2021-TIOL-1653-HC-DEL-COFEPOSA

Gopal Gupta Vs UoI

COFEPOSA - Writ petitions, essentially in the nature of writ of habeas corpus, have been instituted on behalf of Gopal Gupta, and Amit Pal Singh, (detenu), praying for quashing of detention orders dated 21.01.2020, and for further directions that the detenu be set at liberty forthwith.

Held:

+ There has been inordinate and unexplained delay on the part of the Central Government in deciding the statutory representations filed by the detenus - It is well settled that the right of the detenus to make a representation and have it considered by the appropriate Government, with expedition, is a constitutional right under Article 22 (5) of the Constitution of India and any unreasonable and unexplained delay in considering the representation is fatal to the continued detention of the detenu. [para 116, 118]

+ Petitioners have produced certified copies of the detention orders dated 17.05.2019 passed in the case of Dimple Happy Dhakad = 2019-TIOL-279-SC-CUS - A purposive comparative consideration of the grounds of detention dated 17.05.2019 in Dimple Happy Dhakad (supra), also passed by Sh. R.P. Singh, the Detaining Authority in these proceedings; and the impugned detention orders, gives substance to the inference that barring a few differences in the names and references etc. - mutatis mutandis - the grounds are unerringly identical. The said comparison ground-for-ground leads but to one inescapable conclusion, that the entire exercise of passing the detention orders is mechanical, as the grounds have been lifted from the grounds of an altogether distinct case - Such a blatant copy-paste by the Detaining Authority demonstrates a clear non-application of mind - Impugned orders of detention are liable to be vitiated on this ground as well: High Court [para 120, 121]

+ Detention orders bearing both dated 21.01.2020 passed against the detenus (Gopal Gupta, the petitioner in W.P.(CRL.) No.1829/2020) and (Amit Pal Singh, the petitioner in W.P.(CRL.) No.1830/2020) are set-aside and quashed - The detenus are directed to be set at liberty forthwith unless their custody is required in connection with any other case. [para 123]

- Petitions allowed: DELHI HIGH COURT

2021-TIOL-459-CESTAT-BANG

Workplace Options Pvt Ltd Vs CCT

ST - The issue arises for consideration is, whether the appellant has satisfied the condition in terms of Rule 2(h) of Notification No. 27/2012-C.E. which requires the appellant to debit the amount of refund in their cenvat credit account - In order to satisfy this condition, appellant produced evidences in form of cenvat ledger, ST-3 returns, reconciliation cenvat credit between accounts and ST-3 returns and Chartered Accountant certificate but both the authorities did not examine these documents carefully and conveniently rejected the refund by merely observing that appellant was not eligible for service tax refund - Appellant has proved by way of documentary evidences on record that there was excess debit during immediately previous period and hence there was no need to debit it again during the subject period - This excess reversal has not been appreciated by appellate authority which claimed that debit should be for the exact amount and debit of the past period, though may be excess, cannot be used for this purpose - The statutory auditor of the appellant has issued a certificate which is on record and was also submitted before both the authorities below and as per this certificate, the appellant has reversed the amount twice and has not reclaimed until June 2017 and has also not carried forward under GST regime and hence are eligible for refund in terms of Rule 5 of Cenvat Credit Rules, 2004 - Same officer granted refund for immediate past period based on debit in ledger accounts but surprisingly failed to adopt the consistent stand for the impugned period - The appellant is entitled for refund of unutilised cenvat credit - As far as claim of interest on delay in refund is concerned, as per the decision in case of Ranbaxy Laboratories 2011-TIOL-105-SC-CX , appellant is also entitled for grant of interest on delayed refund claim beyond the period of three months - The impugned order is not sustainable in law: CESTAT

- Appeal allowed: BANGALORE CESTAT

 2021-TIOL-458-CESTAT-BANG

Beml Ltd Vs CCE

CX - The appellant is engaged in manufacture of excisable goods - During audit, it was noticed that the goods they had sent for job work from their factory were not received back into the factory for further manufacture, within the stipulated period of 180 days - A SCN proposing to demand irregularly availed cenvat credit along with interest under Rule 14 of the Cenvat Credit Rules, 2004 and also to impose penalty under Rule 15(2) ibid r/w Section 11AC of Central Excise Act, 1944 was issued to the appellant - Undisputedly, appellant has reversed the entire cenvat credit prior to its utilization and prior to the issuance of SCN - This issue is no more res integra and has been settled by Karnataka High Court in case of Bill Forge Pvt. Ltd. 2011-TIOL-799-HC-KAR-CX and thereafter consistently being followed by Tribunal in case of J.K. Tyre & Industries Ltd. 2016-TIOL-1781-CESTAT-BANG-LB - In the appellant's own case, the Tribunal has set aside the demand of interest and imposition of penalty - Hence, by following the ratios of said decisions, the impugned order is not sustainable in law and the same is set aside: CESTAT

- Appeal allowed: BANGALORE CESTAT

 2021-TIOL-457-CESTAT-DEL

Minda D-Ten Pvt Ltd Vs CC

Cus - The appellant sought classification of Bluetooth module under Tariff Item 8517 62 90 of First Schedule to Customs Tariff Act, 1975 and claimed the benefit of Notification dated 01.03.2005 - However, Department disputed the afore-mentioned classification by appellant under Heading 8517 ibid and sought to classify the impugned goods under Tariff Item 8529 90 90 ibid - Even after holding that Bluetooth module is not a 'part' as it can be used in many devices like printers, computers, hard drive, compact disc, digital camera and all these devices can work independently without Bluetooth module, the Commissioner (Appeals) still accepted the contention of Department that it would be classifiable under CTH 8529 90 90 on the basis of Section Note 2(b) for the reason that Bluetooth module is principally used with car infotainment system - As an appellate authority, the Commissioner (Appeals) should have considered the factual and legal aspects and then arrived at a decision but it clearly transpires that Commissioner (Appeals) simply reproduced the findings of Assistant Commissioner - While the Assistant Commissioner noted the submission advanced by appellant that Bluetooth module will attract classification under Tariff Item 8517 62 90 ibid, the Commissioner (Appeals) recorded a finding that the Bluetooth module will attract classification under Tariff Item 8517 62 90, little realizing that this was infact the classification sought by the appellant - Even otherwise, this portion of the order passed by the Assistant Commissioner has many mistakes, but the Commissioner (Appeals) has reproduced the mistakes also - Bluetooth module deserves classification under Tariff Item 8517 62 90 ibid as contended by appellant and not under Tariff Item 8529 90 90 ibid as contended by Department - The order passed by Commissioner (Appeals), therefore, cannot be sustained and is set aside: CESTAT

- Appeal allowed: DELHI CESTAT