - Section 149 of the Customs Act, 1962 which has been taken recourse to by the petitioner does not prescribe any time limit - It is a discretion of the concerned officer, which can authorize any document after it has been presented in the Custom House to be amended - In the electronic age, all procedures have been simplified and the EDI is essentially keeping pace with the electronic age - The simplification of this process shall have to be viewed for the benefit of the exporters for whose benefit the scheme has been brought by the Centre as availment of benefits is in no manner going to have any bearing adversely on the exchequer - Therefore, it is also expected of the respondent authority to adopt an approach, giving progressive interpretation to all these provisions and the policy decisions rather than having conventional outlook - Petition is allowed - The impugned communication dated 10.06.2019 is quashed and set aside - Respondent No. 2 is directed to issue No Objection Certificate to the petitioner for availing the benefits as provided under the policy - exercise be completed within a period of eight weeks: High Court [para 13, 16, 18, 19]
- Petition allowed: GUJARAT HIGH COURT
2021-TIOL-1105-HC-KAR-CX
CCE Vs ITC Ltd
CX - CESTAT had while allowing the appeal of the assessee observed that Revenue's argument that Input Service Distributor viz., ILTD, Guntur is not a Revenue paying entity and that is why it is covered under the provisions of Rule 7(b) and, therefore, it cannot distribute the CENVAT Credit in respect of service tax paid on input services used by them, was completely wrong; that ILTD and ITC are one and the same; only as a matter of structuring and in order to have proper functioning with reference to the appellant's manufacturing operations, the appellant has carved out ILTD as its Division - Revenue is in appeal against this order.
Held: The ILTD belongs to the assessee viz., ITC and is an integral division of the assessee - The aforesaid Division is not a separate legal entity and controls the supply chain of un-manufactured tobacco to the factories - The Company is registered as Input Service Distributor under the CCR for its Indian Leaf Tobacco Division in Guntur - The aforesaid registration enables distribution of service tax paid input credits to manufacturing activities carried on in the factories - Tribunal has relied upon the decision in Ecof Industries Pvt. Ltd. = 2011-TIOL-770-HC-KAR-ST and no submission has been made as to how the aforesaid decision is not applicable to the case of the assessee - For the assessment period viz., August 2011 to December 2011, the order of the tribunal dated 11.09.2017 was accepted and no further challenge was made - Since, the revenue has accepted the entitlement of the assessee to avail of the input credit for the assessment periods viz., November 2010 to July 2011 and for a period from August 2011 to December 2011, the revenue cannot be permitted to challenge its correctness - Order passed by the tribunal does not suffer from any infirmity - Revenue appeal dismissed: High Court [para 7, 8]
- Appeal dismissed: KARNATAKA HIGH COURT
2021-TIOL-1104-HC-AHM-CX
Citizen Metalloys Ltd Vs UoI
CX - Petitioner has prayed for quashing and setting aside the Final order dated 13.10.2017 passed by the CESTAT and the Order dated 04.05.2018 on ROM application on the ground that the said orders are unjust, improper and violative of the principles of natural justice; that the Tribunal was not justified in rejecting the application for restoration, without appreciating the facts of the case as also the submissions made by the petitioner while considering that recalling of the order would amount to review of its earlier order.
Held: [para 14, 18.1, 19]
+ In the present case, it is an admitted fact that the appeal preferred by the petitioner has been decided ex- parte and an application seeking adjournment of the hearing of appeal had been filed by the petitioner much prior to the next date of listing of the appeal, which has remained undecided.
+ By filing the restoration application, the petitioner had sought for recall of the order passed in appeal by contending that all facts relevant for the proper adjudication of the case had not been placed on record of the appeal.
+ However, the said application also came to be rejected by the Tribunal by holding that the issue involved has been decided on merits and that the recall of the order and its substitution with a different view, would result into review of its own order, which power is not vested with the Tribunal under the statute. In our considered opinion, the view taken by the Tribunal is erroneous and contrary to the settled principles of law.
+ In the present case, on the date so fixed for hearing, i.e. on 13.10.2017, the Tribunal ought not to have decided the appeal itself on merits in the absence of the petitioner or its representative, particularly, when the petitioner had already submitted an application seeking adjournment much prior to the date so fixed for hearing disclosing the cause for remaining absent. In view of the above, we are of the opinion that the impugned orders passed by the Tribunal could not be sustained in the eyes of law and they deserve to be quashed and set aside.
+ The appeal is restored to the file of the Tribunal and at the first instance, the said appeal is ordered to be listed on Board on 22nd March, 2021 for further hearing. It is expected that while deciding the appeal, Tribunal shall adhere to the principles of natural justice and shall, thereafter, decide the appeal on merits in accordance with law and as expeditiously as possible.
+ Request by the Central Government Standing Counsel for stay of the order is not acceded to and is, accordingly, rejected.
- Petition is disposed of: GUJARAT HIGH COURT 2021-TIOL-1100-HC-JHARKHAND-ST FM Enterprises Vs UoI
ST - Petitioner prays for issuance of an appropriate writ, order or direction, directing upon the respondents to show cause as to how and under what authority of law, a final order dated 20.03.2017, confirming the liability towards service tax upon the petitioner, and a subsequent notice in Form GST DRC-13 for payment of the said liability could be issued to the petitioner's banker, without taking into consideration the fact that the entire liability towards service tax had been discharged by the petitioner way back in the month of April 2014 itself, and no demand could have been fastened, had the accounts of the petitioner been reconciled by the respondents; that the said GST DRC-13 be quashed and set aside; direct the respondents to refund the amount of Rs. 9,28,371/- paid by the petitioner under protest subsequent to the order dated 20.03.2017 - Petitioner further submits that the Order in Original was never served upon the petitioner and it was only when the petitioner took steps before the authorities the order was communicated to the petitioner - Counsel for Revenue submits that in spite of service of order in original long back, the petitioner did not avail the alternative remedy and has moved this Court in the writ petition much after expiry of the period of limitation to challenge the same; that as per the letter dated 05.11.2020 issued by the Asst. Commr., the o-in-o addressed to the registered business address as well as residential address of the petitioner were duly delivered as per the records available with the Division concerned.
Held: Court finds that the impugned order in original dated 20.3.2017 is an appealable order as per the provisions of the Finance Act, 1994 - Court is of the view that the dispute, as to whether the petitioner was earlier communicated or not communicated the order dated 20.3.2017 cannot be considered by this Court in writ jurisdiction, particularly when it has been recorded in Annexure 11 that the same was earlier delivered to the petitioner at their business address as well as residential address - However, if the petitioner is disputing the delivery, it is for the petitioner to demonstrate the same before the appropriate authority - present writ petition is dismissed as not maintainable: High Court [para 8, 9, 10]
- Petition dismissed: JHARKHAND HIGH COURT
2021-TIOL-274-CESTAT-CHD
AB Tools Pvt Ltd Vs CCGST
CX - The appellant is in appeal against impugned order wherein the refund claim has been denied to them as time-barred - They had intimated the reversal of cenvet credit to the revenue, in that circumstances, whether contesting the reversal of cenvet credit by appellant amounts to reversal under protest - In view of the decision of Tribunal in case of Hutchison Max Telecom Pvt. Ltd. 2004-TIOL-62-CESTAT-DEL , contesting the reversal of cenvet credit by appellant shall amounts to reversal under protest - Thus, the refund claim filed by appellant is not barred by limitation prescribed under Section 11B(1) of Central Excise Act, 1944 - Therefore, impugned order is set-aside: CESTAT
- Appeal allowed: CHANDIGARH CESTAT
2021-TIOL-273-CESTAT-CHD
Mayfair Resorts Vs CGST
ST - The appellant is in appeal against impugned order wherein cenvet credit has been denied and equivalent amount of penalty is also imposed - For the period ending 31.03.2014, appellant shown the balance in cenvet credit as Rs. 1,05,705/- in their ST-3 return and opening balance on 01.04.2014 was shown as Rs. 4,71,397/- - It is crucial to examine the records of appellant pertaining to cenvet credit account whether the appellant has inadvertently made a mistake while filing the ST-3 return for the quarter ending March 2014 or intentionally has taken the excess cenvet credit on 01.04.2014 - These facts can be verified from the records of appellant - Same was to be done by the adjudicating authority which the adjudicating authority has not done at the time of adjudication after issuance of SCN to the appellant - Matter is remanded back to the adjudicating authority to verify the records of appellant - If the appellant is having closing balance on 31.03.2014 is Rs. 4,71,397/-, in that circumstances, the appellant should be given the benefit of mistake occurred by them while filing ST-3 return - If the appellant is not having the balance in their cenvat credit account of Rs. 471397/- then the cenvet credit is to be denied to them and the penalty is required to be imposed: CESTAT
- Matter remanded: CHANDIGARH CESTAT |
