2021-TIOL-2339-HC-MUM-CX-LB
CCGST & CE Vs Hindustan Petroleum Corporation Ltd
CX - Division Bench has referred following questions of law to the Full Bench. (i) Whether on the facts and circumstances of the case and in law, the issue of a demand being time barred when it is made on the basis of valuation and / or rate of duty, is an issue relating to the assessment of goods and, therefore, an appeal under Section 35G of the Act, is not maintainable before this Court ? (ii) Whether an appeal under Section 35G(1) of the Act would be maintainable before this Court when there is no dispute with regard to the rate of duty and / or valuation as arrived at by the Tribunal (both parties accept the decision of the Tribunal on that issue) and challenge the impugned order only to the extent of the demand being barred by limitation ? Held: + Expression 'determination of any question having a relation to the rate of duty of customs or to the value of goods for purposes of assessment' prescribed under Sections 130 and 130E of the Customs Act is pari-materia to Sections 35G and 35L of the said Central Excise Act. Interpretation of both these provisions i.e. Sections 130 and 130E of the said Customs Act fell for consideration before the Supreme Court in case of Navin Chemicals Mfg. & Trading Co. Ltd. = 2002-TIOL-460-SC-CUS wherein it is held that the phrase 'relation to' is ordinarily, of wide import but, in the context of its use in the reading Section 129C, must be read to mean a direct and proximate relationship to the rate of duty and to the value of goods for purposes of assessment. [para 34] + The issue as to whether the revenue could have invoked the extended period of limitation for recovery of excise duty being a question of fact and/or a mixed question of fact and law, only such order cannot be impugned before the Hon'ble Supreme Court under Section 35L of the said Central Excise Act. [para 36] + The issue of limitation raised in this Central Excise Appeal has no direct or proximate relationship to the rate of duty and the value of goods for purposes of assessment. [para 38] + Adjudication on the said issue of limitation in the Central Excise Appeal filed by the revenue under Section 35G before this Court, even remotely, would not determine either the rate of duty of excise or the value of goods for the purposes of assessment. The order, if any passed in appeal under Section 35G would also not determine the taxability or excisability of the goods for the purposes of assessment. [para 39] Conclusion: (a) Question ( i ) : Answer is in negative. Appeal is maintainable against the respondent in this Court. (b) Question (ii) : Answer is in affirmative. ++ Appeal papers be placed before the Division Bench for further consideration of the appeal.
- Reference answered: BOMBAY HIGH COURT
2021-TIOL-2338-HC-MAD-CUS
Heilsa Meditec LLP Vs CC
Cus - COVID-19 - The practice of purging of Bill of Entry appears to be based on the practice adopted in various ports on account of the architecture of the ICEGATE - There is, however, no provision either under the Customs Act, 1962 or under the provisions of Regulation which contemplates purging of the Bill of Entry - In the facts of the case, the petitioner has filed a second Bill of Entry on 12.07.2021 and said the necessity for filing second Bill of Entry arose only on account of the fact that the earlier Bill of Entry dated 20.04.2021 got erased in the ICEGATE or the customs system, therefore, the petitioner could not comply with the requirements regarding the query raised on 20.04.2021 - This is a fit case where the second respondent ought to have exercised the discretion judiciously by granting waiver as this is a case where petitioner had not filed a fresh Bill of Entry for the first time but has filed a new Bill of Entry as the old Bill of Entry got purged and was erased in the ICEGATE - Therefore, question of imposing late fee charges merely because an importer files a second Bill of Entry on account of the factors mentioned above would not justify the levy of late fee charges on the petitioner - Writ petition is allowed by quashing the impugned order seeking to levy fine/late fee on the petitioner under the provisions of Regulation 4(3) of the Act and Section 46(3) of the Act - Respondents are directed to release the goods which are lying under their control immediately - petitioner shall pay the taxes and applicable duties :High Court [para 15, 16]
- Petition allowed: MADRAS HIGH COURT
2021-TIOL-2337-HC-DEL-CUS
Inderpal Singh Vs UoI
Cus - Notice of petition is issued and accepted on behalf of respondent No. 1 and respondents No. 2 to 4 - A submission is made on behalf of respondents that there has been no compliance of directions in bail application filed by applicant inter alia in relation to condition No. 2 that has been imposed which is refuted on behalf of petitioner - In as much as, further proceedings in relation to file have been stayed, it is only directed that petitioner shall place an affidavit in relation to submission of stated compliance of order before next date of hearing - It is submitted on behalf of respondent Nos. 2 to 4 that there has been no stay of any investigation of any proceedings being conducted by DRI by Division Bench which is presently pending - The matter is directed to be re-notified for date 1.2.2022 : HC
- Matter listed: DELHI HIGH COURT
2021-TIOL-840-CESTAT-KOL
CCE Vs Numaligarh Refinery Ltd
CX - Revenue is in appeal against impugned order dropping the demand for interest under Section 11AB(1) of Central Excise Act, 1944 - The crux of issue relates to applicability of amended Section 11AB ibid on account of an erroneous refund of 'AED' for period April 2000 to May 2001 - It is an undisputed position clearly forthcoming from the case records that the erroneous refund of 'AED' to assessee was not attributable to any mala fide or intent to evade on the part of assessee thereby ruling out the applicability of pre-amended Section 11AB(1) - Contentions of revenue as regards passing of adjudication orders holding the refund as erroneous in February 2002 does not allow them to take recourse to amended Section 11AB(1) ibid in view of restrictions contained in amended Section 11AB(2) ibid - The proposal in Notice to recover interest from the date of grant of erroneous refund as evident from annexure thereof itself militates against revenue's contention of interest liability accruing under amended Section 11AB ibid basis the date of adjudication order - The amended Section 11AB(1) ibid shall apply in the matter of recovery of interest on such erroneous refund in respect of April 2001 and May 2001 and to that extent the impugned order deserves to be modified - Tribunal is not inclined to accept the alternate contention of assessee as regards lack of any substantive provision for recovery of interest in statute charging 'AED' - The provision of Section 133(3) of Finance Act, 1999 incorporates by reference, all such provisions of Central Excise Act in relation to levy and collection of 'AED' - The expression collection is wide enough to include collection of erroneous refund of 'AED': CESTAT
- Appeal partly allowed: KOLKATA CESTAT
2021-TIOL-839-CESTAT-AHM
Jindal Texofab Ltd Vs CCE
CX - The issue relates to denial of cenvat credit allegedly for not following the procedure prescribed under Rule 9A of Cenvat Credit Rules, 2004 and not filing proper declaration for availing the said credit and transitional credit as prescribed under Notification No. 25/2003-C.E. (N.T.) - From earlier round of appeal before Tribunal, it is absolutely clear that the legal issue has been settled in appellant's own case - The matter was remanded only for actual verification of stock - Appellant have filed declaration of stock to department which was verified by Range Superintendent - As per the report, it can be seen that after proper verification some discrepancy was found for Rs. 1,50,250/- which was reversed by appellant - As per the procedure, proper stock verification was conducted by Superintendent thereafter the Adjudicating Authority seeking further verification of all the records is unwarranted - The aforesaid verification report is conclusive one therefore; no further material is required for establishing the stock lying in factory of appellant as on 31.03.2004 - Therefore, Commissioner (Appeals) has gone beyond the direction given by Tribunal in earlier order - Appellant have complied with procedure prescribed for availing transitional credit in respect of stock lying as on 31.03.2004 - Therefore, there is no reason to deny the Cenvat Credit - Accordingly, impugned order is set aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT |
