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2021-TIOL-1961-HC-MAD-CUS
Pioneer Wincon Energy Systems Pvt Ltd Vs Addl.CC
Cus - Petitioners submit that it is imperative to give an opportunity to the writ petitioners i.e., personal hearing on a video conferencing platform - In support of his contention, they pressed into service a circular being circular No. 55/2020-Cus ., dated 17.12.2020 issued by Central Board of Indirect Taxes and Customs.
Held: Writ petitioner has sought for personal hearing vide communication dated 31.03.2021, therefore, the question as to whether personal hearing has to be granted in case of re-assessment, only in cases where the importer asks for personal hearing is left open in this case - In other words, the question whether circular No. 9/2020 dated 05.06.2020 is subsumed by circular No. 55/2020 dated 17.12.2020 qua personal hearing is left open - Case of the petitioner will fall under paragraph No. 11(ii) of Commercial Steel case law [ 2021-TIOL-234-SC-GST-LB ], as it would be violation of principles of natural justice which is ingrained in reassessment proceedings - In any event, no elucidation is required to say that alternate remedy rule is not an absolute rule, it is discretionary and it is a self-imposed rule qua writ jurisdiction - Impugned orders in III WP and IV WP fail to pass muster owing to personal hearing not being afforded - Third respondent in III WP and IV WP shall afford personal hearing as expeditiously as possible and in any event within a fortnight i.e., on or before 12.10.2021 and pass speaking orders afresh i.e., de novo within another fortnight therefrom - I WP and II WP are disposed of as closed having become infructuous: High Court [para 9, 11, 13, 14]
- Matters remanded/Petitions disposed of: MADRAS HIGH COURT
2021-TIOL-1960-HC-MAD-CUS
CC Vs Vikram Jain @ Veerchand Jain
Cus - Writ petition was filed by the respondent to forbear the appellants from auctioning the 178 watches seized from the respondent till the disposal of the appeal filed by the respondent before the CESTAT - Single Judge allowed the plea made and, therefore, the Commissioner of Customs is in Writ appeal against the said order.
Held : Bench is informed that the respondent has preferred an appeal and the Tribunal has directed the matter to be listed before the Division Bench during November, 2021 - Legal question which may arise before the Tribunal is as to whether, in an appeal filed by the respondent, aggrieved by the Order-in-Original dated 24.09.2018, the respondent can be put to a disadvantageous position, in other words, in an appeal filed by the respondent, can an order adverse to the interest of the respondent be passed, when admittedly, such portion of the order was not questioned before the First Appellate Authority - Effect of the Circular No. 1053/2/2017-CX, dated 10.03.2017 need not be gone into in the instant case as the respondent has complied with the Pre-Deposit condition for preferring the appeal before the CESTAT and the appeal has been directed to be listed for final hearing before the Division Bench during November, 2021 - Therefore, the steps taken by the appellant/Department for auctioning the goods have to necessarily be deferred and the decision of the Tribunal in the appeal filed by the respondent should be awaited - Writ Appeal fails and it is dismissed with a direction to the appellant/Department not to initiate any coercive action against the respondent, as the respondent has complied with the Pre- Deposit condition in terms of 129(E) of the Act and the watches which have been seized shall continue to be retained as such and not put up for auction and the appellant/Department shall await the decision of the Tribunal and abide by the same: High Court [para 6, 11, 12]
- Appeal dismissed: MADRAS HIGH COURT
2021-TIOL-633-CESTAT-MUM
Greatship India Ltd Vs CCGST & CE
ST - The issue involved is that the assessee is providing taxable services, viz. supply of tangible goods services, mining service, business support service, banking and financial service and repair and maintenance service - During audit, it was observed that while discharging service tax due on category of supply of tangible goods and mining services, assessee has not included the value of free diesel supplied to them for providing these services by service recipient - The issue is squarely covered by decision in case of Vantage International Management Company 2021-TIOL-139-CESTAT-MUM - The distinction sought to be made by Commissioner while confirming the demand in respect of free supply of diesel in case of mining services is not having any legal basis - Section 67 does not make any such distinction - No merits found in the appeal filed by Revenue: CESTAT
- Assessee's appeal allowed: MUMBAI CESTAT
2021-TIOL-632-CESTAT-MAD
CC Vs SP Associates
Cus - The respondents had filed various Bills of Entry to import used Digital Multi-Functional Printers/Devices (MFDs) of various makes and models with standard accessories and attachments classifying them under Tariff Item 8443 31 00 of Customs Tariff Act, 1975 - They were examined on first check in the presence of Chartered Engineer who submitted his report and also appraised the value of goods - SCNs were issued to importers for violation of provisions of FTP, Hazardous Waste Rules, E-Waste Rules and Bureau of Indian Standards Act, 1986, proposing confiscation of goods under Sections 111(d) and 111(m) of the Customs Act, 1962 and proposing imposition of penalty upon respondents under Sections 112(a) and Section 117 of Customs Act, 1962 - The case pertains to CRO, 2012 which was issued under BIS Act, 1986 and BIS Rules 1987 neither of which had any provision to regulate imports - Clause (3) of CRO 2012 therefore went beyond the scope of the Act and Rules and imposed controls over imports as well - Electronics & Information Technology Goods (Requirement for Compulsory Registration) Order 2012 has gone beyond the Act and Rules in imposing a restriction from imports - Even these restrictions were confined only to printers and plotters - Multi-Functional Devices were not covered under this order - The letters and circulars of Ministry of Electronics & Information Technology (MeitY) cannot take the place of law and therefore the goods were not prohibited for import - Valuation of the goods by Customs is not disputed - Consequently, the confiscation of goods or misdeclaration under Section 111(m) also need not be interfered with - The impugned goods are useful second hand goods with residual life and are not hazardous waste and hence are correctly allowed redemption for home consumption - So far as the Foreign Trade Policy is concerned, it is true that import of Second Hand MFDs were restricted and required an authorization which the respondents did not have - Therefore, confiscation of goods under Section 111(d) is valid - Having confiscated, the goods can be allowed for redemption under Section 125 of Customs Act, 1962 - There is no bar on allowing redemption in any case - The penalty imposed under Section 117 is correctly set aside as there is no Act or omission rendered by the importer under Section 49 which may have violated - There is no dispute regarding reduction of penalty under Section 112(a) by Commissioner (Appeals) which is fair and reasonable - As far as the request of respondents to waive demurrages is concerned, there is no appeal against the impugned order by respondents and therefore no relief can be considered or granted - All impugned orders are upheld and the appeals filed by the Revenue are rejected - The impugned goods, if not released already by the Customs, must be cleared for home consumption within 10 days, if the respondents pay the duty and other dues as per the impugned orders: CESTAT
- Revenue's appeals rejected: CHENNAI CESTAT
2021-TIOL-631-CESTAT-AHM
Sunrise Containers Ltd Vs CCE & ST
CX - The appellant is engaged in manufacture of Pet preforms, jars, containers with caps - During audit, it was noticed that appellant had availed Cenvat Credit of Service Tax paid on legal consultancy services under reverse change mechanism - The bills were raised for services given in a legal case of Distiller's Association of Maharashtra - On enquiry from appellant, they had informed that there was one case filed by Distiller's Association of Maharashtra in High Court and appellant is one of the members of said Distiller's Association - The legal case was filed by Distiller's Association of Maharashtra which consists of many member manufacturers - Therefore, the beneficiary of outcome is not only the appellant but all the members which means that the service was availed by all the members of association - Though the invoice was raised in the name of appellant but the services availed against said bills has benefitted to all the members of association - Even though the case was filed in the name of Distiller's Association of Maharashtra but since the bill was raised in the name of appellant, appellant is prima facie entitled for Cenvat Credit but only to the extent of portion of services related to appellant - Cenvat Credit attributed to appellant needs to be re-worked out - Therefore, entire case needs a reconsideration - Legal service is directly for the case related to manufacture of final product - Moreover, legal service is prescribed as input service in the inclusion clause of definition of input service - Hence, matter remanded to the adjudicating authority for passing a fresh order: CESTAT
- Matter remanded: AHMEDABAD CESTAT
2021-TIOL-630-CESTAT-BANG
Vijayaa Steels Ltd Vs CCE
CX - Appellant has not supplied the goods to SEZ units but has supplied them to SEZ developers - The case of the Revenue is, therefore, that the appellant is not entitled to the exemption from provisions of Rule 6(1), (2), (3) and (4) available under Rule 6(6)(i) of Cenvat Credit Rules, 2004 - Further, since the appellant had not maintained separate accounts of inputs and input services, it is alleged that the assessee is required to pay an amount equal to 10% of the value of the goods supplied to the SEZ developers - SCN was issued in 2009 covering the period 28.12.2006 to 31.12.2008 - Demand of Rs. 4,90,22,299/- was confirmed along with interest and equivalent penalty hence appeal.
Held: Rule 6(6)(i) was amended vide Notification No. 50/2008-C.E. (N.T.), dated 31.12.2008 to read as "cleared to unit in a Special Economic Zone or to developer of a Special Economic Zone for their authorised operations" - In other words, by the Notification dated 31.12.2008 supplies made to developers of SEZ have also been excluded from the provision of Rules 6(1), (2), (3) and (4) and in case of such supplies, the supplier was not required to reverse the proportionate amount of CENVAT credit or pay an amount equal to 10% of the duty - The period of dispute in this case is from 28.12.2006 to 30.12.2008 during which period the supplies made to developers were not specifically covered by the exemption under Rule 6(6)(i) - However, the question as to whether the notification dated 31.12.2008 giving exemption to supplies made to SEZ developers from Rule 6(1), (2), (3) & (4) will have retrospective application has been examined by the jurisdictional High Court of Karnataka in the case of Fosroc Chemicals (India) Pvt. Ltd - 2014-TIOL-1609-HC-KAR-CX wherein it has been held that the inclusion of SEZ developers under Rule 6(6)(i) is clarificatory and applies to the period prior to 30.12.2008 also - Such view has been followed by various High Courts - Following the same, the appellant was not required to follow Rule 6(1), (2), (3) and (4) in respect of the supplies it made to the SEZ developers and hence it was not required to maintain separate accounts or pay an amount equal to 10% of the value of such supplies - As the demand in the impugned order cannot be sustained, demand of interest or the imposition of penalty is also unsustainable - Impugned order is, therefore, set aside and the appeal is allowed with consequential relief, if any: CESTAT [para 6, 7]
- Appeal allowed: BANGALORE CESTAT |
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