2021-TIOL-1957-HC-DEL-ST
Bhavya Creators Pvt Ltd Vs UoI
ST - Petitioner states that the Respondent No. 2 has issued the impugned notice dated 24th July, 2019 u/s 87(b)(i) of the Finance Act, 1994 directing the Respondent No. 3 to freeze the Petitioner's bank account - Petitioner submits that the Notice has been issued without jurisdiction and in violation of the CBEC Circular dated 16th September 2014 issued by the Respondent No. 1, which categorically provides that "No coercive measures for the recovery of balance amount i.e. the amount in excess of 7.5% or 10% deposited in terms of Section 35F of Central Excise Act, 1944 or Section 129E of Customs Act' 1962 shall be taken during the pendency of appeal" - Petitioner also submits that they have already complied with the mandatory requirement of deposit of 7.5% of the total alleged demand before filing of the appeal on 13th November 2019 - Further, since the Appellate Tribunal has not heard the appeal for the last two years and no reply is received to the letter of request for de-freezing of the bank account, petitioner is facing hardships.
Held : Court directs the registry of Customs, Excise and Service Tax Appellate Tribunal to list the Petitioner's appeal before the appropriate Bench on or before 10th October, 2021 - Petition disposed of: High Court [para 7]
- Petition disposed of: DELHI HIGH COURT
2021-TIOL-1956-HC-DEL-NDPS
Sonia Shamrao Naik Gaonkar Vs NCB
NDPS - Petition is filed under Section 439 CrPC praying for regular bail for offences allegedly committed under Section 8, 21, 27A, 29 of the NDPS Act.
Held: Grant or rejection of bail under the NDPS Act is governed by Section 37 of the NDPS Act - It is clear that the Petitioner on 22.02.2018 was found in the possession of Methamphetamine and the same has been verified by conducting a chemical test of the sample of the seized material - The disclosure statement has lead to the arrest of two Nigerian accused in whose possession narcotics was found - It has also been discovered by the NCB that these two accused were living illegally in India on fake passports - Material on record discloses that the petitioner is a part of a network which deals in supply/sale of Narcotics - The clean & tidy track record of the Petitioner does not absolve her from being in possession of 600 grams of Methamphetamine - An uneducated person may claim no knowledge of the substance found in his/her possession and may raise a defence of the substance being planted on them but being a highly educated person, there is greater presumption that carrying large quantities of narcotics is a crime and that it would entail consequences in law which could be harsh and irrevocable - The quantity recovered from the Petitioner is commercial quantity – Petitioner's case, therefore, doesn't fall within the twin parameters of Section 37 of the NDPS Act - Court is not inclined to grant bail to the Petitioner - The petition is dismissed: High Court [para 18, 21, 22]
- Petition dismissed: DELHI HIGH COURT
2021-TIOL-1955-HC-MUM-CUS
Commissioner Vs Kargawal Corporation
Cus - Revenue is in appeal against an order dated 24th January 2006 passed by the CESTAT reducing the redemption fine imposed on respondent for unauthorised import of restricted item, i.e., rough marble blocks without an import licence in violation of the provisions of EXIM policy.
Held: Commissioner of Customs (Imports) has not given any basis as to how he decided a redemption fine of Rs. 37 lakhs - It is settled law that the quantum of redemption of fine which could be imposed is always dependent on the determination of the market price of the goods confiscated - COC (I) has not even observed in his order that respondent was a repeat offender or that was the reason why he imposed the penalty of almost 80% on respondent - Tribunal has correctly observed that there was no discussion in the order of the COC (I) as to how the quantum of fine has been arrived at and what would be the margin of profit in order to arrive at the quantum of fine - The Tribunal has atleast given the basis as to why they have reduced redemption fine to 35% - In the circumstances, Revenue appeal requires to be dismissed - Appeal dismissed: High Court [para 8, 11 to 13]
- Appeal dismissed: BOMBAY HIGH COURT
2021-TIOL-1954-HC-MAD-CUS
Kiruba Export Vs CC
Cus - Writ appeal questions the correctness of the order dated 30.07.2021 by which the petition was dismissed on the ground that the appellant should avail the alternate remedy available under the provisions of the Customs Act.
Held: Procedure adopted by the first respondent in issuing a show cause notice and fixing three dates for personal hearing which are pre-fixed date(s) would fall foul of the Master Circular No. 1053/2/2017-CX dated 10.03.2017 - Facts clearly show that adequate opportunity was not afforded to the appellant - Bench is convinced that the appellant's case will fall within one of the exceptions that have been carved out by the Supreme Court [in the case of Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai and others [(1998) 8 SCC 1] ] for entertaining the writ petition - Writ appeal is allowed, the order passed in the writ petition is set aside and the Order-in-Original No. 81386/2021 dated 17.03.2021 is set aside and the matter is remanded to the first respondent for fresh consideration: High Court [para 6, 7]
- Appeal allowed: MADRAS HIGH COURT
2021-TIOL-629-CESTAT-BANG
Forbes Aquatech Ltd Vs CCE
CX - Appellant is a manufacturer of water purifiers of various types - It appeared to Revenue that for the period March 2007 to June 2007, appellant had manufactured and cleared seven water purifier models without payment of Central Excise duty, by claiming benefit of exemption under Notification No. 6/2007-C.E. - The Revenue's doubt vide its SCNs have been effectively rebutted by Analytical Report issued by a neutral party wherein it has been categorically clarified that the water purifiers in question do not use any kind of external pressure - The water purifiers in question work on gravity flow and do not require electricity, pump or pressurised vessel for purifying water to produce portable water - For the periods April 2008 to October 2008 and November 2008 to August 2009, the first appellate authority has allowed appellant's appeal after considering the Analytical Reports of expert in the field, vide O-I-A - Moreover, the Notification in question only mandates that the water filters should function without electricity and pressurised tap water - Tribunal have gone through the user manual in respect of both the models which are placed on record, from which Tribunal do not see either of models requiring any electricity or pressurised tap water for functioning - Other than mere suspecting, even the Revenue has not adduced any sought of evidence to dislodge the mode of functioning explained in the user manual - The water purifiers in question function without electricity and pressurised tap water, they satisfy the conditions of Notification in question and, consequently they are entitled for benefit of Notification in question - Accordingly, impugned order is set aside: CESTAT
- Appeals allowed: BANGALORE CESTAT
2021-TIOL-628-CESTAT-MAD
Arul Prakasam Vs CGST & CE
ST - The appellants were issued SCN demanding service tax under category of 'Manpower Supply Service' - The original authority confirmed the demand along with interest and imposed penalties - The issue was analysed in the appeals filed earlier by these appellants and the Tribunal vide Final Order dated 19.2.2019 holding that the activity undertaken by appellants cannot fall under the category of manpower supply service - Following the said decision, it is held that the demand for the period prior to 2012 cannot sustain and requires to be set aside - The impugned orders are set aside: CESTAT
- Appeals allowed: CHENNAI CESTAT
2021-TIOL-627-CESTAT-MAD
Ave Maria Enterprises Vs CC
Cus - The appellants have imported sun glasses, reading glasses and frames in five containers; filed Bills of Entry and shifted the goods to an unit in free trade warehousing zone in Chennai - On investigation, department found that there was misdeclaration of quantity in impugned consignments - A SCN was issued proposing confiscation of goods, revision of value of declared and imposing penalties - Duty with interest and penalty has been paid in full within 30 days of receipt of demand cum SCN and the adjudicating authority was duly informed that corrigenda have been issued much after the provisions of Section 28 have been complied with - Once the duty, penalty has been paid under the provisions of sub-section (5) of Section 28 of Customs Act, 1962, the only imminent action to be contemplated is in terms of sub-section (6) of Section 28 ibid as per which the issue attains finality - Corrigenda to SCN were issued much after such compliance; issued without challenging the letter written by SIIB informing the closure of the case - It is settled principle of law that a corrigendum cannot be issued altering the issues causing undue disadvantage to the Noticee - No reasons whatsoever have been discussed in OIO as to why the compliance under sub-section (5) of Section 28 ibid was not accepted and as to why the proceedings were not treated as final in terms of sub-section (6) of Section 28 ibid - Therefore, the corrigenda issued and the OIO are to be held to have been issued without jurisdiction and without authority of law - Moreover, penalty was imposed under Section 114A ibid, even though the same was not proposed in SCN - Therefore, the impugned order suffers from legal infirmities and such an order cannot be upheld - Appellants having adhered to provisions of Section 28 of Customs Act, 1962 have rightful claim as per the provisions of Section 28(6) ibid - The issue need to be deemed to have been finalised - Therefore, impugned order is set aside: CESTAT
- Appeal allowed: CHENNAI CESTAT |
