2021-TIOL-1598-HC-MAD-CUS
Bell Match Company Vs CC
Cus - DRI had issued a show cause notice dated 29.01.2018 stating that the appellant has failed to fulfil the conditions regarding installation of the machinery in terms of Notification No. 52/2003-Cus and, therefore, the exemption availed was proposed to be denied; the machineries proposed to be confiscated; a sum of Rs.15,78,485/- to be demanded as duty, apart from proposing to impose penalty - Impugned order was passed by the second respondent, confirming the proposal in the notice - Appellant chose to file a writ petition on the ground that the show cause notice as well as the order-in-original demanding duty and imposing penalty is without jurisdiction - Contention advanced by the appellant was that Notification No. 52/2003, stood amended by Notification No. 34/2015, by which, certain conditions contained in paragraph 3 of Notification No. 52/2003 was substituted; in terms of the amended notification, in the case of the capital goods proved to the satisfaction of the officer to have been installed or otherwise used in the unit within the validity of Letter of Permission, the benefit of Notification No. 52/2003 would inure in favour of the importer - Single Bench, though accepted that under normal circumstances, a notification or a statute which is being substituted is deemed to be retrospective, declined the relief to the appellant on the ground that the liability which had crystallized in the impugned order is an accrued liability, the correctness of which is to be decided in this appeal - appeal filed against this order.
Held : There is no dispute as to the fact that the condition imposed with regard to the date of installation or period within which installation has to take place stood amended by Notification No. 34/2015 dated 25.05.2015 - In the said amended notification, it has been specifically stated that the amendment is by way of substitution - This issue is no longer res integra and in Mehler Engineered Products India Pvt. Ltd. = 2018-TIOL-1320-HC-MAD-CUS , wherein after considering a catena of decisions on the point, it was held that after a subsequent Act amends an earlier one in such a way as it incorporates itself or a part of itself into the earlier, the Act must be construed as 'retrospective' - Admittedly, on the date when the show cause notice was issued dated 29.01.2018, the exemption notification stood amended by issuance of Notification No. 34/2015, therefore, the question of treating the amount of duty as an accrued liability is incorrect - Order impugned in the writ petition is without jurisdiction - In the result, the writ appeal is allowed and the order passed in the writ petition is set aside - Consequently, the writ petition is allowed and the order-in-original is quashed: High Court [para 5, 9, 10]
- Appeal allowed: MADRAS HIGH COURT
2021-TIOL-438-CESTAT-AHM
Manoj Gadhiya Vs CC
Cus - Assessee is in appeal against imposition of penalty under Customs Act, 1962 - The case was booked against M/s Rudrani Impex Pvt Ltd. and others including assessee in a case involving a proper claim of export benefits - The assessee was earlier a manager of M/s Ukinex Commercial Services - Shri Amit C Khatu was a "G" Card Holder of M/s Ukinex Commercial Services - In the proceedings notice was issued to 85 noticees and assessee was one of them - Assessee was fully aware about the fictitious nature of importers as the documents were being fabricated with his knowledge - He also admitted that he had never met the importer but solely relied on the documents submitted by High Sea Seller - His defense seems to be that once document is self certified he does not have any responsibility - This is just an excuse - The entire responsibility of KYC has been placed on Customs Brokers - If just self-attestation was enough then there was no need to put of responsibility of KYC on Customs Broker - He also admitted to forging of signatures - His only defense seems to be that he was merely an employee following direction of superior and that the Superior Shri Amit Khatu was let off - Assessee has failed in his duty as H-Cardholder and actively involved himself in facilitating evasion of customs duty - They were given specific responsibility by revenue by making him an H-Card Holder - He cannot simply pass the blame to his superior G-Card Holder - The charges under Section 112(a) as well as 114A of Customs Act are upheld: CESTAT
- Appeal dismissed: AHMEDABAD CESTAT
2021-TIOL-437-CESTAT-DEL
Nichiplast India Pvt Ltd Vs Pr. CCGST & CE
CX - The appellant is in appeal against rejection of their refund application for refund of Cenvat Credit lying in books of accounts at the time of closure of factory - Following the rulings of Karnataka High Court in 2006-TIOL-469-HC-KAR-CX as confirmed by Supreme Court, it is held that the appellant is entitled to refund of amount of Cenvat Credit lying in their Cenvat Credit account on closure of business - The appellant is entitled to interest as per Rules, as per section 11BB of Central Excise Act, 1944, i.e., three months after the date of application till the date of grant of refund: CESTAT
- Appeal allowed: DELHI CESTAT
2021-TIOL-436-CESTAT-DEL
Raj Construction Company Vs CCE
ST - Appellant is in appeal against impugned order wherein their refund claim was rejected for the sole reason that the appeal was filed beyond the period prescribed under section 85(3) of Finance Act, 1994 - The appellant had contended before Commissioner (Appeals) that the order dated 26.10.2009 was actually received by them on 14.11.2009 - If the Commissioner (Appeals) had any doubts about the date on which the said order was actually received by appellant, then it was for Commissioner (Appeals) to have made proper enquiries from the post office to dispel this doubt, but that was not done - In the absence of any contrary evidence before Commissioner (Appeals), the date indicated by appellant regarding receipt of order should have been accepted - If this date 14.11.2009 [wrongly mentioned as 14.11.2011 by Commissioner (Appeals)] is treated as a date on which the order dated 26.10.2009 was received by appellant, then the appeal was filed within extended period of three months contemplated and the proviso to sub-section (3) of Section 85 of Finance Act - The appellant was prevented by sufficient cause from filing the appeal before Commissioner (Appeals) within a period of three months from the date of receipt of order - The delay, is, accordingly condoned and the appeal shall be treated to have been filed within time before Commissioner (Appeals) - Matter is remitted to Commissioner (Appeals) to decide the appeal on merits: CESTAT
- Matter remanded: DELHI CESTAT
2021-TIOL-435-CESTAT-MAD
Cholamandalam MS General Insurance Company Ltd Vs CGST & CE
ST - The appellant is a General Insurance Company and is in the business of offering General Insurance - SCN was issued proposing to deny alleged ineligible CENVAT Credit - The Department has no dispute with Service Tax collected from appellant by dealer and remitted to the Government - The assessment of Service Tax paid at the dealer's end has not been disturbed/questioned by Department; only the credit availed at the service recipient's end has been questioned - It is not disputed that the dealer has paid Service Tax on the services described in the invoices - If that be so, denial of credit at the recipient's end cannot be justified by Department without reopening the assessment at the dealer's end: CESTAT
- Appeal allowed: CHENNAI CESTAT |
