2021-TIOL-1296-HC-MAD-CUS
Unitex Fashions India Pvt Ltd Vs Addl. DGFT
Cus - Petition has been filed for a Writ of Mandamus, to direct the 1st and 3rd respondents namely the Additional Director General of Foreign Trade and the Zonal Joint Director General of Foreign Trade, to consider the representation of the petitioner dated 29.05.2012 submitted by the petitioner and to refix the annual average turnover and issue an Export Obligation Discharge Certificate to the petitioner.
Held:
+ Average export performance to be achieved by the petitioner in a year was fixed in the EPCG license dated 6.1.2005 at Rs.1,97,93,333.33 per annum. The said average export performance of Rs.1,97,93,333.33 per annum is almost equivalent to 68% of the total export obligation to be achieved by the petitioner over a period of eight years for a value of Rs.2,88,57,944.00 under the said license. Thus, the calculation of average export performance of Rs.1,97,93,333.33 per annum in the licence was skewed. [para 24]
+ Therefore, failure of the petitioner to achieve an average export performance for the appellant to Rs.1,97 93,333.33 per annum cannot be to the disadvantage of the petitioner, if the petitioner was in a comfortable position to achieve the export obligation of Rs.2,88,57,944.00. [para 25]
+ It is the case of the petitioner that between 2002- 2003 and 2004-2005 the petitioner had exported goods worth Rs.39,55,76,700.00 which exceeded the overall export obligation to be achieved by the petitioner for a sum of Rs.2,88,57,944.00. This would require a proper examination both by the officers of the Ministry of Commerce i.e. the respondent Nos.1 and 3 in W.P.No.20146 of 2018 /respondent Nos.2 and 3 in W.P.No.31788 of 2018 and the respondent No.2 in W.P.No.20146 of 2018 and the respondent No.1 in W.P.No.31788 of 2018 independently. Petitioner shall, therefore, file such application or representation with the respective officers and explain their case within a period of 30 days from date of receipt of a copy of this order. [para 26]
+ Impugned order in W.P.No.31788 of 2018 is set aside and the case is remitted back to the respondents under the Ministry of Commerce and the Ministry of Finance to re-examine the issue a fresh in the light of the above observation and after considering the submission of the petitioner. Benefit of several amnesty schemes which were issued by the Ministry of Commerce from time to time may also be extended if the petitioner is otherwise entitled to the same. [para 27]
+ The officers under the Ministry of Commerce shall examine the issue a fresh and decide as to whether the petitioner has indeed discharged the Export Obligation or whether there was any short fall and thereafter pass appropriate orders in accordance with law on merits. [para 28]
+ The officers of the Customs Department shall await for further orders before passing a fresh denovo orders on merits. [para 29]
+ The entire exercise shall be carried out by the respondents/officers within a period of six months.
+ W.P.No.20146 of 2018 disposed of and W.P.No.31788 of 2018 stands allowed.
- Petition disposed of/allowed: MADRAS HIGH COURT
2021-TIOL-1295-HC-MAD-CUS
Sogo Synergy Pvt Ltd Vs C, CE & ST
Cus - Allegation against the petitioner in the Show Cause Notice dt. 11.07.2016 was that from 2013 onwards, the petitioner had paid lesser amount of additional duty of customs on the imported goods payable under the Central Excise Notification No.12/2012-C.E. dated 17.03.2012 as amended from time to time with effect from 30.04.2015 - Petitioner squared up the duty liability as well as interest and the same was sought to be appropriated - After the seizure was effected on 13.01.2016, the petitioner claimed that there was a fire accident in the petitioner's godown and as a result of which the seized goods valued at Rs.91,93,230/- and Rs.14,72,634/- were destroyed - Petitioner, therefore, decided to settle the case before the Settlement Commission and on 31.01.2017, the impugned order came to be passed by the first respondent Settlement Commission granting substantial relief and ordering confiscation of goods seized - Petitioner is aggrieved by the absolute confiscation of the goods valued at Rs.91,93,230/- which were destroyed in the fire accident without any corresponding relief to the petitioner for redemption fine as was done in the goods other than the refurbished goods which valued at Rs.14,72,634/- - Petitioner is also aggrieved by the said order primarily on the ground that the Insurance claim settled by Insurance Company has to be paid to the Customs Department and not to the petitioner since the goods were absolutely confiscated without any redemption fine.
Held: As per Section 127J of the Customs Act, 1962, the order of the Settlement Commission is final, therefore, ordinarily, it is not open for the applicant, who has settled his case before a Settlement Commission, to re-open the same by appropriating and re-appropriating a portion of the order - The question that arises for consideration is whether the petitioner is entitled to have the order of Settlement Commission modified to the extent it is against the petitioner - The facts on record indicate that petitioner has got substantial relief despite past dalliances of violating law - The petitioner had got habituated in importing refurbished hard disk contrary to the law and took chances - Whenever the petitioner was caught, the petitioner paid redemption fine but continued to import even though such orders should have deterred the petitioner from importing such refurbished hard disk - The petitioner, however, continued with the charade and gambled with the law - The petitioner ought to have, therefore, considered it to be lucky not once but atleast four times - It cannot get more avaricious and expect the court to lend its olive branch when there is no irregularity in the impugned order - On the other hand, the first respondent Settlement Commission has shown mercy on the petitioner by allowing substantial benefit to the petitioner - Having opted to settle the case before the first respondent Settlement Commission, it is not open for the petitioner to dissect the order of the first respondent Settlement Commission and appropriate a portion of the order which is favourable to it and reject a portion which is against the petitioner - The petitioner cannot approbate and reprobate the said order - The order of the Settlement Commission is a package and it is not a substitute for an adjudication order - It is for the petitioner to take advantage of it as it is or face the consequences by violating it - No merits in the present Writ Petition, hence dismissed: High Court [para 9 to 11, 13 to 15, 18 to 20]
- Petition dismissed: MADRAS HIGH COURT
2021-TIOL-310-CESTAT-AHM
Shreno Ltd Vs CCE & ST
ST - There are two issues involved in this appeal - As regards the first issue, on Preferential Location Charges and natural bundling thereof with main service under Section 65(3) of Finance Act, 1994, the issue is no more Res Integra and stands concluded in favour of appellant vide Logix Infrastructure Ltd. 2019-TIOL-05-CESTAT-ALL and Friends Land Developers 2018-TIOL-3767-CESTAT-ALL - In light of said decisions, the Preferential Location Charges were correctly subjected to Service Tax at same rate as that of Construction of Residential Complex Service by appellant and the differential demand of Service Tax alongwith interest and penalty therefore is set aside - The appellant also becomes entitled to consequential relief in form of refund as claimed by them on this count in terms of Section 11B of CEA, 1944 - As regards to demand of Service Tax on Renting of immovable property service, the SCN itself suggests that the demand is raised since the service availed is essentially a business entity and the property is to be used for accommodation of Directors/Senior Management personnel - This in itself is not sufficient to hold that the nature of service was that of Renting of immovable property for commercial use - The appellant has adduced evidence in form of Electricity bills and Certificate from Co-Op Housing Society, which shows that only one Director was permanently residing at the leased accommodation premises - There is no dispute as such that the leased premises was used only as residential dwelling of Director - The demand on this count is set aside - Since the appellant has sought refund of such amount of tax and interest already paid, the same requires to be granted as consequential relief in accordance with Section 11B of CEA, 1944 to them: CESTAT
- Appeals allowed: AHMEDABAD CESTAT
2021-TIOL-309-CESTAT-AHM
Shaily Engineering Plastics Ltd Vs CCE & ST
CX - The issue relates to the availability of Cenvat Credit in respect of Goods Transport Agency Service and Custom House Agent Service - It is an admitted fact that appellant have delivered the goods to the buyer's place on FOR basis, the freight element was not charged separately, it is included in the assessable value on which excise duty was paid - In this regard the adjudicating authority also considered the CA certificate showing that the freight charges is integral part of assessable value of the finished goods - Appellant is entitled for Cenvat Credit in respect of Goods Transport Agency Service.
As regard issue of Cenvat credit on CHA, said service is used for export of goods manufactured by the appellant - It has been consistently held that in case of export the place of removal stands shifted to the port of export therefore all the services which are used beyond the factory gate but up to the port of export falls within the term "place of removal" hence the Cenvat credit on the service used for removal of goods up to the place of removal is admissible - The CHA service is also used from removal of goods up to place of removal - In the case of Dynamic industries limited 2014-TIOL-1692-HC-AHM-ST wherein CHA service was upheld as input services and credit was allowed - Considering the said judgment, the appellant is entitled for Cenvat credit on CHA service: CESTAT
- Appeals allowed: AHMEDABAD CESTAT |
