2021-TIOL-1354-HC-AP-CUS

Kerneos Indai Aluminate Technologies Pvt Ltd Vs UoI

Cus - Challenge in both the writ petitions is to the refusal of the respondent/Customs officers of Customs House, Port Area, Visakhapatnam to issue customs clearance to the High Alumina Refractory Cement (for short, 'HARC') imported by the petitioners under the Bills of Entry and insisting for production of Bureau of Indian Standard certificate on the ground that HARC was incorporated as one of the products in Foreign Manufacturers Certificate Scheme under the Bureau of Indian Standards Act, 2016 and Rules made there under along with Cement (Quality Control) Order, 2003, as illegal and without jurisdiction - While it is the contention of the petitioners that HARC is not a cement but a refractory material and as such, it was not notified by the Central Government as cement under the CQC Order, 2003 and so BIS certification is not required, the respondents in turn argued that HARC is very much included in the definition of cement in view of the employment of phrase "any other variety of cement" in the definition of cement and thereby BIS certificate is must.

Held: Point for consideration is whether the respondent authorities are legally justified in demanding production of BIS certificate for the goods imported by the petitioners in both the writ petitions - According to the scheme of the BIS Act and its Rules, the Bureau of Indian Standards is a National Standard Body having technical expertise to establish national standards for goods or articles, process, system or service etc. and it by itself has no power to enforce the implementation - On the other hand, the standards fixed under Section 10 by the Bureau, have to be notified by the Central Government and thereafter, if it considers that the standards established in respect of goods and articles mentioned in Section 14 or Section 16 shall require compulsory conformity, the Central Government shall make a legislation or issue specific order in that regard - HARC is not specifically mentioned in the inclusive varieties of cement - So far as the term 'any other variety of cement' is concerned, HARC is not specifically notified in the Official Gazette by the Central Government - In that view, it is difficult to accept the contention of the respondents that HARC falls within the ambit of "any other variety of cement" - Notification in Official Gazette is the sine qua non for bringing HARC or any other material within the scope of aforesaid phrase - As per Rule 7(7)(b) of Bureau of Indian Standards Rules, this establishment of standard is only voluntary to make it available to the public, but its conformity is not mandatory unless it is referred to in a legislation or so pronounced by a specific order of the Government - As rightly contended by the petitioners, the respondents have not produced such a legislation or Gazette notification issued by the Central Government mandating that the standard established by BIS for IS:15895:2018 shall be compulsorily followed, hence, the notification dated 14.05.2018 will not advance the contention of the respondents - On a conspectus of facts and law, the respondent authorities are not legally justified in demanding production of BIS certificate for the goods imported by the petitioners in both the writ petitions - Petitions allowed - Act of the respondent authorities in demanding production of BIS certification for the imported consignments in the above writ petitions is declared as illegal and without jurisdiction - However, this order will not preclude the Central Government from issuing a Gazette notification in future, specifying the requirement of mandatory compliance of BIS certificate for manufacture, store, sale, import, export and other related acts concerning to High Alumina Refractory Cement: High Court [para 17, 19, 21, 23]

- Petitions allowed: ANDHRA PRADESH HIGH COURT

2021-TIOL-1353-HC-MUM-CUS

Karnaram Lumbaji Choudhary Vs UoI

Cus - Petitioner-proposed detenu has assailed the legality and validity of an order of detention, dated 8th March 2018, passed by the Joint Secretary, Government of India, under the provisions of section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974.

Held: Submission on behalf of the petitioner that the live link between the prejudicial activities and the purpose of detention is snapped on account of lapse of time does not merit countenance - The material on record, on the other hand, indicates that the petitioner resorted to litigative strategy to evade the execution of the detention order - The very same order was impugned before Bombay High Court as well as Delhi High Court - For a considerable period, a restraint order was in force - No sooner the writ petition was dismissed by the Delhi High Court, the respondents initiated the proceedings under section 7 of the COFEPOSA Act before the jurisdictional Magistrate - In this backdrop, if the petitioner is allowed to urge the ground of delay, as a factor which snapped live link, it would amount to putting a premium on the disingenuity on the part of the petitioner - Competent Authority has passed the detention order on the premise that the petitioner was the prime character in the smuggling of the gold - Obviously, the petitioner has made himself scarce and is lying low - The live link between the prejudicial activity and the purpose of detention, therefore, cannot be said to have been lost - Petition dismissed: High Court [para 22, 23]

- Petition dismissed: BOMBAY HIGH COURT

2021-TIOL-1352-HC-MAD-CUS

Monesh B Hinduja Vs Dy. CC (BRC-DBK)

Cus - Drawback - Writ Petition is filed against the proceedings of the respondent demanding recovery of drawback amount of Rs.62,44,846/- against shipping bills - challenge has been made by the petitioner principally on the ground that there was no proper application of mind and also the proceedings is vitiated by delay and latches.

Held: It is needless to mention that the appellate remedy that has been made available under the statute is effective and proper and such remedy/remedies must be exhausted before the petitioner chooses to approach this Court - The appellate or revisional authority alone is competent to appreciate the factual explanation or challenge to the original order and Court, in exercise of its writ jurisdiction, cannot undertake the adjudication by investigating into the factual aspects of the challenge - Writ petition is not maintainable, hence dismissed: High Court [para 4, 5]

- Petition dismissed: MADRAS HIGH COURT

2021-TIOL-1350-HC-MAD-CUS

Agro Pipes Pvt Ltd Vs Union Government of India

Cus - Chemical Laboratory of the Customs Department had clarified that its Laboratory was not equipped to state as to whether the goods exported by the petitioner was a rigid spiral or not and hence the sample may be referred to the Central Institute of Plastics Engineering & Technology (CIPET), Guindy, Chennai and sealed remnant returned - Central Institute of Plastics Engineering & Technology (CIPET) appears to have apparently given a different opinion by its communication dated 12.05.2009 in respect of the same material.

Held: Bench is, therefore, of the view that the orders passed by the lower authorities are liable to be quashed and the case should be remitted back to the third respondent to re-determine the correct classification for the purpose of grant of duty drawback to the petitioner on the export made by it in terms of the Schedule to the duty drawback - It is made clear that the third respondent shall pass a fresh order on merits taking note of the clarification issued by the CIPET on 12.05.2009 - It is to be emphasized that the testing authority is not a competent authority to determine the classification - Its role is limited to give indicators of chemical composition for a final determination of correct classification by the assessing officer - Since the issue pertains to the export made by the petitioner during the year 2002, the third respondent shall endeavour to pass a fresh order in terms of the above classification of CIPET, within a period of three months - Writ Petition is disposed of: High Court [para 7 to 9]

- Petition disposed of: MADRAS HIGH COURT

2021-TIOL-1348-HC-MAD-ST

Charan Engineering Vs Designated Committee

ST - Petitioner prays that they be permitted to approach the appellate authority under the Goods and Services Tax Act, 2017, and that this writ petition is not pursued any further.

Held: Limitation for filing of appeal has been extended (due to pandemic) by the Supreme Court in a series of decisions - Petitioner is granted four (4) weeks, within which time, a statutory appeal may be filed challenging the order of assessment dated 20.05.2020 before the Commissioner (Appeals) – Petition disposed of: High Court [para 3, 4]

- Petition disposed of: MADRAS HIGH COURT

2021-TIOL-1347-HC-MAD-ST

Chennai Citicentre Holdings Pvt Ltd Vs Pr.Addl. Director General

ST - A show cause notice was issued on 31.12.2020 demanding Service Tax to the tune of Rs.1,94,78,868/- in respect of the electricity charges collected from the petitioner's lessees and further Service Tax to the tune of Rs.18,18,576/- - Assailing the above said show cause notice, the petitioner is before the High Court.

Held: Court is unable to appreciate as to how the present writ petition is maintainable for the simple reason that the impugned proceedings is only a show cause notice calling upon the petitioner to show cause as to why the Service Tax is not recoverable from them - Instead of responding to the notice, the petitioner has rushed to this Court by invoking the extra ordinary remedy under Article 226 of the constitution of India - It is trite in law to hold that when a show cause notice is issued, the petitioner is legally bound to answer to the show cause notice and only when the explanation of the petitioner is not considered favourably and any adverse order is passed, then it is open to the petitioner to work out their remedies in a manner known to law - It is certainly not open to the petitioner to challenge the show cause notice itself before this Court and make an attempt to convince this Court on the factual submissions as to the maintainability of the show cause notice - Such course is certainly not legally open to the petitioner - In any event, the grounds raised in the writ petition are legally unacceptable at this stage and this Court is firmly of the view that the writ petition is premature and is liable to be rejected - Writ Petition stands dismissed: High Court [para 3, 4]

- Petitions dismissed: MADRAS HIGH COURT

2021-TIOL-336-CESTAT-MAD

Astrazeneca India Pvt Ltd Vs CGST & CE

ST - The appellant is in appeal against impugned order wherein the refund in respect of service tax paid on Hotel Accommodation Services, Out-of-Pocket Expenses and General Insurance Services is rejected - As regards to Hotel Accommodation Services, same issue has been decided in favour of appellant in their own case for the subsequent period - For these reasons, appellant is eligible for refund on this issue - In regard to Out-of-Pocket Expenses, there are no sufficient documents showing the details of these expenses or the type of services that have been availed by appellants - Appellant is not eligible for refund on this service - With regard to the service tax paid on General Insurance Services, appellant has produced documents to show that the premium has been borne by appellant and also to show that these are policies to meet the risk of payment of various legal benefits to employees - Appellant is eligibled for refund on said service: CESTAT

- Appeal partly allowed: CHENNAI CESTAT

2021-TIOL-335-CESTAT-KOL

Chandi Steel Industries Ltd Vs CCGST & CX

CX - The appellant availed credit on input services on the strength of documents which did not bear the address of appellant and the service tax registration number of service providers - For the said deficiency, credit has been disallowed by both the lower authorities - The appellant produced a certificate from Bank showing the service tax amount paid on banking services which has been recovered by Bank by way of debit from appellant's bank account - Said certificate also mentions the service tax registration number of Bank branch - Since there is no dispute with regard to the nature of input services, the appellant should not be deprived of Cenvat Credit which is available under the CENVAT Credit Rules framed as a beneficial scheme of Central Excise statute - The appellant is accorded an opportunity to produce the said certificate before adjudicating authority, who would examine the same and satisfy itself in so far credit amount is involved and undertake necessary computation if required: CESTAT

- Matter remanded: KOLKATA CESTAT

2021-TIOL-334-CESTAT-BANG

KJ Associates Vs CC

Cus - The appellant imported Pottassium Humate which was declared as "other fertilizer" and classified under Tariff Item 3105 20 00 of Customs Tariff Act, 1975 - The import of said goods was denied on the ground that it is a restricted item and requires registration from Central Insecticide Board and Registration Committee - Thereafter, appellant approached the said Committee who informed that Pottassium Humate is not included in Schedule under the Insecticide Act and hence it does not require registration - The Adjudicating authority passed the order but did not provide copy of same to the appellant in spite of their best efforts to get the copy - Further, the Assistant Commissioner issued the said order after more than one month and in the meantime compelled the appellant to deposit penalty amount even without the issuance of order by original authority - No justification found for issuing the order by Assistant Commissioner after the expiry of more than one month when there is a live consignment involved in this case - In view of the letter issued by Central Insecticide Board and Registration Committee, impugned order is set aside and Assistant Commissioner is directed to release the confiscated consignments immediately and also return the penalty amount deposited by appellant prior to the issuance of O-I-O: CESTAT

- Appeal allowed: BANGALORE CESTAT