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2022-TIOL-412-HC-MUM-ST
Ata Freight Line India Pvt Ltd Vs UoI
ST - Petitioner has prayed for a declaration that the impugned show cause notices are void and bad-in-law in view of non-adjudication after a lapse of nearly 10 years from the date of issuance of first show cause notice.
Held: Since the respondents were totally responsible for gross delay in adjudicating the show cause notices issued by the respondents causing prejudice and hardship to the petitioner and have transferred the show cause notices to call book and kept in abeyance without communication to the petitioner for more than 7 to 11 years, the respondents cannot be allowed to raise alternate remedy at this stage - Moreover, no order has been passed by the respondents on the said show cause notices, therefore, the question of filing any appeal by the petitioner, therefore, did not arise - Writ petition is allowed in terms of prayer clauses (a) and (b) inasmuch as the SCNs are quashed and set aside: High Court [para 26, 29]
- Petition allowed: BOMBAY HIGH COURT
2022-TIOL-411-HC-MUM-CX
CNH Industrial India Pvt Ltd Vs UoI
CX - Petitioner has prayed for a writ of certiorari for quashing and setting aside the Show Cause Notice dated 17th February, 2006 [Period June 2001 to December 2001] and seeks writ of prohibition to prohibit the respondents from adjudicating the said show cause notice against the petitioner; that the petitioner was never informed about the objection raised by the department to the query raised by the office of the Comptroller and Accountant General nor was informed about the show cause notice allegedly having been transferred to call book - On 18th June, 2008, the name of the company i.e. 'Fiat India Private Limited' was changed to 'New Holland Fiat (India) Private Limited' and on 12th August, 2016, name was changed to 'CNH Industrial (India) Private Limited' - Petitioner requested the respondent No. 2 to provide copies of all the documents relevant to the said show cause notice, as available on record from the files of the respondents, since there was no communication from the respondents, since the date of issuance of show cause notice till the date of said intimation [of personal hearing] dated 19th February, 2019 - as there was no response, the present petition.
Held : There was thus gross delay of more than 12 years in adjudicating upon the said show cause notice dated 17th February, 2006 - If the Respondent would have informed the Petitioner about the said show cause notice having been kept in call book, the Petitioner would have immediately applied for appropriate reliefs by filing the appropriate proceedings - It is not expected from the assessee to preserve the evidence/record intact for such a long period to be produced at the time of hearing of the Show-Cause Notice - The Respondent having issued the Show-Cause notice, it is their duty to take the said Show-Cause notice to its logical conclusion by adjudicating upon the said Show-Cause Notice within a reasonable period of time - In view of the gross delay on the part of the Respondent, the Petitioner cannot be made to suffer - The principles of law laid down by the Division Bench of this Court in the case of The Bombay Dyeing and Manufacturing Company Limited ( 2022-TIOL-269-HC-MUM-CX ) apply to the facts of this case - Bench does not propose to take any different view in the matter - Hearing of show cause notice belatedly is in violation of principles of natural justice - In the matter of WP 1068 of 2021, there is gross delay of more than 10 years on the part of the respondents in adjudicating upon the show cause notices - Impugned SCN(s) are quashed and set aside: High Court [para 14, 16, 26, 27]
- Petitions allowed: BOMBAY HIGH COURT
2022-TIOL-410-HC-AHM-CX
Shabnam Petrofils Pvt Ltd Vs UoI
CX - SVLDRS, 2019 - SCN dated 28th March, 2019 demanding Central Excise duty - Declaration made by the writ applicants under the scheme on 10.11.2019 came to be rejected by the Designated Committee of the SVLDRS on 15.12.2019 - Petition filed against such rejection and seeking quashing and setting aside the said order passed by the Designated Committee - In the meantime, the adjudication proceedings culminated in a final order passed by the Commissioner, Central Excise & CGST, Surat dated 05.08.2020 and against the said order, an appeal has been filed by the assessee-petitioner before the CESTAT.
Held: Bench is of the view that it should allow the Tribunal to proceed with the hearing of the appeal and decide the same on its own merits, expeditiously - Insofar as the present application is concerned, the same shall be looked into by the Bench at the time of final hearing - Rule returnable on 22nd June, 2022: High Court [para 10, 11]
- Case deferred: GUJARAT HIGH COURT
2022-TIOL-250-CESTAT-MUM
Pall India Pvt Ltd Vs CC
Cus - Appeal is directed against impugned order upholding the change in classification of disputed goods effected in original order - Appellant has specifically stated that no SCN was issued and no personal hearing was granted by original authority in support of change in classification of goods - Since the requirement of sub-section (5) of Section 17 ibid has not been strictly complied with inasmuch as no opportunity of personal hearing was granted by original authority in support of change of classification of goods, principles of natural justice have not been followed - Thus, matter is remanded to original authority for passing afresh adjudication order by complying with principles of natural justice - Accordingly, original authority should complete de novo adjudication proceedings, preferably within a period of three months: CESTAT
- Matter remanded: MUMBAI CESTAT
2022-TIOL-249-CESTAT-DEL
Beverly Hills Marketing Pvt Ltd Vs CC
Cus - The issue in this appeal is whether the appellant has been rightly subjected to confiscation of goods being imported Assorted Deodorant vide Bill of Entry at ICD, Garhi Harsaru in alleged violation of provisions of Drugs and Cosmetics Act r/w Rules thereunder with option to redeem on payment of fine and further penalty has been imposed under Section 112(a) of Customs Act, 1962 - There is no deliberate violation of provisions of port of restriction by appellant as the goods have been imported through Nava Sheva, which is a notified sea port and further ICD, Garhi Harsaru falls under jurisdiction of Commissioner of Customs, ICD, Patparganj - Further, competent authority under Drugs and Cosmetics Act have issued 'No Objection Certificate' for release of goods after inspection and appellant was registered under Drugs and Cosmetics Act - Thus, this called for no adverse action against appellant - Accordingly, impugned order is set aside: CESTAT
- Appeal allowed: DELHI CESTAT
2022-TIOL-248-CESTAT-KOL
Neel Kamal Steels Pvt Ltd Vs CCGST & CE
CX - Adjudicating authority has confirmed the demand of recovery of Cenvat credit and dropped the balance demand of Rs.33,41,12,047/- by relying on Range Superintendent's report of verification of invoices for the period 2011-12 to 2013-14 - Appellant has produced their entire input Cenvat Credit Register certified by a Chartered Accountant and also produced copies of invoices said to be missing for the period 2012-13 in O-I-O by department - The only dispute as alleged in SCN was relating to production of documents for the purpose of said Cenvat credit for which an independent verification has been done by Range superintendent also - Appellant is in possession of documents relating to invoices as stated to be not found in said report on which Adjudicating authority has relied and passed the captioned order - Thus, matter is remanded to Adjudicating authority with a direction to verify all the documents which are in possession of appellant to the extent of the confirmation of demand - As regards the demand of Service Tax on legal charges, appellant has not made any payments to Advocate concerned and that the charges have been debited by bank - Also from the invoice of Advocate, it is clear that the same has not been issued in favour of appellant - Hence demand on such invoices cannot survive - As regards the penalty imposed on Director under Rule 26 of CER, 2002, captioned case only relates to non- production of documents by appellant before the Department and there is no allegation of availment of Cenvat credit without receipt of goods and /or services - Hence, imposition of penalty under Rule 26 on Director is unjustified and accordingly same is set aside: CESTAT
- Appellant's appeals partly allowed: KOLKATA CESTAT
2022-TIOL-247-CESTAT-BANG
Carclo Technical Plastics Pvt Ltd Vs CCT
CX - Appellant is in appeal against impugned order wherein the refund claim has been dismissed as time barred - The appellant filed refund claim before Assistant Commissioner of Service Tax on 04/02/2013 which was well within the time and Assistant Commissioner returned the refund claim on 03/04/2013 after the last date of filing of refund claim - In fact, Assistant Commissioner of Service Tax could have transferred the application of refund claim to Assistant Commissioner of Central Excise itself, if that could have been done, refund claim would not have been held time barred - Therefore, relying on the decision in case of Anurag Enterprises 2019-TIOL-2426-CESTAT-ALL and AIA Engineering Ltd. , wherein High Court was of the view that the application of refund was filed within time limit and which was returned by authorities and the respondent filed the same after a lapse of time and as such, it is not barred by limitation - Refund claim filed by appellant is in time - As both the authorities have not dealt with merits of claim of refund, impugned order is set aside and matter is remanded to Adjudicating authority to entertain the claim on merits: CESTAT
- Matter remanded: BANGALORE CESTAT
2022-TIOL-246-CESTAT-AHM
Adani Energy Ltd Vs CST
ST - The Cenvat credit on input services was denied on the ground that input services were also used in PNG Sale i.e. trading activity - During relevant period, appellant carried out three activities - As regard the trading activity specific amendment was made in Cenvat Credit Rules, 2004, w.e.f. 1.4.2011 as per Notification No. 3/2011-C.E. (N.T.) wherein, the trading activity was incorporated in definition of exempted services accordingly Rule (6) became applicable but it is only from 1.4.2011, prior to that there was no provision for either denial of credit or for reversal of the same - In this case, since the dispute is for the period of April 2006 to March 2007, the denial of Cenvat Credit is not correct and legal - In view of the settled position of law, no merit found in impugned order in so far it confirms Cenvat demand against appellant - As far as short-payment of service tax in the month of March 2007 and Service tax Credit wrongly utilized in excess of availability during the period April 2006 to October 2006 is concerned, since the Cenvat demand is not sustainable, the said input service credit was correctly utilized for payment of service tax during impugned period and any short payment of service tax shall stand adjusted against available credit including the credit in this case : CESTAT
- Appeal allowed: AHMEDABAD CESTAT |
