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2021-TIOL-2046-HC-P&H-CUS
Steelman Industries Vs UoI
Cus - Application is filed by the applicant/petitioner to dispose of the present writ petition in light of the judgment dated 09.03.2021 passed by the Supreme Court in M/s Canon India Pvt. Ltd. = 2021-TIOL-123-SC-CUS-LB - Challenge in the present writ petition is to the order-in original dated 15.05.2015 which was passed in pursuance of the show cause notice dated 29.11.2012 issued by the Joint Director, DRI, Ludhiana Regional Unit - Several issues have been raised in the present writ petition including the issue that the Joint Director, DRI is not the 'proper officer' and has no jurisdiction to issue the said show cause notice; that as per Rule 16 of the Customs and Central Excise Duties and Service Tax Drawback Rules 1995, only the 'proper officer' of the custom department can raise the demand - Counsel for the respondent has stated that though the Department has filed review application before the Supreme Court in the aforementioned case titled as M/s Canon India Private Limited (supra), yet he fairly conceded that no stay has been granted and has also stated that the Coordinate Bench had decided the same issue.
Held: Judgments passed by Supreme Court [ 2021-TIOL-123-SC-CUS-LB & 2011-TIOL-20-SC-CUS ] and various other Courts [ 2021-TIOL-1614-HC-KAR-CUS & 2021-TIOL-1626-HC-P&H-CUS ] clearly show that one of the issues which has been raised in the present writ petition to the effect that the Joint Director, DRI is not 'the proper officer' to issue show cause notice has been held in favour of the petitioner - It has further been held that the entire proceedings stand vitiated and are required to be set aside - Bench deems it appropriate to allow the writ petition and to set aside the entire proceedings from the issuance of the Show Cause Notice dated 29.11.2012 to the passing of the order dated 15.05.2015 - Since the petitioner in his application sought disposal of the writ petition only on the basis of the above-said issue of law and has agitated only the said issue of law, thus, the authorities are granted liberty to initiate any fresh proceedings in accordance with law - Petition allowed: High Court
- Petition allowed: PUNJAB & HARYANA HIGH COURT
2021-TIOL-2042-HC-MUM-NDPS
D Bhambri Vs Eknath Marutirao Kalmetkar
NDPS - Mandrax tablets, Methaqualone - IO has preferred this appeal impugning the judgment and order of acquittal by Special Judge (NDPS Court), Greater Mumbai dated 26th March, 1996 by which the respondent came to be acquitted of the offences punishable under the NDPS Act as well as the Customs Act.
Held: It is apparent that the prosecution case itself stands vitiated on account of non-compliance of section 42(2) and section 50 of the NDPS Act - It is equally important to note that except officials of the NCB, there is no evidence of any independent witness except the owner of the tempo, P.W.8-Ankush Bhoite , who turned hostile - Section 50 of the NDPS Act is an important provision in the Act conferring a valuable right upon the accused, in the sense, to appraise him about his mandatory right to get searched by nearest Gazetted Officer of any Department mentioned in section 42 or to the nearest Magistrate - This is not an empty formality and the law on that aspect is no more res integra - It is in the form of a safeguard with a view to see that the authorized officers do not misuse the powers conferred upon them by the Statute - There is no evidence in the complaint that the copy of the information received by the officer was forwarded to the superior official - The complaint is also silent as regards appraisal of the legal right to the accused and that thereafter his search was made - In his cross-examination, P.W.3-Shastrinath Sawant though had stated that the accused was appraised of his legal right, nevertheless, it does not find place in the complaint and, therefore, it can safely be inferred that P.W.3-Shastrinath Sawant, by way of an afterthought, stated about the said fact only with a view to suit the prosecution story - This indeed goes to the root of the prosecution case - Confessional statement alleged to have been given by the accused is essentially a weak piece of evidence which does not have any corroboration from the other evidence on record - Ipse dixitism of the prosecution witnesses cannot be accepted as a gospel truth, more particularly, in the light of the fact that the prosecution has failed to establish that the accused, in fact, was in conscious possession of the contraband - The prosecution has not adduced any evidence as to from which place the consignment was loaded and was destined to which foreign country - Sum and substance of his evidence is that he could not identify the accused in the dock as to the person who had engaged his tempo on hire at the relevant time for transporting goods - Rather, it is his evidence that on the date of the incident besides the cleaner, the person who was owner of that consignment were with him - It is an unsolved mystery as to who was the real owner of the consignment and what was his name - There is one more glaring defect in the prosecution case - P.W.9-Kishor Dave failed to identify the accused in the dock by testifying that since there was a large crowd, it was not possible for him to identify any person - He makes it clear in so many words that he did not know whether person sitting in the dock is the accused - This indeed gives a big jolt to the prosecution case - Conviction cannot be based on foundation of conjectures and surmises - Thus, there is no compliance of section 42(2) of the NDPS Act which would go to the root of the matter and vitiate the trial - There are no independent witnesses - The overall evidence does not at all inspire confidence and, therefore, it is highly unsafe to rely upon such evidence - Special Judge has rightly appreciated the entire evidence and circumstances on record and reached a legal and proper conclusion in acquitting the accused - Appeal is devoid of merits, hence dismissed: High Court [para 23, 24, 28, 29, 34, 36, 37, 40]
- Appeal dismissed: BOMBAY HIGH COURT
2021-TIOL-658-CESTAT-AHM
Rajkamal Industrial Pvt Ltd Vs CC
Cus - Issue to be decided is whether the imported goods is Base Oil SN50 classifiable under Customs Tariff CH 2710 1960, as claimed by the appellant in the bill of entry or the same is classifiable as HSD under CH 2710 1930 of Customs Tariff Act, 1975 as claimed by the revenue.
Held: Entire case was decided on the basis of test conducted initially by the Customs Laboratory at Vadodara and CRCL New Delhi - As per IS 1460:2005 there are 21 Parameters and as per amended IS 1460:2017 it is 22 parameters and the adjudicating authority decided the confiscation on the basis of test report given by IOCL laboratory - There are total 21/22 parameters which are the requirement for testing of the goods to determine that the goods are HSD - However, out of 21/22 parameters only 14 parameters were tested and for the remaining parameters it is clearly stated in the report that the IOCL has no facility for testing the remaining parameters - As per the statutory definition provided in the Customs Tariff Act, only that hydrocarbon oil which is conforming to the Indian Standard Specification IS1460:2005 can be classified as HSD - As per said specification there is a requirement of 21/22 parameters and there is no exception provided that out of 21/22 parameters if any or some of the parameters are met, the product will be considered as HSD even though the remaining parameters are not meeting the requirements as specified in IS - Therefore in the view of the Bench, any product which meets all the 21/22 parameters as specified in IS 1460:2005 can only be qualified as HSD - As per facts of the present case, since 7 parameters as per IS1460:2005 and 8 parameters as per IS1460:2017 were not tested, it cannot be said that the product is conforming to IS1460:2005 and if it is not conforming to IS1460:2005 it does not fall in the definition of HSD as provided under supplementary note of chapter 27 - Burden is on the revenue when the classification claimed by the appellant is challenged to prove that the product is other than base oil or in other words it is up to the department to establish the classification of the goods as HSD which is to be conforming to the IS1460:2005 - In absence of test of all the parameters it is only the assumption of the revenue that on the basis of 14 parameters the product is HSD - Since all the parameters as specified under IS 1460:2005 has not been tested, it is not proved that product imported by the appellant are HSD - Supplementary note to chapter 27 defines the meaning of HSD as meaning hydrocarbon oil conforming to the Indian standard IS1460:2005 as amended from time to time - All the conditions, parameters prescribed in IS1460:2005 unless followed, the product cannot be classified as HSD - IS1460:2005 standard prescribes 21/22 parameters for coming to conclusion whether the product is HSD or not - In the present case, admittedly all the 21/22 parameters were not tested, therefore, product cannot be called as conforming to IS1460:2005 and consequently cannot be classified as HSD - In the present case Commissioner has merely relied on the 3 test reports to conclude that the imported product is HSD even though none of the laboratories were able to test the samples for all 21/22 parameters prescribed in IS1460:2005 and no test was conducted to decide whether product is a base oil - The department has not adduced any document to support or substantiate their claim that the imported products are HSD - Customs department ought to have established that the imported base oil can be used as HSD/ Automotive fuel in internal combustion engines but the adjudicating authority could not establish that the imported product can be used as HSD or automotive fuel and he kept silent on this aspect - Moreover, why the DRI only opted to test the product for HSD and not first got the product tested as base oil is not known - Irrespective of whether the base oil was correctly declared by the appellant or otherwise but since the proposed classification by the department does not sustain the case of department, for this reason also the impugned order is not sustainable - Consequently, the claim of the appellant for classification of goods as base oil under CTH 2710 1960 is maintained - Appellant is allowed to re-export the goods - Since the case of the department is not sustained, the appellant's claim is prima facie correct insofar as waiver of demurrage and detention charges is concerned - However, the appellant is at liberty to raise this issue before the appropriate authority who, in the light of this decision may consider this aspect leniently - Redemption fine and penalties imposed on the appellants are set aside: CESTAT [Para 4.1, 4.2, 4.3, 4.9, 4.11, 4.12, 5, 5.1, 5.2, 5.3, 5.5]
- Appeals allowed/disposed of: AHMEDABAD CESTAT 2021-TIOL-657-CESTAT-BANG
Sairadha Developers Vs CE, ST & CT
ST - The appellants are rendering Construction of Residential Complex Services, Renting of Immovable Property Services and Management, Maintenance or Repair Service - The Department has confirmed demand of Rs.11,38,618/- in respect of unsold flats whereas as per the appellant, they are required to reverse only Rs.1,79,776/- in terms of the formula under Rule 6 (3A) and both the authorities have wrongly quantified the amount - As per submissions of appellant, they have reversed the credit of Rs.27,08,994/- in their books of accounts and submitted the complete details to the Department for verification but the same reversal was not considered for not having disclosed full credit in Returns - As per Circular No.962/05/2012, the credit so claimed and reversed should be accepted by Department - Therefore, matter remanded back to the Original Authority with a direction to verify the quantum of credit available in the books and reversal made by appellant to determine the exact demand of tax from the appellant. As far as the demand relating to shorty payment of service tax to the tune of Rs.1,52,343/- is concerned, this demand has been accepted by appellant but as per the submission of appellant that this can be adjusted out of closing balance of Rs.9,19,950/- remaining unutilized as on 30.06.2017 or as against the amount already excess reversed by him and the same is permissible as per Circular dated 28.03.2012 - This adjustment of short paid tax will also be considered by Original Authority - As regards to demand of interest, there was sufficient balance in CENVAT credit account of the appellant during relevant period and therefore appellant is not liable to pay interest on the delayed payment: CESTAT
- Matter remanded: BANGALORE CESTAT
2021-TIOL-656-CESTAT-AHM
Rakesh Kansal Vs CCE & ST
CX - The appellant is Director of M/s. Ayush Texlene Limited who sent PET films to job workers namely MGM Metallisers Limited for metallization of films - M/s. MGM Metallisers Limited on job worked goods paid the service tax - The department made out a case on the job worker on the ground that the appellant being manufacturer, should have paid excise duty instead of paying service tax - The appellant's Company is not registered with Central Excise department - In this case, it cannot be expected from appellant's Company to follow procedure as per notfn 214/86-CE or other procedures under Central Excise Rules - Accordingly, appellant have rightly supplied the raw material under cover of simple challan - Irrespective of any offence committed by job worker or otherwise, the appellant being not a party to that offence, cannot be penalized under Rule 26 of CER, 2002 - In identical case of Mathew Abraham , Tribunal has set-aside the penalty - In view of the said decision of Tribunal, penalty imposed on the appellant is set aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT |
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