2021-TIOL-1142-HC-MP-NDPS

Pappu Gupta Vs State of MP

NDPS - 65 bottles of Welcyrex cough syrup of 100 ml each manufactured by Plenteous company containing 10 mg. (Codeine Phosphate) in each 5 ml dose that were being transported illegally - On interrogation, Sanju @ Sandeep Tiwari informed the police that he had purchased the cough-syrup from the applicant so police also arrested the applicant Pappu Gupta - Bail application filed in connection with the offence punishable under Sections 8, 21, 22 & 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and Section 5/13 of the Madhya Pradesh Drugs Control Act.

Held:

+ In the absence of any documents in possession of co-accused Sandeep Tiwari to disclose as to for what purpose 65 bottles of Cough Syrup, which is Schedule 'H' drug containing narcotic substance was being transported, Court is of the considered view that the applicant has failed to satisfy the said 2nd condition that the said syrup containing codeine was kept for therapeutic practice. So the case will come under the stringent provisions of the NDPS Act. [para 34]

+ However, as far as the applicant is concerned, police allegedly seized 65 bottles of Welcyrex cough syrup of 100ml each from the possession of co-accused Sandeep Tiwari. At the time of the incident, the applicant was not traveling with him. Although in the memorandum of co-accused it is mentioned that applicant was also involved in the crime, but said memorandum of co-accused recorded by the police is not admissible in evidence against applicant without other incriminating evidence. Police also collected call details of the mobile allegedly belongs to the applicant but only on that basis also it cannot be said that applicant was involved in the crime. Nothing has been recovered from the possession of the applicant. [para 35]

+ Looking to the facts and circumstances of the case and the strength of the evidence collected by the Police against the present applicant during investigation of the crime, prima facie it cannot be said that there is a reasonable ground to hold that the applicants have committed any offence punishable under the N.D.P.S. Act and also there is no material to infer that if he is released on bail then he will indulge in the crime punishable under the NDPS Act.

+ The applicant is in custody since 23/08/2020, charge-sheet has been filed and conclusion of trial will take time, so without commenting on the merits of the case the application is allowed and the applicant is directed to be released on bail upon his furnishing personal bond in the sum of Rs.50,000/- with one surety in the like amount. [para 36]

- Application allowed: MADHYA PRADESH HIGH COURT

2021-TIOL-283-CESTAT-CHD

Ambey Sales Vs CC

Cus - The appellant is in appeal against impugned order wherein the refund claim of special additional duty filed by them under Notification No. 102/2007-Cus. as amended by Notification No. 93/2008-Cus. has been rejected by Commissioner (Appeals) as time-barred - When the said notification is beneficial to the appellant by exercising power under section 25(1) of Customs Act, 1962, the whole purpose of the exemption granted under Section 25(1) of the Act shall be defeated - In case, the imported goods could not be sold by importer within one year of payment of SAD on payment of VAT/service tax, the importer is deprived to claim of the refund of SAD - The cause of action to claim refund of SAD does not arise as per Notification Nos. 102/2007-Cus. and 93/2008-Cus. - If the SAD and VAT/Sales tax paid on imported goods, it will amount to double taxation on the said imported goods as condition 2(c) of said notification bars the importer to file refund after clearance of goods after one year of the SAD - Once the intent of the Legislature is to refund the SAD on payment of VAT/Sales-Tax, the condition 2(c) of the Notification is against the intent of Legislature - As it is not the intent of legislature to tax double on the imported goods, the importer shall not compete Indian market - For example, if importer imported goods in March, 2020, after lockdown due to the Pandemic Covid 19 in all over country, second wave of Pandemic and various parts of India is under lock down, if the importer failed to sell the imported goods, the importer shall be put on another burden of SAD which is otherwise entitled of refund on payment of VAT/Sales tax - As there are contrary views of Tribunal, the matter needs to be referred to the Larger Bench of Tribunal to decide the issue as to whether the time-limit prescribed for filing refund claim of SAD paid by importer is one year in terms of Notification No. 93/2008-Cus. which has been issued in terms of section 25(1) of Customs Act, 1962 without selling the imported goods by importer within one year of payment of SAD shall be applicable - The Registry is directed to place the records before President for constitution of Larger Bench to decide the issue: CESTAT

- Referred to Larger Bench: CHANDIGARH CESTAT

2021-TIOL-282-CESTAT-DEL

Rajasthan Industrial Gases Ltd Vs CCGST

CX - The appellant is manufacturer of M.S. Ingots - Acting upon an intelligence that M/s SSSRM were indulging in suppression of production and clandestine removal of bars/rods, their premises was searched - The documents recovered from the premises, based whereupon the SCN was issued, are in the form of loose parchies and in the form of hand written ledger book - There appears no corroborative evidence to support those loose & handwritten documents - Nor any evidence to connect them to the alleged guilt of appellant - The entire burden was that of Department to prove that the appellant have been clearing raw material from their premises and were getting the same delivered to SSSRM without discharging their liability - From the O-I-O, it is observed that the demand against appellant has been confirmed solely on the ground that the Director of appellant could not indicate any reason as to why the entries in private record of SSSRM mention appellant's name, the same findings are definitely presumptive finding - The order is not discussing any documents proving the alleged clandestine removal on the part of appellant - The Adjudicating Authority has merely relied upon the statement of Director - Resultantly, the confirmation of demand is merely based on third party evidence - The Adjudicating Authority below had no sufficient evidence except for some private record from the SSSRM premises - The demand even against a smaller quantity of 201.165 MT of ingots though much larger quantity of 9551.278 MT of ingots was otherwise alleged to have clandestinely removed, has wrongly been confirmed - With respect to the issue of limitation, apparently and admittedly appellant was regularly filing the returns - There is nothing produced on record by Department to show any positive act on part of the appellant which may amount to suppression of relevant facts - The demand for a period of more than one year could not have been made - Department could not have invoked the extended period of limitation - SCN is therefore held to be barred by time: CESTAT

- Appeal allowed: DELHI CESTAT

2021-TIOL-281-CESTAT-DEL

Petronet Lng Ltd Vs Pr.CST

ST - The appellant regasifies Liquefied Natural Gas owned by customers in terms of agreements which also contain a clause relating to "allowed loss and consumption" under which a certain percentage of LNG made available to the appellant by customers is understood to be lost/consumed in performing the regasification services - The appellant discharged service tax liability on the amount received for regasification services, but the Revenue proposed to levy service tax on the value of such pre-fixed quantum of LNG identified towards "allowed loss and consumption" on the ground that such "free of cost" supplies of LNG by customers should have formed part of "consideration" received by appellant and should be included in taxable value for payment of service tax - The SCN is dated April 8, 2016 and has been issued for the period July 2014 to March 2015 in continuation of the SCN dated October 10, 2014 that was issued for the period June 2009 to June 2014 - The order arising out of this SCN dated October 10, 2014 had been assailed by appellant in Service Tax Appeal No. 50532 of 2017 - The Agreements referred to in this SCN are the same Agreements which were referred to in the earlier SCN and the same allegations have been made against the appellant - The appellant have raised the same submissions as were raised in earlier Service Tax Appeal of 2016 - The Department has also made the same submissions - The impugned order dated December 27, 2016 is set aside: CESTAT

- Appeal allowed: DELHI CESTAT