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2021-TIOL-1942-HC-MUM-CUS
Kaka Overseas Ltd Vs UoI
Cus - Petitioner submits that despite the seizure of the goods having taken place on December 7, 2020, the respondents have not issued any show cause notice and the status of the petitioners goods is of merely a provisional release; that the petitioners cannot be kept in such suspended animation for such a long period; that the investigation, if any, ought to have been completed and show cause notice issued to the petitioners - Petitioner is also concerned about 53 carpets being retained by the respondents as samples for forensic purposes and submits that such goods could not be retained by the respondents and the same should have been unconditionally returned to the petitioners since these are not seized goods - Counsel for Respondent submitted that the investigation is at a final stage and that show cause notices would now be issued before December 6, 2021, the period of six months having been extended.
Held: Bench is of the opinion that the respondents ought to be permitted to adopt the further course of action of issuance of show cause notices to the petitioners on or before December 6, 2021 - Insofar as the 53 carpets are concerned, in the event the goods have suffered detention beyond the period of six months without any extension being granted by the Commissioner of Customs, as per proviso to sub-section (2) of Section 110, the goods cannot be retained by the officer who has seized the goods - Once such goods form part of the seized goods and are not subject matter of any independent seizure for which a notice could have been issued within a period of six months, Bench is of the opinion that such seized goods would partake the character of goods falling in the category of "any other kind of movable property" as defined under Section 2(22)(e) of the Act, which in any case could not have been detained beyond the extended period provided for under Section 110(2) of the Act - In the opinion of the Bench, the proper officer did not have any authority to retain the 53 carpets contrary to what has been provided for in sub-section (2) of Section 110 - same are also required to be returned to the petitioners at the end of the extended period - Petition disposed of: High Court [para 9, 12, 13, 14]
- Petition disposed of: BOMBAY HIGH COURT
2021-TIOL-1941-HC-MAD-CUS
KTV Health Food Pvt Ltd Vs CC
Cus - Petitioner seeks a writ of certiorari to quash the o-in-o passed by the respondent and direct the respondent to refund the amount of education cess of Rs.66,66,582/- debited from the MEIS scrips issued to the petitioner in cash - Stand of the respondent department is that the education cess therein does not form part of the mode of payment of MEIS scrip and, therefore, the same should have been paid only by way of cash by the importer i.e., the petitioner and that is the reason why, the show cause notice was issued.
Held: When the importer pays the duty, he shall also pay the cess which becomes part and parcel of the duty of customs - That is the reason why the total amount of Rs.22,88,86,212/- was paid by the petitioner as duty of customs as well as education cess through the scrips of MEIS - Having accepted the same, though subsequently, in view of the notifications, if the Customs Department comes forward to take a stand that the mode of payment of the education cess, even though being part of the customs duty, shall not be on the same line by using the scrip, such kind of payment can be insisted upon, provided only in future cases and not in the cases where it has already been paid and where the goods have been cleared - When circular No. 2/2020 dated 10.01.2020 was issued by the Customs Department and the same having been implemented in respect of various people like the petitioner, the benefit of the said circular cannot be denied to the petitioner on the alleged reason that, the education cess or the higher and secondary education cess being a different component cannot be treated as customs duty or additional customs duty and, therefore, the benefit conferred under Clause 11 of the said circular cannot be made available to the petitioner - The said view taken by the respondent / Customs Department, in the considered opinion of the Court, in view of the afore-stated legal position, is untenable and unacceptable - Court has no hesitation to state that, the reasons stated in the impugned order rejecting to give the benefit under Circular No. 02/2020 is not supported by any legal basis - impugned order is hereby quashed - As a sequel, there shall be a direction to the respondent to give the benefit of Clause 11 of Circular No. 02/2020 dated 10.01.2020 to the petitioner - Petition allowed: High Court [para 25, 26, 28]
- Petition allowed: MADRAS HIGH COURT
2021-TIOL-1939-HC-MAD-CX
CCE & ST Vs India Cements Ltd
CX - Issue relates to transportation charges incurred by manufacturer for clearance of final product from place of removal whether same were included in definition of "input service" - The appellant submitted a letter to Registry stating that this appeal may be permitted to be withdrawn on the ground of Low Tax Effect, as per monetary limits fixed by National Litigation Policy - Same is dismissed as withdrawn: HC
- Civil Miscellaneous Appeal dismissed: MADRAS HIGH COURT
2021-TIOL-1932-HC-MAD-CUS
Deepak Gopaldas Bajaj Vs CC
Cus - Petitioner Taher Impex P Ltd. imported certain polyester items and in respect of the same, he used the Duty Free Replenishment Certificate (DFRC) for paying the import duty - Petitioner Deepak Gopaldas Bajaj acted as broker and both have wrongly used the DFRC at the time of import of different goods as the original DFRC was given for cotton goods to the original exporter and, therefore, in this regard the respondent Customs issued a Show Cause Notice on 17.03.2009 under Section 28(1) of the Customs Act, 1962 - A common adjudication order in these cases against the petitioners was passed by the respondent Customs on 28.08.2014 and Writ Petitions were filed in the year 2018 - Among various grounds, petitioner has projected the prime ground i.e. want of jurisdiction - Petitioner submits the said Show Cause Notice which is culminated in the order impugned dated 28.08.2014 cannot stand legal scrutiny in view of the law declared by the Supreme Court in Canon India case - 2021-TIOL-123-SC-CUS-LB , therefore, the entire proceedings has been vitiated, it is contended.
Held: Plea of want of jurisdiction was not raised earlier by petitioner as no such ground was available at the time of filing the writ petitions in the year 2018, however, during the pendency of the writ petition law has developed and the Canon India judgment has come in March 2021 - After Canon India judgment at least two decisions from Madras High Court as well as the Karnataka High Court on the same point had been rendered, where, in the judgment of the Karnataka High Court - 2021-TIOL-1614-HC-KAR-CUS , this issue has been extensively discussed and by applying the ratio of Canon India judgment the writ petition was allowed stating that the proceedings initiated under Section 28 of the Customs Act by any other officer other than a proper officer shall be vitiated, therefore, the entire proceedings was interfered with and set aside - Looking from any angle, since admittedly the Show Cause Notice dated 17.03.2009 was issued by the Additional Director General of Directorate of Revenue Intelligence, Chennai which culminated in the impugned order-in-original dated 28.08.2014, the said proceedings would not stand legal scrutiny and therefore, it is liable to be interfered with - The respective impugned orders and the consequential impugned order, in all these writ petitions are quashed - It is open to the respondents to act upon in the manner known to law, especially under the provisions of Customs Act by taking into account the law laid down by the Supreme Court in Canon India case - Petitions allowed: High Court [para 29, 32, 33]
- Petitions allowed: MADRAS HIGH COURT
2021-TIOL-1931-HC-DEL-CUS
SG Herbs Vs CC
Cus - The Respondent has not passed any order under Section 17 of Customs Act, 1962 for assessment of goods with respect to goods imported by Petitioner - Meanwhile, the request of Petitioner for warehousing of goods has been accepted by Respondent - Respondent is directed to pass an order under Section 17 of Customs Act, 1962 in accordance with law and on the basis of evidences on record as expeditiously as possible: HC
- Writ petition disposed of: DELHI HIGH COURT
2021-TIOL-621-CESTAT-DEL
Bhansali Engineering Polymers Ltd Vs CCE & CGST
CX - Appeals relates to rejection of refund claim for unutilised cenvat credit under Rule 5 of Cenvat Credit Rules, 2004 read with Notification No. 27/2012-C.E. (N.T.) - The refund claims were filed prior to 30.07.2017, which were rejected by Adjudicating Authority - Thereafter, Commissioner (Appeals) rejected the same in year 2018 - The appellant instead of filing further appeals before Tribunal, under some erroneous advice, took re-credit of rejected amount of refund and thereafter, again filed the refund claims before Adjudicating Authority, which were again rejected - On appeal, Commissioner (Appeals), held that once the appeals were rejected by Commissioner (Appeals), though the appellant may be entitled to take re-credit under repealed provisions of Notification No. 27/2012-C.E. (N.T.), he is not entitled again to claim the refund amount, as the same has lapsed under the first Proviso to Section 142(3) of CGST Act, 2017 - Appeals are bad under principles of res judicata , as the same issue of refund attained finality on passing of the order by Commissioner (Appeals) in the year 2018 as the appellant chose not to file any further appeal before the higher forum - The subordinate legislation is effective or in force till the date of Parent Act only - As the Parent Act in this case is repealed w.e.f. 1.7.2017, when the CGST provisions, came into force - Accordingly, the appellant have erred in taking re-credit of the rejected refund amount in the year 2018 and thereafter they have again filed claim for the rejected amount of refund - No merit found in appeals and same are rejected: CESTAT
- Appeals dismissed: DELHI CESTAT
2021-TIOL-620-CESTAT-DEL
International Travel House Ltd Vs CST
ST - The appellant is an air travel agent who purchases air tickets from various IATA Agents/Airlines which pay commission to the appellant - Issue involved is as to whether the appellant is required to discharge service tax liability on commission received by it from the airlines - This issue was referred to a Larger Bench of Tribunal by a Division Bench vide order in 2018-TIOL-3504-CESTAT-DEL - The aforesaid reference was answered by Larger Bench of Tribunal holding that the incentives received by service recipient from a service provider cannot be subjected to levy of service tax; a passenger cannot be deemed to be an audience for promotion of business of CRS Companies - The impugned order cannot be sustained and is set aside: CESTAT
- Appeal allowed: DELHI CESTAT |
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