2021-TIOL-1166-HC-MUM-MISC

State CBI Vs Alex Piedade Sales

Prevention of Corruption Act, 1988 - Central Bureau of Investigation has invoked the revisional jurisdiction of this Court questioning the order passed by the Special Judge, CBI Court, at Mapusa, Goa thereby discharging the Accused nos. 1 [working as Superintendent of Central Excise, Vasco Range] and 2 [working as Inspector of Central Excise, Vasco Range] for offence punishable under Section 13(1)(d) read with Section 15 of the Prevention of Corruption Act, 1988 - Allegation is that the accused no.1 and no.2 abused their official position in the capacity of public servant by conniving with accused nos. 3 to 6 and has signed ARE-2 forms and other documents; that the pieces described by the exporter in the declaration as ‘ladies nightwear' were in fact pieces of cloth irregular in shape and in any case cannot be described as ‘ladies nightwear' and as such were not qualifying the eligibility of the DEPB benefits - Commissioner of Customs, Hyderabad, in adjudication proceedings made an observation that there was dereliction of duty on the part of accused no.1 and no. 2; that it was not proved that there are some extraneous considerations for their action; penalty was imposed on both accused no.1 and 2 of Rs.25,000/- and Rs.15,000/- respectively u/s 114 of the Customs Act, 1962; CEX rebate and DEPB credit was also disallowed by the adjudicating authority - Accused no.1 and no.2 preferred an appeal before the CESTAT, Bangalore and the Tribunal while allowing the appeal observed that the penalty ordered is not sustainable as the accused no. 1 and 2 have not done or have omitted to do any act, which act or commission would render such goods liable to confiscation nor have they abetted in doing or omission of such act which shall attract provisions of imposing penalty.

Held:

+ It can be inferred from the available material on record that the material available in the adjudication proceedings before the Commissioner of Customs and that of the Appellate Tribunal was the same as that of in the criminal trial i.e. in the report filed under Section 173 of Cr.P.C. [para 21]

+ Apex Court has in the case of Radheshyam Kejriwal - 2011-TIOL-19-SC-FEMA held that the adjudication proceedings are decided on the principle of preponderance of evidence of little higher degree, whereas, in criminal case, the burden of proof beyond all reasonable doubts, lies on the Applicant/Prosecution. As such, in a criminal case, the standard of proof required is much higher than that of the one required in the adjudication proceedings. [para 23]

+ What can be noticed from the observations made by the Commissioner and thereafter the Appellate Tribunal is the Accused nos. 1 and 2 were exonerated in the adjudication proceedings on merits as the allegations against them of dereliction of duty or acting in an illegal manner were not established. [para 24]

+ Applying the principles [in the apex court judgment of Videocon Industries Limited - 2016-TIOL-81-SC-FEMA to the case in hand, it could be noticed that once the contravention of the provisions of the Act by the Accused nos. 1 and 2 in the adjudication proceedings was not established, it has to be inferred that the prosecution of the Accused nos.1 and 2 under the provisions of the Prevention of Corruption Act particularly having regard to the non-satisfaction of necessary ingredients of Section 13(1)(d) of the Act cannot be held to be satisfied. [para 25]

+ The judgment of the Apex Court in the matter Radheshyam Kejriwal - 2011-TIOL-19-SC-FEMA has been rightly taken into account by the Special Judge for ordering discharge of the Accused nos. 1 and 2 in the impugned order. The Special Judge was sensitive to the fact that the Appellate Tribunal has allowed the appeal of the Accused nos. 1 and 2 thereby exonerating them of the serious charge against them in the adjudication proceedings. The fact that the adjudication and the charge-sheet in this case against Accused nos. 1 and 2 is based on the same set of facts and identical material i.e. the inspection of the ninth consignment, the non-disclosure and the failure to make the declaration by the Accused persons as warranted in the legal procedure of forms and bonds etc., the failure of the accused persons to physically inspect and verify the goods, etc., has rightly prompted for ordering discharge. [para 27]

+ Claim of the Applicant that there is a miscarriage of justice and as the offence under the Prevention of Corruption Act and the adjudication by the competent authority are parallel and cannot go hand in hand, is liable to be rejected particularly in the light of the observations of the Apex Court [para 28]

+ Once the order passed in the adjudication proceedings is not questioned by the Applicants, the Applicants are bound by the same and, that being so, it is not open for the Applicants to open the question for illegality of the orders passed in the adjudication proceedings. [para 29]

+ No case of exercise of excessive jurisdiction could be made out. The application as such lacks merits. Hence, rejected. [para 30]

- Application rejected: BOMBAY HIGH COURT

2021-TIOL-1164-HC-MAD-VAT

Vijay Anand Confectionery Vs CCT

In writ, the High Court finds that the issue at hand has already been settled in favor of the assessee vide the judgment in W.P. No. 47913 of 2006 dated 10.11.2017. Hence the Court quashes the relevant assessment orders. It further directs that any amount collected from the assessee towards higher rate of tax, be refunded to the assessee.

- Writ petitions allowed: MADRAS HIGH COURT

2021-TIOL-288-CESTAT-MAD

Unlimited Innovations India Pvt Ltd Vs CCGST & CE

ST - The issue relates to rejection of refund claim filed under Rule 5 of Cenvat Credit Rules, 2004 - The authorities below have computed the period of limitation from the date of re-submission of refund claims which is against the provisions of law - The date on which the refund claims has been originally submitted is the relevant date that has to be reckoned for computing the limitation of one year - The finding in the impugned order that these refund claims are time-barred is, therefore, set aside - The another issue is that the appellant has not debited the amount in their Cenvat Account prior to filing of refund claim as required under clause 2(h) of Notification No. 07/2012-C.E . (N.T.) - The rejection is on the allegation that the balance in Cenvat Account has been brought below the refund claim and therefore, is not in compliance with Rule 2(g) of said notification - When the debit made by appellant as evidenced by ST-3 returns is considered, it would show that both clauses 2(h) as well as 2(g) has been complied - Thus, the rejection of refund claim for the period April, 2017 to June, 2017 is not sustainable - All the refund claims are to be processed on merits by the authorities below - The Refund Sanctioning Authority is directed to process the refund claims on merits: CESTAT

- Matter remanded: CHENNAI CESTAT

2021-TIOL-287-CESTAT-DEL

Recon Steel and Power Pvt Ltd Vs Pr.CCT, CE & CC

CX - A SCN was served upon as many as 30 Noticees wherein M/s. HIPL was noticee No. 1 - The appellant is Noticee No. 20 in the said appeal - It is acknowledged fact that the appeal of M/s. HIPL stands already adjudicated by Tribunal - The copy of those decisions has been annexed by appellant alongwith his synopsis - No reason found to differ from those findings - Otherwise also perusal of Panchnama clarifies that Tally Data of 2009-10 to 2011-12 and ERP Data of sale and purchase was burned into two writable CDs of which one was given to the main appellant and other copy was retained by officers for further investigation - Annexure-A to the panchnama contains the details of documents resumed but there is no mention of any CD(s) where the data was burnt - At the time of burning of CD(s), a certificate should have been obtained as per the provision of Section 36-B - The panchanama not only speaks of 2CD(s) but also that computer data was retrieved after a gap of 4 years which itself creates a suspicion - Further, also no certificate from competent authority was obtained by officers even at this point of time - A certificate is also required to accompany the said computer printouts as prescribed under Section 65B(4) of Evidence Act - It has been clearly laid down in this judgement that all the safeguards as prescribed in Section 65B(2) & (4), of the Act be met with to ensure the source and authenticity, pertaining to electronic record sought to be used as evidence - The provisions of Section 65B of Indian Evidence Act and Section 36B of Central Excise Act, 1944 of the Act are pari materia - It is evident from panchanama, record of cross-examination that the investigating officer had failed to follow the safeguard as mandated under Section 36B CEA, 1944 - Further, the burning process of data into CD and their subsequent retrieval was not made in presence of any computer expert and, therefore, in light of the judgement of Apex Court, the said data cannot be relied upon to prove the charges of clandestine removal against the appellant - It is also apparent that the shortage was detected on the basis of eye estimation and on average weight basis without any physical weighment, demand cannot be confirmed on the said basis - Since the sole challenge to the order is its reliance upon third party evidence, it is necessary to check the evidentiary value of the third party evidence - The order under challenge is not sustainable, same is set aside: CESTAT

- Appeal allowed: DELHI CESTAT

2021-TIOL-286-CESTAT-DEL

Shambhu Synthetics Pvt Ltd Vs CC

Cus - The appeal is directed against impugned order passed by Commissioner (Appeals), by which the appeal of appellant has been dismissed for the reason that the appeal had been filed even beyond the permissible time limit contemplated under section 128 of Customs Act, 1962 - The appellant received a copy of order passed by Additional Commissioner on 13.4.2018 and the appeal was filed before Commissioner (Appeals) on 22.7.2018 - The Supreme Court in Singh Enterprises 2007-TIOL-231-SC-CX did observe that the Commissioner (Appeals) as also the Tribunal being creatures of Statute are vested with jurisdiction to condone the delay beyond the permissible period provided in the Statute, which means that the delay of thirty days beyond the period of sixty days prescribed in the Statute can be condoned - Section 35B of Central Excise Act, 1944, on which reliance has been placed in aforesaid decision deals with Appeals to the Appellate Tribunal - Section 35 of the Excise Act would apply to Appeals before the Commissioner (Appeals), whereas section 35B would apply to Appeals before the Appellate Tribunal - Power under section 35B dealing with Appeals to the Appellate Tribunal cannot enable the Appellate Tribunal to condone any delay in filing the appeal before Commissioner (Appeals) beyond the extended period of thirty days, after the expiry of the normal period of sixty days - The Supreme Court categorically held that any delay beyond the extended period of thirty days after expiry of normal period of sixty days, cannot be condoned since the Statue does not permit and the provisions of section 5 of Limitation Act would not apply - Such being the position, it is not possible to accept the contentions of appellant that the provisions of section 5 of the Limitation Act should be invoked even if the delay is beyond the extended period of thirty days or that the Tribunal has a discretionary power to condone any delay in filing the appeal even after the expiry of the extended period of thirty days - The Commissioner (Appeals), therefore, committed no illegality in dismissing the appeal for the reason that any delay beyond ninety days could not be condoned: CESTAT

- Appeal dismissed: DELHI CESTAT