2021-TIOL-225-SC-CUS

UoI Vs Raghav Woollen Mills Pvt Ltd

Cus - Petitioner had imported synthetic waste during the period of few months of the year 2016 - Custom Officers permitted clearance of goods under provisional assessment, in terms of Section 18 of the Customs Act, 1962 - Petitioner further submits that on 11.08.2016, the staff of Directorate of Revenue Intelligence, searched office and business premises of the petitioner and even the residence of Director of the petitioner - The alleged reason of search as informed by the authorities was that the petitioner has mis-declared description and value of imported goods at the time of filing aforesaid Bills of Entry and had short paid duty as compared to their actual liability, although custom duty liability had already been finally assessed by the custom authorities on the basis of Test Reports received from official laboratories - Primary arguments of the petitioner is that the Directorate of Revenue Intelligence has no jurisdiction to draw the samples after clearance of goods in view of the mandate of Section 144 of the Customs Act, 1962 - Petitioner has inter alia prayed to issue writ of certiorari to quash panchnama dated 11.08.2016, whereby, respondent No.2 has seized imported stock of the petitioner - It is further prayed that respondent No.2 be directed to un-conditionally release the aforesaid material of the petitioner lying in their factory - Later the High Court held that in Section 144, it has been clearly provided that the proper officer may, on the entry or clearance of any goods or at any time while such goods are being passed through custom area, take samples of such goods for examination thereof and once imported goods stand assessed to custom duty and removed/cleared from the custom area, no fresh samples of such imported goods can be redrawn from any other area - after the release of imported goods approximately by April 2016 from the custom area, there was no power with the authorities, much less under Section 144 of the Act, to draw samples at a subsequent stage i.e. on 11.08.2016 from the factory premises - writ petitions deserve to be allowed with directions (release the seized material of the petitioners and also return the resumed documents) and failure to comply with the same, the Competent Authority shall be made liable for being hauled up in contempt proceedings and imposition of exemplary costs.

Held - Notice issued - Matter be tagged with SLP (C) NO. 15166 of 2020: SC

- Notice issued: SUPREME COURT OF INDIA

2021-TIOL-1753-HC-MUM-CUS

CC Vs Srinivas Clearing And Shipping India Pvt Ltd

Cus - Smuggling of Red Sanders - Commissioner of Customs (General), Mumbai has passed order-in-Original dated 28.03.2019 and revoked the CB Licence and ordered forfeiture of the security deposit and also imposed penalty of Rs. 50,000/- on the Respondent - However, CESTAT, by its order dated 21.11.2019 allowed the Respondent's appeal and ordered restoration of the Respondent's license - Revenue is in appeal before the High Court - It is inter alia submitted that the timelines referred to in Regulation 20 of the CBLR are directory and not mandatory; that the Principal Commissioner of Customs had given cogent reason for the purported delay in inquiry, however, the Tribunal has not given any finding on the same and has arrived at the finding contrary to the relevant facts of the case as well as contrary to the settled law; that the Respondent/its Director has been a habitual offender [and has been detained under COFEPOSA in the case of fraudulent exports of garments and for obtaining undue benefits under the DEPB] and deserves no leniency or benefit on account of this delay in concluding the inquiry, which is not only explained, but since the timelines are directory in nature as per the decision in the matter of Principal Commissioner of Customs (General), Mumbai Vs. Unison Clearing P. Ltd. ( 2018-TIOL-1826-HC-MUM-CUS ), as such there is no breach of Regulation 20 which would be fatal to the proceedings; that the finding in paragraph 7 of the impugned order is completely cryptic and non-speaking; that Tribunal has failed to examine the order on the facts as set out in the order-in-original or in the proceedings preceding the same; that therefore, the Appeal be allowed and the matter be remanded back to the Tribunal for consideration of all the facts in the matter.

Held : Tribunal has only dealt with the delay in commencement of the proceedings but nowhere dealt with submissions on delay in conclusion of the proceedings - Tribunal has failed to consider the submissions on timelines as canvassed by the parties nor the explanation for delay furnished by the Revenue - Tribunal completely erred in ignoring the true import and misread the binding decision of this court in the case of Principal Commissioner of Customs (General), Mumbai Vs. Unison Clearing P. Ltd. ( 2018-TIOL-1826-HC-MUM-CUS ) - Tribunal has failed to consider the detailed submissions as sought to be made out on behalf of the parties and without even dealing with the detailed explanation as well as the necessary facts, allowed the appeal of Respondent - Tribunal ought to have discussed each of the submissions before coming to any conclusion - Tribunal has nowhere discussed any of the factual aspects raised on behalf of the Revenue either as contained in the Show Cause Notice or in the Order-in-Original - There is no discussion on the alleged smuggling of red sanders nor any discussion in the various statements recorded under Section 108 of the Customs Act or the admission of Vijay Poojary or the modus operandi or as to Respondent's involvement, investigations on various firms alleged to be used for the alleged smuggling activities, the fact of detention of Shri Vijay Poojary under COFEPOSA Act, the investigation with respect to the DEPB Scheme, the involvement of various customs firms/companies and the statement of various persons recorded under Section 108 of the Customs Act 1962 regarding destruction of post shipment documents, the factum of unrecorded exports, the alleged forgery and fabrication of documents, the admission of Vijay Poojary that he was involved in smuggling of red sanders - It is incomprehensible as to how a factual finding is recorded stating that there is no link between the smuggling of Red Sanders by Vijay Poojary with the activities for which Respondent was licenced - It is also surprising that without any detailed discussion, absence of link is being given as the reason for the delay in completion of the proceedings -From the shareholding pattern, prima facie it appears that Vijay Poojary controls 99.9% of shareholding of the Respondent which fact also needs to be considered while determining his link with the Respondent - Reliance by the CESTAT on the decision in the case of Principal Commissioner of Customs (General), Mumbai Vs. Unison Clearing P. Ltd. (supra) to restore the licence of Respondent is completely misplaced and a complete non-application of mind - Findings of the Tribunal are unsustainable and the matter is required to be sent back for reconsideration by the Appellate Authority taking into account all the aspects to arrive at a proper decision - Matter is remanded back to the CESTAT for fresh adjudication: High Court [para 33, 34, 37 to 42]

- Matter remanded: BOMBAY HIGH COURT

2021-TIOL-526-CESTAT-MAD

CGST & CE Vs Zylog Systems Ltd

ST - The refund claim is filed for refund of credit availed on service tax paid on input services - Though the revenue has contended that one year has to be computed from relevant date, it is not submitted as to which is the relevant date for computation of one year - Section 11B of Central Excise Act, 1944 defines relevant date in context of payment of Central Excise duty and not in the context of service tax - In respect of export of services, para 3(b) of Appendix to Notification No. 5/2006-C.E. (N.T.) requires an application for refund of CENVAT credit must filed "along with a copy of the invoice and a certificate from the bank certifying realization of export proceeds" - Therefore, it is impossible to file a refund claim before realization of export proceeds - Therefore, in the case of export of services, the relevant date would be the date of realization of consideration - Though the original authority has rendered a finding that the refund claim is hit by time-bar, such finding is not supported by any reasons and there is no discussion as to the computation made by him for arriving at the conclusion that the refund claim is hit by time-bar - As per notification itself, it can be seen that the refund claims are filed in each quarter - No reason found for holding that the claim is barred by limitation - The Commissioner (Appeals) has rightly sanctioned the refund to the assessee: CESTAT

- Appeal dismissed: CHENNAI CESTAT

2021-TIOL-525-CESTAT-CHD

Reetika Cable Vs CCGST

ST - The appellant is a cable operator proving cable services to its subscribers - From the charges for cable services, some part of subscription is retained by appellant and the remaining portion is remitted to M/s. Fastway Transmission Pvt. Ltd. (MSO) from whom the appellant receive the signals for re-transmission to the subscribers - For the portion remitted to M/s. Fastway, M/s. Fastway is discharging service tax liability on the consideration received from appellant and the subscription retained by appellant, if they are falling below the threshold exemption limit in terms of Notification No. 6/2005-S.T. the appellant was not paying service tax on the ground that they are not liable to pay service tax and did not get registered with the Department - The Revenue collected data from M/s. Fastway and for the data supplied by M/s. Fastway, various SCNs were issued to cable operators to demand service tax on gross amounts received by the appellant from subscribers for providing cable operator services - Relying on the decision of Tribunal in case of Blue Star Communication 2019-TIOL-3789-CESTAT-CHD , it is held that the appellants are entitled for exemption under Notification Nos. 6/2005-S.T. and 33/2012-S.T. and the extended period of limitation is not invocable - Consequently, no penalty is imposable on the appellants - The appellants are liable to pay service tax on the gross value of services received by them and is entitled to avail cenvat credit of service tax paid on the amount remitted to MSO - The adjudicating authority shall quantify the demand for the period within the period of limitation on production of data of services provided by appellant of cable service to the subscribers within the 30 days of receipt of this order on which the appellant shall paid service tax, if payable along with interest - Accordingly, matter is remanded back to the Adjudicating authority for quantification of demand: CESTAT

- Matter remanded: CHANDIGARH CESTAT

2021-TIOL-524-CESTAT-CHD

Boistadt India Ltd Vs CG & ST

CX - The assessee is located in State of Jammu & Kashmir and availing the benefit of exemption Notification No. 01/2010-C.E. - They procured certain inputs and availed credit of duty paid on the same - Case of Revenue is that during the relevant period, i.e., 2011-12 to 2013-14, an assessee is not entitled to avail credit against inputs issued by units, who are availing exemption under Notification No. 01/2010-C.E. and after introduction of Notification No. 02/2014-C.E. (N.T.) , the Notification No. 01/2010-C.E. was amended thereafter the credit was available to the assessee - The matter was adjudicated, the credit availed by appellants was denied - Similarly placed assessee was allowed the credit although against those orders, appeals have been filed by Revenue before Commissioner (Appeals), in that circumstance, when Revenue is having divergent views on issue, extended period of limitation is not applicable - Admittedly, the SCN has been issued by invoking extended period of limitation, therefore, denial of credit is barred by limitation - Accordingly, the impugned order is set aside: CESTAT

- Appeals allowed: CHANDIGARH CESTAT

2021-TIOL-523-CESTAT-DEL

SRF Ltd Vs CCE & ST

CX - The appellant seeks the quashing of order dated 18.05.2016 passed by Commissioner, by which the demand proposed in four SCNs has been confirmed with penalty and interest - The issue arises is as to whether the activity of manufacture undertaken by job-workers, availing exemption under Notification dated 09.07.2004, has to be treated as if undertaken by the appellant as the principal manufacturer and consequently liable to pay Central Excise duty - Issue raised in the proceedings before Assistant Commissioner is the same issue as was raised before Commissioner nor is it in dispute that the order dated 31.05.2018 passed by Assistant Commissioner has attained finality - The submission advanced by Department that in the face of order dated 18.05.2016, the subsequent order dated 31.05.2018 passed by the Assistant Commissioner should be ignored cannot be accepted - Both the Commissioner and the Assistant Commissioner adjudicated upon SCNs that proposed a demand for the same reasons - If the Department was aggrieved by order dated 31.05.2018, an appeal could have been preferred but that was not done - It is for this reason that the submission advanced by Department that since the subsequent order passed by the Assistant Commissioner does not discuss the earlier order dated 18.05.2016 passed by the Commissioner, the present appeal should be heard on merits cannot also be accepted - It has been held by a Division Bench of Tribunal in Rosmerta Technologies 2020-TIOL-916-CESTAT-CHD that if an order attains finality, the Department cannot take a contrary stand in the other pending appeals - Thus, as the order dated 31.05.2018 passed by the Assistant Commissioner has attained finality, the Department cannot take a contrary view in this appeal - The confirmation of demand by the Commissioner in the order dated 18.05.2016, therefore, cannot be sustained and is set aside: CESTAT

- Appeal allowed: DELHI CESTAT

2021-TIOL-522-CESTAT-DEL

Premier Timber And Trading Pvt Ltd Vs Pr.CC