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2021-TIOL-1495-HC-DEL-ST
AR Fisheries Pvt Ltd Vs UoI
ST - Petitioner challenges the demand-cum-show cause cum notice dated 31.05.2021 - Petitioner, it appears, is aggrieved by the fact that respondent no. 3 did not address the concerns of the petitioner with regard to the aforementioned request for extension [of date of hearing of notice issued for 'pre-show cause notice consultation'] and proceeded to issue the impugned demand-cum-show cause notice, dated 31.05.2021 - That, during the relevant period, the city was under lockdown on account of corona virus, and thus, a request was also made by the petitioner to respondent no. 3 that one week's extension be granted, via communication dated 31.05.2021. Held: Apart from anything else, in view of the fact that the city was under lockdown and the leeway given, according to the petitioner, was far too short, the matter requires further examination - Notice issued and matter listed on 31.08.2021 - Meanwhile, there shall be a stay on the operation of the impugned demand-cum-show cause notice, dated 31.05.2021: High Court [para 3.1, 6, 7]
- Matter listed: DELHI HIGH COURT
2021-TIOL-1494-HC-MAD-CUS
JVH Met Cult Pvt Ltd Vs Grievance Redressal Committee
Cus - Total accumulated loss incurred by the petitioner from the financial year 1998-99 to 2005-06 was Rs.49,73,126/- - The petitioner, being a sick industrial unit, thus, was entitled for a complete waiver of composition fee and extension of Export Obligation Period under the circumstances till 30.06.2006 as per the provisions of the Foreign Trade Policy 2004-2009 read with Section 11.1 of the Hand Book of Procedure issued under Section 5 of the Foreign Trade (Development and Regulations) Act, 1992 in force - Public Notice No. 9/2002-07, dated 22.05.2013 unambiguously clarifies that bank guarantee is to be furnished for non-fulfilment of export obligation and in the present case, admittedly, such bank guarantee was given by the petitioner – However, a composition fee of 2% as charge is sought to be recovered from the petitioner through the impugned order, which the petitioner contends, is impermissible since the said public notice nowhere contemplates imposition of composition fee of 2% as charge. Held : Petitioner has raised other grounds with reference to certain facts and circumstances and this Court is of the considered opinion that all those grounds are to be raised before the authority competent for re-adjudication, as the very imposition of composition fee itself is not contemplated in the public notice dated 22.05.2013 - However, these factual aspects are to be adjudicated with reference to the records available and the mixed question of fact and law are to be adjudicated and findings are to be given - Such an exercise cannot be done by the High Court in a Writ proceeding - Impugned order dated 26.11.2007 is quashed - Case is remanded back for fresh consideration - Writ petition stands allowed: High Court [para 5, 6]
- Petition allowed: MADRAS HIGH COURT
2021-TIOL-1485-HC-KERALA-CUS
Amman Dhall Mill Vs CC
Cus - The review petitioner submitted that he is entitled to have same consideration as in the judgment of Supreme Court in M/s. Raj Grow Impex LLP 2021-TIOL-187-SC-CUS-LB - The stand is taken note and the court is unable to appreciate the grounds for review - The review petitioner states that no error apparent on the face of the record could be pointed and he is constrained to move this Court for necessary directions on the lines of judgment of the Supreme Court, more particularly referred to above - Having seen that there is no error apparent on the face of record, by referring to the said judgment, the court ought not to review the order and issue directions on the lines indicated above: HC
- Review petition dismissed: KERALA HIGH COURT
2021-TIOL-1484-HC-KERALA-NDPS
Moideen Kunji Vs CC
NDPS - the first accused was arrested along with 983.95 grams of Hashish Oil. He was arrested and on the basis of the confession statement given by him the petitioner was also arrayed as the 2nd accused and he was arrested on 16.4.2021 - Revenue submitted that the petitioner has many other cases to his credit under I.P.C but he could not collect such details - Whatever it may be, he is in custody for the last 78 days - The allegations against him are under Sections 20(b)(ii)(B), 23(b), 27A, 28 and 29 of the NDPS Act - The prime accused, from whom the contraband was seized, has already been granted statutory bail - The petitioner shall be released on bail on various conditions: HC
- Application allowed: KERALA HIGH COURT 2021-TIOL-390-CESTAT-BANG
Ashique Chemicals And Cosmetics Vs CCT & CE
CX - Issue arises is, whether the appellant is eligible to avail CENVAT credit on household plastic buckets (15 litre capacity) and plastic containers (different sizes) which were given to customers/dealers purchasing specified number of soaps (sales promotion) - It was clearly brought on record by appellant that the expenses towards purchase of the buckets are charged against the sales value of the company and therefore under the financial accounting angle, the value of the buckets are buried into the business income alone - The appellant have not collected any consideration separately for bucket and hence the cost of the buckets was not charged on the customers separately - This issue has been settled by Tribunal in favour of appellant in the case of Manik Machinery Manufacturers Pvt. Ltd. 2016-TIOL-1497-CESTAT-MUM - Further in the case of Cadbury India Ltd. 2017-TIOL-1607-CESTAT-MUM, the Tribunal has reiterated the decision of of Manik Machinery Manufacturers Pvt. Ltd. and has held that the appellant is entitled to cenvat credit on free goods given along with other goods - Hence, by following the ratio of said decisions, the impugned order is not sustainable in law: CESTAT
- Appeal allowed: BANGALORE CESTAT
2021-TIOL-389-CESTAT-MAD
Balamurugan Chemicals Pvt Ltd Vs CGST & CE
CX - Penalty - A perusal of SCN clearly indicates that there was an act of suppression and contravention which, for the audit by Central Excise team, could not have been detected and resultantly, the appellant would have escaped the liability - The SCN also points out that the issuing authority prima facie suspected, inter alia, that the appellant had indulged in suppression of facts to avoid payment of amount equal to CENVAT Credit availed thereby resulting in contravention of CENVAT Credit Rules - In nutshell, proper declarations, wherever expected, of removal as such, were not made by the appellant - So also, it is expected of an appellant to be prompt in its efforts to at least declare what is being manufactured that was cleared and both the above are lacking in the case on hand - The period involved is 2013-14 and 2014-15 and the Department audit took place between February 2017 and April 2017 - Till that time, appellant should have filed its monthly/ER-1 returns regularly/periodically/quarterly/monthly, as is applicable, possibly with the help of its auditors - If the bona fides were to be believed, then the grave irregularity, as pointed out by the Revenue, should have been attempted to be set right on its own before being pointed out since the monthly/regular ER-1 returns were not filed blindly - Admittedly, there is no challenge by appellant to the invoking of larger period which has the same ingredients as that of Section 11AC(1)(a) ibid - It is therefore difficult to accept that the ingredients would apply for one and not when it comes to the issue of penalty: CESTAT
- Appeal dismissed: CHENNAI CESTAT
2021-TIOL-388-CESTAT-AHM
Calibre Chemicals Pvt Ltd Vs CCE & ST
ST - The issue arises is, whether the appellant was liable to pay Service Tax under 'BAS' on the Charges/Fees paid to Foreign Entities who rendered the service of filing declarations/documents for obtaining registration of appellant's export products with European Regulatory Authorities under European Regulations and whether the appellant had correctly availed exemption from Service tax under Sr. No. 2 of Notification No. 18/2009-S.T. - The appellant was engaged in receiving services of documentation and registration from a foreign entity - The said services do not make the foreign entity a 'Commission Agent' in terms of the definition - Therefore, the very foundation of allegation that service provider is 'Commission Agent' is misplaced in far as the first issue is concerned - The argument that the activity undertaken by an entity abroad for the purpose of documents and registration before Foreign Regulatory Authority can be terms as activity of Commission Agent is misplaced - Consequently, demand under the heading of 'Business Auxiliary Services' cannot be sustained and the same is set aside. In so far as the second issue is concerned, appellant have accepted that the foreign entity was undertaking the activity of Commission agent - The defense of appellant is based on their claim of exemption under S. no. 2 of said notfn - The appellant have contended that the O-I-O wrongly calculates the benefit available to appellant under this notification - The notification clearly prescribes that the exemption shall be limited to 1% of the free on board value of export goods for which the said services have been used - The impugned notice instead of granting the benefit of exemption of service tax to the extent of 1% of the free on board value of export goods, grants the exemption to service tax on the 1% of free on board value of export goods to the Commission - It is seen that the notification is very clear - The same has been amply clarified by CBEC Circular No. 11/2009-S.T. - Consequently, the demand is set aside on both the issues: CESTAT
- Appeal allowed: AHMEDABAD CESTAT |
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