2021-TIOL-1480-HC-MAD-CUS
Hyundai Motor India Ltd Vs Secretary
Cus - Refund of Extra Duty Deposit - Demand notice issued in File No. S. Misc. 57/2012 - Refunds- Sea, dated 08.01.2013, by the 4th Respondent, is under challenge in the present Writ Petition.
Held: Court is of the considered opinion that the issues relating to the import period from 1997-2002 and the EDD deposit made were refunded pursuant to the orders passed by the CESTAT - When such a refund is made and the petitioner also received the refund amount, thereafter, the Show Cause Notice was issued for the imported period from 2006-2010 - Based on the same principles, the petitioner filed the appeal before the CESTAT and the said appeal is pending, and the petitioner made a pre-deposit, as required under the statute - In such circumstances, the Board also issued a Circular dated 16.09.2014 that if an opinion is formed that the EDD was erroneously refunded as the matter is pending before the CESTAT, the demand cannot be made till the issues are settled by passing a final order - In the present case, admittedly, the CESTAT Appeal is pending. - This being the factum, this Court is of the opinion that the impugned order issued on 08.01.2013 ought not to have issued by the respondents and they should have waited till the disposal of the CESTAT Appeal filed by the petitioner, which is pending - Impugned demand notice issued by the 4th respondent in File No. S.Misc.57/2012-Refunds-Sea, dated 08.01.2013, is kept in abeyance till the disposal of the CESTAT Appeal filed by the petitioner in Appeal No. C/4204/2015 - The respondents are at liberty to continue the proceedings after the disposal of the CESTAT Appeal, filed by the petitioner - Till such time, no coercive action shall be taken against the petitioner - Petition disposed of: High Court [para 8, 9]
- Petition disposed of: MADRAS HIGH COURT
2021-TIOL-1479-HC-MAD-CUS
Sai Lakshmi Engineering Vs Pr.CC
Cus - Relief sought for in this writ petition is for a direction to direct the respondents to cause release of the goods imported vide Bill of Entry dated 07.02.2018, without payment of demurrage and container detention charges in terms of Regulation 6(1)(I) of the Handling of Cargo in Customs Areas Regulations, 2009, read with the Detention/ Demurrage Waiver Certificates dated 25.05.2018 – Petitioner relies upon the judgment of the Bombay High Court recently delivered on 8th March 2021 in W.P.No. 3676 of 2020 [ 2021-TIOL-589-HC-MUM-CUS ]
Held:
+ Once the imported goods are confiscated by the Customs authorities, they became in possession of the goods and, therefore, the Service Provider shall not levy any charges for the said confiscated goods. If at all any deposits are collected in this regard, the said deposits are to be refunded. The contentions of the petitioners are that once the Statutory provisions contemplate that the goods belong to the Customs Department are confiscation and the Service Provider is not entitled to collect any charges, then they are bound to release the goods and refund the deposit, if any collected. [para 14]
+ In the present case, even the goods are not released and the Service Provider is claiming charges, which is in violation of the Detention certificate issued by the Customs authorities. Thus, the petitioner is constrained to move the writ petition. [para 15]
+ Court is of the considered opinion that a thin distinction is to be drawn in between the Detention certificate as well as the release granted by various Courts with reference to the Detention certificate issued by the Customs Department. The in-between agreements, contracts, and disputes are relevant for the purpose of granting the relief and such disputes between the Service Provider and an importer or exporter, cannot be adjudicated in a writ proceedings under Article 226 of the Constitution of India. [para 16]
+ Court has formed an opinion [in W.P.No. 15490 of 2020 dated 22.06.2021] that the Detention certificate is nothing but affirmation of the statutory provisions contemplated, more specifically, with reference to Regulation 6(1)(l) of the Handling of Cargo in Customs Areas Regulations, 2009. Thus, such a certificate undoubtedly provides a right to the holder of the certificate to claim the relief of release of imported goods by the Service Provider or refund as the case may be.
+ In the event of directly acting upon the Detention certificate, which is nothing but confirmation of the provisions of the Act and the regulations, the Service Provider may suffer any loss or otherwise. The Courts are bound to consider and protect the interest of all the parties to the lis in order to provide complete justice. [para 18]
+ In the present case, admittedly, the goods are being maintained by the Service providers. On confiscation, the Customs authorities take possession. However, the goods are still under the custody of the Service Provider. The goods are not taken away from the premises of the Service Provider. Therefore, the grievances of the service provider are also to be looked into and considered, while granting the relief of release of the imported goods or refund of the deposits, if any. [para 19]
+ Court is of the considered opinion that in between disputes, more specifically, with the Service Provider and the importer or exporter has not been considered in any of the judgments produced by the petitioners. Therefore, this Court is of the opinion that the Detention certificate issued under the provisions of the Customs Act is reiteration of the legal position, which is binding on the Service Provider. Undoubtedly, the Detention certificate is binding on the Service provider.
+ However, such Detention certificate cannot be the sole document for the purpose of grant of relief of refund or release of goods without further adjudication with reference to the disputes or grievances that exists between the Service Provider, who is a private party and the exporter or importer. [para 20]
- Petition dismissed: MADRAS HIGH COURT
2021-TIOL-387-CESTAT-DEL
Rayban Sun Optics India Pvt Ltd Vs CCE & CGST
CX - The refund was claimed on an amount as was deposited by appellant during investigation and which was ordered to be appropriated vide O-I-O - No doubt, the Final order of Tribunal had set aside that appropriation entitling thereby the appellant for refund of said amount - Said order was challenged by Department - Accordingly, issue arises as regards to the relevant date from which the period of one year is to reckon for impugned refund - Relevant provisions of refund is section 11B of CEA, 1944 - Second proviso of sub section (2) to section 11B specifically provide that limitation shall not apply where no duty has been paid under protest - The Supreme Court in the case of Mafatlal Industries Ltd. 2002-TIOL-54-SC-CX-CB has clarified that when the duty is paid under the order of Court, pending the appeal / reference/ writ petition, it will certainly be payment under protest - Since the appellant has challenged the amount which got deposited by him during investigation, the protest is very much lodged on his part not as a party to such decision, the plea of limitation should not debar his claim - No doubt, the CESTAT's Final order is of 31.3.2012, vide which the amount/duty paid by appellant was made refundable but the Department opted for continuation of the said litigation by filing an appeal before the High Court - Once that option got exercised, the final judgement about entitlement of appellant to have the refund of said amount/duty paid, is the judgement announced by High Court in the said appeal - Since the said appeal of Department was dismissed by High Court on 21.04.2017 irrespective of technical ground, the fact remains that entitlement of the appellant to refund of duty paid got finalised only on 21.04.2017 hence the relevant date under section 11B(ec) is none but 21.04.2017 - Refund claim is filed on 19.02.2018 which, therefore, is very much within one year thereof, hence, wrongly been held to be barred by time: CESTAT
- Appeal allowed: DELHI CESTAT
2021-TIOL-386-CESTAT-MAD
Addison And Company Ltd Vs CGST & CE
CX - The issue relates to the availment of CENVAT Credit on Outdoor Catering Services and Landscape/Gardening Services - In so far as the availability of CENVAT Credit on Landscape/Gardening Services is concerned, the jurisdictional High Court has ruled in favour of assessee - Although the interpretation squarely applies to Catering Services as well, but however, a factual verification as to whether the said services were availed by all the employees or were they provided only to specific employees, is required to be ascertained - This issue alone is sent back to the file of Adjudicating Authority for the factual verification and if it is found that the service was provided to the employees in general, then no denial is called for - There is also issue of interest and penalty, which though was not argued, but are only consequential - In any case, the penalty cannot be sustained as it is the case of mere disallowance - The same is directed to be set aside: CESTAT
- Appeal partly allowed: CHENNAI CESTAT
2021-TIOL-385-CESTAT-MAD
Lenovo India Pvt Ltd Vs CC
Cus - The issue that arises for consideration is, whether the assessee can seek re-assessment/amendment of its Bills-of-Entry under Section 149 of Customs Act, 1962 - The High Court in the case of M/s. Hewlett Packard Enterprise India Pvt. Ltd. 2020-TIOL-1778-HC-MAD-CUS has held that the proviso to Section 149 contemplates an opportunity to be extended to an assessee to produce such documents that were in existence at the stipulated time that would serve to establish the error, if any, in the Bill-of-Entry - For this reason, the rejection of plea for amendment under Section 149 ibid by commissioner (A) is not sustainable - Assessee claims that all such necessary documents were available, but however, it is for the Proper Officer to verify the availability of same at the relevant point of time - This job is therefore left to the Adjudicating Authority to ascertain and pass a speaking order - With regard to the rejection of first appeal as time-barred, the Supreme Court itself had extended the limitation wherever applicable across the whole of India due to the outbreak of Covid-19, following which even the C.B.E.C. issued a Notification F. No. 450/61/2020-Cus.IV(Part-1) by which the time limit for filing appeals before First Appellate Authorities was extended till 31.12.2020 - Hence, the rejection of appeal as time-barred by First Appellate Authority cannot also be sustained - On both the counts, therefore, the findings as well as the impugned order are set aside - Matter is remanded to the file of Adjudicating Authority/Proper Officer to verify the claim of the appellant strictly in terms of Section 149 ibid and thereafter, pass an appropriate speaking order: CESTAT
- Matter remanded: CHENNAI CESTAT
2021-TIOL-384-CESTAT-CHD
AD Communication Vs CCE & ST
ST - The adjudication order was passed on 27.01.2017 which was challenged before High Court of Punjab & Haryana who finally disposed of their writ petition on 28.03.20218 - Thereafter, the appeals were filed on 14.08.2018 which have been dismissed by Commissioner (A) as time barred in terms of Section 85(3) of FA, 1944 - As the issue has already been decided by Tribunal in case of M/s Deep Communication & Ors, no infirmity found in impugned order - Therefore, the appeals are rightly dismissed as time barred by the Commissioner (A): CESTAT
- Appeal dismissed: CHANDIGARH CESTAT |
