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2021-TIOL-2011-HC-KAR-ST
Zyeta Interiors Pvt Ltd Vs Vice Chairman Settlement Commission
ST - Petitioner assails the order of Settlement Commission whereby service tax liability having been settled at a certain sum, interest & penalty have also been levied; further, immunity in terms of Section 32K of the Central Excise Act, 1944 has also been extended.
Held : High Courts have taken the view that when the duty paid character and receipt are not in doubt, the credit cannot be denied relying upon procedural rules - When there was no dispute as to receipt of the inputs/services or the genuineness of the claim, the Settlement Commission could not have refused to admit the photostat copies of the documents - Since petitioners are ready & willing to produce the originals of the invoices, therefore, the matter requires remittance for fresh consideration - Writ petition succeeds in part: High Court [para 4]
- Matter remanded: KARNATAKA HIGH COURT
2021-TIOL-2010-HC-MAD-CUS
Venkatalakshmi Paper And Boards Pvt Ltd Vs CC
Cus - For the purpose of manufacturing of the newsprint papers, the company imports old, waste and unused papers from various countries by paying necessary customs duty - An agreement was reached between the petitioner and the supplier on 04.06.2021, pursuant to which 63 metric tons of waste paper and old books had been imported by the petitioner through Tuticorin Port - Before the consignment could reach the Tuticorin Port on 05.07.2021, that is, on 03.07.2021, the petitioner had given a request letter to the respondent Customs Department that, since the imported goods are waste papers in the book form and, therefore, if the Customs Department feel that, it should be mutilated, the same can also be undertaken as per Section 24 of the Customs Act, for which the petitioner would cooperate - However, the Customs department, after inspection of the goods concerned, opined that they are new books imported for a different purpose, not for the purpose of making it as a pulp and, therefore, on the alleged mis-declaration on the part of the petitioner, the respondent Customs have seized the goods - In order to release the goods, either in the same form or after mutilating the same as contemplated under Section 24 of the Customs Act, the petitioner seeks indulgence of this Court by issuance of writ of mandamus.
Held: If the importer really imported the goods in question as brand new books for the purpose of selling it in the Indian market, definitely, the worth of the goods would be multifold than what has been declared, that is, around 13,00,000/- rupees worth for the wastepaper, so such kind of valued goods cannot be volunteered by the petitioner to be mutilate, as that will be more loss to the petitioner than to pay the redemption fine as well as the customs duty even if ultimately the Customs Department found that it is a mis-declared goods, therefore, it is to be confiscated with redemption rights - Court feels that the subsequent action to conduct an inspection on 08.07.2021, and a further inspection by a special team on 23.07.2021 followed by the seizure under mahazaar, are all may be an unwarranted exercise - Even if the goods in question, are to be treated only as books, they could have very well allowed the books to be mutilated for which the petitioner had already expressed his willingness on 03.07.2021 itself -Therefore, merely because a seizure has been taken place, it cannot be stated that the adjudication has to be done in the present case and, therefore, at this juncture only provisional release under Section 110(A) alone is possible - All these procedures, which should be normally adopted in every such case may not be required in this case, in the considered opinion of this Court, in view of the peculiar facts and circumstances, where two important aspects has to be taken note of, one is that the petitioner itself is a paper manufacturing industry and it has been doing this kind of importing of waste paper in book form for several years from various countries, and secondly, the petitioner had volunteered to mutilate the same on 03.07.2021, that is, well before the goods reached the port - Therefore, these two circumstances make this case a different one than the usual cases, therefore, the usual formalities to be adopted by the respondent Customs Department under various provisions of the Customs Act, as has been projected by the Standing counsel may not be required in the present case - Court feels that the prayer sought for can be considered, and accordingly, a direction can be given to the respondents - Needful as indicated shall be undertaken by the respondents within a period of two weeks - Writ petition is disposed of: High Court [paras 26 to 29]
- Petition disposed of: MADRAS HIGH COURT
2021-TIOL-648-CESTAT-MAD
Freight Bridge International Vs Pr.CC
Cus - This is a case of misdeclaration of an export consignment - The consignment of glass bangles were declared for export to Malaysia - During examination, it was revealed that 105 kg of Ephedrine, a narcotic substance was concealed in the consignment - Keeping apart the omissions and commissions of exporter in smuggling, Tribunal is concerned with the role of CHA - On perusal of documents, it is clear that exporter themselves have given a categorical submission that consignment does not contain any contraband - There is a strong case that the appellant Customs Broker had no previous knowledge of concealment - Agreeably, the customs broker has collected all the necessary documents to satisfy himself about the bona fides of exporter - The only mistake or negligence on the part of appellant appears to be permitting an ex-employee whose H-Card has expired to file documents on their behalf - This negligence does not in itself call for a stringent action such as revocation of licence - As their negligence has resulted in admitted smuggling of narcotic substance, penalty would have been enough deterrent wherein the prior knowledge of customs broker about the concealment of narcotic substance in container/consignment is neither alleged nor proved with evidence in proceedings against the appellant - The revocation of licence is an extremely harsh step - It would suffice if the penalty and forfeiture of security deposit are upheld to meet the ends of justice - Revocation of licence is set aside: CESTAT
- Appeal partly allowed: CHENNAI CESTAT
2021-TIOL-647-CESTAT-BANG
CCE & ST Vs New Mangalore Port Trust
ST - The assessee had filed refund claim in respect of service tax paid by them on wharfage charges - They were providing services to MRPL and in terms of Memorandum of Understanding (MOU), the cost of providing infrastructural facilities by assessee was to be funded by MRPL on interest bearing loan basis by investing a portion of amount out of its own funds and arranging the balance amount from the financial institutions - The issue is in respect of two separate amounts - The amount of Rs. 1,52,54,149/- relates to denial of refund by original adjudicating authority on the ground of limitation - Same was allowed by Commissioner (Appeals) - There is no doubt that the price between the service provider and the service recipient was not finally determined at the time of provision of service - Therefore, on account of revision of price, assessable value was required to be reworked and consequently there was a case of assessee where they ended up paying duty more than that was required to be paid - The refund of any excess duty paid by any person is determined under Section 11B of Central Excise Act, 1944 - The claim of assessee is that the assessment should have been deemed to be provisional as the final price was not determined at the time of provision of service and they had specially indicated in export/import applications that the service tax was paid under protest - The assessment cannot automatically turn provisional in absence following due procedures as prescribed under Rule 6 of Service Tax Rules - Since the assessment cannot be termed provisional in the instant case, the refund of Rs. 1,52,54,149/- claimed by assessee is clearly barred by limitation -
As regards the refund of Rs.60 lakhs claimed by assessee, it is noticed that the O-I-O points out that the total amount recovered by revenue at the material time was much higher than that paid by assessee - Moreover, it is seen that the issue regarding short payment of duty was also raised by corrigendum - As a result, it cannot be said that the SCN did not raise any ground other than unjust enrichment - The O-I-A did not examine the issue regarding short payment of service tax during the month of February and March 2006 and has ignored the corrigendum to SCN - As a result, the order of Commissioner(A) is set aside on this count as well and the matter is remanded to Commissioner(A) for fresh adjudication after examining the corrigendum issued to SCN : CESTAT
- Appeal partly allowed: BANGALORE CESTAT
2021-TIOL-646-CESTAT-AHM
Prayosha Healthcare Pvt Ltd Vs CCE & ST
CX - The appellant have availed Cenvat Credit in respect of service tax paid on sales commission - The issue involved is, whether the appellant is entitled for refund claim against reversal of Cenvat Credit made as per the audit objection in respect of sales commission or otherwise - The reversal was made on the objection of audit party - Though the reversal was not made under protest but the appellant has right to claim refund within one year as mandated under section 11B of Central Excise Act, 1944, therefore only on the ground that appellant has not filed under protest letter while reversing the credit, refund cannot be rejected on this ground - As regard the merit that whether the sales commission is admissible input service or otherwise the issue is subjudice before High Court of Gujarat in case of Essar steel India Ltd. and also before the Supreme Court in case of Cadila Health Care Ltd. - Therefore, the merit cannot be decided - Accordingly, matter remanded to Adjudicating Authority for passing a fresh order after the legal issue is settled on admissibility of Cenvat Credit on sales commission by Apex Court in case of M/s. Cadila HealthCare Ltd. and also by High Court in case of Essar Steel India Ltd.: CESTAT
- Matter remanded: AHMEDABAD CESTAT |
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