2021-TIOL-1872-HC-MAD-CUS
Vivasvan International Vs DCC
Cus - Petitioner requests that a Mandamus qua respondent to dispose of the writ petitioner's representation dated 20.03.2020 within a time frame is issued.
Held: Captioned Writ Petition is disposed of, directing the respondent to dispose of writ petitioner's representation dated 20.03.2020 on its own merits and in accordance with law, as expeditiously as his business would permit and in any event, within five weeks i.e., on or before 22.10.2021 - Court has not expressed any view or opinion on the merits of the matter: High Court [para 5, 6]
- Petition disposed of: MADRAS HIGH COURT
2021-TIOL-1871-HC-ORISSA-CUS
Indian Metals And Ferro Alloys Ltd Vs DGFT
Cus - Challenge is to the orders passed by the Policy Relaxation Committee and communicated to the Petitioner by the Director General Foreign Trade (DGFT) declining to allow the claim for reward under the Merchandise Exports From India Scheme (MEIS) - The linking of the shipping bill from the repository to the ECOM portal is dependent on the exporter marking "Yes" in the reward column of the shipping bill and if it is marked "No" then the shipping bill concerned in the repository would be not be reflected in the ECOM portal and the automated portal will not allow the exporter to claim the MEIS benefit - Petitioner inadvertently ticked "N" in the reward column of the shipping bill, instead of "Y" and as a result the Petitioner was unable to file its claim under the MEIS - However, the words 'To claim reward under Merchandise Export from India Scheme' were prominently written on the shipping bill in question.
Held : Court finds that the decisions of the High Court of Kerala [ 2020-TIOL-832-HC-KERALA-CUS ], Madras [ 2019-TIOL-373-HC-MAD-CUS ] and Bombay [ 2021-TIOL-522-HC-MUM-CUS ] referred by the Petitioner indeed support its case for extension of the benefit of the reward scheme if it ticked inadvertently 'N' instead of 'Y' in the shipping bill in the reward column - Above decisions appear to have attained finality and there is no indication that any of the above decisions has been challenged before the Supreme Court - With the basic facts not being disputed viz., that the Petitioner declared its intent to claim the reward in as many words in the shipping bill in question itself, and inadvertently ticked 'N' in the reward column in the shipping bill in question, the Court finds no reason to deny the relief claimed for by the Petitioner which has been granted by the High Courts in all of the above cases - Court sets aside the impugned decision dated 6th and 13th August, 2020 of the PRC and directs the Opposite Parties, the sub-ordinate agents to allow the benefit of the reward under the MEIS to the Petitioner: High Court [para 17, 20, 23, 24]
- Petition allowed: ORISSA HIGH COURT
2021-TIOL-1863-HC-ALL-CX
Krishna Mani Shukla Vs UoI
CX - This application under Section 482 Cr.P.C. has been filed challenging impugned summoning order and the impugned Non-Bailable Warrant as well as entire proceedings under Sections 9 and 9AA of the Act, pending in the court of Special Chief Judicial Magistrate so far as it relates to the applicant - The applicant is Director of M/s. KPPPL who was engaged in manufacture of Pan Masala and Gutkha - The applicant has regularly paid Central Excise Duty on clearances made by him and also filing regular returns with department - Revenue conducted searches at various places including factory premises of applicant - A SCN was issued to applicant company for evasion of Central Excise Duty - In reply to the said SCN, it was submitted that the company has not made any evasion of duty and the case of department is entirely based upon statements obtained under official pressure and duress and therefore, various persons whose statements are being relied upon shall be produced for cross-examination - The applicant has contended that despite several orders of this Court, the demand has not been finalized and still 14 witnesses are yet to be cross-examined by him before Adjudicating Authority - Continuance of proceeding is nothing but an abuse of process of law which may be quashed by this Court - Matter requires consideration - Case listed as fresh in the week commencing 22.11.2021: HC
- Case deferred: ALLAHABAD HIGH COURT
2021-TIOL-597-CESTAT-AHM
Essar Bulk Terminal Ltd Vs CCE & ST
CX - The appellant is providing various taxable services including Port Service & Cargo Handling Sevice and also availing CENVAT credit on inputs, input Services and capital goods under CCR, 2004 - As regard to issue that whether dredging service has nexus with output service namely port service and cargo handling service, the dredging of channel was essential for enabling appellant to provide port services expected by its customer Essar steel - Issue is no longer res-integra as the similar services has been allowed as input service for same output service in case of Adani Port & Special Economic Zone Ltd 2015-TIOL-2822-CESTAT-AHM - In view of the same, it is clear that the dredging services used for providing port service/Cargo handling service is admissible as input service - As regard the ground for denial of cenvat that the Navigation channel for which dredging was availed is not a private property of appellant but it was done on behalf of GMB, even though the appellant was allowed to construct the port/jetty in particular navigation channel by GMB but the fact remains that the operation of port is solely carried out by appellant - It is a settled position that for availing the cenvat credit it is not necessary that the location from where the output service is provided should be owned by the service provider - On the ground of ownership of jetty belongs to GMB the cenvat credit cannot be denied - Appellant is the service recipient for dredging service which is undisputedly used for providing Port Services and cargo handling services, hence, the appellant is entitled for taking cenvat credit on dredging services.
As regard the allegation of department that the navigation channel is meant for other users also therefore, credit is not admissible to appellant, firstly, the entire contract of dredging of navigation channel is between the service provider i.e. M/s Van Oard Dredging and Marine Contractor and M/s Van Oard India Pvt. Ltd and the appellant - The entire service charge along with service tax was borne by appellant, no other persons are involved in the transaction of said services - Therefore, appellant only is the sole recipient of services - Accordingly, the appellant is entitled for the entire cenvat credit - The appellant has also raised the issue on limitation, copy of agreement entered into by appellant with GMB along with its all enclosures including NOC was submitted to the department and it is on the basis of this agreement only the entire case of cenvat credit was made out therefore the details of the agreement was in the knowledge of department - There is no suppression of fact or mis declaration with intent to evade duty on the part of the appellant - Demand of cenvat credit is not sustainable on merit as well as on limitation - Accordingly, impugned order is set aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
2021-TIOL-596-CESTAT-DEL
S And S Technocraft Pvt Ltd Vs CCGST
ST - The order confirming proposal of three separate SCNs for three different periods was confirmed by common O-I-O as well as common O-I-A - While assailing the said O-I-A before Tribunal Rs. 15 lakh were to be paid by appellant as an amount of pre-deposit, pre-requisite for filing the appeal before Tribunal in view of section 35F of Central Excise Act, 1944 and section 129E of Customs Act, 1962 - Rs. 9.23 lakh out of said Rs. 15 lakh is payment which was made by appellant at the investigating stage and as such has been allowed to be considered as a payment towards pre-deposit - Remaining Rs. 5.77 lakh were paid by appellant during the pendency of his Civil Miscellaneous Application before the Delhi High Court - Both these amounts admittedly is an amount toward pre-deposit as was made by filing the appeal before Tribunal - The said appeal stands allowed by way of remand vide the Final Order of Tribunal dated 20.11.2017 - These admissions are sufficient to hold that appellant is entitled to refund of said amount of pre-deposit and three of said SCNs are still pending adjudication since the remedy of appeal has already been availed by appellant - Recovery of demand confirmed by Commissioner (Appeals) cannot be initiated as is apparent from Section 129 ibid - After perusing of clarification vide Circular No. 984/8/2014 there remains no doubt about the entitlement of appellant to have the refund of amount which was paid as a pre-deposit while filing the appeal before this Tribunal - Since the demand is not yet been confirmed, appropriation of money of pre-deposit against the proposed demand is highly unreasonable and is rather illegal - The order under challenge is set aside - Commissioner (Appeals) is directed to decide three SCNs on merits in compliance of remand order dated 20.11.2017 that too within two months: CESTAT
- Appeal allowed: DELHI CESTAT |
