2021-TIOL-1696-HC-KERALA-CUS

Best Mega International Vs CC

Cus - The petitioner had imported used Digital Multifunction Machines - It is argued that the issue regarding confiscation of goods under provisions of Hazardous and other Wastes Rules, 2016 is found to be unsustainable by Tribunal and ultimately this court has upheld the order of Tribunal - The petitioner, so far as remaining two bill of entries are concerned, has preferred a Petition as the respondents have refused to file those two bill of entries and this court has directed the respondents to consider the issue in the light of judgment - Petitioner has submitted that though the issue was already concluded by judgment of this court, as well as the judgment of Supreme Court, by the impugned order, the Joint Commissioner of Customs again passed the order of confiscation and re-export of goods - This, according to the petitioner, is contrary to the judgment of this court passed in earlier Petitions - The impugned order passed by Joint Commissioner of Customs is an appealable order and the appeal lies to Commissioner (Appeals) - The petitioner has already filed appeal before Appellate Authority but the office of Commissioner (Appeals) is vacant and therefore, there is no possibility of hearing the matter in near future - The petitioner has not joined the appointing authority of Appellate Authority as the party respondent, nor there is any prayer for directing the Appointing authority of Appellate Tribunal to appoint the Appellate authority - As the appeal is reportedly pending before Appellate Authority, Petition is dismissed: HC

- Writ petition dismissed: KERALA HIGH COURT

CX - The appellant seeks permission to withdraw these appeals and to that extent, a written communication has been sent - The said communication is placed on record - The civil miscellaneous appeals are dismissed as withdrawn and the substantial question of law framed is left open: HC

- Miscellaneous appeals dismissed: MADRAS HIGH COURT

2021-TIOL-1694-HC-KAR-ST

Prestige Habitat Ventures Vs UoI

ST - Assesses are knocking at the doors of writ court for assailing the Show Cause Notices issued by the third respondent on the ground that they have suppressed the factum of taxable service and transfer of development rights and asking them to show cause against the proposed levy of service tax coupled with penalty. Held: Circular dated 10.02.2012 makes it abundantly clear that the taxable event occurs at the time when the builder gives the possession or creates right in the property of the said Flats in favour of the land owner; these "building blocks" of the provision are conspicuously absent in the impugned notices which appear to stand as the "non-sense on the stilts"; therefore, they are liable to be violated warranting remittance of the matter for fresh consideration - Writ Petitions succeed in part; a Writ of Certiorari issued quashing the impugned Show Cause Notices; matter is remitted for being treated afresh: High Court [para 3(b)] ST - Writ petition against SCNs, whether premature - Contention of Revenue that the Writ Court shall not interfere at the stage of Show Cause Notice cannot be countenanced as a Thumb Rule; where jurisdiction facts are lacking, the power to issue such a notice cannot be exercised; it is not that invariably a citizen should be made to suffer the coercive proceedings at the hands of the tax authorities even when apparently, the actions are incompetent: High Court [para 3(c)]

- Matter remanded: KARNATAKA HIGH COURT

2021-TIOL-1693-HC-DEL-COFEPOSA

Mohd Nashruddin Vs UoI

COFEPOSA - Petition essentially in the nature of writ of habeas corpus, has been instituted on behalf of the detenu praying for quashing of detention order bearing No. PD-12001/03/2020- COFEPOSA dated 21.01.2020 under Section 3(1) of The Conservation of Foreign Exchange And Prevention of Smuggling Activities Act, 1974 and for a further direction that he be set at liberty forthwith. Held: + It is irrefutable that the Detaining Authority had prior interaction with the petitioner's case. [para 40] + The dual role played by Mr. R.P. Singh-first, in the Economic Intelligence vertical of CEIB (as claimed by the respondents) during the active investigation; and second, as J.S. (COFEPOSA), in passing the impugned Detention Order, goes to the root of the matter and defeats the very purpose of appointing a "specially empowered" officer under Section 3(1) of the COFEPOSA, whose satisfaction, jurisprudentially, must be independent and free from any bias or predisposition. + It is of no consequence to say that the same person, with the same intellectual apparatus, acted under a different official designation or in a different official capacity. Therefore, the issue of a pre-determined approach and bias, while passing the impugned order of detention, is writ large in the instant case; and as such, the subjective satisfaction of the Detaining Authority in the present case stands vitiated. + It is trite to say that a person detained in pursuance of an order for preventive detention, has a constitutional right to make an effective representation against the same. non-supply of legible copies of all relevant documents inspite of a request and representation made by the detenu for the supply of the same, renders the order of detention illegal and bad; and vitiates the subjective satisfaction arrived at by the Detaining Authority. + In the present case, the denial by the official respondent to supply legible copies of the relevant documents to the detenu, despite his express request to do so, tantamount to denial of his constitutional right, thereby vitiating the detention order, founded on the said relevant material. + It is apparent that the stand taken by the respondents qua the receipt of overseas evidence from Dubai in November, 2019 was merely window-dressing, used to cover-up the massive delay that transpired from the time of issuance of the said Show Cause Notice dated 26.09.2019 and the proposal of detention being issued in January, 2020 and that the same is specious and untenable. + There has been substantial, unexplained delay (of 272 days) in passing the impugned order of detention (from the date of the alleged initial incident). As a result, in the absence of any satisfactory explanation for it, the inordinate delay leads to snapping of the required live and proximate link and direct nexus with the immediate need to detain the petitioner. + Once the Detaining Authority has relied upon the inculpatory statements of the co-accused, their retractions also assumed great relevance in the factual backdrop of the present case. Consequently, the admissibility of the said statements becomes questionable once there is a retraction, which issue merited consideration, not accorded to it by the Detaining Authority. + Detaining Authority whilst arriving at its 'subjective satisfaction' failed to properly examine whether the detenu exhibited propensity to continue indulging in any prejudicial activities. + Detaining Authority did not consider the conduct of the detenu, post his enlargement on bail whilst rendering the impugned order of detention, since despite the release of his passport and the granting of the requisite permission to travel abroad, the detenu voluntarily chose not to travel overseas, clearly and unequivocally establishing his bona fides and debunking the arguments of his propensity to continue to indulge in prejudicial activities in the immediate future. + Order of CESTAT dated 13.11.2019 directing the provisional release of the goods, was also a relevant factor, that was not accorded any consideration by the Detaining Authority. + It is well settled that the right of the detenu 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. There was massive delay of 57 days by the Central Government in dealing with the petitioner's representation - there has been inordinate and unexplained delay on the part of the Central Government in deciding the statutory representation filed by the detenu. + A purposive, comparative consideration of the grounds of detention dated 17.05.2019 in Dimple Happy Dhakad - 2019-TIOL-279-SC-CUS , also passed by Mr. R.P. Singh, the Detaining Authority in these proceedings and the impugned detention order, the inference clearly is 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 order was mechanical, as the grounds have been lifted from the grounds of an altogether distinct case. Such a blatant copy-paste job by the Detaining Authority demonstrates clear non-application of mind. Impugned order of detention is vitiated on this ground as well. + Writ petition succeeds. Detention order dated 21.01.2020 passed against the detenu is set-aside and quashed. The detenu is directed to be set at liberty forthwith unless his custody is required in connection with any other case. [para 40. 42, 47, 49, 53, 56, 60, 76, 85, 88, 89, 92, 94, 96, 98, 99, 101]

- Petition allowed: DELHI HIGH COURT

2021-TIOL-1692-HC-MAD-CUS

Global Leathers Pvt Ltd Vs Chief CC

Cus - Petitioner has sought a mandamus directing respondents 1 to 3 not to debit any amount pertaining to MEIS Licence/Scrip towards any payment/deductions including customs duty, excise duty and service tax - A representation dated 29.06.2020 to this effect has also been filed - Case of the petitioner is that the 4th respondent, who was entrusted with the management of the business of exports had clandestinely sold the scrip in question to a third party, by name Syed Mohideen Shahul Hameed; that a police complaint has been filed; that investigation is on-going and the persons under investigation have obtained conditional orders of anticipatory bail. Held: Following directions are issued (i) R5 will complete the on-going investigation within a period of ten weeks; (ii) the Customs Authorities shall dispose the representation of the petitioner dated 29.06.2020, bearing in mind the enquiry/investigation as well as the conclusion in the on-going investigation arrived at by the police, within a period of two weeks from date of completion of the police enquiry after hearing the petitioner - Interim order restraining R1 from entertaining any request to debit in respect of MEIS scrip in question and extended from time to time will continue for a further period of twelve weeks - Writ Petition stands disposed: High Court [para 4, 5]

- Petition disposed of: MADRAS HIGH COURT

2021-TIOL-1691-HC-MAD-CX

Kaleesuwari Refinery Pvt Ltd Vs Assistant Commissioner

CX - Order-in-original dated 11.11.2016 passed by the respondent is under challenge in the present writ petition. Held: Preamble of the impugned order states that if the assessee is aggrieved with the order-in-original, an appeal may be filed before Commissioner (Appeals) - However, the petitioner has chosen to file the present writ petition - Preferring an appeal is the rule - Entertaining a Writ Petition before exhausting the appellate remedy is an exception - The practise of filing Writ Petition without exhausting 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 - Petitioner is at liberty to prefer an appeal before the competent authority within a period of four weeks from the date of receipt of a copy of this order - Appellate authority shall consider the same without reference to the delay in filing and dispose of the appeal on merits and in accordance with law - Writ petition stands disposed of: High Court [para 5, 8, 9]

- Petition disposed of: MADRAS HIGH COURT

2021-TIOL-475-CESTAT-DEL

Mukesh Kumar Jaiswal Vs Commissioner (Appeals), CGST, C & CE

ST - The issue involved is, whether the services rendered by appellant being transporter of timber/firewood for forest Department is taxable as GTA - Commissioner (Appeals) observed that the cartage Challan issued by Forest Department for transportation from inside the forest to the depot is in the nature of consignment note and the appellant is also responsible to account for any shortage in course of transportation - The carting Challan is only for internal control of forest department - The consignment note is a negotiable instrument and the transporter is bound to deliver the goods to bona fide holder of title, as mentioned in the consignment note - Such element of 'consignment note' are absent in the 'carting Challan' - Thus, carting Challan is not equivalent to consignment note - Accordingly, the appellant has not rendered services as per the definition of GTA under Finance Act: CESTAT

- Appeal allowed: DELHI CESTAT