2021-TIOL-1504-HC-MAD-CUS
Shahi Foods Vs CC
Cus - Petitioner contends that due to efflux of time, the goods imported is highly perishable; that the disputes raised are not existing as of now, therefore, no further adjudication needs to be entertained in respect of the grounds raised in the writ petition.
Held : Writ petition stands disposed of as infructuous - connected miscellaneous petition is closed: High Court [para 2]
- Petition disposed of: MADRAS HIGH COURT
2021-TIOL-1503-HC-DEL-CUS
Rajesh Vedprakash Gupta Vs Addl. Didrector General-Adjudication
us - Petitioner states that the Show Cause Notice dated 11th December 2020 is illegal as it has been issued by the Principal Additional Director General of DRI who has no powers to issue Show Cause Notice, Adjudicate and recover the penalties/duties, if any - Reliance is placed on the judgment of the Supreme Court in M/s Canon India Private Ltd = 2021-TIOL-123-SC-CUS-LB in which it was held that Additional Director General of DRI is not the proper officer to issue Show Cause Notice under Section 28(4) of the Customs Act, 1962 - Petitioner further submits that they have filed a reply to the Show Cause Notice in which it has been averred that the adjudicating authority has no jurisdiction to decide the said matter - Counsel for the respondent Revenue states that the issue of jurisdiction shall be decided as a preliminary issue by the adjudicating authority, after giving an opportunity of hearing to the petitioner - Petitioner, therefore, does not wish to press the present petition.
Held : Keeping in view the consensual agreement, the present writ petition along with pending applications is disposed of with a direction to the adjudicating authority to decide the issue of jurisdiction as a preliminary issue - It is clarified that, in the event, the petitioner is aggrieved by the decision of the adjudicating authority, it shall be open to the petitioner to challenge the said decision along with the Show Cause Notice in accordance with law: High Court [para 8]
- Petition disposed of: DELHI HIGH COURT
2021-TIOL-1502-HC-KAR-ST
Novel Security Services Bindu Complex Vs Addl. Director
ST - Pre-notice consultation mandated by Master Circular No. 1053/02/2017-CX , dated 10.03.2017 - Appeal assails the correctness of the order dated 26.05.2021 = 2021-TIOL-1274-HC-KAR-ST passed by the Single Judge - Single Judge noticed that the proceedings were at a preliminary stage and to enable its conclusion at the earliest, held that the show cause notice dated 22.04.2021 shall be kept in abeyance - The Single Judge granted an opportunity of personal hearing to the appellant in terms of the Master Circular dated 10.03.2017 and also reserved liberty to the respondent to revive the show cause notice dated 22.04.2021 - Single Judge further directed the appellant to appear before the show cause notice issuing authority on 24.06.2021 - This order is challenged in appeal.
Held : In the present case, it is seen that every attempt made by the respondent to secure information/document from the appellant were stonewalled by the appellant - Though the show cause notice issued by the respondent which was impugned before the Single Judge was not preventive in nature but yet an offence report was registered against the appellant - If the appellant desired to seek the benefit of the Master Circular dated 10.03.2017, he is expected to comply with the summons issued by the respondent seeking explanation/documents that were summoned by the respondent - The benefit of the Master Circular cannot be a one-way traffic and the appellant cannot milch the Master Circular to his advantage - In that view of the matter, the appellant was not entitled to pre-show cause notice as contemplated under Master Circular dated 10.03.2017 - Nonetheless, Single Judge directed the respondent to keep the impugned show cause notice in abeyance and grant an opportunity to the appellant being heard in terms of the Master Circular dated 10.03.2017 and also reserved liberty to the respondent to revive the show cause notice if the appellant was not able to establish that he had deposited the tax recovered from his service recipients - Since the impugned order of the Single Judge is thoroughly balanced, there is no need to interfere with the same - Appeal is dismissed: High Court [para 12, 13]
- Appeal dismissed: KARNATAKA HIGH COURT
2021-TIOL-394-CESTAT-DEL
Commandant Home Guard Training Centre Vs CCGST, Excise & Customs
ST - The appellant is Commandant of Home Guards in the State of Rajasthan created under the Rajasthan Home Guards Act, 1963 for bridging the requirement of reserved police force required to maintain public safety, protection of persons and property and maintenance of law and order - The appellant also provides security to various Government departments and firms and charges a fee for it - Revenue was of the opinion that this provision for providing the security and collection of a consideration amounts to rendering "security agency service" as per Section 65(105)(w) of Finance Act, 1994 read with Section 65(94) - The term 'person' appearing in definition must be construed to be a natural person and by no stretch of imagination will include the State or its officers or the posts created under a statute as held by Constitution Bench of Supreme Court in case of West Bengal - Since the State cannot be a person, it cannot be a "security agency" - Therefore, no service tax under the head 'security agency service' can be charged on the amounts collected by Police or Home Guards or any officers of Government for providing security - This issue was examined at length in the case of Deputy Commissioner of Police 2016-TIOL-3507-CESTAT-DEL - This order was upheld by Supreme Court and therefore, the issue has reached its finality - By following the judgment of Supreme Court, it is held that appellant is not liable to pay service tax: CESTAT
- Appeal allowed: DELHI CESTAT
2021-TIOL-393-CESTAT-DEL
Duggar Fibre Pvt Ltd Vs CCE & C & CGST
CX - Refund - Limitation - The impugned order has been passed on presumption that the O-I-A was served on appellant, on the basis of evidence of despatch and the contention of Department that such despatch was not returned back by the Post Office - During the relevant time as per the provisions of Section 37C(1)(a), any order passed under the Act was to be served through registered post or speed post to the person for whom it was entitled or his authorised agent with acknowledgement due or proof of delivery - In absence of proof of delivery, order dated 28.05.2012 cannot be deemed as served on appellant, as has been held by High Court in the case of R.P. Casting Pvt. Limited 2016-TIOL-1173-HC-RAJ-CX , Regent Overseas Pvt. Limited 2017-TIOL-600-HC-AHM-CX and also by Supreme court in Saral Wearcraft 2015-TIOL-154-SC-CX - In absence of such proof of delivery, it is held that the presumption is not sustainable and accordingly the application of the appellant for refund cannot be held time-barred - It is also held that the SCN dated 24.01.2018 issued by Revenue have merged with impugned O-I-A dated 10.04.2018 - Adjudicating Authority is directed to grant interest @ 12% per annum from the date of deposit till the date of refund - Such interest should be granted within a period of two months: CESTAT
- Appeal allowed: DELHI CESTAT
2021-TIOL-392-CESTAT-BANG
JSW Steel Ltd Vs CCT & CE
CX - The appellant is engaged in manufacture of HRPO/HRSPO coils, CRFH/ CRCA Coils, CRCA sheets, HR Plates and sheets, MS Slabs, Cobbles and Galvanized Corrugated sheets falling under Chapter 72 of Central Excise Tariff - As per Purchase Order, the base price on which duty should have been paid was Rs. 24,052/- whereas the appellant has paid the Excise duty at 12.5% on basic price at Rs. 26,234.62/- resulting in excess payment of duty to the tune of Rs. 18,08,271/- - The appellant filed refund claim of excess duty paid along with various documents in support of his claim but both the authorities have not examined the documents and the statements submitted by appellant in support of their claim - The impugned order has simply observed that the appellant has failed to prove the payment of excess duty without considering the plethora of documentary evidences on record, the CA Certificate produced on record have been totally ignored without any reason - The documents produced in the Appeal Paper book and few sample invoices shows the payment of excess duty but the same have not been considered and verified by the authorities below - The original authority is directed to pass the fresh order within a period of two months: CESTAT
- Matter remanded: BANGALORE CESTAT
2021-TIOL-391-CESTAT-MAD
Aurobindo Pharma Ltd Vs CC
Cus - The appellant filed refund application seeking refund of CVD and SAD paid by them under Section 27 of Customs Act, 1962 - The Supreme Court in the case of M/s. Paros Electronics (P) Ltd. has inter alia held that if the application is under Section 27 of the Act then the authority, being a creation of the statute, must act within the ambit of that provision and if the application is delayed he has no alternative but to reject it as barred by limitation - Said judgement has been followed by Tribunal in M/s. India Medtronic Pvt. Ltd. 2019-TIOL-236-CESTAT-AHM - No reason found to interfere in the impugned order rejecting refund: CESTAT
- Appeals dismissed: CHENNAI CESTAT |
