|
2021-TIOL-239-SC-CUS-LB
CC Vs Ballarpur Industries Ltd
Cus - Question of law is whether the Tribunal erred in setting aside the demand of anti - dumping duty on the product ‘Styrene Butadiene Rubber' ("SBR") classified under the heading 4002 of the First Schedule of the Customs Tariff Act, 1975 and imported from Korea - CESTAT had allowed the appeal by holding that Show-cause notice that was issued was to finalise the assessment only without any proposal to levy anti-dumping duty, therefore, order imposing ADD is without any basis; that ADD levy was confined to the goods of heading 4002.19; that there is no whisper of any reason in the SCN to disturb the classification claimed by the appellant and, therefore, the classification of the imported goods declared by the appellant under CTH 4002 1100 remained untouched by the impugned order; that Notification No. 100/2004-Cus dated 26.09.2004 does not intend to levy anti-dumping duty on the product imported by the appellant .
Held : Tribunal has set aside the decision of the Commissioner of Customs on an evidently superficial evaluation of the issues raised in the appeals - The Tribunal came to the conclusion that there is "no whisper of any reason in the Show Cause Notice to disturb the classification" claimed by the importer - This finding is contrary to the record [Paragraph 3 & 4 of the Show Cause Notice dated 23 May 2006 refers] - None of the findings of the Commissioner have been displaced in the order of the Tribunal - The Tribunal has not looked into the merits of the appeals at all on the facetious ground that the show cause notice did not contain any basis to doubt the classification of the goods and that while issuing the notice, the adjudicating authority had not examined the classification based on the report of the laboratory - The findings of the Tribunal are contrary to the record and cannot, therefore, be sustained - Since the Tribunal has not considered the case of the respondent in appeal on merits, Bench is of the considered view that it would be appropriate to restore the proceedings back to the Tribunal for the purpose - Judgment of the Tribunal dated 27 September 2017 is set aside and appeals are restored to the file of the Tribunal for determination afresh - Appeals are disposed of: Supreme Court Larger Bench [para 15, 16, 17]
- Appeals disposed of: SUPREME COURT OF INDIA
2021-TIOL-1860-HC-DEL-CUS
Aggarwal Laminates Pvt Ltd Vs DCC
Cus - The assessee had imported goods declared as "Aluminium Based Copper Clad Laminates", vide Bills of Entry dated 08.05.2019 and 04.06.2019 and classified the goods under Customs Tariff Item 74102100 and paid basic custom duty @ 5%, SWS @ 10% on BCD and IGST @ 18% - The Department issued a letter stating that the goods were wrongly classified, leading to short payment of duty on account of mis-classification - A pre-Notice Consultation Letter was issued by the Department, directing the assessee to appear for personal hearing - On the assessee's failure to appear on such date, an SCN was issued to the assessee u/s 28(1) of the Customs Act, alleging mis-classification of goods and proposing to demand differential duty, along with applicable interest u/s 28AA of the Customs Act - Against the same, the present petition was filed.
Held - The haste on part of the Deputy Commr. to fix personal hearing within 24 hours of issuing of notice, leads to the presumption that the Deputy Commissioner did not apply mind before issuing the notice - SCN in question merits being quashed - Assessee to appear for pre-notice consultation hearing: HC
+ perusal of the Pre-Notice Consultation letter dated 01.06.2021 reveals that vide the said notice, the Department had called upon the assessee to appear before the concerned authority on 02.06.2021 at 15:00 hours for a personal hearing. The assessee has made a categorical averment in the writ petition that the notice was served on him through a registered post on 10.06.2021. It is understandable that if the notice was served on the Petitioner on 10.06.2021, there could be no representation on behalf of the Petitioner on 02.06.2021. In fact, in our view, the action of the Respondent in issuing a notice on 01.06.2021 for a hearing on 02.06.2021 is completely arbitrary as it would have been well-known to anyone with a prudent mind that a notice sent by registered post on 01.06.2021 may not reach the addressee for appearance on 02.06.2021 at 15:00 hours. Additionally, the haste to fix the personal hearing within 24 hours of issuance of the notice gives rise to a presumption that the Respondent did not apply its mind before issuing the notice. (Para 6);
+ The action, according to us, is impermissible in law as the notice appears to be an empty formality. Principles of natural justice require and mandate that reasonable and sufficient opportunity of being heard ought to have been given by the Respondent to the Petitioner and, therefore, while issuing notice, it ought to have been kept in mind that sufficient time was given before fixing the personal hearing so that the notice could be served on the Petitioner for appearance of its representative for personal hearing to put-forth the case on behalf of the Petitioner. One wonders if a similar treatment were being meted out to the Respondent, i.e. notice is issued by the Court returnable on the next day, whether the officials of Department would be in a position to appear and defend the case, assuming that the notice is served. (Para 6);
+ On the last date of hearing, Additional Solicitor General had sought time to take instructions in the matter considering the above facts. Mr. Chetan Sharma, Additional Solicitor General, on instructions, submits that the the Department shall grant personal hearing to the assessee pursuant to the pre-notice consultation letter dated 01.06.2021, to enable the Petitioner to defend the allegations levelled against him. (Para 7); in view of these submissions, the SCN in question is quashed. Assessee to appear for Pre-Notice Consultation personal hearing.
- Writ petition allowed: DELHI HIGH COURT
2021-TIOL-1859-HC-MUM-CUS
Sinochem India Company Pvt Ltd Vs UoI
Cus - The present petitions were filed seeking that direction be issued to the Revenue to allow amendment of Bill of Entry, as sought for by the petitioners - The petitioners claimed that the right to seek such amendment in BoE flows from Section 149 of the Customs Act 1962. Held - As per the provisions of Section 149 of Customs Act 1962, the amendment to Bill of Entry is clearly permissible even where the goods have already been cleared - Revenue officers concerned directed to consider the petitioners' applications for amendment of Bill of Entry: HC + The second and third provisos have been incorporated in section 149 by way of amendment; however, such amendments do not have the effect of stultifying the prayers made by the respective petitioners. The decision in Micromax Informatics Ltd., with due respect, proceeds to read the only proviso to section 149 (as it then stood) in a constricted manner as if the words "except on the basis of documentary evidence which was in existence at the time the goods were cleared, deposited or exported, as the case may be" are not there in such proviso. However, it could be so that the interpretation placed by the Court on the first proviso is correct for the purpose of determination of the issue arising for decision therein, i.e., rejection of the petitioner's refund claims for the period between July 2014 and June 2015. We, therefore, hold that such interpretation of section 149 as made by the coordinate Bench turns on the facts and circumstances of the case before it. (Para 13); + In our considered opinion, the decision in Dimension Data India Private Ltd. correctly interprets section 149 and we share the view expressed therein that amendment to the Bill of Entry is clearly permissible even in a situation where the goods are cleared. (Para 14); + Although the opening words of section 149 say that, "save as otherwise provided in sections 30 and 41", it has not been demonstrated before us that such other provisions in the Act do stand in the way of the respective petitioners' prayers for amendment; also that, the amendments sought for by them cannot be allowed because such amendment is requested on the basis of documentary evidence which were not in existence at the time of clearance of the goods. Given such situation, coupled with the fact that the petitioners had prayed for amendment of documents only, which is squarely covered under section 149 of the Act, any deficiency in the system cannot be used by the respondents as a shield so as to deny relief to a party; if indeed the system does not permit, the deficiency has to be covered up manually until improvements are effected in the system for such amendment. We also record not having been shown from the reply-affidavit that even a manual amendment is not possible. (Para 17); + We grant an order in terms of prayer (a) in Writ Petition (L) No. 8163 of 2021. We also partially allow Writ Petition (L) No. 13894 of 2021. Writ Petition (L) No. 8163 of 2021 as well as Writ Petition (L) No. 13894 of 2021 are disposed of by directing the concerned respondent to consider the applications for amendment of the documents of the respective petitioners in the light of the observations made herein above as well as in accordance with law, upon granting the authorized representative of the petitioners an opportunity of hearing, as early as possible but not later than four weeks of receipt of a copy of this order. (Para 19)
- Writ petitions partly allowed: BOMBAY HIGH COURT
2021-TIOL-1857-HC-KAR-ST
Sri V R Janarthanam Vs Pr.CST
ST - The petitioner claim to be the flat owners of the residential apartment constructed by the Builder M/s. Ranka International (Pvt.) Ltd - The builder was an assessee registered with the erstwhile Service Tax Department for payment of service tax on the taxable services under the heading 'construction of residential complexes' - It is claimed that by insertion of clause (zzzh) to Section 65 (105) of the Finance Act, 1994 bringing construction of complex services under the service tax ambit by Finance Act, 2005, service tax was paid by the assessee, collected from the petitioners herein after issuance of Circular bearing No. 108/2009-ST dated 29.01.2019 by the Central Board of Excise and Customs (Service Tax) clarifying that any services provided by the seller of the flats in connection with the construction of residential complex till the execution of sale deed would be in the nature of self-service and consequently would not attract service tax, the petitioners approached the builder and filed a common refund application dated 09.09.2009 through the builder before the respondent authorities seeking refund of service tax paid under the mistaken understanding of law - The same was rejected by the Adjudicating Authority pursuant to which, an appeal was preferred before the First Appellate Authority and being unsuccessful on appeal, the petitioners approached the Customs, Excise & Service Tax Appellate Tribunal, South Zonal Bench, Bengaluru - The said appeals having been dismissed, Central Excise Appeal No.09/2017 and connected matters were filed before this Court - In the said appeal proceedings, the petitioners sought for a permission to withdraw the appeals with liberty to file writ petition and hence, this writ petition. Held - There are no findings given by the Department in respect of the enuineness of the petitioners for seeking refund of the service tax said to have been filed by the assessee M/s.Ranka International (Pvt.) Ltd. - Considering the necessary nature of this fact finding exercise, the matter merits being remanded, since the High Court cannot exercise the functions of the assessing authority or the fact finding authority: HC + it is significant to note that this petition is filed by the petitioners claiming to be the owners of the residential flats of "Ranka Nest". The Adjudicating Authority while passing the order in original has categorically observed that no evidence was placed before the authority correlating that the service tax amount collected from the claimant has been remitted to the government account and there is no evidence to show that the service tax amount received from the claimant is actually remitted to the government account by M/s.Ranka International Pvt. Ltd., Bangalore. The same having been observed by the Appellate Authority without further examining on this factual aspect merely relying upon the order of the CESTAT, Bangalore in its Final Order Nos.21349 to 21469/2014 dated 20.08.2014 has held that the claimants are not liable to pay service tax to the builder / developer during the relevant period for purchase of residential unit / flat; however as the claims are filed after expiry of one year from the date of payment of Service tax said to have been made to the builder / developer, held that the claims are hit by limitation as per Section 11 B of the Central Excise Act, 1944, applicable to Service tax matters by virtue of Section 83 of the Finance Act, 1994 and hence rejected the appeal. (Para 5); + There is no finding on the factual aspect in as much as the genuineness of the petitioners for seeking refund of the service tax said to have been filed by the assessee M/s.Ranka International (Pvt.) Ltd., it was necessary for the fact finding authority first to give a finding on this point and then to examine the correctness or otherwise of the claim made by the petitioners. In the absence of factual findings before the Court, in the writ petition proceedings, this Court cannot exercise the functions of the assessing authority or the fact finding authority to ascertain the genuineness of the claim, in the absence of material documents like original invoices raised by the service providers and the details of the service tax paid by the petitioners. (Para 6)
- Case remanded: KARNATAKA HIGH COURT |
|
