2021-TIOL-1385-HC-DEL-NDPS
Allah Noor Vs NCB
NDPS - Petitioner seeks grant of bail for offences registered under the NDPS Act, 1985.
Held: Quantity of heroin and cocaine recovered in the instant case is commercial quantity - It is well settled that the jurisdiction of a Court to grant bail for offences under NDPS Act in cases of recovery of commercial quantity is circumscribed by the provision of Section 37 of the NDPS Act - A perusal of Section 37 of the NDPS Act indicates that bail can be granted only when there are reasonable grounds for believing that the accused is not guilty of an offence and he is not likely to commit any offence when released on bail - The parameters for grant of bail to an accused under Section 37 of the NDPS Act have been laid down in a number of judgments - Material on record shows the involvement of the petitioner as a part of the drug syndicate - Heroin was concealed in capsules ingested by persons - It shows that the operation was extremely well planned - A total of 770 grams of Heroin was recovered on 20.08.2019 from Noorzai Gul Amin, 220 grams of Cocaine was recovered on 19.12.2019 from House No. 1238, Islampur Village, Sector-38, Gurugram and 3.4 Kgs. of Heroin was recovered on 22.08.2019 from House No. A-27, 1st Floor, Anand Vihar on the basis of the disclosure statement of the petitioner - Photographs of Heroin and capsules, image of passports, image of Currency and chats between Naimitullah Mangal and the petitioner herein and their photographs were found from the phone of the petitioner which demonstrates the complicity of the petitioner in the crime - The well-organized operations of this syndicate shows the possibility of the petitioner indulging in the same activity again if he is released on bail - This Court is, therefore, not inclined to grant bail to the petitioner herein - Bail application is dismissed: High Court [para 7, 8, 11]
- Application dismissed: DELHI HIGH COURT
2021-TIOL-1384-HC-MAD-CUS
KI International Ltd Vs CC
Cus - Denial of MEIS benefits - Petitioner seeks a direction for amendment of its shipping bills. Held: Intention of the petitioner/exporter to claim benefit under the MEIS Scheme is set out very clearly in the shipping bills itself - The rejection of the claim, on the ground that the word 'No' is reflected in the documents and as such, the petitioner is not entitled to the benefit, is thus erroneous - Reliance on Section 149 of the Customs Act, 1962 dealing with 'Amendment of documents' is unnecessary since the shipping bills require no amendment and clearly reflect the intention of the petitioner to claim the benefit - In view of the fact that the petitioner's intention to claim MEIS benefit is clear from the shipping bills and the mistake has only happened while uploading the bills in the EDI, the error is hyper-technical, inadvertent and a human error and should not stand in the way of the petitioner being granted the substantial benefit which it has opted for, from inception - Impugned order is set aside and the Writ Petition allowed - Petitioner is entitled to the benefit under the MEIS Scheme and the respondents are directed to grant consequential benefits to the petitioner within a period of eight (8) weeks: High Court [para 3, 5, 6, 9]
- Petition allowed: MADRAS HIGH COURT
2021-TIOL-1383-HC-MAD-CUS
M Muniasamy Vs Asstt. CC
Cus - Writ petition has been filed to direct the respondent to consider the petitioner's representation, dated 02.07.2020, seeking 'G' Card Licence under Regulation 17(3) of Customs Brokers Licensing Regulations, 2013. Held: It is clear that the respondent authorities have conducted the examination not with a view to upgrade the licence holder, but with a view to reject the upgradation from "H" to "G" - The object of any examination is to ensure that the qualified candidate is promoted to the next post - If an examination is conducted with the object to reject candidates, then the examination itself has to be struck down - In this case, the respondent had no right to conduct any oral examination - It is not provided in the Rules - The Rules stipulate that written examination alone must be conducted - Other State authorities have conducted only written examination and they have not called upon the qualified candidates to again appear for an oral examination - The reasons are obvious - During oral examination, an element of bias can always takes place - To eliminate such bias, it has been consistently held that the marks allotted for oral examination should be less than 25% of the total marks - It is not known what is the nature of oral examination, which was conducted and how the candidates were assessed - A direction is issued to the respondent to consider the petitioner's representation, dated 02.07.2020, seeking 'G' Card Licence to the petitioner, under Regulation 17(3) of Customs Brokers Licensing Regulations, 2013 and to pass necessary orders, in the light of the order passed by this Court in W.P(MD)No. 14425 of 2019, dated 11.03.2020, within a period of eight weeks - Petition disposed of: High Court [para 8 to 10]
- Petition disposed of: MADRAS HIGH COURT
2021-TIOL-1382-HC-MAD-CUS
R Murugesh Vs Asstt. CC
Cus - Writ petition has been filed to call for the records pertaining to the impugned PUBLIC NOTICE No. 48/2017, dated 26.12.2017, issued by the respondent and quash the same as illegal and consequentially direct the respondent to issue 'G' Card License to the petitioner. Held: It is clear that the respondent authorities have conducted the examination not with a view to upgrade the licence holder, but with a view to reject the upgradation from "H" to "G" - The object of any examination is to ensure that the qualified candidate is promoted to the next post - If an examination is conducted with the object to reject candidates, then the examination itself has to be struck down - In this case, the respondent had no right to conduct any oral examination - It is not provided in the Rules - The Rules stipulate that written examination alone must be conducted - Other State authorities have conducted only written examination and they have not called upon the qualified candidates to again appear for an oral examination - The reasons are obvious - During oral examination, an element of bias can always takes place - To eliminate such bias, it has been consistently held that the marks allotted for oral examination should be less than 25% of the total marks - It is not known what is the nature of oral examination, which was conducted and how the candidates were assessed - Except merely stating that only two candidates passed in the oral examination, no other specific details have been given in the counter affidavit - The counter affidavit has to be rejected - The conducting of the examination on 03.03.2018 and the Public Notice No. 48 of 2017, wherein both the written examination and the oral examination were stipulated, has to be struck down and is accordingly struck down - A direction is issued to the respondent, insofar as the petitioner is concerned, since he has passed the written examination, to appoint him as "G" card licence holder within a period of four weeks from the date of receipt of a copy of this order - Petition allowed: High Court [para 8 to 10]
- Petition allowed: MADRAS HIGH COURT
2021-TIOL-1380-HC-KOL-CUS Dec Agrotech Pvt Ltd Vs UoI
Cus - The petitioners assail an impugned order exercising powers under Section 110 r/w Section 124 of Customs Act, 1962 - The customs authorities on receipt of specific intelligence that the petitioners were attempting exports of very inferior quality tobacco products by highly inflating their value, seized the alleged offending goods - Provisions of Section 110(2) of the Act of 1962, prior to the amendment of first proviso were interpreted by Supreme Court in Charan Das Malhotra to mean that the authorities were exercising quasi-judicial powers - No doubt the authorities complied with the first proviso to Section 110(2) of the Act of 1962 - However, in exercise of powers under Section 110(2) of the Act of 1962 as amended the authorities overlooked the fact that they were acting in a quasi-judicial manner and they were required to take a judicial approach and not otherwise - The authorities were required to give an opportunity of hearing to the person from whom the goods were seized before exercising power under Section 110(2) of the Act of 1962 which they did not do while issuing the impugned order - Simply on the ground of breach of principles of natural justice, the impugned order is set aside - No observation made by the Court in this order is to be considered as a decision of the merits of the rival claims before the authority - The authorities are at liberty to take steps in accordance with law: HC
- Writ petition disposed of: CALCUTTA HIGH COURT
2021-TIOL-1379-HC-MAD-ST
Trinitys Clearing And Shipping Agencies Vs UoI
ST - The challenge is to O-I-O and statements of demand - Admittedly, there is a clear finding in impugned order to the effect that break up of service charge received by petitioner have not been produced by them - In line with the decision in Re: Cognizance for Extension of Limitation 2020-TIOL-77-SC-MISC-LB , 2021-TIOL-122-SC-MISC-LB and M/s. SS Group Pvt. Ltd. extending the limitation for filing of appeals, petitioner is granted 30 days time to file appeals - This is for the reason that the Writ Petitions have been pending on the file of this Court since 11.01.2021: HC
- Writ petitions disposed of: MADRAS HIGH COURT
2021-TIOL-1378-HC-SIKKIM-CX
CCE Vs Zydus Healthcare
CX - The Respondent has raised preliminary objections inter alia contending that the value involved is of Rs.63.00 lakhs, thus, as per National Litigation Policy, appeal to the High Court is not maintainable - Second objection is raised that the present matter pertains to refund of Education Cess and Higher Education Cess which were paid along with Excise Duty, however, the said subject matter covered under Section 35L and not under Section 35G of CEA, 1944 - Revenue is facing difficulty regarding agreed proposal made before CESTAT of applicability of the judgment of SRD Nutrients Private Ltd. 2017-TIOL-416-SC-CX and relying on the same the order was passed - Later the said judgment has been modified by Apex Court in case of M/s Unicorn Industries 2019-TIOL-528-SC-CX-LB - However, the Revenue requests for filing a petition for rectification before the CESTAT, the said prayer appears to be justifiable: HC
- Appeal disposed of: SIKKIM HIGH COURT 2021-TIOL-347-CESTAT-MUM
Balaji Solutions Pvt Ltd Vs CC
Cus - The issue arises is about classification of External/Portable Hard Disc Drives - The appellant classified the same under Tariff Item 8471 70 20 of Customs Tariff Act, 1975 as 'Hard Disc Drive", whereas according to department it has to be classified under Tariff Item 8471 70 30 ibid as "Removable Disc Drive" - A consistent view has been taken by Tribunal that imported External/portable hard disk drive are classifiable under Tariff Item 8471 70 20 ibid as Hard disk drives and not under Tariff Item 8471 70 30 ibid - Therefore, instant issue about classification of External/Portable Hard Disc Drives is no more res integra and the appellant have rightly classified them under Tariff Item 8471 70 20 ibid - Recently the Supreme Court in the matter of Canon India Pvt. Ltd. 2021-TIOL-123-SC-CUS-LB while following its own decision in the matter of Sayed Ali & Anr. 2011-TIOL-20-SC-CUS has laid down that Additional Director General, DRI cannot be said to be a proper officer under section 2(34) of Customs Act, 1962 and held that the entire proceedings initiated by ADG, DRI by issuing various SCNs are invalid without any authority of law same is set aside - Thus, the SCN issued by ADG, DRI under Section 28 ibid is without any authority of law: CESTAT
- Appeals allowed: MUMBAI CESTAT
2021-TIOL-346-CESTAT-BANG
Chariot International Pvt Ltd Vs CCT
CX - Appellant had filed refund applications for refund of cenvat credit under Rule 5 of Cenvat Credit Rules, 2004 read with Notification No. 27/2012-C.E. (N.T.) - The original authority sanctioned the refund but on appeal, Commissioner (Appeals) disallowed the refunds on the ground that credit reversal in GSTR-3B pertains to GST credit and not cenvat credit and by invoking Section 142(3) and Section 142(4), he disallowed the refunds - The appellant has reversed the credit in the GSTR-3B; but there was only a delay in debiting the same and this delay is procedural delay and will not disentitle the appellant from claiming the refund - By following the ratio of Tribunal in case of Sandoz Pvt. Ltd. 2015-TIOL-2076-CESTAT-MUM , the impugned order rejecting the refunds is not sustainable in law and same is set aside: CESTAT
- Appeal allowed: BANGALORE CESTAT
2021-TIOL-345-CESTAT-KOL
CCI Logistics Ltd Vs CCGST & CX
ST - Penalty has been imposed by lower authorities with the finding that the appellant had not deposited service tax on the basis of own ascertainment and that the short-payment of tax was detected only after CERA audit was undertaken - The only allegation in SCN is that the appellant has not deposited service tax on their own ascertainment - Merely because the tax amount has been deposited on the basis of ascertainment by Department, the appellant cannot be deprived of benefit of aforesaid provisions, more so in view of the fact that no evidence has been adduced in the SCN that there was a deliberate short-payment - Since the tax amount along with interest has already been deposited by appellant, no reason found to uphold the penalty amount in absence of evidence of fraud or suppression with an intent to evade payment of tax - Hence, the penalty imposed is set aside: CESTAT
- Appeal allowed: KOLKATA CESTAT |
