2021-TIOL-1186-HC-MUM-CUS
Shah Nanji Nagsi Exports Pvt Ltd Vs Joint Directorate General of Foreign Trade
Cus - Court had directed respondent No.1 to adjudicate the show cause notices dated 30.08.2013 on all issues after giving the petitioner an opportunity of personal hearing - 'All issues' would include validity of the 'actual user' condition in the licences or whether such a condition was mandatory or non-mandatory - This is because this Court had noted that the show cause notices had emanated from the ‘actual user' condition which was impugned in the said writ petition - Validity of the ‘actual user' condition or whether it was mandatory or not is the central issue - Refusal of respondent No.1 to adjudicate on this issue is not only violative of the directions of this Court as contained in the order dated 20.11.2013 but also amounts to non-exercise of jurisdiction vested in him - As rightly pointed out by this Court in the order dated 20.11.2013 the core issue is the insertion of 'actual user' condition in the two licences - Whether such insertion is legally permissible or without entering into this aspect, whether such condition is directory or mandatory are issues which are required to be gone into by respondent No.1 - Failure to do so has occasioned non-exercise of jurisdiction - Impugned order dated 14.02.2014 passed by respondent No.1 cannot be sustained in law and is required to be set aside and quashed - Matter requires to be heard afresh on all issues as directed by this Court earlier and as indicated above - Insofar as encashment of bank guarantee furnished by the petitioner is concerned as well as the claim for refund of excise duty paid, needless to say those would be subject to such decision that may be taken by respondent No.1 on remand - Matter is remanded back to respondent No.1 for a fresh decision in accordance with law - such decision be taken by respondent No.1 within a period of three months – Writ petition is allowed to the above extent: High Court [para 39 to 41, 43, 44]
- Matter remanded : BOMBAY HIGH COURT 2021-TIOL-1183-HC-MUM-CX
Hindustan Coca Cola Beverage Pvt Ltd Vs UoI
CX - CENVAT - Petitioner has assailed the legality and validity of the impugned show cause-cum-demand notice dated 09.05.2019 on several grounds.
Held:
+ Against a similar show cause-cum-demand notice dated 05.06.2019 petitioner had filed a writ petition before the Gujarat High Court which was registered as Special Civil Application No. 15203 of 2019. The said writ petition was dismissed on 16.09.2019 by giving liberty to the petitioner to file reply to the show cause notice. [para 17]
+ Bench also feels that it would be more appropriate if petitioner responds to the impugned show cause-cum-demand notice by filing reply and thereafter if respondent No. 3 is not satisfied with the show cause reply, the matter may be adjudicated by the adjudicating authority because adjudication on the show cause-cum-demand notice would require dealing with a wide range of issues involving facts and factual aspects. A Writ Court would not be the appropriate forum to deal with and adjudicate on such issues. Interference by the Writ Court at this stage would not be justified. [para 18]
- Petition dismissed : BOMBAY HIGH COURT
2021-TIOL-1178-HC-MAD-CX
TVS Srichakra Ltd Vs CCGST & CE
CX - Petitioner had sold their plant and machinery in favour of M/s. OPC Assets Solutions Private Limited on 22.03.2013 - There is again no dispute that with effect from 01.04.2013, the sold out assets, plants and machinery were leased back in favour of the petitioner by M/s. OPC Assets Solutions Private Limited - The authority has proceeded on the footing that as a result of these transactions, there was a deemed removal of goods from the factory premises of the petitioner herein and, therefore, excise duty became leviable and from that perspective, the reversal of CENVAT came to be made - Core contention of the petitioner is that the Central Excise Act does not contemplate any deemed removal and only if there is physical removal of the capital goods/assets from the factory premises, excise duty can be levied and not otherwise - Petitioner lamented that in the previous round itself, this Court, vide order dated 23.02.2018, had highlighted the very same principles yet the adjudicating authority has chosen to disregard the said principle and hold that the CENVAT credit availed by the petitioner is liable to be reversed by applying the deemed removal principle.
Held: Bench is satisfied that the adjudicating authority has totally ignored the directions given by this Court on the earlier occasion - It is not open to the respondent to disregard the aforesaid binding decision rendered by the Division Bench in M/s. Dalmia Cements Case - When the proceedings are without jurisdiction, the writ Court can always entertain the writ petition by dispensing with alternative remedy - Therefore, Bench is inclined to interfere with the impugned order - The order impugned in the writ petition is quashed - The matter is remitted to the file of the respondent and who will bear in mind the Circular No. 1063/2/2018-CX, dated 16.02.2018 issued by the CBEC, while deciding the issue - Writ Petition is allowed: High Court [para 9]
- Petition allowed: MADRAS HIGH COURT
2021-TIOL-291-CESTAT-BANG
Samsung R And D Institute India Bangalore Pvt Ltd Vs CCT
ST - The appellant has filed appeals against impugned orders whereby the Commissioner (Appeals) has partially rejected the refund claims of appellant under Rule 5 of Cenvat Credit Rules, 2004 r/w Notification No. 27/2012-C.E. (N.T.) - The appellants have claimed refund on input services which are essential for running the business of appellant - Refunds have been rejected by both the authorities on the finding that the input services have no nexus with the output service of export, which according to various decisions and also the TRU letter is not required to be established - In impugned order, Commissioner (Appeals) has wrongly relied upon the old circular of 2010 whereas the definition of 'input service' has been amended w.e.f. 1.4.2011 and vide Notification No. 27/2012-C.E. (N.T.) one-to-one correlation is not required to be established - The appellant has given detailed reasons explaining the nexus between the input service and output service exported by appellant - Moreover, the department has not questioned the CENVAT credit availed by appellant at the initial stage and the same cannot be questioned at the time of claiming of refund - Since all the input services except the four services viz., Business Support Service, Management, Maintenance and Repair Service, Recovery for Gym and supply of tangible goods, have been held to be input services by various decisions - The appellant is entitled to refund of CENVAT credit on all these input services - As per the decision in case of Ranbaxy Laboratories - 2011-TIOL-105-SC-CX , appellant is also entitled for grant of interest on delayed refund beyond the period of three months - The appeals of the appellant allowed except said four input services: CESTAT
- Appeals partly allowed: BANGALORE CESTAT
2021-TIOL-290-CESTAT-CHD
Rajesh Verma Vs CC
Cus - The appellant is in appeal against impugned order wherein ten gold biscuits weighing 1160 grams have been absolutely confiscated and penalty has been imposed on appellant under provisions of Customs Act, 1962 - Admittedly, the gold initially seized by Punjab police in 2007 and thereafter, it was handed over to Customs authorities by Punjab police itself - Burden lies on the Revenue to prove that the goods in question are of smuggled in nature, which the Revenue failed to do so - Thus, the impugned order and seizure of goods by the authorities below is bad in law - Smt. Ramesh Verma moved an application before Chief Judicial Magistrate, Amritsar with regard to the ownership of gold by producing the invoices in question and certificate from the seller of the said gold to her - In the impugned order, it is held on the basis of assumption & presumption that the gold is of smuggled in nature which cannot be appreciated - Further, the gold in question is not prohibited goods in terms of Section 2(33) of the Act, in these circumstances, the absolute confiscation of gold is against the legal provisions as held by Tribunal in case of Yakub Ibrahim Yusuf 2011-TIOL-89-CESTAT-MUM - The gold in question cannot be absolutely confiscated which shows the high handedness of authorities below by absolute confiscation of the goods - Further, when the proceedings were going before Chief Judicial Magistrate, Amritsar in 2011 itself with regard to ownership of impugned gold by Smt. Ramesh Verma and thereafter the gold was seized on 15.02.2017, in these circumstances, the proceedings initiated against appellant are highly time-barred as held by High Court of Punjab & Haryana in Famina Knit Fabs 2019-TIOL-2208-HC-P&H-CUS - Therefore, the impugned SCN is barred by limitation: CESTAT
- Appeal allowed: CHANDIGARH CESTAT |
