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2021-TIOL-1842-HC-MAD-CUS
Pr.CC Vs Mohammed Ali Jinnah
Cus - Confiscation of gold bar - Appeal has been filed by Revenue under Section 130 of Customs Act, 1962 challenging the Miscellaneous Order on the file of Tribunal - Admittedly, Revenue is entitled to question the correctness of First Appellate Authority by filing an appeal before Tribunal - The Tribunal, while considering the prayer for interim stay, has to consider as to whether the balance of convenience is in favour of Revenue, whether the Revenue has made out a prima faice case for grant of stay and whether irreparable hardship would be caused to the Revenue if the stay is not granted - If the stay is not granted, then, the respondent would seek return of seized gold and that has to be ordered, then the appeal filed before Tribunal itself would become infructuous - The undue hardship would also be viewed from the point of view of Revenue and to protect the interest of Revenue - Therefore, order passed by first Appellate Authority shall remain stayed till the disposal of appeal filed by Revenue before the Tribunal - The Tribunal is requested to consider whether the appeal could be disposed of at the earliest: HC
- Appeal allowed: MADRAS HIGH COURT
2021-TIOL-579-CESTAT-MUM CCT Vs Standard Chartered Bank
ST - The adjudicating authority has rejected the refund claim on ground of limitation, without consideration of same on merits - Since Commissioner (Appeals) has in impugned order arrived at the finding that the refund claim could not have been rejected on the ground of limitation, he had no option but to allow the opportunity to the original authority for consideration of refund claim on merits - This finding of Commissioner (Appeals) on the issue of limitation has not been challenged by revenue in the appeal filed - Thus, no infirmity found in the reasoning recorded by Commissioner (Appeals) for remanding the matter - Even if it is held that Commissioner (Appeals) could not have remanded the matter back following the decisions of Apex Court and Punjab & Haryana High Court, referred to by revenue in the appeal filed, then also Tribunal remand the matter for decision by adjudicating authority on merits as have been done by Commissioner (Appeals) - It is nobody's case that Tribunal do not have power to do so and is in accordance with approach of Bangalore Bench in case of Honeywell Technology Solutions Lab P. Ltd. - The end of justice will be met if appeal filed by Revenue is allowed to the extent that Commissioner (Appeals) could not have remanded the matter back - However, the Tribunal being Appellate Authority in appeal filed by Revenue, remand the matter back to the Original Authority for consideration on merits without disturbing the finding of Commissioner (Appeals) on limitation - Since the matter is in relation to refund, Original Authority is directed to decide the matter within three months: CESTAT
- Matter remanded: MUMBAI CESTAT
2021-TIOL-578-CESTAT-DEL
Western Transformers And Equipments Pvt Ltd Vs CCGST
CX - The appellant is engaged in manufacture of electric transformers - A refund clam was allowed by Deputy Commissioner of Central Excise Division and the said amount was paid to appellant - The said order, however, got reviewed by Commissioner of Central Excise - It is thereafter that the impugned SCN was issued to the appellant proposing recovery of erroneously paid refund claim of Rs. 4,80,215/- - The appellant's claim for refund of interest as was paid on delayed payment of differential duty paid on price variation bills has been rejected on the ground that since the appellant was liable to pay interest on the price variation amount, he is not liable to get the refund thereof - The Apex Court in the case of Steel Authority of India Ltd. has adjudicated the same issue vide which the issue regarding liability of appellant for paying interest along with duty difference that has arisen on account of final assessment of goods post their removal has been confirmed - The question thus has been answered in affirmation while concurring with the previous decision on this issue in SKF 2009-TIOL-82-SC-CX and International Auto Ltd. 2010-TIOL-05-SC-CX - Resultantly, appellant was liable to pay interest on subsequent price variation w.e.f. the date of removal of goods involved - Accordingly, the refund of the amount of interest already paid by the appellant was erroneous - No illegality or infirmity found in the order under challenge, same is upheld: CESTAT
- Appeal dismissed: DELHI CESTAT
2021-TIOL-577-CESTAT-KOL
Jai Balaji Industries Ltd Vs CCE, C & ST
CX - The appellant is engaged in manufacture of iron and steel products of different grades - They had availed Cenvat credit on Angles, Channels, Joists, Beams, TMT Bars, Plate, H.R. Coils, H.R. Sheets, Rounds, Sheets. Billets, Flats, Paints, Rails, Castings, Coils, Electrode/Welding Electrode and Miscellaneous Chemical Products - It was alleged against appellant that the said items were not defined as capital goods under Rule 2(a) of CCR, 2004 and the credit availed and utilized by appellant was irregular - This Tribunal vide Final Order dated 05-12-2013 had remanded the matter back to Adjudicating Authority wherein it is noted that the appellant had furnished the detail use and account of each of capital items along with necessary evidences before Commissioner as Adjudicating Authority - The same evidences were also produced before this Tribunal in the first round, but the Commissioner had not appreciated the said evidences and disallowed the Cenvat credit on disputed items - Tribunal directed the Adjudicating Authority to decide the issue afresh, taking into consideration all evidences on record and after due verification of the claim of appellant on the use of the items - Instead of carrying out the directions of Tribunal, the Commissioner mainly reproduced the findings of his predecessor, which is a gross violation of directions of Tribunal - Eligibility of steel items for cenvat credit has been the subject matter of various decisions by Supreme Court, various High Courts and this Tribunal where it has been categorically held that the steel items when they were used in fabrication of capital goods and their accessories inside the manufacturing premises are eligible for credit - The Tribunal have gone through the usages of disputed items in fabrication of various sections of plant - In assessee's own case, the Tribunal has already decided the issue in their favour - In respect of electrodes/welding electrodes, the Tribunal in the case of M/s. Singhal Enterprises Pvt Ltd 2016-TIOL-2451-CESTAT-DEL , has allowed the credit of duty paid on welding electrodes - The impugned Order is set aside: CESTAT
- Appeal allowed: KOLKATA CESTAT
2021-TIOL-576-CESTAT-ALL
Sarvendra Kumar Mishra Vs CC
Cus - This is a case of town seizure wherein, the gold was initially taken possession of by officer of GRP and then handed over to the Customs - The place where seizure took place is not Customs Area - Supreme Court in the case of Gian Chand & Ors 2002-TIOL-2745-SC-CUS-CB , wherein in case of seizure by the Police and thereafter the possession was shifted to the Customs Officer held that the pre-requisite of seizure is not satisfied - Accordingly, it is held that the circumstances as required under the Customs Act are not satisfied and consequentially the whole burden or onus to establish the smuggled nature of gold is on the Revenue - Other than the statement of Shri Kishan Kumar Dhuria, no evidence is brought forth by Revenue to conclude that the impugned gold has been smuggled - It is not open for the department to draw conclusions from a general statement to particularise about the impugned goods - The onus was not discharged - Moreover, provisions of Section 138B of Customs Act, 1962 have not been complied with and therefore, the sanctity of statement recorded under section 108 has been lost and consequently, it cannot be conclusively relied upon.
Adjudicating authority has come to the conclusion that the Gold seized is of 2Kg - Evidence produced by appellants pertained to one piece of gold, whereas Shri Dhuria was carrying 2 pieces totally weighing around 2kg; Shri Dhuria and Shri Ram Bol together were carrying more than two pieces - The appellant Shri Sarvendra Kumar Mishra, who claimed the ownership of impugned Gold, submitted that Shri Dhuria was accompanied by his another employee i.e. Shri Ram Bol and that while Shri Dhuria carried the Gold, Shri Ram Bol was having documents - Shri Ram Bol was not examined by officers so as to contradict the claim of appellants, claiming that he did not present himself before officers - Considering the seriousness of charge, it was incumbent upon the department to falsify the claim of appellants - Examination of these two was crucial to investigation - The conclusions drawn by department are mere conjectures and an allegation of grave nature such as smuggling cannot be established on the basis of conclusions drawn on insufficient investigation - Neither foreign origin of gold nor the nature of the same being smuggled is conclusively established other than merely relying on the conclusions drawn from statement of Shri Dhuria - In the absence of action under Section 138B of Customs Act, 1962 by Revenue, statement of Shri Dhuria alone cannot be relied upon for sustaining the allegation of smuggling of gold, under the provisions of the Customs Act - No reasonable belief has been established that the impugned Gold is liable for confiscation - Penalty can not be imposed under Section 112 of Customs Act, 1962 - The revenue is directed to return the gold seized forthwith and/or if the gold has been disposed, to return the sale proceeds along with interest as per rules, within six weeks: CESTAT
- Appeals allowed: ALLAHABAD CESTAT |
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