2021-TIOL-1155-HC-MAD-VAT

Sri Mookambika And Company Vs Assistant Commissioner (ST)

Whether an assessment order passed without giving an opportunity of personal hearing to the assessee, contravenes the principles of natural justice & so is invalid - YES: HC

- Assessee's writ petition allowed : MADRAS HIGH COURT

2021-TIOL-285-CESTAT-KOL

Sky Alloys And Power Pvt Ltd Vs ACC & CGST

CX - The appellant is engaged in manufacture of Sponge Iron, MS Ingots and Silico Manganese - Two allegations were leveled against appellant in SCN that they were not accounting the raw material and the manufacture of excisable goods in their daily stock and that the appellant was removing the same without payment of central excise duty - The original Adjudicating Authority has specifically recorded that unaccounted stock of MS Ingots was seized under belief that the same was intended to be cleared clandestinely and this observation is sufficient to hold that the authorities below have proceeded on the basis of presumptions - No doubt, MS Ingots found in excess over the declared stock were not found entered in daily stock account of appellant but whether or not it was a deliberate act of appellant with an intent to remove those unrecorded goods without issue of invoice and without payment of central excise duty was to be ascertained that too on the basis of cogent evidence - The burden was to be discharged by Department - Also whether mere violation of Rule 10 of Central Excise Rules, 2002 amounts to deliberate intention is again for the Department to prove - But there is no such evidence produced by Department - It is apparent from record that the appellant requested for opportunity of cross-examining the witnesses but the said opportunity has been denied - Department has not bring for any such evidence which may prove their allegations - In absence thereof, however, in view of the acknowledge that the notice shortage is just of one day production even if recording as required under Rule 10 ibid is missing, but the same does not warrant the application of Rule 25(1)(b) of Central Excise Rules, 2002 - Neither the MS Ingots as well as the Iron Ore are liable for confiscation nor present is the case of imposition of penalty: CESTAT

- Appeal allowed: KOLKATA CESTAT

2021-TIOL-284-CESTAT-CHD

CC Vs Overseas Warehousing Pvt Ltd

Cus - The respondent was appointed as Custodian responsible for receipt, storage, delivery, dispatch or otherwise handling of imported goods and export of goods in terms of section 45 of Customs Act, 1962 - One importer, namely, M/s. Golden Enterprises filed two bills of entry declared to be Pressed Distillate Oil - A case was booked and the said imported goods were detained, seized and confiscated - After prolonged litigation finally the matter was decided against the department - Detention Certificate was issued by department under Regulation 6(1)(l) of Handling of Cargo in Customs Areas Regulations, 2009 for waiver of ground rent or demurrage for the period the goods remained detained, seized and confiscated - Department vide letters asked the appellant not to third party liability with specific directions to follow the provisions of Section 48 of Customs Act, 1962 - Aggrieved against the refusal of department to aggressively pursue the matter of waiver of detention/demurrage and the refusal of the custodian to accept the detention certificate, M/s. Golden Enterprises filed Civil Writ Petition before High Court - During the pendency of said petition, the respondent disposed of goods - The importer moved a contempt petition before the High Court upon which the High Court took a very strong view in the matter - For complying with the directions of High Court, the department froze the bank account of respondent against which he filed writ petition - The High Court vide its order dated 10.1.2020 directed the respondent to put Rs. 25 lakhs in escrow account and the department will determine the question of admissibility of interest and its rate, if any, after adjudicating the recovery of duty from the respondent after giving opportunity of hearing - In terms of order of High Court, the adjudicating authority determine the interest payable by the respondent and demanded interest from the respondent - On going through the direction of High Court, it is the duty of the appellant to determine the dispute with regard to recovery of duty from the appellant if any, giving an opportunity to the petitioner and thereafter to decide the issue of admissibility of interest and its rates - The Revenue is taking shelter of the Final Order in 2020-TIOL-723-CESTAT-CHD - According to the spirit of order of this Tribunal, no goods were in the custody of the custodian in terms of section 47 of the Act then the duty is payable by the custodian but no such notice has been issued to the respondent by the appellant to determine the liability on the respondent - Moreover, it is fact on record that the appellant has enjoyed duty paid way back in 2013 on the goods in question - Therefore, the question mark on the person who has received duty, who pay duty, who is liable to pay interest thereon and duty has been enjoyed by the appellant themselves how can demand interest from the respondent without determine liability - The Revenue's appeal is only an abuse of process of law as the adjudicating authority has determined duty liability against the respondent - The duty has been enjoyed by appellant themselves how can demand interest from others - Therefore, no infirmity found in the impugned order and the same is upheld: CESTAT

- Appeal dismissed: CHANDIGARH CESTAT