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2021-TIOL-1581-HC-MAD-ST
Tamil Nadu Transmission Corporation Ltd Vs CGST & CE
ST - Writ petitioner challenges the proposal/levy of service tax on certain amounts collected by the unit, viz., (i) liquidated damages for non-performance or partial performance of the contracts from the contractors; (ii) cheque dishonour charges from consumers when the cheque given for payment of current consumption charges returned unpaid; (iii) for delayed payment of current consumption charges, belated payment charges are collected from the consumers (belated payment surcharge); (iv) forfeiture of EMD charges for not fulfilling the contracts from contractors; and (v) fine and penalty amounts from consumers who indulge in theft of energy.
Held:
+ High Court cannot go into the details regarding the payments already made with reference to certain service charges and the claims and allegations set out in the show cause notice. Any differences, in this regard, are to be sorted out by the petitioner and respondents, based on the documents and evidences. Thus, an adjudication, in this regard, is imminent. High Court cannot form an opinion with reference to such differences on factual aspects of the matter and such an adjudication is to be done by following the procedures, as contemplated. [para 27]
+ Even before issuing the show cause notice, the office of HPU has called for certain details from TANGEDCO, CEDC. In response, they have given a letter and more specifically, the Deputy Financial Controller, TANGEDCO, in one case, appeared before the Superintendent of HPU and a statement was also recorded. Therefore, an opportunity was provided even before issuing the show cause notice with reference to the allegations. However, in most of the cases, based on the Intelligence Officers' information and based on the records, the show cause notices were issued. [para 29]
+ Show cause notice further reveals that they are seeking explanation with reference to the services provided for works contract services, goods transport agency services and other services, as stated above. Thus, it is for the petitioner to submit their explanations, produce documents and evidences to defend their case, in the manner known to law. [para 30]
+ Case on hand is not relating to the demand of central excise duty and it is only the service tax, which is to be paid and as per the Circular , no such pre-hearing is contemplated and thus, the petitioner has to avail the opportunity by submitting their explanations and documents for the purpose of defending their case. [para 31]
+ Show cause notice is elaborate and contains all the details regarding the allegations. Thus, the petitioner is bound to explain the queries, doubts raised in the show cause notice with reference to the documents and evidences and defend their case, in the manner known to law. [para 32]
+ Court is of the considered opinion that only if the exemption clause is applicable, then alone the jurisdiction point needs to be considered with reference to the facts of the present case. The first respondent has made it clear that show cause notice has not been issued demanding service tax for transmission or distribution of electricity. The service tax are demanded only for other services which all are not covered under the exemption clause and therefore, these facts are to be adjudicated with reference to the documents and evidences.
+ Undoubtedly, the first respondent, being the quasi-judicial authority, is empowered to consider the legal grounds also. Thus, provisions of the Act, if any, relied on by the petitioner, the same are also to be considered by the first respondent, while considering the issues and before taking decision on the allegations. [para 33]
+ Reliefs sought for in the writ petitions is rejected. Petitions are dismissed.
- Petitions dismissed: MADRAS HIGH COURT
2021-TIOL-1579-HC-MAD-CX
Kansai Nerolac Paints Ltd Vs CCE
CX - Preferring an appeal is the rule - Entertaining a Writ Petition before exhausting the appellate remedy is an exception - Practise of filing the Writ Petition without exhausting the statutory remedies are in ascending mode and such Writ Petitions are filed with a view to avoid pre-deposits to be made in statutory appeals and on the ground that the appellate remedies are time consuming - In the introductory paragraph of the impugned order-in-original dated 09.03.2015, it is categorically stated that "any person deeming himself aggrieved by this order may appeal against the same to the Customs, Excise and Service Tax Appellate Tribunal at Shastri Bhavan, Haddows Road, Chennai-600 006 - Appellate Authority, being the Final Fact Finding Authority and those findings and facts of law would be of greater assistance for the High Court in exercise of its powers of judicial review under Article 226 of the Constitution of India - Therefore, the petitioner is bound to prefer an appeal to redress his grievance - Petitioner is at liberty to prefer an appeal in the prescribed format and by complying with the provisions of the Act, within a period of four weeks - Writ Petition stands disposed of: High Court [para 5, 7, 8, 10, 11]
- Petition disposed of: MADRAS HIGH COURT
2021-TIOL-1578-HC-DEL-CUS
SMH Shipping Pvt Ltd Vs CC
Cus - Petitioner seeks directions to the Respondents for release of the Bank Guarantees furnished in August 2017 - Bench notes that the Petitioner is unable to point out any document placed on record of this Court or even an averment in the writ petition that the Bank Guarantees are currently valid and alive - There is also no averment that the Respondents have given any directions to revalidate the Bank Guarantees over a period of nearly 4 years - Petitioner seeks to withdraw the writ petition with liberty to make a representation before the Authority concerned, for release of Bank Guarantees after satisfying them that the Bank Guarantees are alive and if so, furnishing the reasons for their release. Held: Liberty as sought, is granted - Petition is disposed of: High Court [para 3, 4]
- Petition disposed of: DELHI HIGH COURT
2021-TIOL-1577-HC-MAD-CUS
CC Vs Sri Venkateshwara Paper Boards
Cus - Prayer sought for by the importer in the writ petition was to quash the proceedings of the third appellant / The Assistant Commissioner of Customs (SIIB), Thoothukudi , dated 29.12.2020 and to direct the Revenue to permit the Importer to mutilate the imported goods, namely, 459 packages weighing 55.740 MT of mixed wet strength scrap paper (silicon paper and coated) under Section 24 of the Customs Act, 1962 under the supervision of the Customs Authorities and to allow clearance of the goods under the exemption claimed for waste paper considering certificate issued by the Approved Certification Agency by the Government of India - Writ Court held that when the Importer is entitled to call upon the Customs Authorities to mutilate the goods and clear them and when the Importer has not invoked the right under Section 110 of the Act seeking provisional release of the goods, the third appellant could not have passed the order impugned in the writ petition, dated 29.12.2020 and therefore, quashed the said order - The Writ Court further directed the Revenue to permit the Importer to mutilate the goods at their cost under the supervision of the third appellant - Aggrieved by the said order, the Revenue is before the High Court by way of this appeal. Held: + The request for mutilation is an alternate prayer made before the first appellant and this prayer has been made for the first time much after the goods were seized under a Mahazar dated 11.12.2020. Therefore, the Importer is not correct in contending that they never made a request for provisional release of the cargo and only sought for mutilation and then clearance. The request made by the Importer vide letter dated 23.12.2020 is a clear request for release of the cargo. When the cargo has been seized under a Mahazar , then the request, if to be considered by the Revenue, has to be only for a provisional release. More so, when the Revenue has not dropped the proceedings, but proceeded to complete the investigation and issued a show cause notice, dated 07.06.2021. Therefore, Bench rejects such contention raised by the Importer. [para 25] + Request for mutilation was much after seizure of the goods. On and after 31.01.2020, stock lot goods are prohibited. Therefore, the issue would be if there are three varieties of paper bundled into one, whether it would fall within the definition of stock lot. This matter needs to be adjudicated by the Authorities in the show-cause notice, which has now been issued to the Importer. The allegation is one of concealing the prohibited item with the items, which are freely imported. + Therefore, the alternate request made by the Importer for mutilation cannot be treated to be a bonafide claim. + Therefore, as on date, the Revenue is of the prima facie view that it is a clear case of mis-declaration and the import has to be treated as a stock lot and if it is so, the import is prohibited. Therefore, the Revenue has rightly construed the prayer sought for by the Importer and passed the order dated 29.12.2020 permitting provisional release of the cargo subject to certain conditions. [para 27] + Condition (b) of the provisional release order dated 29.12.2020 directing the Importer to furnish Bank guarantee / cash security towards redemption fine and penalty would be harsh as the show-cause notice is yet to be adjudicated. Therefore, Bench modifies the condition (b) alone by directing the Importer to execute the bond for Rs. 12,12,867/-. + Writ appeal is allowed and the order dated 16.02.2021, passed in W.P.(MD) No. 2124 of 2021 = 2021-TIOL-431-HC-MAD-CUS is set aside. Consequently, the order dated 29.12.2020, passed by the third appellant stands restored. [para 31, 32]
- Appeal allowed: MADRAS HIGH COURT
2021-TIOL-1574-HC-KERALA-ST
Rama Varma Club Vs JCCT & CE
ST - Petitioner mentions that faced with a demand, they remitted Service tax Under Protest, after objecting to the demand - That, after the decision in Supreme Court in Calcutta Club Ltd. - 2019-TIOL-449-SC-ST-LB, the question of imposing the liability of service tax in respect of services rendered to members does not arise for consideration - Therefore, petitioner sought refund of the tax remitted under protest - SCN was issued and a hearing was scheduled on 19.02.2021 in respect of which an adjournment was sought - Fresh hearing date was given on 03.03.2021 but the petitioner sought further adjournment citing the COVID pandemic - Hearing was, therefore, rescheduled for 25.03.2021 and an email was sent in this regard - Since the petitioner failed to appear for the hearing, the matter was adjudicated ex parte - Petitioner submits that the club was closed due to the pandemic from March 2020 to December 2020 and from February to March 2021; due to the COVID spread in Kerala, the club was practically not functional; that the email fixing hearing escaped their attention on account of the above. Held: Bench is of the considered opinion that one more opportunity can be extended to the petitioner to present its case before the respondent - It is true that a person who did not avail of the opportunity for hearing cannot later complain about violation of principles of natural justice - However, considering the fact that request was made citing the COVID-19 pandemic and considering the fact that E-mail dated 03.03.2021 fixing the date of hearing on 25.03.2021 had not come to the notice of any of the office bearers of the petitioner, it is only appropriate that such opportunity is extended to the petitioner - It is settled law that when an order is passed in violation of the principles of natural justice, the availability of an alternative remedy is not a bar for exercise of the jurisdiction under Article 226 of the Constitution of India - Classic statement of the law by Megarry.J in John v. Rees relied upon - Accordingly, impugned order is set aside and the respondent is directed to adjudicate show cause notice afresh within a period of one month - Petition disposed of: High Court [para 5]
- Petition disposed of: KERALA HIGH COURT
2021-TIOL-428-CESTAT-MAD
Doosan Infracore Construction Equipment India Pvt Ltd Vs CC
Cus - The main allegation raised against appellant is that they are not the importer of goods and therefore not eligible for refund of SAD as per the conditions stated in Notfn 102/2007 - It is for the importer to file refund claim - The appellant has entered into slump sale agreement with Doosan Infracore India Pvt.Ltd. for sale of Excavator Division - In the agreement, it is stated that all assets and properties of seller owned or used by seller in connection with business would fall within "acquired assets" by appellant - All tax benefits / receivables relating to inventory being transferred including but not limited to refund of SAD would be acquired assets from seller to buyer - After the slump sale agreement of excavator division, appellant has become the owner of imported goods or can be said to be in the shoes of a person holding himself out to be the importer - Though IEC of Doosan Infracore India Pvt.Ltd. was used for clearance of goods, it cannot be said that appellant is a total stranger to Doosan Infracore India Pvt. Ltd. - The agreement is sufficient evidence to satisfy that the ownership of goods was transferred from Doosan Infracore India Pvt. Ltd. to the appellant - Refund claim filed by appellant would satisfy the condition prescribed in clause 2(c) of Notfn 102/2007 - Consequent to slump sale agreement, not only the liability to pay duty but also the right to claim SAD refund also is passed on to the appellant - Sanction of refund to appellant is legal and proper - The impugned order cannot sustain, same is set aside: CESTAT
- Appeal allowed: CHENNAI CESTAT
2021-TIOL-427-CESTAT-MUM
Indian Oil Corporation Ltd Vs CCE
CX - The appellant had supplied Low Sulphur High Flash High Speed Diesel (LSHFHSD) to Indian Navy Claiming exemption under Notfn 64/95-CE - Since the supplies were made from the stock of goods which were duty paid, appellant filed a refund claim in respect of duty so paid - Both the authorities have conclusively recorded in respect of duty paid nature of goods received from BPCL and that the refund claim is not hit by principles of unjust enrichment enshrined in Section 11B of CEA, 1944 - Both authorities have restricted the refund claim only for reason that the duty paid goods received from M/s BPCL were stored in tank No 5, whereas the supplies to Indian Navy were made from tank No 3 and 5 - So they ruled in favour of refund to the extent of supplies made from tank no 5 - The Assistant Commissioner has referred to violation of bonding permission which is totally uncalled for as the goods which we are concerned with are duty paid goods - Since all the goods stored in warehouse are duty paid as per the board circular 2004, the ground on which Assistant Commissioner has proceeded is clearly contrary to the clarification issued by board - In case where the entire stock is deemed to be duty paid, then whether the supply is made from tank 3 or 5 is irrelevant - No merit found in impugned order, same is set aside: CESTAT
- Appeal allowed: MUMBAI CESTAT |
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