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2022-TIOL-436-HC-AHM-CUS
Pr.CC Vs Kishan Manjibhai Gadhesariya
Cus /NDPS - Ketamine Hydrochloride powder illegally exported/attempted to be exported – Absolute confiscation and imposition of penalties - The statement made before the customs officials is not a statement recorded under Section 161 of the Code of Criminal Procedure, 1973 and, therefore, it can be said to be a material piece of evidence collected by the customs officials under Section 108 of the Customs Act: High Court [para 103]
Cus /NDPS - If a statement recorded under Section 108 of the Customs Act incriminates the accused, inculpating him in the contravention of the provisions of the Customs Act, it can be considered as a substantive evidence to connect the accused/individual with the contravention of the provisions of the Customs Act: High Court [para 104]
Cus /NDPS - Tribunal is the ultimate fact finding authority and an appeal to the High Court under Section 130 of the Customs Act is provided only on a substantial question of law - The findings of fact entered by the Tribunal are normally binding on the High Court, however, if those findings are perverse or rather so unreasonable that no person, properly instructed on facts and in law, could have reached the findings which the Tribunal did, it is open to the High Court to disregard the findings of fact as not binding on it - Findings of fact arrived at by the Tribunal are in complete disregard to the evidence on record - Tribunal, in the case on hand, has not examined the Order in Original passed by the Commissioner (Customs) in the manner required of it and also failed to look into the cogent, convincing and thumping evidence on record to find out if the crucial findings of the Commissioner (Customs) were justified - Tribunal committed an error in disturbing the order passed by the adjudicating Commissioner - Both the Appeals of the Revenue succeed and are hereby allowed - Impugned order passed by the Tribunal is quashed and set-aside: High Court [para 105 to 109]
- Appeals allowed: GUJARAT HIGH COURT
2022-TIOL-261-CESTAT-BANG
Shri Prabhulingeshwar Sugars And Chemicals Ltd Vs CC, CE & ST
ST - A show-cause notice was issued covering the period 01/01/2005 to 31/05/2006 on the ground that the appellant though had paid freight, but had not paid the service tax of Rs.37,26,463/- for the transportation of sugarcane from the field to the factory - Appellant rebutted the proposed demand by contending that the same was in the first place time-barred, secondly the tractor with trailer which was used for transportation belonged to farmers, the same was not a commercial vehicle and that the farmers were not the Goods Transport Agency (GTA) - However, demand confirmed by lower authorities, hence the appeal. Held: In the case on hand, the agriculturists themselves are transporting the sugarcane to the factory of the appellant and hence, there was no service rendered "in relation to" transportation of goods by road in a goods carriage - This is because, there was actual transportation and not ‘in relation to' - Impugned demand as sustained in the impugned Order-in-Appeal cannot sustain and hence, the impugned order is set aside and the appeal is allowed with consequential benefits: CESTAT [para 5.5, 6]
- Appeal allowed: BANGALORE CESTAT
2022-TIOL-260-CESTAT-BANG
Belgaum Golf Association Vs CCE
ST - Appellant had collected membership fee from applicants to become members like regular membership, service membership, associate membership, life membership, corporate membership - In addition, the appellant also received donations from members towards corpus fund and the appellant also received subscription from its members towards coaching fee, green fee, guest fee, tournament and sponsorship fee - Service Tax demand raised and confirmed, therefore, appellant is before the CESTAT. Held: Supreme Court in the case of Calcutta Club Ltd. - 2019-TIOL-449-SC-ST-LB has held that transaction between members and the club does not amount to rendering of any service by the appellant to their members, therefore, not taxable under the Finance Act, 1994 - Insofar as the dispute whether the guest fee is taxable or otherwise, Bench, without going into the issue of taxability, finds that the appellant is clearly eligible for exemption Notification No.6/2005-ST - After excluding the value of all other services which are not taxable in view of the Apex Court's judgment (supra), the value remains well within the threshold limit of the exemption i.e. Rs.4 lakhs - Therefore, the appellant is otherwise eligible for exemption under the Notification No.6/2005-ST - Accordingly, the guest fee even if taxable is exempted - demand of service tax in both the appeals are not sustainable - Impugned orders are set aside and the appeals are allowed: CESTAT [para 4, 5]
- Appeals allowed: BANGALORE CESTAT
2022-TIOL-259-CESTAT-MUM
Surya Roshni Ltd Vs CC
Cus - Appellant filed two Bills of Entry against a common purchase order for importing 5520 pieces of Backlit LED Panel - However, while filing Bill of Entry, they wrongly indicated the number of pieces imported and total assessable value on the basis of gross value of entire purchase order and Bill of Entry was assessed accordingly, although the unit price have been mentioned correctly on Bill of Entry - When appellant noted the said error, they approached Revenue for modification of Bill of Entry - As per Section 149 of Customs Act, 1962, Bill of Entry could have been modified by Revenue authorities to correct the clerical error made by appellant under self assessment or in assessment by Revenue - The said Bill of Entry was filed on the basis of commercial invoice indicating number of quantity as 2760 pieces of Backlit LED Panel, whereas on the Bill of Entry the total quantity has been mentioned as 5520 pieces - The error is evident as invoice number is also matching - These errors can be considered for making amendment as provided for under Section 149 of Customs Act, 1962 - Matter is remanded back to original authority with direction to consider the application made under Section 149 ibid on the basis of documents submitted, as per law: CESTAT
- Matter remanded: MUMBAI CESTAT
2022-TIOL-258-CESTAT-BANG
Autofit Car Interiors Pvt Ltd Vs CCT & ST
CX - This Bench in its Final Order had clearly held that the refund claim filed by appellant was within the period of limitation and thus the appeal of appellant came to be allowed with consequential relief of interest on delayed refund as per the decision of Apex Court in case of M/s. Ranbaxy Laboratories Ltd. 2011-TIOL-105-SC-CX - In view of the clear directions, authorities have erred in rejecting the refund especially when the order of this Bench has become final - This is a clear case of judicial indiscipline and contrary to the prevalent judicial hierarchical system, which cannot be sustained - Impugned order to this extent is set aside and Adjudicating authority is directed to grant full refund in terms of directions of this Bench, including interest under Section 11BB of Central Excise Act, 1944 : CESTAT
- Appeal allowed: BANGALORE CESTAT
2022-TIOL-257-CESTAT-BANG
Air Asia India Ltd Vs CCT
ST - The appellant has challenged the order of Commissioner (Appeals) and the only challenge is against the demand of interest under Section 75 and penalty under Section 78 of Finance Act, 1994 - The SCN itself had taken note of tax paid along with interest as applicable and from the proposals itself, it is noted that SCN had proposed appropriation of payments made towards demands proposed to be raised - There being no due, SCN itself was not required to be issued as held by jurisdictional High Court in case of Adecco Flexione Workforce Solutions Ltd. 2011-TIOL-635-HC-KAR-ST - Impugned order cannot sustain, for which reason, same is set aside: CESTAT
- Appeal allowed: BANGALORE CESTAT
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