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2022-TIOL-22-SC-CUS
Asean Cableship Pte Ltd Vs CC
Cus - The petitioner-company operates a cableship for purpose of laying, repairs and maintenance of submarine cables - Various telecommunication companies entered into an agreement with cableship operators, including the petitioner herein, to undertake repair and maintenance of the submarine cable wires through cableships such as the vessel AE - That the vessel AE is stationed at Kochi, India, to undertake repairs and maintenance of submarine cables - An SCN was issued proposing to initiate action u/s 111(b) & 111(f) r/w Section 125 of the Customs Act - The petitioner claimed that it was not liable to pay any tax as it had claimed exemption from tax u/s 87 of the Act & that no assessment is required for the purpose of determining the amount payable by it - On adjudication, the demands were confirmed & were subsequently upheld. Held - The dispute concerning an exemption cannot be equated with a dispute in relation to the rate of duty - High Court is right in observing that the principal question in the present case is not in relation to the rate of duty but determining whether vessel AE is a foreign-going vessel or not, and if the vessel AE is a foreign-going vessel, Section 87 of the Act will be applicable or not: SC + While considering the aforesaid issue the main controversy and/or the principal question is required to be addressed. It was/is the case on behalf of the petitioner that the vessel AE being a foreign-going vessel the imported stores are eligible to the exemption under Section 87 of the Act. Therefore, the principal question/issue is the exemption claimed under Section 87 of the Act. Whether the assessee is entitled to exemption as claimed or not, such an issue cannot be said to be an issue relating, amongst other things, to the determination of any question having relation to the rate of duty. The submission on behalf of the petitioner that the duty will be NIL and if not, which is the case of the Customs Department, it will be the applicable rate of duty and therefore, such a dispute can be said to be in relation to the rate of duty, has no substance. The dispute with respect to the exemption claimed and the dispute with regard to the rate of duty are both different, distinct and mutually exclusive. We are of the firm opinion that the dispute concerning an exemption cannot be equated with a dispute in relation to the rate of duty. (Para 4.1); + A somewhat similar question had arisen before this Court in the case of Commissioner of Customs vs. Motorola (India) Ltd., The question involved in the said case was, whether, the assessee violated the conditions of the exemption notification by not utilising the imported materials for manufacturing of the declared final product and was, therefore, liable for payment of duty, interest and penalty. The High Court held that the appeals before the High Court would not be maintainable but were tenable before this Court under Section 130E of the Act. While setting aside the order passed by the High Court, this Court observed and held that neither any question with respect to determination of rate of duty arises nor a question relating to valuation of the goods for the purposes of assessment arises and the appeals also do not involve determination of any question relating to the classification of goods. By observing so, this Court observed that the High Court was not justified in holding that the appeals were not maintainable under Section 130(1) of the Act but were tenable before the Supreme Court under Section 130E of the Act. (Para 5); + the High Court is right in observing that the principal question in the present case is not in relation to the rate of duty but determining whether vessel AE is a foreign-going vessel or not, and if the vessel AE is a foreign-going vessel, Section 87 of the Act will be applicable or not. Therefore, with respect to such an issue, against the order passed by the CESTAT, the appeal would be maintainable before the High Court under Section 130 of the Act. (Para 6).
- Assessee's SLP dismissed: SUPREME COURT OF INDIA
2022-TIOL-362-HC-MP-ST
Al Sadik Haj Tour Organizers Vs CC
ST - The present petitions were filed to contest orders passed by the CESTAT against the petitioner - In the relevant period, a demand of recovery was issued against the petitioner - The petitioner claimed that such order was not communicated to itself - When the petitioner finally obtained a copy of the order, it prepared to file appeal against it, whereupon the appeal came to be dismissed, with directions that the appeal be filed again before a different officer - When the appeal was filed again, it was observed that the delay in filing the appeal is one month and 20 days and the same cannot be condoned, hence the same was dismissed - The petitioner filed appeal before the CESTAT, but that too came to be dismissed.
Held - The dismissal of the appeal on grounds of limitation is not sustainable considering that the O-i-O in question was not served upon the petitioners - Hence the Orders passed by the CESTAT and the Commr.(A) are unsustainable - Matter remanded to the Commr.(A) concerned, for re-consideration on merits: HC
+ From a bare perusal of Sub-section (3A) of Section 85 of the Act 1994, it is luminescent, that an appeal shall be presented within two months from the date of receipt of the decision or order of such adjudicating authority, made on and after the Finance Bill, 2012 relating to service tax, interest or penalty under this Chapter. The proviso attached to sub-section (3A) provides, that if the Commissioner of Central Excise (Appeals) is satisfied that the appeal was presented by sufficient cause from presenting the appeal within the aforesaid period of two months, allow it to be presented within a further period of one month. Thus, the total period, including the extended period to prefer an appeal under Section 85 of the Act 1994, is three months. The provisions of Section 85 nowhere states that limitation shall commence from the date when the order is served upon the person concerned or his authorized agent. Moreover, Annexure-R/1, dated 31-12-2018 appended to the return filed by the respondent contains instructions (Para 12);
+ Perusal of the order reveals that the copy of the order in question, is served upon the person to whom it has been issued. This is abundantly clear from a perusal of Clauses (1) & (3) of the instructions contained in the impugned order. Moreover, Clause (3) is also important and has direct nexus with the instant matter. It says, that the order which has been issued in the name of a particular person, an appeal should be filed within a period of 60 days from the date when the order is communicated to the person in the name of whom the order has been issued (Para 14);
+ Apparently there was no proper service of the order dated 31-01-2018 passed by the Original Authority/Assessing Authority upon the petitioner, so as to enable him to prefer an appeal before the Commissioner of Central Excise (Appeals) in accordance with Section 85 of the Act 1994. (Para 18);
- Writ petitions allowed: MADHYA PRADESH HIGH COURT
2022-TIOL-217-CESTAT-DEL
KEC International Ltd Vs CCE
CX - The appellants are registered with the Central Excise Department and engaged in the manufacture of galvanised towers and structures, which are dutiable - The appellants supplied their goods, which are subject to Price Escalation Clause, as per purchase agreement and deposited the differential excise duty, if any, upon finalisation of the price between parties - During the course of audit, it was observed that the appellant had issued supplementary invoices on the price variation finalisation, in respect of the clearances made in the previous months. Thereafter, the appellant had paid the differential excise duty including cess against the price variation bills regularised for the goods cleared in the past on payment of duty. The Revenue issued show cause notices, as mentioned in the aforementioned tables. As the appellants had not paid the amount of interest for the period from the date of original invoice till the date of payment of differential duty, upon raising of the price variation bills/ supplementary invoices, show cause notice was issued demanding amount of interest under Section 11 AB read with Section 11 A(2B) of the Act and further penalty was also proposed - On adjudication, the proposals in the SCN were confirmed. Held - Having considered the contentions, following the ruling of Delhi High Court in the case of Hindustan Insecticides Ltd., which is based on the ruling of the Apex Court in the case of Commissioner Vs. T.V.S. Whirlpool Ltd., it is held that the benefit of extended period of limitation is not available to Revenue in the present matters, there being no element of fraud, mis-statement or contumacious conduct on the part of the appellant - Thus, the demand of interest is hit by limitation: CESTAT
- Assessee's appeal allowed: DELHI CESTAT
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