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2021-TIOL-1757-HC-KAR-NDPS
Anjoom Rahman K Vs UoI
NDPS - Seizure of MDMA from parcel lying unclaimed in the foreign post office - Petitioner seeks bail u/s 439 of the CrPC in the matter of offence registered u/s Section 8(c) read with Sections 22(c) and 23(c) of the Narcotics Drugs and Psychotropic Substances Act - Petitioner contends that he has been falsely implicated in the matter without any basis; that he was apprehended on 20.08.2020 and since then he is in judicial custody.
Held: Twin requirements under Section 37(1)(b) of the NDPS Act, i.e., (i) there are reasonable grounds for believing that the accused is not guilty of such offence and that (ii) he is not likely to commit any offence while on bail, are to be satisfied while deciding the bail application filed by such accused - Prosecution is relying on the statements of the petitioner and Amitha Radhakrishnan to establish the link between the petitioner and the offence in question - Even though, prima facie it is shown that the petitioner and Amitha Radhakrishnan were residing together in the address mentioned in the parcel, its contention that (i) the bank challans in question evidence the fact for having deposited the amount by the petitioner in the account of Amitha Radhakrishnan or (ii) the petitioner was maintaining the said accounts for the purpose of depositing the proceeds of sale of the contraband or (iii) the petitioner had discarded his earlier mobile phone with an intention to cause disappearance of the evidence or (iv) the petitioner is in the habit of booking the consignment containing the contraband from foreign countries through VICKR app and used to pay the price by BIT coin, are to be substantiated by the prosecution either by additional documents or by examining the charge sheet witnesses - As of now, the materials that are placed before the Court are not sufficient to convict the petitioner or to hold him guilty - It is not the contention of the prosecution that the petitioner is having any criminal antecedents, therefore, it can be held, at this stage, that he is not likely to commit any offence, if he is enlarged on bail - Bench is of the opinion that there are reasonable grounds for believing that the petitioner is not guilty of such offences and that he is not likely to commit any offence, while on bail - Petitioner is entitled to be enlarged on bail subject to conditions: High Court [para 23 to 25]
- Petition allowed: KARNATAKA HIGH COURT
2021-TIOL-1756-HC-DEL-CUS
Nokia Solutions And Networks India Pvt Ltd Vs UoI
Cus - The petitioner has applied for exit from SEZ and has requested the Respondents to De-link the dispute pertaining to imposition of penalty from exit process and issue a formal exit approval to them - In keeping with Rule position, petitioner has already furnished a Bank Guarantee to secure the interest of Respondents - However, Respondent has informed that in terms of Rule 74 (2)(i) of SEZ Rules, Bank Guarantee furnished by petitioner would be accepted for purposes of exit only upon obtaining a stay order from the Competent Authority - Petitioner has furnished Bank Guarantee equivalent to the amount of penalty and the same is valid upto 07.09.2021 - In terms of Rule Position, there is a requirement of furnishing Bank Guarantee of an amount equivalent to penalty sought to be imposed - The petitioner, on instructions, undertakes that the validity of Bank Guarantee shall be extended for a further period of two years from 07.09.2021 - Subject to petitioner extending the Bank Guarantee, Respondents shall process the application of petitioner seeking exit from SEZ under Rule 74 of SEZ Rules - The decision shall be taken by Respondents in accordance with law: HC
- Writ petitition disposed of: DELHI HIGH COURT
2021-TIOL-1754-HC-ALL-CX
Fashion Dezire Vs UoI
CX - Petition has been filed to challenge the estimate furnished in the Form SVLDRS-2 dated 04.12.2019, under the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 to the extent, the Estimate Amount Payable (EAP) has been determined at Rs. 70,11,055.50 against total disputed 'tax dues' taken at Rs. 1,40,22,111/- - According to the petitioners, the net EAP amount should have been computed at Rs. 15,37,816.00 against the total disputed 'tax dues' Rs. 80,75,626/- only, after adjusting the amount of Rs. 25,00,000/- pre-deposited by the petitioners to maintain their appeals, filed earlier - Inasmuch as the petitioner submits that a SCN dated 05.06.2015 demanding CEX duty of Rs. 1,40,22,111/- was issued and a duty demand of Rs. 80,75,626/- was confirmed by O-in-O dt. 26.09.2016; that in appeal the CESTAT vide order dated 15.05.2019 remanded the matter to the adjudicating authority and where it was 'pending' when the Scheme was introduced and an application in form SVLDRS-1 was filed on 30.10.2019 - The designated committee issued an estimate of 'tax dues' on 04.12.2019 to the petitioners computing the EAP at Rs. 70,11,055.50, based on the excise duty liability Rs. 1,40,22,111/-, as proposed vide the Show Cause Notice dated 05.06.2015, but the petitioner did not agree and a hearing was held in the matter in December 2019 - however, no final EAP in form SVLDRS-3 was issued by the designated committee - Tribunal, in response to the petitioner's letter 01.11.2019 clarified that the subject matter of adjudication proceedings (in remand) pending before the Adjudicating Authority, was only with respect to the proposed demand Rs.80,75,626/-, as no appeal had been filed by the revenue against the Order-in-Original dated 26.09.2016 dropping the demand of balance amount - Incidentally, on 30.12.2019, respondent no.3 passed the Order-in-Original, ostensibly in compliance of the Tribunal's order dated 15.5.2019 and adjudicated the Show Cause Notice dated 5.6.2015, on merits and whereby the duty liability of the petitioner was confirmed as Rs. 80,75,626/- and the duty demand of Rs.59,46,648/- was dropped - On 31.12.2019, the petitioner no.1 filed a second declaration disclosing the 'tax dues' as Rs.80,75,626/-, under the case category 'Arrears' - This declaration was also processed by the Designated Committee and accordingly, on 17.01.2020, a second estimate of EAP was issued computing the demand at Rs. 58,45,379.20 - Admittedly, the petitioner no.1 did not deposit the amount of EAP estimated on (first) form SVLDRS-2 issued on 4.12.2019 [against the (first) declaration], or on 17.01.2020 [against the (second) declaration] - Petitioner has also challenged the adjudication order dated 30.12.2019 passed, pending the proceedings under the Scheme.
- Petition partly allowed: ALLAHABAD HIGH COURT
2021-TIOL-531-CESTAT-MAD
Kulithalai Municipality Vs CGST & CE
ST - The appellant is in appeal against impugned order wherein their appeal was dismissed for non-compliance of pre-deposit under Section 35F of Central Excise Act, 1944 r/w Section 83 of Finance Act, 1994 - Since the amount paid by appellant is towards the service tax confirmed under O-I-O, the said payment ought to have been considered towards compliance of pre-deposit having been made before the appeal is taken up for hearing - The Commissioner (Appeals) has issued reminders to the appellant to make pre-deposit by online on several dates even though they have made deposit of more than Rs. 5 lakhs which would suffice 7.5% of total tax demand as required under Section 35F of Central Excise Act, 1944 - Even if debit is made in Cenvat account, the same can be considered as sufficient compliance of pre-deposit - This being so, the Commissioner (Appeals) should not have insisted on making further pre-deposit over and above the amount already paid by appellant - The impugned order is set aside and matter is remanded to Commissioner (Appeals) with a direction to decide the case on merits without insisting on any further pre-deposit: CESTAT
- Matter remanded: CHENNAI CESTAT
2021-TIOL-530-CESTAT-CHD
Silver City Construction Ltd Vs CCE
ST - The appellant is in appeal against impugned order wherein the demand on construction of complex and work contract service has been confirmed against appellant - For the period April, 2005 to February, 2008, the model of work by appellant is that they executed sale deed to the allottees/customer after completion of flats - They were not providing any service to the allottees/customers prior to execution of sale deed by appellant - Any service rendered by appellant prior to the sale of flats is self-service in terms of C.B.E. & C. Circular No. 108/2 of 2009-S.T. and hence is not chargeable to service tax - Issue has been examined in detail by Tribunal in case of Skynet Builders, Developers, Colonizer 2012-TIOL-440-CESTAT-DEL - In the case of Indo Global Estates , this Tribunal held that when construction of residential complex is for sale of flats and same is ultimately sold to customer under agreement, it cannot be held that there were any service being provided by builders to their customer, even if, a part amount of cost of flats is being received in advance - Such advance amount is against sale consideration of flat and building and not for obtaining any service, so as to make it leviable to service tax - In Gannon Dunkerley 2002-TIOL-493-SC-CT-LB , this Court recognized works contracts as a separate species of contract - Thus, the impugned order confirming a demand of service tax under construction of complex services is not sustainable, same is set aside: CESTAT
- Appeal allowed: CHANDIGARH CESTAT
2021-TIOL-529-CESTAT-MUM
Telebrands India Pvt Ltd Vs CCE
CX - The appellant is engaged in telemarketing of products by TV advertising - They purchases goods from importers to local level and carry out the process of packing in secondary boxes as well as putting stickers which bears the name of product, importer's name, name of company marketing it, item code, date of import and the MRP - The DGCEI visited the appellant's business premises and detained certain goods - The appellant was issued SCN wherein it was proposed to confiscate the seized goods in terms of Rule 25 of Central Excise Rules, 2002 and to impose penalty under Section 11AC of Central Excise Act, 1944 r/w Rules 25 and 27 ibid - Further, penalty under Rule 26 was also proposed on Shri Hitesh Israni - The goods in the present case are the imported goods and would have been cleared on payment of countervailing duty, determined on basis of declared Retail Selling Price - If the goods at the time of clearance have suffered countervailing duty on the basis of Retailing Selling Price and as per Section 4A, there cannot be any further demand, if the benefit of CENVAT Credit is allowed to the appellant - Without even referring to admissibility of SSI Exemption Notification, this appeal can be decided by allowing the CENVAT Credit to the appellant subject to requisite duty paying documents against which the CENVAT credit is claimed - Tribunal has in appellant's own case, held in favour of admissibility of CENVAT Credit to the appellant, in case they are asked to pay duty by denying SSI exemption - Tribunal has held against invoking of extended period for making the demand and penalties imposed in earlier order, this Tribunal do not find any reason to differ with that part of the order - Hence the penalties imposed are set aside and extended period cannot be invoked in this case, where the issue is purely an interpretational - Without going into the controversy of admissibility of SSI Exemption, impugned order is set aside and matter remanded back to the original authority to allow the CENVAT Credit as admissible, of the duty paid by appellants on these goods and other inputs and input services received by them, subject to production of requisite duty paying documents - Since the matter is quite old, original authority should decide upon the issue within three months: CESTAT
- Matter remanded: MUMBAI CESTAT
2021-TIOL-528-CESTAT-BANG
Suvikram Plastex Pvt Ltd Vs CCT
CX - The appellant is engaged in manufacture of excisable goods viz. HDPE/PP woven fabrics - During audit, Department observed that the appellant has irregularly transitioned the cenvat credit of education cess and secondary and higher education cess to GST which was not permitted under law - A SCN was issued proposing to recover ineligible cenvat credit relating to education cess and higher secondary education cess transitioned into GST along with interest and penalty - As far as transition of cenvat credit relating to education cess and higher education cess is concerned, the matter has been finally decided by Division Bench of Madras High Court in case of Sutherland Global Services Pvt. Ltd. 2019-TIOL-2516-HC-MAD-GST , wherein the court has allowed the transition of education cess and higher education cess into GST - In view of the said judgment, appellant has wrongly transferred the cenvat credit of education cess and higher education cess into TRAN1 under GST which is liable to be recovered from the appellant along with interest and penalty - The appellant contended that the amount determined by Department is not correct because they have submitted the evidence before adjudicating authority and it is coming out from the audit report also that out of the impugned demand, an amount of Rs.10,403/- relates to cenvat credit carried forward from PLA and Rs.39,839/- relates to cenvat credit of freight involved but the same has been considered by both the authorities - Since there is no finding with regard to these two claims and the nature of the claim, for verification of these facts, case is remanded back to the original authority and the original authority will examine the evidences which may be submitted by appellant and accordingly interest and penalty will be imposed: CESTAT
- Matter remanded: BANGALORE CESTAT
2021-TIOL-527-CESTAT-MAD
CC Vs India Land And Properties Ltd
Cus - Appellant has availed the benefit of exemption notification which is available subject to some conditions - Condition (ii) as applicable during the relevant period mandates "the goods shall only be used for the purpose of export of software by the STP units located in the premises of ISP" - Appellant used the goods for both STP and non-STP units - In impugned order, partial exemption was given on proportionate basis in proportion to the land used for STP and non-STP units - There is no provision in exemption notification to allow partial exemption - It would have been a different case if in imported goods, violation of condition was only in respect of some goods and the duty is demanded and confirmed only on those goods where there was a violation - In this case, all the disputed goods were used in common service area to support both STP and non-STP units - Two different approaches were taken in the past by various Courts, including the Supreme Court and quasi-judicial authorities towards interpretation of exemption notifications- strict or literal and liberal or purposive - In view of divergent approaches taken in different cases, matter was referred to a five member constitution Bench of Supreme Court in Dilip Kumar 2018-TIOL-302-SC-CUS-CB - This judgment clarifies that exemption notifications must be interpreted strictly and if the case does not fall within the parameters, the benefit cannot be given - Any benefit of doubt must be given to the Revenue and should be decided against the appellant - Once the threshold of applicability of exemption notification is crossed, it should be construed liberally - The modified application of exemption Notification No. 153/1993 (as amended) giving partial exemption to the imported goods in proportion to the area, in impugned order cannot be sustained because the adjudicating authority cannot modify the exemption notification even if it finds it is fair to do so - The Adjudicating authority can only decide whether the benefit of exemption notification is available to the importer or not - Impugned order is set aside and matter is remanded: CESTAT
- Matter remanded: CHENNAI CESTAT |
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