2021-TIOL-1571-HC-MAD-CUS
Hyundai Merchant Marine India Pvt Ltd Vs UoI
Cus - Petitioner is an agent of Hyundai Merchant Marine Company Limited, Seoul (Korea), which carries on business as container owners and carriers at Korea - The petitioner is entrusted with the obligation to receive and return the containers to the Principal company after the discharge of the cargo - Contention of the petitioner is that certain containers imported are allegedly illegally detained by the respondents and in spite of their request, the respondents have not taken any steps to release the containers as specified, therefore, the present writ petition.
Held: Court is of the considered opinion that imports and exports are to be done by following the procedures contemplated and by complying with the mandatory requirements - The relief, as such, sought for in the present writ petition to direct the respondents to forthwith release and return the containers, itself is absurd - Such a relief requires adjudication in view of the fact that there are statutory requirements and compliance of the terms and conditions with the Customs Cargo Service Provider and other aspects of the matter - Without adjudicating all those factors, the High Court cannot issue a writ granting the relief in the writ petition filed - When disputed facts are raised between the parties, the same cannot be entertained and the High Court cannot conduct a roving enquiry with reference to the dispute, which is to be resolved with reference to the documents and evidence produced before the competent authorities - Therefore, the relief sought for in the present writ petition cannot be granted and the petitioner is at liberty to approach the competent authority of the respondents or before the competent forum for the purpose of adjudication of disputes and redressal of grievances - W.P.No . 33098 of 2018 & W.P.No . 33104 of 2018 stands disposed of: High Court [para 5 to 7, 10]
- Petitions disposed of: MADRAS HIGH COURT
2021-TIOL-1570-HC-MAD-CUS
Isha Exim Vs CC
Cus - Relief sought for in the present writ petition is directing the respondents to cause refund of an amount of Rs.20,57,526.72 collected by M/s. APL India Pvt.Ltd., Chennai, as Container Detention Charges, in blatant violation of the Detention / Demurrage Waiver Certificate dated 27.10.2017, issued by the 3rd respondent in F.No. S49/340/2017-Gr.1 in terms of Regulation 6 (1) (l) of Handling of Cargo in Customs Areas Regulation 2009.
Held:
+ Court is of the considered opinion that absolutely there is no quarrel with reference to the legal propositions propounded by the petitioner, which is well founded. 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. [para 13]
+ Court is of the considered opinion that a thin distinction is to be drawn in between the Detention certificate as well as the relief granted by various Courts with reference to the Detention certificate issued by the Customs Department. The in-between possible or existing 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 15]
+ Before resolving the disputes between the Customs Cargo Service Provider and the exporter or importer, the Statutory Detention Certificate issued by the Customs Authorities cannot be acted upon. There may be some disputes regarding collection of service charges or otherwise between the Customs Cargo service Providers and the importer or exporter. Thus, High Court cannot directly issue a direction to release the goods or refund the deposit before adjudication of any of these disputes between the Service Provider and importer or exporter and such an adjudication cannot be exercised in writ proceedings.
+ Admittedly, the Detention Certificate is issued by the Customs Authorities and the Customs Authorities are not connected with the contract between the service provider and the importer. Thus, the Detention Certificate confers a right to claim the relief of refund or release of goods. However, the right is to be exercised in the manner known to law and after resolving the disputes, if any, prevails between the service provider and the importer or exporter. [para 16]
+ 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 made. [para 18]
+ Court has held in [W.P.No. 15490 of 2020, Order dated 22.06.2021] that Detention Certificate is to be construed as Eligibility Certificate for the purpose of claiming refund and the refund is to be granted after resolving the disputes, if any, exist between the service providers and importers or exporters.
+ The contractual relationship between the service providers, who is a private person and the petitioner cannot be resolved under writ jurisdiction by the High Court. Thus, based on the Detention Certificate issued by the Customs Authorities, the petitioner has to adjudicate the same before the Competent Forum or claiming recovery of refund. [para 22]
+ This being the nature of the Detention Certificate issued under the Regulations, this Court is of an opinion that mere issuance of Detention Certificate would not confer any right to get refund directly from service provider, who is a private party. The contract between the service provider and the importer and exporter are to be considered and terms and conditions are to be looked into with reference to the facts and an adjudication on the factual aspects, became imminent, and such an exercise cannot be done in a writ proceedings. [para 23]
- Petition dismissed: MADRAS HIGH COURT
2021-TIOL-1569-HC-DEL-NDPS
Mohammed Yakoob Vs NCB
NDPS - Phensedyl codeine cough syrup 100 ml bottle (10 mg codeine in each 5 ml) - Petitioner seeks bail u/s 439 CrPC in the case under NDPs Act - Petitioner submits that out of 99 bottles, only one-one bottle for two samples were taken out and kept separately and the remaining 97 bottles were kept in a carton in the case of Taukir Alam (co-accused) and similar is the case of petitioner Mohammed Yakoob from whom allegedly 148 bottles were recovered and one-one bottle for two samples were taken out and the remaining 146 bottles were seized and sealed - Petitioner submits that the procedure followed by the NCB (respondent) is not a proper procedure in drawing the samples and the NCB (respondent) should have drawn the samples from each recovered bottle which has not been done in the instant case and this is in complete violation of the sampling procedure and it cannot be said that all the bottles were containing the contraband as alleged; that this violation in drawing the samples is a reasonable ground for the acquittal of the accused.
Held: Argument of the petitioner, though, appears to be somewhat attractive but in the facts and circumstances of the present case, keeping in view the recovery effected from the petitioner, fails to cut any ice - In the instant case, as per the prosecution, 200 bottles of phensedyl codeine cough syrup were recovered - The seized bottles were of the same size and were having batch numbers on them i.e. batch No. PHB7217 & PHB7236 - Therefore, in these circumstances, since these were cough syrup bottles which are ordinarily available in the market for treating cold and cough, cannot be said to have different concentration of medicines as they are prepared under the same formulation as per their batch numbers - Therefore, there is no infirmity in the manner in which the sample has been drawn - As far as the non-compliance of mandatory provisions of Section 50 of the NDPS Act is concerned, the same is a matter of trial - The bail application lacks merits and the same is, therefore dismissed: High Court [para 7, 8]
- Application dismissed: DELHI HIGH COURT
2021-TIOL-426-CESTAT-DEL
CCE & ST Vs Kshitij Infra Project Pvt Ltd
ST - Declaration under VCES - The calculation of tax short paid, as made by Commissioner in impugned order is not due to any misdeclaration or false declaration under VCES - The Commissioner has categorically observed that difference in tax liability is mainly due to interpretation and change in calculation of service tax, therefore, the mistake of respondent/assessee in the declaration is bona fide and there is no mala fide on their part - In view of the decision of Larger Bench in the case of Bhayana Builders 2013-TIOL-1331-CESTAT-DEL-LB, respondent is not required to pay service tax on the receipt of materials supplied free of cost, received from the principal - Thus, the amount demanded in impugned order for the period 2012-2013 and 2013-2014 is set aside - Hence, the respondent is only required to pay the differential duty - Further, penalty under Section 78 is also set aside, there being no case of falsification or contumacious conduct on the part of respondent/assessee - The late fee under Rule 7C is reduced: CESTAT
- Revenue's appeal dismissed: DELHI CESTAT
2021-TIOL-425-CESTAT-BANG
Maini Precision Products Ltd Vs CCT
CX - The appellant is engaged in manufacture of automobile parts - The demand of CENVAT credit confirmed on the ground that the appellant has failed to distribute the credit to its various units regarding common input service - The defence of appellant is that after the implementation of GST w.e.f. 01.07.2017, they have taken single registration for all the 9 units working in State of Karnataka in terms of Section 25 of CGST Act, 2017 - For the period prior to 01.04.2016 i.e. for the period April 2014 to March 2016, the appellant was not liable to distribute CENVAT credit pertaining to common input services used in more than one unit of appellants' company on pro-rata basis as Rule 7 of CCR, 2004 was amended vide Notification No. 13/2016 wherein the phrase "may distribute" was substituted with "shall distribute" w.e.f. 1.04.2016, but both the authorities have not considered the amendment effected from 01.04.2016 and wrongly confirmed the demand for the period prior to 01.04.2016 - Once the Department has not disputed the eligibility or entitlement of credit then the failure of appellant to distribute the same and transition to GST after coming into force of GST is only a procedural lapse and it will not affect the substantive right of appellant because the failure to comply with the provisions of ISD are at best may be termed as procedural irregularity and it has been consistently held by various Courts that substantive right cannot be denied merely on procedural irregularity - Similarly, the extended period of limitation invoked by Department is not sustainable because the appellant has not concealed any information from the Department and all the documents were provided by the appellant to the Audit Party and on the basis of Audit Report, the SCN was issued - Further, entire demand results into revenue neutral because even if the appellant had distributed the credit, it would have been available for utilization by appellant post GST regime in terms of Section 25 of CGST Act, 2017 - The impugned order is not sustainable in law because the entire situation is revenue neutral and therefore the demand is not sustainable: CESTAT
- Appeal allowed: BANGALORE CESTAT
2021-TIOL-424-CESTAT-AHM
CCE & ST Vs Palak Designer Diamond Jewellery
CX - The issue involved is only of jurisdiction for passing adjudication order - When the High Court in 2019-TIOL-1756-HC-AHM-CX has given clear observation that too relying on the Supreme Court judgment in case of PAHWA CHEMICALS PVT. LTD. 2005-TIOL-43-SC-CX-LB that merely relying upon the board circular, it cannot be said that the Joint Commissioner had no jurisdiction to issue the SCN and adjudicate the same therefore, this observation is binding on Commissioner (Appeals) as well as the lower Adjudicating Authority - It is settled law that when both board's circular and the judgment of court of law is prevailing and the judgment has contrary view to the board circular in such case, the court's judgment will prevail over the board circular - Following this principle, it is held that the Joint Commissioner has jurisdiction not only to issue the SCN but also to adjudicate the same: CESTAT
- Appeal allowed: AHMEDABAD CESTAT |
