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2021-TIOL-2332-HC-KERALA-CUS
CC Vs Asean Cableship Pvt Ltd
Cus - Section 130 of the Customs Act 1962 - Maintainability of appeal - CESTAT through the order impugned in the appeal, allowed and remanded the appeal for determining the extent of applicable duty on the ship's stores consumed by the appellant during the period, the vessel was engaged in operations in Indian territorial waters and for the normal period. Held: Jurisdictional fact for consideration in the appeal is whether C S Asean Explorer is a foreign-going vessel or not - What is excepted from being an eligible order of appeal to the High Court is the appeal dealing with the rate of duty of customs and the value of goods for purposes of assessment - Foremost and only aspect for decision is not on dutiable or non-dutiable or what is the value of consumables etc, but whether the vessel is a foreign-going vessel or not? - Final Order dated 18.02.2020 is an eligible order for maintaining appeal in this Court - Objection on the maintainability of Customs Appeal against the order dated 18.02.2020, at the instance of the appellant herein is overruled: High Court [para 9.1, 9.2, 9.3]
- Matter posted: KERALA HIGH COURT
2021-TIOL-2331-HC-KOL-CUS
Abhishek Gupta Vs DRI
Cus - Petitioner has challenged the impugned adjudication order dated 21st September, 2021 passed by the Joint Commissioner of Customs (Port) on the ground that the same was passed in gross violation of principle of natural justice. Held: There is a gross violation of principle of natural justice in the case of the petitioner in course of impugned adjudication proceedings and at the time of passing the impugned adjudication order - Matter remanded back to the officer concerned to reconsider the case of the petitioner and pass a fresh adjudication order after giving effective opportunity of hearing to the petitioner or its authorised representative after supplying the eligible copies of the relevant documents upon which the respondent concerned wants to rely and also shall allow the petitioner to cross-examine the witnesses upon whose statement the respondent concerned wants to rely in the impugned adjudication proceedings – Writ petition disposed of: High Court
- Matter remanded: CALCUTTA HIGH COURT
2021-TIOL-2330-HC-MUM-CUS
CC Vs Reliance Industries Ltd
Cus - It is well known that when a statute directs that the things be done in a certain way, it must be done in that way alone - As in this case, when the statute directs that "the proper officer" can determine duty not levied/not paid, it does not mean any proper officer but that proper officer alone - It is impermissible to allow an officer, who has not passed the original order of assessment, to re-open the assessment on the grounds that the duty was not paid/not levied by the original officer who had decided to clear the goods and who was competent and authorised to make the assessment - The nature of the power conferred by Section 28 (4) of the said Act to recover duties which have escaped assessment is in the nature of an administrative review of an act - The section must, therefore, be construed as conferring the power of such review on the same officer or his successor or any other officer who has been assigned the function of assessment - In other words, an officer who did the assessment, could only undertake re-assessment which is involved in Section 28 (4) of the said Act - Proper officer, to whom power is conferred by Section 28 of the said Act and other related provisions would necessarily mean the proper officer, who in the first instance, assessed and cleared the goods, i.e., Appraising Officer of Air Cargo Complex - Therefore, the Additional Director General of DRI, cannot be the proper officer - Entire proceeding in the present case initiated by the Additional Director General of DRI by issuing show cause notice u/s 28(1) of Customs Act, 1962, is invalid and without any authority of law and is liable to be set aside - Appeal disposed of: High Court [para 7 to 9]
- Appeal disposed of: BOMBAY HIGH COURT
2021-TIOL-2329-HC-MUM-CUS
Mehta Infocomm Vs Addl. DG (Adjudication) DRI
Cus - Petitioners have challenged the Order-in-Original passed by the Additional Director General (Adjudication), Directorate of Revenue Intelligence, Mumbai re-determining the declared assessable value, levying differential duty and, penalty in respect of the Petitioners - Petitioners submit that have been denied an opportunity to approach the Settlement Commission and offer a settlement proposal - Petitioners have grave apprehension that the Revenue Department shall launch prosecution against them and, therefore, this Court should intervene and stay any coercive action - Petitioner no. 1 further submitted that they have voluntarily paid an amount of Rs.1,00,00,000.00 during the period of investigation and the other Petitioners had prepared Demand Drafts of the differential duty, penalty and interest to be given to the Settlement Commission but on account of Covid-19, the said demand drafts could not be deposited; that their bonafides are evident and thus, coercive proceedings against the Petitioners be prevented pursuant to the intimation dated 29.10.2021. Held: It is seen that between 08.07.2019 and 29.02.2020, the Petitioners sought repeated adjournments to approach the Settlement Commission, however the Petitioners in fact never approached the Settlement Commission during the said period - Had the Petitioners even approached the Settlement Commission during the said period, the Petitioners' bonafides could have been appreciated - It appears that the Petitioners' intent was to frustrate the adjudication process and render the show cause notices futile - The intention to delay is therefore writ large on the face of the record and is attributable to the Petitioners' omission to prolong the hearing and on the other hand not approach the Settlement Commission - Under the provisions of Section 28(9)(b) of the Act, 1962, the proper officers have an obligation to determine the amount of duty or interest within a period of one year from the date of notice in respect of cases falling under Section 28(4) and considering this prescribed statutory obligation, the Competent Authority passed the Order-in-Original within the stipulated period of time as mandated which would have otherwise rendered the show-cause-notices as null and void - Order-in-Original was passed on 24.03.2020 and the Writ Petition was filed on 26.12.2020 and an Interim Application has been filed on 24.11.2021 - There is no averment that the Petitioners have approached the Settlement Commission and filed the consolidated Settlement Application between the period 24.03.2020 to 24.11.2021 - Nothing prevented or precluded the Petitioners from approaching the Settlement Commission during the above period - It can be seen that the Petitioners have been guilty of gross delay and laches in not abiding by and adhering to the mandate of law - Petition dismissed: High Court [para 8.2, 8.3, 8.5, 8.7, 9]
- Petition dismissed: BOMBAY HIGH COURT
2021-TIOL-2328-HC-MUM-CX
Concast India Ltd Vs UoI
CX - Petitioner submits that penalty could not have exceeded the duty liability of the petitioners (Rs.43 lakh and odd) and, therefore, to make a pre-deposit @ 7.5% of the imposed penalty (in excess of Rs.1 crore), apart from being an onerous condition for the petitioners to satisfy to have its appeal entertained by the Appellate Authority, such imposition is without jurisdiction. Held: It is always open for the petitioners to raise grievance regarding errors of fact in the impugned order in appeal - What the petitioners wants the High Court to do is to sit in appeal over the factual findings recorded by the respondent No. 3 upon re-appreciating the evidence on record - Resort to jurisdiction under Article 226 of the Constitution of India is not intended as an alternate remedy for relief which may be obtained by way of a statutory appeal prescribed - By entertaining these petitions under Article 226 of the Constitution of India, Bench would virtually be permitting the machinery created by the said CE Act to be by-passed - Requirement for 7.5% pre-deposit of the penalty demanded cannot be said to be exorbitant or onerous, more so when it is well settled that when a statute confers a right of appeal, while granting the right, the legislature can impose conditions for the exercise of such right, so long as the conditions are not so onerous as to amount to unreasonable restrictions - There is no reason to entertain the present writ petitions in view of the availability of the alternative statutory remedy of appeal - Writ petitions are dismissed: High Court [para 15, 17, 19]
- Petitions dismissed: BOMBAY HIGH COURT
2021-TIOL-838-CESTAT-MUM
Skoda Auto Wolkswagen India Pvt Ltd Vs CCE & C
CX - The issue arises for consideration is, whether the appellant is eligible to avail suo moto Cenvat Credit of Central Excise duty, without sanction by proper department - The period of dispute is October, 2005 and the SCN was issued on 09.03.2009 i.e. much after the normal period prescribed under Section 11A of CEA, 1944 - Insofar as invocation of proviso to Section 11A ibid is concerned, it has been mandated that only in eventuality of happening of fraud, collusion or wilful mis-statement, such proviso clause can be invoked and not otherwise - The availment of suo moto Cenvat Credit was highly disputed at material time, which was subsequently settled by Larger Bench of Tribunal in case of BDH Industries Ltd. 2008-TIOL-1211-CESTAT-MUM-LB - Since, the appellant had entertained bona fide belief at the time of taking suo moto Cenvat Credit that it is entitled for the same as per statutory provisions, the charges levelled against them regarding involvement in activities, concerning fraud, collusion or wilful mis-statement cannot be sustained - The department has not specifically adduced any evidence to substantiate that the appellant had really indulged into fraudulent activities in wrongly availing Cenvat Credit - Hence, extended period of limitation invoked in this case for initiation of show cause proceedings cannot stand of judicial scrutiny - Therefore, the impugned order is set aside: CESTAT
- Appeal allowed: MUMBAI CESTAT
2021-TIOL-837-CESTAT-DEL
NRK Homes Pvt Ltd Vs CCGST, Excise & Customs
ST - The appellant, a builder is registered with Department under category of 'construction of residential complex service' - They have been depositing tax on advance received from prospective buyer(s) of premises (units) and filing return regularly - However, project got delayed due to unavoidable circumstances and some of the customers demanded refund, by cancelling their contract of purchase - Appellant refunded the total amount received from such customer(s), including the amount of service tax - They filed the refund claim which was rejected - Appellant have bonafidely taken credit under Rule 6(3) of Service Tax Rules on account of service not provided, as they have refunded amount to their customers including the service tax on cancellation of purchase agreement - Admittedly, Revenue has never objected to taking credit by appellant under the scheme of Service Tax Rules - Further, Section 142(5) of CGST Act, 2017 specifically provided for refund of tax paid during Service Tax regime in respect of services not provided, to be paid or disbursed in cash - Finding of Court below is erroneous also in view of law laid by Karnataka High court in KVR Construction 2010-TIOL-68-HC-KAR-ST - Accordingly, appellant is held entitled to refund of unadjusted credit lying in their cenvat credit register, as also reflected in their ST-3 return as on 30.06.2017 - The adjudicating authority is directed to disburse the refund amount within a period of two months alongwith interest as per Rules: CESTAT
- Appeal allowed: DELHI CESTAT
2021-TIOL-836-CESTAT-AHM
Aayushi Enterprise Vs CCE & ST
ST - Appellant is a partnership firm involved in construction, promotion and development and also engaged in the business of sales and organizing residential complex, flats, bungalows after construction, engaging the Civil Contractor and Architect Designer - The service tax was imposed on construction of complex w.e.f. 10/09/2004 - The SCN was issued proposing rejection of refund claim - However, the Assistant Commissioner sanctioned the refund claim - In exercise of powers under section 84 of FA, 1994, the Commissioner made revisions of said order - The appellant being aggrieved by said order is in appeal before Tribunal - The first and foremost issue to be decided is if the Commissioner at the time of passing the order had enjoyed the Revisionary powers - Section 84 of Finance Act was substituted on 19.08.2009 - The powers of Commissioner for Revision of orders was done away at the effect from 19.08.2009 - In instant case also powers of Revision has been exercised on 06/12/2010 whereas the power of revision under section 84 was withdrawn from 19.08.2009 - The impugned order cannot be sustained and the same is set aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
2021-TIOL-835-CESTAT-KOL
Diamond Beverages Pvt Ltd Vs CCE
CX - The appellant had been sanctioned refund as well as interest on the refund as applicable under Section 11BB of CEA, 1944 - They also sought an interest on interest, which has been rejected by first appellate authority - Section 11B of CEA, 1944 provides for refund of duty paid - If refund is not sanctioned within prescribed time limit, a provision has been made under Section 11BB for payment of interest - However, there is no provision for payment of interest on such interest if interest itself was paid belatedly - The question of law which arises is, when there is no explicit provision for payment of interest on interest, whether it can be paid - This question of law was decided by Three Member Bench of Apex Court in case of Gujarat Fluoro Chemicals 2013-TIOL-47-SC-IT-LB , in which, a batch of SLP were disposed off - Although the case pertains to income tax, question of law is identical to present one inasmuch as where the interest on refund is paid belatedly, whether the appellant is entitled to interest on such interest, in absence of any explicit provisions of law for such payment - This issue has been decided by Apex Court in negative - Respectfully, following the judgement of Larger Bench of Supreme Court, appellant is not entitled for interest on interest and there is no infirmity in impugned order rejecting such a claim for interest on interest - Impugned order is upheld: CESTAT
- Appeal rejected: KOLKATA CESTAT
2021-TIOL-834-CESTAT-AHM
GE Power India Ltd Vs CCE & ST
CX - Issue arises is as to whether the appellant's payment of Cenvat Credit has attained finality in terms of Section 11A (2) of CEA, 1944 - Appellant have made payment on the objection raised by audit party as per summary of Audit Report 42/14/15 - From the said report, it can be seen that there was no agreement by appellant and in the column of department conclusion is that the Jurisdiction Assistant Commissioner/Jurisdiction Range Officer was supposed to issue SCN - The payment made by appellant was deemed to be provisional and not final to attract provision of Section 11A (2) - Moreover, appellant intimated the payment vide their letter - The payment of Cenvat Credit made by appellant is only due to objection by audit party and same was not agreed upon by appellant, therefore, Revenue's contention that the said payment attained finality in terms of 11A (2) is absolutely incorrect and illegal - Next issue arises is, whether the appellant is required to file appeal with reference to audit objection and payment made by them - As per audit proceeding, department was supposed to issue SCN which it failed to do so, therefore, there is no occasion and reason for appellant to file appeal before Commissioner (A) - The only remedy is to claim the refund of such payment made as per the objection raised by audit - It is settled that unless and until the payment along with interest is made by appellant and the same is intimated specifically in writing to department, case cannot be closed under Section 11A (2) - The reasons for which the refund claim rejected by both the authorities are not tenable - Accordingly, appellant's refund needs to be processed in accordance with law: CESTAT
- Appeal allowed: AHMEDABAD CESTAT |
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