|
2021-TIOL-2233-HC-AHM-CX
Ajanta Manufacturing Pvt Ltd Vs UoI
CX - Adjudicating authority sanctioned certain refund claims, however, it chose not to sanction the refund claims of Rs. 54,10,810/- pertaining to ECSHEC on the ground of the exemption under the said Notification No. 39/2001-CE with a reasoning that only Central Excise Duty or Additional Central Excise Duty can be exempted and the said Notification did not cover the ECSHEC - Commissioner (Appeals) by an order dated 19.12.2018, allowed the petitioner's refund claim of Rs. 54,10,810/- pertaining to ECSHSEC; observing that when the excise duty itself is under exemption, there would be no question of levy of any surcharge or cess by whatever name it is called; reliance placed on CBEC Circular dated 10.8.2004 and the decision of the Apex Court rendered in case of SRD Nutrients Pvt Ltd = 2017-TIOL-416-SC-CX - After about one and half years, respondent No. 2 issued a show cause notice dated 08.10.2020 upon the petitioners proposing to recover the amount of Rs. 54,10,810/- which was refunded to the petitioner in respect of ECSHSEC along with interest - Petitions have been preferred challenging the legality and validity of the show cause notices issued by the respondent authorities on the ground that the said show cause notice is ex facie without jurisdiction and authority of law and in clear disregard to the binding order of the superior authority amounting to abuse of process of law, illegal and void.
Held: It is quite clear from the chronology of events that only because the Apex Court rendered its decision on 06.12.2019 after about eight months of the grant of the refund, the decision in case of Unicorn Industries ( = 2019-TIOL-528-SC-CX-LB ) is relied upon for issuance of the said show cause notice by the respondent No. 2 disregarding the order of the Commissioner (Appeals), which undoubtedly and unquestionably is a superior authority of the respondent No. 2 and which delivered the same on the strength of law prevalent at the time when refund was sanctioned - Emphasis on the part of the Apex Court [ Kamlakshi Finance Corporation Ltd. = 2002-TIOL-484-SC-CX-LB ] is to observe the judicial discipline and the appellate authorities to insist on the judicial discipline to be observed for giving effect of the orders of the higher appellate authorities which are binding upon the adjudicating authorities - It is quite clear that the issue in the matter on hand had already attained the finality relying on the decision of the Apex Court in case of SRD Nutrients Pvt Ltd vs. CCE, Guwahati (supra) and the petitioners had been found eligible for the refund of ECSHSEC - Impugned show cause notice once again raises the very issue when the order of Commissioner (Appeals) has attained finality without any challenge by the department - It is a judicial discipline which demands following the mandate of superior authority, even when it is a quasi-judicial body, as such discipline is an integral part of this well laid down principle and deserves scrupulous observance by all concerned - No one is permitted to obliterate these well-defined boundaries, even in a zeal to earn more revenue or profit the interest of the State as done by the respondent No. 2 - Decision of the Apex Court would bind one and all, but, it cannot avail ground to wreck any issue which has attained finality - The subsequent direction of the Apex Court cannot be a reason to raise demand retrospectively on the issue which is concluded - Show cause notice is issued without any new material in the matter and on the very ground which had been decided by the Commissioner (Appeals) and, therefore, it is ex facie without jurisdiction and hence, the interference under Article 226 of the Constitution of India despite the availability of the alternative remedy would be necessary in the instant case - This is not a case where we can impute any mala fides to the respondent No. 2 - It is over enthusiasm of the officer to advance the departmental cause that without grasping the ratio on the subject and disregard to the settled principles of law that he has initiated the action and hence, the interference is a must by quashing and setting aside the impugned show cause notice - No costs imposed on officer - Suffice to note that apt training for observance of judicial discipline be rendered and in the event of any difficulties, recourse to provision under Section 35E can always be taken as permissible - Both the petitions are allowed quashing and setting aside the impugned show cause notices: High Court [para 9, 11.6, 20, 21, 22, 24, 25, 26]
- Petitions allowed: GUJARAT HIGH COURT
2021-TIOL-2232-HC-AHM-CX
Rajputana Stainless Ltd Vs UoI
CX - Allegations of Clandestine removal - Petitioner is challenging the order dated 28.08.2019 whereby the request for cross-examination of the witnesses whose statements have been recorded but not relied upon is questioned - Petitioner's grievance is that there is no finding given by the respondent no. 2 as to why he has not found such a request sustainable; that this being a nonspeaking order, it is in clear violation of the principle of natural justice and is required to be set aside.
Held: Any denial of the opportunity of cross examination has been held to be in violation of the principles of natural justice - It is the right of the defence/litigating parties to ask for the examination of defence witnesses who could be from any pool which can include those witnesses whose statements have been recorded and not relied upon by the Department while prosecuting the person - Here some of the witnesses are those whose statements were recorded before the show cause notice had been issued and for the reasons suited best to the respondents, quite a few of them were not included in the show cause notice - It would be always the right of the party against whom the show cause notice is issued to call them as defence witnesses as it is the right given to the party which faces the adjudication proceedings - While holding in principle that it is the right of the parties to make a request for the defence witnesses of even those witnesses who have been dropped out by the Revenue, the request, in the instant case, was not of examining them as defence witnesses but of cross-examining them without examining them as defence witnesses and that simply is impermissible and hence, the order impugned cannot be interfered with - Defence cannot request to cross-examine witnesses whose statements have not been relied upon by the Revenue - Order-in-original is passed in complete disregard to the adjournment sought by the respondent and assurance given to the Court even while urgency was made - Standing Counsel was expected to guide the officer concerned dispassionately and as otherwise needed as Court Officer - This trend of not respecting their own words is unpalatable and untenable, therefore, Bench quashes and sets aside the order-in-original which has been passed without availing an opportunity of hearing - Matter remanded: High Court [para 9, 11, 13, 15]
- Petition disposed of: GUJARAT HIGH COURT
2021-TIOL-771-CESTAT-MUM
NRC Ltd Vs CCE
CX - Assessee is in appeal against impugned order whereby the CENVAT credit on GTA service was disallowed on the ground that they have availed CENVAT credit in respect of outward transportation of goods cleared from the factory to depot and from the factory/depot to customer - Assessee have made categorical submission that the GTA service is only in respect of inward transportation of inputs from vendors to the factory and for clearance of finished goods from factory to depot - The SCN as well as adjudication order has gone on the premise that GTA service on which CENVAT credit is availed pertains to outward transportation of finished goods from factory to depot and for direct sale from factory/depot to customer - There is a clear contradiction in facts cited in SCN and narrated by assessee in grounds of appeal - Therefore, matter is remanded to the adjudicating authority to pass a fresh order after verifying the actual facts of the case: CESTAT
- Matter remanded: MUMBAI CESTAT
2021-TIOL-770-CESTAT-MUM
Mahindra Navistar Automotives Ltd Vs CCE & ST
CX - Appellant have manufactured prototype vehicles and cleared from factory on payment of duty under self invoice on comparable value of similar vehicle applying Section 4(1)(b) of Central Excise Act, 1944 and Rule 4 of Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 - Case of department is that in the transaction of prototype since it is not sale value should be determined in terms of Rule 8 ibid, i.e., cost of manufacture + 10% notional profit - The Tribunal considering the same issue in case of Mahindra & Mahindra Ltd. 2018-TIOL-3864-CESTAT-MAD held that the value of comparable vehicle shall apply in terms of Rule 4 ibid - Accordingly, the value determined under Rule 4 ibid, i.e., price of comparable goods shall apply, so, the valuation arrived by appellant is correct and legal and hence, the impugned order is not sustainable: CESTAT
- Appeal allowed: MUMBAI CESTAT
2021-TIOL-769-CESTAT-MUM
Dhiren Enterprise Vs CC
Cus - The issue that arises for consideration is, whether the Additional Director General, DRI had jurisdiction to issue SCN - This precise issue was examined by Supreme Court in Canon India Pvt. Ltd. 2021-TIOL-123-SC-CUS-LB wherein it is observed that the nature of power to recover the duty, not paid or short paid after the goods have been assessed and cleared for import is a power that has been conferred to review the earlier decision for assessment - This power which has been conferred under section 28 of Customs Act, 1962 on the proper officer, must necessarily mean the proper officer who, in the first instance, assessed and cleared the goods - Thus, the SCN issued by Additional Director General, DRI is, therefore, without jurisdiction as the said officer was not the proper officer and therefore all proceedings undertaken by Department on this SCN is without jurisdiction - The order passed by Commissioner (Adjudication) cannot be sustained - The Department, however submitted that the notice was also issued under section 124 of Customs Act for confiscation of goods under section 111 and imposition of penalty under section 112 of Customs Act - Appellant, however placed reliance upon a decision of Tribunal in Bakeman's Home Products Pvt. Ltd. and contended that the proposal for confiscation of goods and imposition of penalty cannot be segregated from the duty demand and, therefore, if the duty demand fails as the SCN was not issued by proper officer, the proceedings for confiscation and penalty cannot survive - Thus, the impugned order cannot be sustained and is set aside: CESTAT
- Appeal allowed: MUMBAI CESTAT |
|
