2022-TIOL-273-HC-DEL-COFEPOSA
Jasvinder Kaur Vs UoI
COFEPOSA - The petitioner filed the present petition seeking a direction in the nature of habeas corpus for production of the petitioner's son, whom the petitioner alleged to have been illegally detained by the Respondent - The petitioner also sought that directions be issued to quash the detention order issued u/s 3(1) of the COFEPOSA under which the petitioner's son is being held in preventive detention at the Tihar Jail, New Delhi - The AIU had received a tip-off about certain persons coming to India and who were smuggling drones, cigarettes and other items - When the petitioner's son was apprehended and his bags searched, 238 sticks of cigarettes and 2 bottles of Scotch whisky were found amongst other sundry items - The petitioner's son was arrested and his bail application came to be dismissed.
Held - In the present case, detention order bearing No. PD-12002/05/2020-COFEPOSA dated 05.06.2020 was not served upon the petitioner's son, detenu Harmeet Singh, in a language that he understands - Accordingly, the impugned detention order falls foul of the constitutional mandate contained in Article 22(5) of the Constitution - Present petition is allowed and the petitioner's son is directed to be released from preventive detention: HC
- Writ petition allowed: DELHI HIGH COURT
2022-TIOL-272-HC-MUM-ST
Ashwini Builders And Developers Pvt Ltd Vs Asstt. CCE & ST
SVLDRS - The assessee was issued SCN proposing to raise tax demand, during the relevant period - Action was also proposed to be taken against the assessee - On adjudication, O-i-O came to be passed against the assessee - Thereafter, the assessee filed application for rectification of mistake apparent from record, according to the assessee u/s 74 of Chapter V of Finance Act 1994 - The rectification application was dismissed - The assessee filed appeal before the Appellate Authority under Section 85 of the Finance Act, 1994 - Meanwhile the Govt rolled out the SVLDRS and the assessee filed an application to avail this Scheme - While the assessee's application was accepted and the assessee was asked to deposit a certain sum for settlement of the matter, the Appellate Authority meanwhile passed O-i-A dismissing the assessee's appeal.
Held - Order dated 06/03/2020 passed by the Designated Committee requiring the Petitioner herein to pay the amount of Rs. 13,18,433.20/- placing the declaration form submitted by the Petitioner under "arrears category" is quashed and set aside: HC
+ Under Section 125 (1) of the said scheme, it is clearly provided that all persons shall be eligible to make declaration under the said Scheme except (a) who have filed an appeal before the Appellate Forum and such appeal has been heard finally on or before 30/06/2019. In this case the appeal filed by the Petitioner under Section 85 of the Finance Act, 1994 was pending on 30/06/2019. The Petitioner was thus eligible to file the said scheme under the 'litigation category'; (Para 22)
+ In so far as, the term 'amount in arrears' under Section 121(c) of the said scheme is concerned, it means the amount of duty which is recoverable as arrears of duty under the indirect tax enactment, on account of (i) no appeal having been filed by the declarant against an Order or an order in appeal before the expiry of the period of time for filing appeal or (ii) an Order in appeal relating to the declarant attaining finality; (Para 23)
+ It is further held by this Court that Central Board Indirect Tax and Customs accordingly issued circular dated 27th August, 2019 to implement the objects and intent of closing litigations from pre-GST regime quickly and to grant benefit to the business of availing of the said opportunity. Central Board of Indirect Tax and Customs conveyed to all the department heads of the scheme that an endeavour to be taken to unload the baggage relating to the legacy taxes viz. Central excise and service tax that have been subsumed under GST and allow business to make a new beginning and focus on GST. It was emphasized that all the officers and staff of CBIC to make this scheme a grand success. The dispute resolution and amnesty are the two components of the scheme. The dispute resolution component is aimed at liquidating the legacy cases locked up in litigation at various level whereas the amnesty component gives an opportunity to those who have failed to correctly discharge their tax liability to pay the tax dues. It was further stated in the said circular that the said scheme had the potential to liquidate the huge outstanding litigation and free the taxpayers from the burden of litigation and investigation under the legacy taxes. The administrative machinery of the Government will also be able to fully focus on helping the taxpayers in the smooth implementation of GST. The importance of making this scheme a grand success cannot be overstated. The authorities are instructed to familiarize themselves with the scheme and actively ensure its smooth implementation. (Para 27);
+ In our view, the view taken by the respondents is not only contrary to various principles of law laid down by this Court in catena of decisions referred to aforesaid but also contrary to the objects and intent of the Central Government in introducing the said scheme for the benefit of the assessee and to bring them out of litigation forever pending under pre-GST regime. The view taken by the respondents thus deserves to be quashed and set aside with the order of remand; (Para 30)
+ In our view, the impugned Order dated 06/03/2020 passed by the Designated Committee requiring the Petitioner herein to pay the amount of Rs. 13,18,433.20/- placing the declaration form submitted by the Petitioner under "arrears category" is quashed and set aside. The said declaration form is restored to file before the designated authority. The Petitioner would be liable to pay the tax dues, if any, in accordance with SVLDRS-1 filed by the Petitioner within two weeks from today without fail. (Para 31);
- Writ petition allowed: BOMBAY HIGH COURT
2022-TIOL-173-CESTAT-MAD
Technico Laboratory Products Pvt Ltd Vs CGST & CE
CX - The appellant (TLPPL) is engaged in manufacture of laboratory furniture and also laboratory electric furnaces and ovens - M/s. Technico Laboratory Glass Works (TLGW) is a proprietorship concern engaged in manufacture of laboratory glassware - Both the units TLPPL and TLGW have common Head office with same address and phone number - The profile of both TLPPL and TLGW and their e-mails are the same - TLPPL is the owner of trade mark 'TECHNICO' - Both TLPPL and TLGW were clearing their goods under invoices bearing the trade name 'TECHNICO' - Department was of the view that both the units were not eligible for SSI exemption for period 2011-12, 2012-13 and 2013-14 during June 2014 - The goods manufactured by both the units are different - The products being entirely different, it cannot be said that the trade name of one unit was used to market the products of the other unit - Further, there is no evidence brought forth from the records that the clearances made by one unit are in fact the goods clandestinely manufactured by other unit - The department has mainly relied on the rental agreement entered into between the two units - Being separate entities, no discrepancy found in such rent agreement - Payment of rent cannot be considered as fund flow in respect of goods manufactured and cleared by the unit - Merely because the members of the family are owners of these two units, it cannot be said that there is mutuality of interest - In fact, there is no specific allegation that TLGW is a dummy unit - The department has proceeded to club the clearances of both these units without raising such allegation - Department has miserably failed to establish any mutuality of interest or cash flow between both the units - Impugned order is set aside: CESTAT
- Appeal allowed: CHENNAI CESTAT
2022-TIOL-172-CESTAT-BANG
MK Impex Vs CC
Cus - The only issue for consideration is as to whether the Revenue was justified in adopting valuation of imported goods in terms of Rule 4 of Customs Valuation Rules, 2007 - We have also gone through the so-called "consent letter" dated 07.02.2013, which is relied upon heavily by the Original Authority and thereafter, by the First Appellate Authority, to adopt the enhanced valuation in terms of Rule 4 ibid - From the "consent letter", it is found that there is no such clear admission by appellant and the so-called "consent" is also limited to flower consignment imported by them w.e.f. the date of letter but however, the same was also subject to final outcome of decision in respect of appeals filed by them, which means that their challenge to adoption of enhanced value was pending in appeal as on the date of said letter - Vide O-I-A, First Appellate Authority had termed as 'unsustainable' and set aside vide orders passed on 27.03.2013 and 29.05.2013 - By this, it is evident that the so-called "consent letter" was not a blank cheque to be adopted universally and for all the imports appellant could ever make - Moreover, authorities have nowhere given any acceptable reasons as to why they jumped to adopt Rule 4 ibid and the valuation prescribed thereunder, instead of following the Rules sequentially - From the records, nowhere do Tribunal see that appellant was furnished with NIDB data or whatsoever that was relied upon for enhancement of value, for rebuttal, which is clearly in violation of principles of natural justice - Further, there is no justification as to why and how the valuation declared at US$ 0.03 per stem could not be adopted by authorities below; nor have they disputed the above transaction value by placing reliance on any contemporaneous import data of other similar importers - Impugned order is set aside: CESTAT
- Appeal allowed: BANGALORE CESTAT |
