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2021-TIOL-1637-HC-MAD-CUS
S Kalith Vs CC
Cus - Petitioner submits that instead of adjusting the customs duty already paid by the petitioners towards pre-deposit to be made for entertaining an appeal, the appeals itself were rejected on the ground that the petitioners have not complied with the condition regarding the pre-deposit of duty demanded. Held: CESTAT is empowered to call for the entire files, verify the records and form an opinion whether the petitioners are entitled for any such adjustment or not, or there is any error in respect of the findings made by the authority or not - However, such an elaborate adjudication cannot be done by the High Court in writ proceedings at this stage - The petitioners, on one hand, claim that they have paid Rs.11.36 Lakhs towards duty - The Orders-in-Appeal, which are impugned, state that there is no clarity in respect of the said payment made by the petitioners - Under these circumstances, adjudication of facts is required with reference to the documents in original, which are to be scrutinised - Petitioners are at liberty to prefer an appeal under Section 129A(1) before the CESTAT for the purpose of redressal of their grievances - Contrarily, this Court need not entertain the writ petitions at this stage and keep the matter pending unnecessarily, as admittedly the petitioners have not exhausted the remedy available under the Act before the appellate tribunal, which is competent to deal with all the grounds raised by the petitioners in the present writ petitions - Petitioners are at liberty to prefer an appeal - writ petitions stand disposed of: High Court [para 6]
- Petitions disposed of: MADRAS HIGH COURT
2021-TIOL-1636-HC-DEL-CUS
Munjal Sanitations Vs Addl. CC
Cus - Petitioner submits that the main relief sought in the writ petition is a direction to the Respondent to supply a copy of the Order-in-Original dated 09.04.2012 to the Petitioner - Respondent has filed a counter-affidavit enclosing the said order and thus, the Petitioner is now in receipt of the said order and the grievance stands satisfied – Petitioner, however, submits that a further direction be given to the Respondent to consider the date of communication of the impugned order to be the date when the order was supplied to the Petitioner along with the counter-affidavit, for the purpose of Section 128 of the Customs Act, 1962. Held: Grievance ventilated by the Petitioner stands satisfied, as the order-in-original has been received by the Petitioner - Needless to state, as and when an appeal is preferred by the Petitioner along with an application seeking condonation of delay, the Authority concerned shall decide the same in accordance with law – Petition disposed of: High Court [para 6, 7]
- Petition disposed of: DELHI HIGH COURT
2021-TIOL-451-CESTAT-DEL
CCE & ST Vs Gas Authority Of India Ltd
CX - The issue involved in this appeal relates to demand of National Calamity Contingent Duty (NCCD) on 'heavier hydrocarbons' that is alleged by Department to have been manufactured by respondent as an intermediate product in manufacture of Mixed Fuel Oil/Naphtha - The SCNs, while describing the product as NGL, classified it under Heading 2709 of Central Excise Tariff - The respondent does not dispute the classification of product under Heading 2709 ibid, but contends that since this product is not marketable, it is not an excisable product and so no NCCD can be levied - It emerges that in earlier Excise Appeal, the dispute was whether the product was NGL as contended by Department, but in any case the product was stated to be classifiable under Heading 2710 ibid by Department - The adjudicating authority found that the product was Naphtha but the Tribunal recorded a finding that the product was NGL - The order passed by Tribunal has been assailed by respondent before the Supreme Court and the order passed by Tribunal has been stayed - Thus, classification of product that was under consideration in earlier Appeal has to be decided by Supreme Court - It is, therefore, clear that a contrary stand has been taken by Department in SCNs, which were the subject matter of earlier appeal and the SCNs which are the subject matter of present Appeal - The Department had previously issued multiple SCNs to the respondent alleging that the product was classifiable as 'NGL' under Tariff Item 2710 12 20 ibid - However, the present SCNs have been issued by Department claiming classification of 'NGL' under Heading 2709 ibid - It is, therefore, not possible to accept the contention of Department that the product should be classified as NGL under the same Heading as was classified in the order of Tribunal passed in earlier Appeal - The SCNs, in present Appeal, proceed on the footing that the heavier hydrocarbons (gas condensate) should be classified under Heading 2709 ibid - The Department cannot, in this Appeal, be permitted to take a stand that is contrary to the stand taken in SCNs - The product 'heavier hydrocarbons' described as 'gas condensate' is classifiable under Heading 2709 but NCCD would not be leviable because the product is not marketable - As regards to limitation, it would not be appropriate to examine the contentions now sought to be raised in this appeal, more particularly when the respondent has not filed any cross-appeal for supporting the order of Commissioner on this ground - Once it is held that the demand cannot be sustained, the imposition of penalty or recovery of interest cannot also be sustained - Thus, the order passed by Commissioner does not call for any interference: CESTAT
- Appeal dismissed: DELHI CESTAT
2021-TIOL-450-CESTAT-MAD
Nilkamal Ltd Vs CGST & CE
ST - The appellant is seeking refund of Service Tax and interest paid by it under Reverse Charge Mechanism on freight services received from foreign shipping line during the period from April to June 2017 - It is the case of appellant that despite being struck down, the Revenue insisted for payment of Service Tax along with interest - Immediately thereafter, the appellants filed refund claim of said amount claiming that the said payment was under mistake of law and that the levy itself was ultra vires, in response to which a SCN was issued inter alia proposing to reject the same on the ground that the same was neither covered by Section 142 of CGST Act, 2017 nor relatable to Section 11B(2) of Central Excise Act, 1944, as made applicable to Service Tax - The Revenue having collected perforce the Service Tax along with interest, appellant is pushed into a situation where its refund claim is denied and even the credit of Service Tax so paid is also not allowed to be availed, with the introduction of CGST Act in 2017 - It is the settled position of law that a taxpayer cannot be a victim of change in law - In this regard, reliance placed on the decision in case of M/s. 3E Infotech - 2018-TIOL-1268-HC-MAD-ST is very apt, wherein it has been categorically held that the Service Tax paid under mistake of law has to be refunded irrespective of period covered as refusal thereof would be contrary to the mandate of Article 265 of the Constitution of India - Denial of refund is contrary to settled position of law and accordingly, impugned order is set aside: CESTAT
- Appeal allowed: CHENNAI CESTAT
2021-TIOL-449-CESTAT-MAD
CC Vs Merino Industries Ltd
Cus - The amount of alleged refund sanctioned which is now appealed, in all the appeals, is less than Rs. 5,00,000/-, to which the C.B.E.C. Notification in F. No. 390/Misc./163/2010-JC, dated 17.12.2015 applies whereby, as a policy decision to reduce the volume of litigation, the C.B.E.C. had revised the monetary limits for filing appeals by the Department before the CESTAT, which is at Rs. 10,00,000/- - In view of the same, the Revenue's appeals are not maintainable: CESTAT
- Appeals dismissed: CHENNAI CESTAT |
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