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2021-TIOL-1905-HC-MUM-CUS
Om Drishian International Ltd Vs Addl. Director of DRI
Cus - Petitioner challenges the SCN dated 23 rd June 2014 issued under the Customs Act, 1962 - Challenge laid is that the Directorate of Revenue Intelligence has no authority to investigate as to whether there has been misuse of Export Incentive Scheme by the petitioner - Reliance is placed on the apex court decision in Canon India - 2021-TIOL-123-SC-CUS-LB .
Held: If the High Court is satisfied that the show-cause notice is totally non est in the eyes of law for absolute want of jurisdiction of the authority to even investigate into facts, in the judicious exercise of its discretion, the court may entertain the petition and pass appropriate orders - However, law is also well settled that writ petitions challenging show-cause notices ought not to be entertained for the mere asking and as a matter of routine - There is no explanation in the writ petition as to what triggered it, in the first place, and what made the petitioner apprehend that adverse action is in the offing - That after issuance of the impugned show-cause notice, the respondents have not acted in any manner to infringe the rights of the petitioner [it has been 7 years], is an important circumstance that needs to be borne in mind - Also, there being no real threat of infringement of any of its rights, the petitioner does not have the cause of action even for moving this Court at this stage - Without a “cause of action”, the 'right of action' is meaningless - This is not, in the opinion of the Bench, a fit case to even examine as to whether the show-cause notice is non est in the eyes of law - Interest of justice would be sufficiently served if the petitioner responds to the notice and urges the point that the authority issuing the show-cause notice lacks the jurisdiction to do so based on the authority of Canon India (supra) - Authority concerned may proceed to pass an appropriate order on the basis of his appreciation of the law laid down in Canon India (supra) - Writ petition disposed of: High Court [para 3, 5, 7]
- Petition disposed of: BOMBAY HIGH COURT
2021-TIOL-1903-HC-MAD-CUS
V Ayub Khan Vs Joint CC
Cus - Petitioners had been under the bonafide impression that, some further extension of time or date would be given by the respondents to respond to the show cause notice, however, straight away, the impugned order of confiscation as well as imposition of penalty, was issued on 03.08.2021 - Therefore, on the ground of not giving proper opportunity to respond to the show cause notice in view of the extended lock down period up to 31.05.2021, the petitioners have challenged the impugned order of confiscation and penalty imposed against them.
Held: During the complete lock down period, it cannot be expected that the petitioner can mobilize the documents and evidences in support and after contacting the counsel or auditor concerned or any other technical advisors for the petitioners to respond to the show cause, they can make such response, because, that kind of procuring documents and getting legal advice, etc., might not have been possible for the petitioner during the complete lock down period - When that being so, the respondents could have waited or extended the time for the further period after having evaluated the lock down, which was imposed in the State and such an extension should have been given by the respondents to the petitioner to properly respond to the show cause notice - Court feels that the impugned order can be interfered with only for the limited purpose of remitting the matter to the respondents to give one more chance to the petitioners to respond to the show cause notice and for personal hearing and thereafter, they can proceed to pass final orders - Petitions disposed of: High Court [para 15, 17, 18]
- Petitions disposed of: MADRAS HIGH COURT
2021-TIOL-610-CESTAT-DEL
Anand Automotive Ltd Vs CST
ST - The appellant is in appeal against impugned order wherein part of the demand of service tax proposed in SCN issued for the period of October 01, 2005 to September 30, 2010 has been confirmed - As regards to demand of Service tax under BSS on the transit house income, provision of housing facility on short-term basis is specifically covered under "short-term accommodation services", which has been subjected to service tax w.e.f. May 01, 2011 under section 65(105) (zzzzw) of the Finance Act, 1994 - As this service is a new entry and has not been carved out from any other existing service, it cannot be included under any other category, including BSS, prior to May 01, 2011 - Thus, accommodation or guest house facility will not form part of infrastructural support services and cannot be treated as provision of BSS - As regards to demand of service tax under category of 'manpower recruitment and supply agency service', appellant deputes its employees to the group companies - In such cases, the group companies reimburse the salary of employees to the appellant during the tenure of deployment and so it cannot be said that the appellant is supplying any manpower as he is not 'engaged' in rendering services of supply of manpower - With regard to demand of service tax on the ground that there is a difference in value appearing in ST-3 returns and the balance sheet, appellant had clearly explained the difference in values appearing in Service Tax Return and the Balance Sheet - The reason stated was that the appellant had reported wrong value-cum-tax basis in Service Tax Return, whereas they paid service tax on the correct value - These facts were placed before Adjudicating Authority with supporting documents but the same have not been considered - The demand under this head cannot be sustained.
The impugned order has confirmed demand of CENVAT credit for the months of April, 2006 and April, 2008 on the ground that the closing balance as per Service Tax-3 returns in months of March, 2006 and March, 2008 was NIL - Appellant submitted that the closing balance in Service Tax-3 returns was inadvertently shown as NIL, while such balance was existing in credit ledger of appellant - The said facts were duly presented before Adjudicating Authority along with supporting documents but the same have not been adverted to by Adjudicating Authority - Matter remanded to the Commissioner to examine this issue, after taking into consideration the documents, including Chartered Accountant certificate: CESTAT
- Appeal partly allowed: DELHI CESTAT
2021-TIOL-609-CESTAT-DEL
Mahatma Gandhi University of Medical Sciences and Technology Vs CCE & CGST
ST - The appellant is registered under various category of services - During Audit, the Department noticed that the appellant had received services of manpower recruitment or supply agency and had paid Service Tax under manpower recruitment or supply agency service on 75% of gross service value under reverse charge mechanism as per the provisions of Notification No. 30/2012-S.T. - It was observed that the appellant was otherwise liable to pay Service Tax on 100% of gross service value in terms of aforesaid Notification being amended vide Notification No. 07/2015-S.T. w.e.f. 01.04.2015 - Non-payment by the appellant for said period is merely due to his bonafide belief of his liability to the extent of paying service tax at 75% of the service value - Once there is no apparent mala fide on part of appellant, fastening the allegations as that of concealment, fraud and suppression are held to be highly unjustified - Otherwise also, there is no denial on part of Department that the balance service tax on 25% value of the service has already been paid by service provider - The Department, thus, has received 100% tax amount on the impugned transaction - Accordingly, the findings are liable to set aside - Above all, the Department was not entitled to invoke the extended period of limitation for no willful suppression on part of appellant that too with intent to not to pay duty - SCN of the year 2018 alleging recovery for period 2015-16 is definitely beyond the normal period of one year, same is therefore held being barred by time - The demand for the normal period is also not sustainable: CESTAT
- Appeal allowed: DELHI CESTAT
2021-TIOL-608-CESTAT-MUM
John Distilleries Pvt Ltd Vs CCE
CX - Since the appellant has been choosing to abstain from hearing before Tribunal, appeal is liable to be dismissed under Rule 20 of CESTAT (Procedure) Rules, 1982 - No appeal lies in Tribunal against order of Revisionary Authority - Accordingly, appeal is dismissed for non-prosecution: CESTAT
- Appeal dismissed: MUMBAI CESTAT |
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