2021-TIOL-2108-HC-MUM-CUS
Prime Cargo Movers And Logistics Pvt Ltd Vs UoI
Cus - The Customs authorities in exercise of power conferred by section 110(5) of Customs Act, 1962 provisionally attached the bank account of petitioner - However, petitioner claims that the formal order of attachment was not served on it - A request was made to petitioner's banker for making available a copy of order, to which the petitioner received a response that it may contact Customs authorities directly for obtaining such order - The provisions contained in section 110(5) of the Act are clear - An order of provisional attachment ceases to be valid beyond 6 months of such order being made provided, of course, its life has been extended in accordance with law at the end of six months to remain alive for a further period not exceeding 6 months - The period of 1 year has expired and therefore, the order of provisional attachment, by operation of law, has ceased to be in operation - Revenue is directed to immediately communicate to the petitioner's banker that validity of attachment order has ceased and that the petitioner is entitled to operate relevant bank account, which was under attachment - Let such communication be made within seven days: HC
- Writ petition allowed: BOMBAY HIGH COURT
2021-TIOL-2107-HC-KAR-CUS
Laxmi Electronic Moulds And Precision Engineering Pvt Ltd Vs UoI
Cus - Petitioner imported capital goods under EPCG scheme on payment of concessional rate of duty by claiming exemption in terms of Notification No. 49/2000-Cus - The respondent No. 3 passed Order-in-Original dated 14.09.2011 confirming the demand of Rs. 63,00,321/- on the ground that the petitioner has failed to furnish documents in support of fulfilment of export obligation - It is the grievance of the petitioner that the said assessment order was not received by the petitioner said to have been dispatched by the department through RPAD - It is asserted that the copy of the Order-in-Original was received by the assessee on 31.12.2012 – Petitioner has assailed the Order dated 27.01.2015 = 2015-TIOL-1066-CESTAT-BANG passed by the CESTAT and which upheld the order of the Commissioner (Appeals) rejecting the appeal filed by the petitioner on the ground that the said appeal was filed beyond the statutory period of limitation fixed under the statute.
Held : Appellate Authority as well as the Tribunal being fact finding authorities have meticulously examined the material on record in arriving at a finding that non-mentioning of O.C.No . 4066/2011 [the inter-department reference made in the register to be entered in the acknowledgment card] is not fatal for the delivery of the assessment order on the assessee - It is unrealistic to expect the said O.C.No . 4066/2011, the reference number maintained in the register of the Assessing Officer, to be entered in the acknowledgment card as the reference number in the envelope and the postal acknowledgment – Request made by the petitioner to decide the issue on merits de hors the time barred appeal would run counter to the well-established principles of law reiterated by the Apex Court in catena of decisions - No power was vested with the authorities as well as the Tribunal to condone the delay beyond the statutory period of limitation - It is well settled that the Court can come to the rescue of the person who is vigilant about his rights and not to a person who sleeps over the matter and rises from the slumber at his convenience - It cannot be expected that the petitioner would have awaited the assessment order from 14.09.2011 till 31.12.2012 – Petition is devoid of merits, hence dismissed: High Court [para 9, 10]
- Petition dismissed: KARNATAKA HIGH COURT
2021-TIOL-2106-HC-MUM-CUS
Moulin Export Pvt Ltd Vs UoI
Cus - During the pendency of this petition, an order of provisional release under section 110A of Customs Act, 1962 has been passed and in that view of matter, petitioner does not wish to proceed with this writ petition any further - Same stands dismissed as withdrawn: HC
- Writ petition dismissed: BOMBAY HIGH COURT
2021-TIOL-2105-HC-MUM-CUS
Kitchen Essentials Vs UoI
Cus - Petitioners' challenge in this Petition is to an order-in-appeal passed by the Commissioner of Customs (Appeals) whereby, the order-in original passed by the Joint Commissioner of Customs confirming the show cause notice-cum-demand notice under Section 124 read with Section 28 of the Customs Act, 1962 is upheld - Relying on the decision of the Supreme Court in M/s. Canon India Private Limited = 2021-TIOL-123-SC-CUS-LB , petitioners contend that the Directorate of Revenue Intelligence has no authority in law to issue a show cause notice u/s 28 of the Act; that the show cause notice is totally non est in the eyes of law for absolute want of jurisdiction of the authority to even investigate into facts.
Held: Issue raised in the present writ petition is squarely covered by the cited decision - The show cause notice in the present case is also issued by the respondent No. 2 - Joint Director, DRI, Mumbai, who is not a proper officer within the meaning of Section 28(4) read with Section 2(34) of the said Act - Bench has no hesitation in holding that the entire proceedings in the present case initiated by the respondent No. 2 - Joint Director, DRI, Mumbai, by issuing the show cause notice are invalid, without any authority of law and liable to be set aside and ensuing demands are also liable to be set aside – In view of the Supreme Court decision in the case of Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai and others (1998) 8 SCC 1 , the alternative remedy would not operate as a bar in the present case where the order or the proceedings are wholly without jurisdiction - Consequently, the order-in-appeal, the original order and the show-cause notice stand set aside - Writ petition stands allowed: High Court [para 10, 12, 13, 15]
- Petition allowed: BOMBAY HIGH COURT
2021-TIOL-687-CESTAT-MUM
Mechasoft Vs CCGST
CX - The assessee is a manufacturer of Excisable goods & is also a job worker - In course of audit, it was revealed that in the relevant period, the assessee had availed Cenvat credit against job work activity, which is exempted service and that the assessee did not maintain separate record as per Rule 6(3) of Cenvat Credit Rules, 2004 - Hence SCN was issued demanding 6-7% of the amount received by the assessee as job work charges - On adjudication, the demands were confirmed along with interest & equivalent penalty.
Held - Notification No. 214/86-C.E. (N.T.) though was effective from April 1996 has been amended extensively vide Notification No. 49/2002, dated 16.09.2002 so as to make the manufacturer accountable for discharging his obligation in respect of goods under Rule 6 of the Cenvat Credit Rules, 2002 - As such when the notification was made service was not treated as an taxable incident in India and the said notification has clearly excluded job workers from the purview of payment of excise duty if ultimate manufacturer was to pay the duty at the time of clearance - Therefore, this amendment of 2005 since has only fixed manufacturer liable to comply with Rule 6 of Cenvat Credit Rules, 2004, job worker cannot be asked to comply the same again on the ground that he is also a part of the manufacturing process - Further, Rule 6 of Cenvat Credit Rules, 2004 introduced a proviso vide Notification No. 13/2005, dated 01.03.2005 in respect of job workers, as per definition of job worker contained in Rule 12AA of the Central Excise Rules, so as to extend the benefits of Cenvat credit on inputs to the job workers provided those inputs were used in manufacture of goods cleared without payment of duty by the job worker - There is a clear finding of the adjudicating authority that the processes undertaken by the job worker were incidental and ancillary to manufacturing or production and hence, amounts to manufacture or production of goods that is specifically excluded from the purview of taxable service, which is also found reflected in the written note filed on behalf of the appellant, there is no need to further dwell into the issue with reference to S.No. 30 of the Notification No. 22/2012-S.T. to interpret the nature of work undertaken by the appellant job worker - When such a finding of the adjudication authority is not appealed against by the Department, the work undertaken by the assessee was part of the process of manufacturing and not a services rendered by it to the ultimate manufacturer: CESTAT
- Appeal allowed: MUMBAI CESTAT
2021-TIOL-686-CESTAT-DEL
Raymond Ltd Vs CCE, C & ST
ST - Whether SCN has been validly issued, for raising demand of service tax on GTO/GTA services received by appellant for disputed period, in terms of prevailing Section 73 under reverse charge, and whether appellant is entitled to refund of the amount of service tax paid under protest which have been demanded, pending adjudication - The issue of levy of service tax on GTO service, on the receiver of service under reverse charge mechanism was held ultra vires by Supreme Court in the case of L. H. Sugar 2005-TIOL-105-SC-ST - The appellant have taken service tax registration and are filing periodical returns regularly - They have maintained proper books of accounts in normal course of business - The only allegation in SCN is that the appellant have not discharged service tax liability on 'reverse charge basis' on Goods Transport Service, received during the period 16.11.1997 to 01.06.1998 - It is further alleged in SCN that service tax was imposed as transport of goods of service w.e.f. 16.11.1997 vide Notification No. 41/97-S.T. - Bombay High Court in case of Indian National Shipowners Association have held that service tax cannot be levied under reverse charge mechanism prior to 18.04.2006, when Section 66A was introduced and/or inserted in Finance Act, providing for levy of service tax from the receiver of service, under reverse charge mechanism - This ruling have been confirmed by Supreme Court - The extended period of limitation cannot be invoked, as admittedly the SCN have been issued after the normal period of limitation - Whole proceedings and the SCN is ab initio void in view of the ruling of Supreme Court - The revenue is directed to grant refund of the amount to the appellant with interest @ 12% per annum for the period from 08.11.2003 till the date of payment, within a period of sixty days Accordingly, impugned orders are set aside: CESTAT
- Appeals allowed: DELHI CESTAT |
