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2022-TIOL-121-HC-MUM-CUS
Ashwini Ashish Dighe Vs UoI
Cus - Petitioner has challenged the order passed by the Director General of Foreign Trade by which the Petitioner's applications for issuance of Duty Credit Scrips under the Merchandise Export from India Scheme (MEIS) have been rejected. Held: In the case at hand, the Petitioner has pleaded about its transaction for export of goods with the Overseas Buyer but has not produced a single document evidencing the said transaction / authorization from the Overseas Buyer - In view of absence of documentary evidence, the Petitioner cannot be granted MEIS benefit merely on the basis of pleadings which are prima facie insufficient on the face of record - Impugned order deserves to be upheld - However, since it is the Petitioner's case that it has received consideration in foreign exchange from its overseas buyer against the export goods and is eligible for MEIS benefit, the Petitioner is given one more final opportunity to approach the Respondents by filing a fresh application for seeking MEIS benefit along with the entire documentary evidence pertaining to the Petitioner's transaction with Technocraft Engineering LLC, that is the Petitioner's purported overseas buyer, located in Dubai, UAE - Petitioner shall make the application within two weeks and in the event such an application is made, the same shall be considered strictly in accordance with law by the Competent Authority / Respondents by according an opportunity of personal hearing to the Petitioner and a speaking order shall be passed - Writ Petition is disposed of: High Court [para 11.10, 12, 12.1] -
Petition disposed of: BOMBAY HIGH COURT 2022-TIOL-120-HC-KERALA-CUS
Eisa Nooh Zetnan Zetan Vs Asstt. CC
Cus - Fishing vessel was abducted by its own crew members and brought near the territorial waters of India - A distress call was made to the Indian Coast Guard at Kochi, who brought the fishing vessel into the Indian territorial waters - Vessel along with the goods was ordered to be confiscated by the impugned order of the Commissioner of Customs (Preventive) Cochin - Owner of the vessel, a Yemeni national, challenges the order of confiscation issued u/s 111 of the Customs Act, 1962 and also seeks release of the vessel and the goods, without paying the redemption fine or the duty. Held : Indian Coast Guard acted in accordance with the International Treaty and Rules by responding to the distress call that arose from the vessel and brought it into the territorial waters of India and to the Kochi Port - It is a concluded finding that the vessel was brought into the Indian waters by the Coast Guard, pursuant to a “fake distress call” made by its crew, without the knowledge of the owner of the vessel - The crew being Indians, obviously, the distress call was intended to create a passage for the crew, back to the Country, by illegal means - If the word 'import', as defined in section 2(23) of the Customs Act, 1962 is given a literal meaning, in the context of the facts of this case, it would lead to an absurdity - When the owner of an abducted vessel wants to take the vessel back to the flag State, terming the crossing of the territorial waters of India at the behest of the Coast Guard, who acted pursuant to a distress call, as an import into India, will indubitably lead to an absurdity - The act of bringing into the territorial waters of the country, not being a voluntary action on the part of the owner of the vessel, confiscating the same, is highly arbitrary and contrary to law - Every order of confiscation must, of necessity, be based upon the circumstances arising in each case - A pedantic and rigid approach, dehors the factual circumstances, is not called for - Abduction and bringing into India of a foreign vessel by its crew illegally, without the knowledge of its owner, cannot amount to “import” or be held liable to customs duty as contemplated under the Act, unless the same is used for consumption in India - Circumstances of the case clearly evinces only an instance of the vessel, as well as the goods, to be treated as 'goods in transit' - Impugned order of confiscation reveals that the customs duty and confiscation have been imposed and ordered in a mechanical manner, without bearing in mind the fact that it was not the volition of the owner of the vehicle to bring the vessel or the goods into India - To penalise the owner of the vessel, when admittedly he had no knowledge of the alleged 'bringing into India' of the vessel or the goods in it, in the context of the factual situation emerging in this case, is, to say the least, too harsh, arbitrary and not contemplated under law - Impugned orders are set aside - Respondents are directed to handover custody of the vessel and the goods in it, to the petitioner forthwith, without imposing any charges and in 'as is where is condition' - Petition allowed: High Court [para 13, 14, 18, 21, 22, 26]
- Petition allowed: KERALA HIGH COURT
2022-TIOL-119-HC-KAR-CUS
Biocon Ltd Vs DGFT
Cus - Petition is filed with a prayer to quash and set aside the impugned review order dated 07.01.2020 read with order dated 28.05.2019 passed by respondent no. 1 and direct the respondent no.2 to consider the case of the petitioner and grant export incentive under MEIS or to reopen the online portal and allow the petitioner to rectify the inadvertent error or to accept and process physical application to grant export incentives under MEIS to the petitioner or to alternatively direct the respondent no.4 and amend the shipping bills granting the MEIS benefit - Petitioner submits that in the shipping bill there is a declaration ‘We hereby declare that we shall claim the benefit under chapter-3', however, under the column 'Scheme reward', inadvertently the word “NO” was mentioned (by the Customs House Agent) though it ought to have been “YES”; that the petitioner approached the Policy Relaxation Committee (PRC) but their plea was rejected (order dt. 28.05.2019) and this order was upheld by the Appellate Committee (order dt. 07.01.2020) - Counsel for Respondent DGFT submitted that the scheme is so designed and the software created for the purpose of processing the scheme is such that any defect on the part of the petitioner cannot provide any window for reconsidering the claim made by the petitioner. Held: The applicant has ticked 'NO' instead of “YES” in the reward column of the shipping bill - However, in the same shipping bill, in another portion, intention of the petitioner to claim MEIS reward has been reflected by declaration made as ‘We hereby declare that we shall claim the benefit under chapter-3' - Orissa High Court in the case of Indian Metals & Ferro Alloys Ltd. [ 2021-TIOL-1871-HC-ORISSA-CUS ], after detailed consideration of similar factual matrix has affirmed the view of the High Courts of Kerala, Madras and Bombay which provide for extension of benefit of MEIS scheme if the applicant has inadvertently typed “N” instead of “Y” in the shipping bill in the reward column - To err is human and whenever such bonafide mistakes have happened, procedures so designed ought to provide for a way to rectify such bonafide mistakes - An error arising out of lapse and where parties seek to have the same rectified, the system must accommodate necessary procedure to rectify it - While noticing that the mistake that has happened is a technical mistake and is bonafide, on such technicalities, to deny substantive relief to the petitioner would amount to denial of justice - Court, therefore, sets aside the impugned decision of the PRC dated 28.05.2019 as well as the order dated 07.01.2020 passed by the appellate authority - Respondent no.1 is directed to allow the benefit under MEIS to the petitioner - Necessary formalities to facilitate extension of benefit under MEIS to be made by respondents - Petition disposed of: High Court [para 10, 12, 14, 15]
- Petition disposed of: KARNATAKA HIGH COURT 2022-TIOL-97-CESTAT-MUM
CCGST & CE Vs Ethics Infra Development Pvt Ltd
ST - Assessee is providing services under category of "Construction of residential complex" - It was observed during audit that the assessee did not discharged service tax on services viz., "construction of residential complex services" rendered by them towards the flats allocated to existing members - Adjudicating authority has in his order concluded that the activity of construction of complex of residence for sale was taxable activity both prior to and after 01.07.2012 and for determining the tax implication in respect of such taxable services, he has relied upon the Circular Dated 10.02.2012 - The approach adopted by Adjudicating authority is in line with CBEC Instruction 354/311/2015-TRU - The instruction referred to, is only for period post 01.07.2012 and holds in favour of applicability of Circular dated 10.02.2012 in respect of transactions, activities undertaken post 01.07.2012 - Thus, no error found in approach of adjudicating authority in placing reliance on said circular for dropping the proceedings initiated - Assessee has discharged complete service tax liability on the gross amount received by him for providing taxable services - Once he have discharged the tax liability on gross consideration received by him by the sale of flats to new buyers, demand of service tax for flats handed over to existing members of societies without any consideration cannot be sustained - No merits found in the appeal filed by revenue and same is dismissed: CESTAT
- Appeal dismissed: MUMBAI CESTAT
2022-TIOL-96-CESTAT-MUM
ACC Ltd Vs CCE & ST
CX - Appellant is engaged in manufacture of cement - It appeared to Department that they availed credit of steel used in civil structures which is in contravention of CCR, 2004 - A SCN was issued seeking recovery of credit and imposition of penalty - It is the case of appellant that the steel, which is used in manufacture of chimney and storage tanks is eligible for credit as they rightly used as inputs in relation to manufacture of capital goods which are further used for manufacture of excisable goods cleared on payment of duty - The Tribunal in case of Dalmia Cement (Bharat Ltd.) 2015-TIOL-587-CESTAT-MAD relying upon the decision of Karnataka High Court in case of Hindalco Industries Ltd. , held that credit on cement and steels used in manufacture of storage tank "Silos" is admissible to appellant - The Courts and Tribunal have been consistent in holding that inputs which have gone into the manufacture of capital goods are admissible to credit notwithstanding the facts that said capital goods are embedded to earth - In respect of chimneys used in pollution control equipment, Supreme Court has held the same to be eligible for credit in case of Rajasthan Spinning and Weaving Mills 2010-TIOL-51-SC-CX - Appeal stands on merits of the case and when appeal survive on merits, other issue like penalty become irrelevant: CESTAT
- Appeal allowed: MUMBAI CESTAT
2022-TIOL-95-CESTAT-MUM
National Steel And Agro Industries Ltd Vs CC
Cus - Issue relates to denial of refund of SAD on the ground of mismatch of description of goods in bill of entry and in subsequent sale invoices, through which Sales Tax/VAT payment were acknowledged - While raising invoices short forms are mostly used by staff to save time and space and to a prudent man it would not appear irrational if "Prime Hot Rolled Alloyed Steel in Coils" are written as "HR Coil cut in to length" as its short forms since cut into pieces and "Cold Rolled non alloy steel sheet in coil" is written as "C.R. Coils", that to when a Chartered Accountant/Statutory Auditor Certificate establishing correlation is in existence, which apart from Clarificatory Circular 06/2008-Cus. can also be accepted as a piece of evidence under Section 45 of Indian Evidence Act as being opinion of export - Appellant submits that mere mismatch in description or cutting or selling of product would not disentitle the product to benefit of Notfn 102/2007- Cus - Further, decision rendered by High Court of Madras in case of Johnson Lifts Pvt. Ltd. has clearly stipulated that the department is bound to accept description of goods in import documents as well as sale invoice to be one and the same, on the strength of certificate/correlation statement issued by Statutory Auditor (Chartered Accountant) - The appellant is entitled to get refund with applicable interest and department is directed to pay the same within a period of 3 months: CESTAT
- Appeals allowed: MUMBAI CESTAT
2022-TIOL-94-CESTAT-DEL
Hindustan Zinc Ltd Vs CCGST
CX - The appellant is engaged in manufacture of Lead and Zinc Concentrates and is availing Cenvat Credit on various inputs, capital goods and input services in terms of provisions of CCR, 2004 - Appellant had made provision in books of accounts in respect of non/slow moving inventory, as a managerial tool to take decision for maintaining lowest possible inventory stock - The aforesaid entry in books of account does not change the value of inventory in any manner - This accounting entry had been made as per the established accounting principles - A SCN was issued proposing reversal of Cenvat credit for the period from April, 2016 to June, 2017 along with interest and penalty on the ground that the appellant had not paid or reversed the Cenvat Credit in respect of capital goods/inputs for which provision for alleged write-off was made during period of dispute, as was required under Rule 3(5B) of Cenvat Credit Rules - Admittedly, appellant has made only a 'general provision', which is not attributable to any particular capital asset/input - Revenue has not been able to identify the details of inventory or any asset, for which the general provision has been made - SCN is erroneous as the amount is for 'stores and spares provision' appearing in Trial balance as on 31.03.2017 whereas the amount of Rs.20,04,324/-is debit balance of 'stores and spares expenses' - The two being different account heads, have been wrongly taken together, making theSCN vague and misconceived - Accordingly, impugned order is set aside: CESTAT
- Appeal allowed: DELHI CESTAT |
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