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2022-TIOL-106-HC-MUM-CUS Isha Exim Vs UoI
Cus - Petitioner is engaged in the business of import of various edible products including products of betel nut (processed supari) - According to the petitioner, the said products of betel nut is classified under CH 2106 9030 of the CTA, 1975 - Sometime in the year 2016, the petitioner filed an application before the Authority for Advance Ruling, New Delhi and the said Authority decided the said application on 31st March, 2017, wherein the classification of the said products was confirmed under CTH - 21069030 - The respondent no.5 did not prefer any appeal against the said ruling dated 31st March, 2017 - That, therefore, the Order passed by the Respondents issuing Seizure Memo in respect of consignments imported on 12 th /16th December, 2020 is contrary to the Advance Ruling issued by the Authority; that the Seizure based on the report of the DYCC is untenable and contrary to the Public Notices issued by the Respondents since the goods covered under Chapter 1 to 14 and Chapter 21 cannot be analyzed /tested at DYCC, NJCH Laboratory; that the Madras High Court [= 2018-TIOL-197-HC-MAD-CUS ] in their own case while dealing with imports of the same goods relied on the same Advance Ruling has held that the said Advance Ruling was binding on the Respondents and quashed and set-aside the Seizure Memo.
Held: A perusal of the Affidavit-in-Reply filed by the Respondents clearly indicate that both the parties are ad-idem that the Public Notices dated 23rd October 2019 and 16th June 2021, had issued a list of goods mentioned under Chapter 8 and 21 which could not be analyzed /tested by DYCC. It is admitted by the Respondents that the goods in-question however were tested by the said DYCC Lab, which had no facility to carry out such testing - Whether the Judgment of Madras High Court in case of the Petitioner itself reported in = 2018-TIOL-197-HC-MAD-CUS would apply to the facts of this case or not can be considered after submission of the report by a Government Laboratory or FSSAI classifying the goods in-question under an applicable entry - Since it is an admitted position that the said DYCC could not have carried out such testing at the first instance, Bench is inclined to direct the Respondents to draw samples of the goods imported by the Petitioner which are subject matter of these Petitions and to send to the Government Laboratory or FSSAI within one week - Since the Authorities have admitted that the earlier samples drawn and tested by DYCC could not have been drawn contrary to the two public notices and the said report being the basis for issuance of Seizure Memo, Bench is inclined to direct the Respondents to release the goods in question on the Petitioner submitting P.D. bond - Impugned Order of Seizure stands set-aside, subject to final assessment depending upon the fresh test report - Writ Petitions are allowed in aforesaid terms: High Court [para 23, 24, 26, 27]
- Petitions allowed: BOMBAY HIGH COURT
2022-TIOL-105-HC-MP-CX
Maya Fan Air Engineering Pvt Ltd Vs UoI
CX - SVLDRS, 2019 - Petitioners with a view to take benefit of the Amnesty Scheme filed a declaration on 05.12.2019 claiming relief to the extent of 60% of tax amount and undertook to pay tax of Rs.10,30,273.60 before due date - On 29.06.2020, the petitioners remitted a sum of Rs.10,30,274/- as against the demand of Rs.10,30,273.60 - However, there was mismatch in the amount payable and the amount paid and resultantly the remittance got rejected on the same day - Petitioners came to know about return of remittance when reminder for payment dated 03.02.2021 was received - Petitioners made enquiries regarding reasons for the same and came to know that due to mismatch in the amount remitted and the amount payable the system has returned the remittance - Thereafter, they approached respondent No.3 for acceptance of payment but since the scheme was already closed, no response was received - On 22.06.2021, the petitioners have once again received demand of tax of Rs.25,75,684/- [as confirmed in the order in original dt. 12.09.2018] along with interest and penalty, hence have filed this petition.
Held : There is no material available on record except bald statements of petitioners that they were having a sweep facility in their account as a result which the said amount got transferred to a fixed deposit in absence of which it shall be presumed that they were aware of such return and amount being kept in the fixed deposit - It is well known that when an amount to the tune as is in the present case is transferred, message is received by bank account holder either on the mobile or through E-mail - The same is the case when the transfer is declined and the amount is re-credited in the bank account - It cannot hence be assumed that the petitioners were not aware of the return of remittance having been made in their account - Had the petitioners remitted the amount of Rs.10,30,274/- on 30.06.2020, on and after 31.07.2020, they would have certainly made efforts for procuring a discharge certificate under sub Section (8) of Section 127 of the Finance Act, 2019 r/w rule 9 of the Rules, 2019 - Though the scheme stood lapsed the petitioners did not pursue the matter further and kept absolutely quiet about it - They have preferred this petition on 03.09.2021 which is also after more than two months from the date of service of notice dated 22.06.2021 - Petitioners conduct manifestly shows that they were always aware of the return of the amount which was purportedly remitted by them - On the contrary, they have kept the amount in a fixed deposit and have been earning interest from it - Submission of petitioners that they are still ready and willing to deposit the amount along with interest up to date hence be granted the benefit under the scheme is also liable to be rejected as the same appears to be a mere afterthought and an effort by them to wriggle out of the lapses on their part - In any case the Amnesty scheme has already come to an end hence no benefit under the same can be granted to the petitioners - Petition dismissed: High Court [para 8, 9, 11, 12]
- Petition dismissed: MADHYA PRADESH HIGH COURT
2022-TIOL-104-HC-MUM-ST
Sunil Jay Prakash Singh Vs UoI
ST - SVLDRS, 2019 - Respondent No.5 rejected the SVLDRS-1 application by Order/e-mail dated 24th February 2020, 26th February 2020 and 28th February 2020 without giving any opportunity to the Petitioner - The application was rejected on the ground "Nil returned filed online, Investigation under process / data provided in application does not match with record" - Later, on 1st December 2020 SCN issued for the period 2013-2014 (October - March) to 2017-2018 (upto June 2017) proposing to demand service tax of Rs.87,79,971/- - Petitioner requested the Respondent No.5 to grant an opportunity to the Petitioner to prove their eligibility under SVS 2019 and also to allow them to rectify declaration filed under the said Scheme - Since no response received, the present petition.
Held: Stand taken by the Respondents in paragraph No.18 of the Affidavit-in-Reply is that the Petitioner was not eligible to file the declaration under the said Scheme and thus the question of granting personal hearing was not warranted in the present case, is totally absurd and without application of mind - Whether the Petitioner was eligible to file declaration itself or not is an issue, which could be considered only after granting personal hearing to the Petitioner - Impugned Orders passed by the Respondents are in gross violation of the principles of natural justice and are liable to be quashed and set-aside - Applications filed by the Petitioner in Form SVLDRS 1 are restored to file - Matter remanded: High Court [para 14, 16]
- Matter remanded: BOMBAY HIGH COURT
2022-TIOL-93-CESTAT-BANG
Rajmahal Vilas Club Vs CCT
ST - Assessee is registered under "Club or Association Services" - A SCN was issued and demand on "Club or Association Services" was confirmed - Issue is no longer res integra and is squarely covered by judgments in Ranchi Club Ltd. 2012-TIOL-1031-HC-JHARKHAND-ST and Ranchi Club and Sports Club of Gujarat 2013-TIOL-528-HC-AHM-ST - The services rendered by Club to its members are held to be service rendered to themselves and no such relation of service provider and service recipient exists between the Club/Associate and its members - Impugned order is set aside: CESTAT
- Appeal allowed: BANGALORE CESTAT
2022-TIOL-92-CESTAT-AHM
Nirma Ltd Vs CC
Cus - The issue arises is that whether refund of deposit made with reference to provisional assessment as a security to the bond executed by assessee is governed by Section 27 of Customs Act, 1962 and the provision of time limit and unjust enrichment is applicable - The amount which the assessee is claiming as deposit was clearly paid as differential custom duty as is evident from bond - It is further observed that assessee has paid this amount vide TR6/GAR 7 Challan - From the aforesaid challan, it can be seen that under the Head of Account it is a customs duty which was paid and also in description coloumn it is clearly mentioned that deposit of amount is equal to 20% of provisional duty therefore, amount has been paid as customs duty only therefore it is not a deposit as has been claimed by assessee - Since in view of the documentary evidence, it is established that amount for which refund was sought for by assessee is not a deposit but it is a duty, therefore, refund is clearly governed by Section 27 of Customs Act, 1962 - Therefore, all the provision of limitation and unjust enrichment is clearly applicable - Accordingly, the impugned order is set aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
2022-TIOL-91-CESTAT-DEL
Kukreti Steels Ltd Vs CCGST
CX - The appellant during investigation had made a deposit of Rs.5 lakhs - Thereafter, duty of Rs.50,05,446/- was confirmed vide O-I-O - Appellant in appellate proceedings before Tribunal succeeded - Thereafter, they filed a refund claim - The Asstt. Commissioner relying on Board's Circular 984/08/2014-CX adjudicated the refund application and the interest was allowed @ 6% from date of filing before Tribunal upto grant of refund - There is no ambiguity on reading Section 35 FF read with Section 35 F - The full amount of pre-deposit, even if it is more than the prescribed limit, has to be refunded by Department along with interest - Revenue is directed to grant further refund of balance amount along with interest on full amount @12% from the date of deposit till the date of granting refund, after making adjustments for the interest already granted - The impugned order is set aside: CESTAT
- Appeal allowed: DELHI CESTAT |
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