2022-TIOL-155-HC-AHM-CUS
Addl. Director General Vs Hazel Mercantile Ltd
Cus - Imported goods were declared to be "Naphtha" classified under CTH 27101229 - Chemical Examiner, Customs House Laboratory, Kandla certified that the sample is "Natural Gasoline Liquid" - Application filed by the respondent No. 1 for the provisional release of the goods under Section 110A of the Customs Act, 1962 came to be rejected vide communication dated 27.10.2021 - Tribunal thought fit to set aside the order passed by the Commissioner declining provisional release and allowed the Appeal filed by writ applicant - Revenue, DRI is aggrieved and is before the High Court.
Held : Bench is required to pass an appropriate interim order that may protect the interest of both, the respondent No. 1 also and at the same time the writ applicant DRI - It is very clear that even if the respondent No. 1 is permitted to re-export the goods as ordered by the Tribunal, it is always open for the Department to initiate appropriate proceedings for the purpose of confiscation of the goods by issue of a show cause notice - Bench permits the respondent No. 1 to re-export the goods on the condition that the respondent No. 1 shall furnish a running Bank Guarantee of an amount of Rs.15 Crore of any Nationalized Bank in favour of the respondent No. 2, Commissioner of Customs, Kandla - Respondent No. 1 be permitted to re-export the goods by using the nomenclature "Naphtha"; that using of the said nomenclature would not bind the Department (DRI) and would not entitle the respondent No. 1 to raise a plea of estoppel in the proceeding that may be initiated by the DRI against the respondent No. 1 - Notice be issued to the respondents returnable on 17.02.2022: High Court [para 20, 21, 22]
- Matter posted: GUJARAT HIGH COURT
2022-TIOL-154-HC-AHM-CUS
Qrex Flex Pvt Ltd Vs UoI
Cus - PVC Flex Films - Petitioner inter alia seeks a direction to respondent No. 1 to issue an appropriate notification so as to extend the period of levy of anti-dumping duty under customs Notification No. 38/2021 dated June 30, 2021, until disposal of Appeal No. AD/52173/2021 by the Hon'ble CESTAT or such other time as deemed appropriate.
Held: Bench is of the view that a litigant should not suffer because the Special Bench of the Tribunal is not available - Tribunal has to make the necessary arrangement for urgent hearing of the appeals - Stay of the operation of the Notification dated 24th January 2022 is continued till a further period of six weeks, and at the same time, Bench also orders that the Notification dated 8th August 2016, as extended by the Notification dated 30th June 2021, shall remain in operation for a period of six weeks - Tribunal to take up the appeals for hearing filed by the Association at any cost and decide them in accordance with law before the period of six weeks comes to an end: High Court [para 7,8]
- Petition disposed of: GUJARAT HIGH COURT
2022-TIOL-153-HC-AHM-CUS
CC Vs Rajkamal Industrial Pvt Ltd
Cus - Revenue is in appeal against the order of CESTAT = 2021-TIOL-658-CESTAT-AHM , by which the Tribunal allowed the appeals filed by the respondents herein taking the view that the product in question is not classifiable as High Speed Diesel, but the same is just in the form of base oil.
Held: Bench is conscious of the fact that unless a question of law arises for the determination, the High Court should not replace its reasoning with that of the Tribunal - At the same time, the High Court would be justified in interfering if it is noticed that the Tribunal has disregarded material evidence on record and that too, on technical grounds - High Court would also be justified in interfering when the findings recorded by the Tribunal are ex-facie illegal, perverse and such would give rise to a question of law - Bench is not at all convinced with the findings recorded by the Tribunal - The Tribunal could be said to have ignored the material evidence in the form of the three test reports of three different laboratories certifying the sample to meet with the specification IS 1460 : 2005 - The assessees have not been able to show anything on the basis of which Bench can take the view that if all the prescribed 22 tests are not carried out, the report would remain incomplete and would not be admissible in evidence or would not be conclusive of the nature of the sample - The question that is baffling the Bench is that if these 14 tests indicate the sample to be one of High Speed Diesel, then should such evidence be discarded, ignored or overlooked only on the ground that 7 other tests could not be undertaken by the laboratories because of lack of adequate facility to conduct those 7 tests - To say so, is to tell the department to prove its case with mathematical accuracy and beyond reasonable doubt - Department is not required to prove its case with mathematical precision to a demonstrable degree - The legal proof is not necessarily a perfect proof - Import of the High Speed Diesel in any form has been prohibited vide the Notification dated 17th January 2017 - Modus operandi adopted appears to be that High Speed Diesel imported under the guise of Base Oil SN 50 is being diverted as fuel by routing such goods through the purported manufacturers who claim to manufacture Bio-Diesel B100 - These glaring facts were ignored by CESTAT while drawing the observations that the department ought to have established that the imported Base Oil can be used as HSD / Automotive fuel in internal combustion engines - Common order passed by the Tribunal dated 28th September 2021 is hereby quashed and set aside - Appeals allowed: High Court [para 41 to 45]
Cus - Maintainability of appeal.
Held: It is clear that the controversy before the Tribunal was as to whether the applicant herein had correctly described the goods imported by it - From the findings recorded by the Tribunal, it is clear that none of the findings touch any issue relating to the determination of the rate of duty or value of goods for the purposes of assessment - The entire controversy relates only to the description of the goods in the IGM in connection with the question as to whether such goods are liable to confiscation - None of the issues decided by the Tribunal are in the context of determination of the rate of duty or the value of goods for the purposes of assessment - In such circumstances, the appeal squarely falls within the ambit of section 130 of the Act and has, therefore, rightly been filed before this Court - Bench is of the view that the assessees have sought to create a ghost that the matter relates to the determination of the rate of duty and value of goods for the purposes of assessment by advancing specious arguments, even when the basic requirements for taking the appeal out of the ambit of section 130 of the Act are not satisfied: High Court [para 22, 23]
- Appeals allowed: GUJARAT HIGH COURT
2022-TIOL-115-CESTAT-AHM
Dhariyal Chemicals Vs CCE
CX - The issue arises is, whether appellant is entitled to refund of amount Central Excise Duty which was paid on supplies made to ONGC and Oil India Limited against International Competitive Bidding which admittedly were exempt from duty under Notification No. 12/2012-C.E. and which have considered to be deemed exports under Foreign Trade Policy - There is no dispute that the goods cleared by appellant were indeed exempted in terms of Notification No. 12/2012-C.E. - Therefore, excise duty was not payable since the appellant has paid excise duty which was otherwise not payable, same is refundable to appellant - This issue has been considered time and again in various judgments - In the case of Arvind Ltd, Gujarat High Court has held that when the final products exported on payment of duty under claim for rebate were admittedly exempted from duty and yet the manufacturer paid duty the same has to be in any case refunded to manufacturer - This judgement has been upheld by Supreme court - Even if appellant has claimed the benefit subsequent to clearance of goods or payment of duty, benefit of exemption needs to be extended to appellant - There is no reason to deny the refund of excise duty paid by appellant in respect of exempted goods - Therefore, appellant is entitled for the refund: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
2022-TIOL-114-CESTAT-DEL
Toyota Material Handling India Pvt Ltd Vs Pr.CC
Cus - The issue arises for consideration is, whether the Principal Additional Director General, DRI had jurisdiction to issue the notice - This precise issue was examined by Supreme Court in Canon India 2021-TIOL-123-SC-CUS-LB wherein it is observed that the nature of power to recover 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 Additional Director General, DRI did not have the jurisdiction to issue the SCN - Therefore, SCN issued by Principal Additional Director General, DRI under Section 28 of Customs Act, 1962 is without jurisdiction as the said officer was not the proper officer and all proceedings undertaken by Department on this SCN is also without jurisdiction: CESTAT
- Assessee's appeals allowed/Department's appeal dismissed: DELHI CESTAT
2022-TIOL-113-CESTAT-DEL
Vaibhav Global Ltd Vs CCGST, C & CE
ST - Appellant, a 100% EOU engaged in manufacture of stone studded gold jewellery and silver jewellery - Due to the nature of export, they have taken cenvat credit on input services & inputs and under provision of Rule 5 of Cenvat Credit Rules, 2004 r/w Notification No. 27/2012-C.E. (N.T.) ; they applied for periodical refund - There was a clerical mistake in mentioning the correct amount of credit claimed during the month of June 2017 - On coming to know about the mistake, appellant immediately brought such facts to the notice of department much before filing of refund claim, to which no objection was raised by department - The objection of department is solely on the basis of closing balance declared in ER-2 Return - The stand of department that since the appellant did not opt for filing revised return within the given time, they could claim refund of amount as declared in ER-2 Return only - The substantive benefit cannot be denied on such highly technical reasons, as per law laid down by Supreme Court in Mangalore Chemical & Fertilizers Ltd. 2002-TIOL-234-SC-CX - In case of Mach Aero Components P. Ltd. 2017-TIOL-2318-CESTAT-BANG almost identical issue been settled, that mere non furnishing of some information in ER-2 Return could not be the sole basis to deny the otherwise eligible benefit - Denial of refund claim in part, solely on the basis that the same was to be given in respect of closing balance of credit as declared in return for the Month of June 2017, is not legal and proper, as substantive benefit cannot be denied on technical reasons, all the more, when there was no such condition in Notification No. 8/2016-C.E. (N.T.) - Accordingly, original authority is directed to sanction the balance refund claim along with interest from three months after the date of filing refund claim till the date of sanction of refund: CESTAT
- Appeal allowed: DELHI CESTAT |
