2021-TIOL-1614-HC-KAR-CUS
Givaudan India Pvt Ltd Vs Pr.CC
Cus - Allegations of undervaluation - Petitioner contends that in light of the said judgment in M/s. Canon India Private Limited ( 2021-TIOL-123-SC-CUS-LB ), the impugned Order-in-Original dated 27.02.2017 which was culmination of the proceedings starting with the show-cause notice dated 07.01.2008 issued by an incompetent authority viz. Additional Director General, Directorate of Revenue Intelligence, Bengaluru is liable to be set aside.
Held:
+ While judgment of High Court of Madras in the case of Commissioner of Customs (Air) vs. M/s. Premier Tours & Travels (Chennai) Pvt. Ltd. = 2021-TIOL-458-HC-MAD-CUS where identical contentions were raised and the consideration of such aspect has been relegated to be decided in the appeal, however this Court does not find any reason to take the same view, in light of the clear findings in the case of M/s. Canon India Private Limited (supra) which does not leave any scope for further adjudication and the law laid down by the Apex Court ought to enure to the benefit of the petitioners. [para 23]
+ It needs to be noted that the High Court of Madras (Madurai Bench) by order dated 16.03.2021 in the case of Quantum Coal Energy Pvt. Ltd. vs. The Commissioner of Customs = 2021-TIOL-711-HC-MAD-CUS has taken a different stand by setting aside the proceedings initiated by the Customs Authority where the show cause notice was issued by the Additional Director General of DRI while referring to the judgment in the case of M/s. Canon India Private Limited (supra) and this Court finds that, that would be the only logical conclusion to be arrived at and to take any other stand would only result in overreaching the decision of Apex Court, which is plainly impermissible. [para 24]
+ There has to be finality once the law is laid down by a judgment of the Apex Court and any further deferment may not be justified. Further, if the Review Petition (filed by Respondent Revenue) is disposed, the legal consequences would enure to the benefit of the parties involved. [para 25]
+ The Order-in-original Sl.No.BLR-CUSTM-AIR-003/16-17 dated 27.02.2017 in both the writ petitions are set aside while holding specifically that the show cause notice at Annexure-B dated 07.01.2008 is one that is not issued by 'the proper officer'. The Authorities are at liberty to take out fresh proceedings as per law. [para 26]
+ Oral request made by respondent No.2 to keep the order in abeyance is refused, as the Court has passed the order on the basis of the judgment of Apex Court in the case of M/s. Canon India Private Limited vs. Commissioner of Customs = 2021-TIOL-123-SC-CUS-LB , which is the law as on date. [para 27]
Jurisdiction:
+ Point of jurisdiction which goes to the root of the matter could be raised at any stage of the proceedings, which is a settled position of law. In fact, absence of jurisdiction to issue a show-cause notice if raised even after an assessment order is passed, such objection regarding jurisdiction of the authority if found in the affirmative would vitiate the whole proceedings including the assessment orders or orders passed on an appeal and other orders of the superior authorities. [para 22(1)]
Alternative remedy:
+ It must be noted that entertaining of writ petition even where statutory right of appeal is available is a matter of discretion and restraint left to the court and the availability of statutory right of appeal by itself would not bar the court from entertaining the writ petition. [para 22(2)]
Res judicata:
+ The dispute on hand in the present case however is one that relates to valuation and not as regards to the tariff applicable and that comes out clearly from the contents of the show-cause notice dated 07.01.2008 and this position regarding distinct nature of dispute of the show-cause notice relating to the judgment of the Supreme Court in the case of Givaudan India Pvt. Ltd. = 2009-TIOL-2582-CESTAT-BANG as well as the present dispute is clear even on a bare perusal of the material on record and does not involve any complicated factual enquiry necessitating relegation of the parties to the remedy of appeal. Accordingly, the question of res judicata would not be a bar to the adjudication of the present proceedings nor does it necessitate the relegating authority to avail of the statutory remedy of appeal. [para 22(3)]
Suppression:
+ In the present case, the question relates to the aspect of valuation which question being a question of fact, is a matter to be adjudicated before the authorities and at this stage to arrive at a conclusion that the declaration of the petitioners was false or misleading as regards valuation cannot be taken note of, as such adjudication has still not reached a finality. [para 22(4)]
- Petitions allowed: KARNATAKA HIGH COURT
2021-TIOL-1608-HC-MAD-CUS
Hindustan Unilever Ltd Vs UoI
Cus - Present writ petition is filed against the modified order dated 21.06.2012 passed by the second respondent reversing the findings of the third respondent on the grounds that they are perverse and bad in law – It is submitted that the Delhi High Court in the case of Kapil Wadhwa and Others vs Samsung Electronics Co. Ltd and Another held that Section 30(3)(a) of the Trade Marks Act, 1999 deals with a situation where the registered proprietor of a trade mark sells the goods bearing the trade mark of a person and thereafter assigns the registered trade mark to another person; that the said person (another person) cannot oppose further dealing in those goods by the person who has acquired those goods bearing the trade mark – Petitioner further submits that the Civil Appeal No.8600/2013 is now pending before the Supreme Court of India and there is no interim order as such; as of now, the ratio laid down by the Division Bench of the Delhi High Court, in the judgment (cited above), is to be followed for the purpose of dealing with the cases, including that of the petitioner.
Held: These principles (laid down by the Delhi High Court) are to be followed and to be applied in the case of the petitioner also - Writ petition stands disposed of: High Court [para 7, 8]
- Petition disposed of: MADRAS HIGH COURT
2021-TIOL-1607-HC-MAD-CUS
Vedanta Ltd Vs Asstt.CC
Cus - Writ petition has been filed inter alia seeking a direction to the first respondent to disburse interest on delayed disbursal of refund to the tune of Rs.35,93,64,311/- to the petitioner as computed vide letter, dated 31.12.2020 in terms of the order dated 01.10.2020 passed by this Court - First respondent vide the impugned letter dated 22.02.2021 rejected the claim of the petitioner stating that the interest will not accrue from three months from the date of filing the refund claim, but from three months from the date of the Commissioner (Appeals) order - Counsel for the respondents Revenue fairly states that since there was no interim order in the appeal filed by the respondents, as per the Circular bearing No.276/186/2015-CX.8A dated 01.06.2015 issued by the Government of India, the petitioner is entitled for the interest.
Held: Admittedly, there is no interim order in the appeal filed by the respondents and therefore, the petitioner is entitled for the interest as ordered by this Court dated 01.10.2020 in W.P(MD)No.12969 of 2020 - But, in spite of the orders passed by this Court and in spite of the circular bearing No.276/186/2015-CX.8A dated 01.06.2015, the first respondent had refused to pay interest to the petitioner and had driven the petitioner to come before this Court once again for his entitlement - In view of the foregoing reasons, this writ petition is allowed and the impugned letters of the first respondent dated 22.02.2021 and dated 13.04.2021 are set aside - The respondents are directed to pay the interest due to the petitioner within a period of four weeks: High Court [para 6, 7]
- Petition allowed: MADRAS HIGH COURT
2021-TIOL-1606-HC-DEL-CUS
Anand And Anand Vs UoI
Cus - Without admitting any of averments made in application, costs imposed by this Court vide impugned order is waived.
The petitioner is directed to supply another set of paper book to respondent within two working days - Respondent in turn, is directed to file a counter affidavit within two weeks thereafter: HC
- Case adjourned: DELHI HIGH COURT
2021-TIOL-445-CESTAT-BANG
ITC Freight Services Pvt Ltd Vs CC, CE & ST
ST - The appellant's activity or business consists of three types of services viz; exclusively providing Freight Forwarding Agent Services (FFA), exclusively providing Customs House Agent Services (CHA) and providing both Freight Forwarding and CHA Services (FFA + CHA) - Appellant is authorized to act as a CHA under Customs Housing Agent Licensing Regulations and has been granted a license - Main revenue of appellant comes from providing exclusive freight forwarding activity which accounts for substantial income of appellant - The revenue submitted that the amount charged in excess of actual freight incurred was liable to be included in gross amount charged by appellant - The finding of Commissioner that the activity of appellant is a composite service and the main service out of bundle of composite services is CHA service is factually incorrect because the appellant have not been charging a lumpsum amount rather the appellant have been charging separate amounts indicated in CAN/Invoice for individual activities and the activities are separately provided depending upon the requirement of customer and therefore the principles of classification adopted by Commissioner is not applicable - It is a settled law that where an amount is considered as part of value of goods, the same amount cannot be subjected to service tax as held by Tribunal in case of United Shippers 2014-TIOL-2500-CESTAT-MUM and affirmed by Apex Court 2015-TIOL-172-SC-ST-LB - Ocean freight has been kept outside the service tax and the decisions relied upon by the appellant in this regard clearly hold that ocean freight is not an activity which should be subjected to service tax - Even after the introduction of Negative List, freight and freight forwarding is not taxable and when a particular activity is not taxable then the margin earned in relation to such activity cannot be subjected to tax as held by Apex Court in case of Baroda Electric Meters Ltd. 2002-TIOL-96-SC-CX-LB and consistently followed by Tribunal in various decisions - With regard to export freight, the Circular No. 197/7/2016-S.T amply clarifies the position - As far as extended period of limitation is concerned, the ingredients mentioned in terms of proviso to Section 73(1) has not been fulfilled by Department and moreover, the appellant has a bona fide belief that they are not liable to pay service tax on differential freight amount collected - The whole issue of leviability of service tax on Freight Forwarding activity was not clear and it was only after the decision of Bax Global India Ltd. the activity of Freight Forwarding per se was held to be not includible in CHA Services - Therefore, the issue involved relates to interpretation of provisions of a statute and in such a situation, extended period cannot be invoked - The impugned order is not sustainable in law and therefore, same is set aside: CESTAT
- Appeal allowed: BANGALORE CESTAT
2021-TIOL-442-CESTAT-MAD
Central Warehousing Corporation Vs CCT & CE
ST - Appellants were providing taxable services in the nature of Storage and Warehousing in regard to storage of rice - During the period prior to introduction of the negative list in the Finance Act, 1994, rice was included in the definition of "agricultural produce" - Thus, storage and warehousing of rice was not a taxable service till 01.07.2012 - Appellants entertained the view that rice would fall within the definition of "agricultural produce" even after introduction of negative list and hence continued to treat the service of storage and warehousing of rice as an exempted service - Since appellants were providing exempted and taxable services, the credit availed on common input services used for providing the exempted services and taxable service, was required to be reversed proportionately in terms of Rule 6(6) of CCR, 2004 - Only in 2014, vide Notification No.4/2014-ST, dated 17.03.2014, an amendment was introduced whereby services of storage and warehousing of rice was expressly made an exempted service - Consequently, prior to this date, the services were taxable - Accordingly, appellant was liable to pay service tax on the Storage and Warehousing Services from 01.07.2012 to 30.11.2013 and they paid this arrears of tax along with interest on 28.12.2013 - The appellants then took suo motu re-credit of Rs.20,83,773/- on 29.03.2014 being the excess credit reversed by them during the period from 01.07.2012 to 31.03.2013 - The department was of the view that the appellants are not eligible to take such suo motu credit and also that any such excess credit ought to be adjusted before one year i.e., before 30th of June, 2013 - Show-cause notice was issued raising these allegations and for recovery of the wrongly availed re-credit along with interest and also for imposing penalty - As the demand was confirmed by the lower authorities, the appellant is before the CESTAT.
Held:
When Notification No.4/2014 made the Storage and Warehousing Services of rice to be exempted services, the said service became taxable for the period 01.07.2012 to 16.02.2014 - Only when the reversal/adjustment is made under Rule 6(3A), the time-limit as prescribed in the CCR, 2004 would apply - However, in the present case, the re-credit is an adjustment/correction of the excess reversal which was not required to be made by them - Madras High Court in M/s. ICMC Corporation Ltd., - 2014-TIOL-121-HC-MAD-CX has held that the assessee is eligible to take suo motu credit - Following the said decision, Bench finds no ground to hold that the appellants are not eligible to take suo motu re-credit of an amount of Rs.20,83,773/- - Impugned order cannot sustain, hence same is set aside and appeal is allowed with consequential relief: CESTAT [para 5, 6]
- Appeal allowed: CHENNAI CESTAT |
