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2022-TIOL-565-HC-AHM-CUS
Aztec Fluids And Machinery Pvt Ltd Vs UoI
Cus - Additional Director General, DRI, Chennai, has proposed to reassess transactions of imports made by the petitioner at various Customs Stations and differential custom duties were also proposed to be demanded and recovered from the petitioner [by issuance of Show Cause Notice dated 24.02.2021 invoking the provisions of Section 28(4) of the Customs Act] for the goods imported at such Customs Stations alleging that they have misclassified the imported goods and paid a reduced rate of duty or availed exemption from custom duties by resorting to the wrong classification for the goods in question - It is alleged by the petitioner that the proceedings initiated by the respondent no.7 are wholly illegal and without jurisdiction because the DRI Officer is not the proper officer who can invoke Section 28 of the Customs Act and therefore, the notice issued by the respondent no.7 under Section 28 of the Customs Act is ex facie illegal and without any authority or jurisdiction - Petitioner has heavily relied upon the decision in case of M/s. Canon India Pvt. Ltd. = 2021-TIOL-123-SC-CUS-LB
Held: Arguments advanced (by Counsel for Revenue) of there being no infirmity in appointment of the DRI officers as Customs Officers under Notification No. 17/2002 dated 07.03.2002 and the discussion on Section 6 for the entrustment of the functions of the officers of the customs on certain other officers which are the officers of the Central or State Government or a Local Body, by emphasizing on a conjoint reading of Sections 4 and 6 will surely not be within the purview of this Court - It also amounts to being wiser than the highest Court of the Country and is simply impermissible to even allow such arguments to be advanced before this Court when not only the review has not been so far decided, but, subsequently another Bench of three judges in case of Commissioner of Customs, Kandla vs. M/s. Agarwal Metals & Alloys [Civil Appeal No. 3411/2020, decided on 31.08.2021] = 2021-TIOL-233-SC-CUS-LB has also followed the decision of M/s. Canon India Private Limited. - Amendment in the Act has been brought on the statute and whether it can have effect retrospectively when in case of all these matters, show cause notices have been issued prior to the amendment having come into force is not the question to be deliberated upon as argued by both the sides - Show cause notice issued in each case by the DRI is quashed on the basis of the ratio laid down in M/s. Canon India (supra) without entering into the merits of individual case - This would be subject to the outcome of review pending before the Apex Court (in Canon India case) - This quashment shall not in any manner preclude the Revenue to initiate action on merit, if permissible under the law, by proper authority - All petitions are allowed: High Court [para 15, 20, 21]
- Petitions allowed: GUJARAT HIGH COURT
2022-TIOL-330-CESTAT-MUM
Orange City Alloys Pvt Ltd Vs CCE
CX - The issue relates to demand of Central Excise Duty on alleged suppressed production arrived at on the basis of electricity consumption in appellant's factory - Charges levelled against appellants for clandestine manufacture and removal of final products, without payment of duty are not substantiated with cogent and reliable evidence - A case of this magnitude needs to be corroborated by establishing other facts such as purchase of raw material, deployment of labour, additional consumption of electricity, manufacture of final products, removal and transportation of same to customers premises and payments received for the same - No other criteria has been investigated and established - Whole case is sought to be made by surmises and conjectures - Therefore, allegations of clandestine removal against appellants do not stand judicial scrutiny - Consequently, levy of duty and imposition of penalties on appellants are not substantiated - Accordingly, impugned orders are set aside: CESTAT
- Appeals allowed: MUMBAI CESTAT
2022-TIOL-329-CESTAT-DEL
Rajcomp Info Services Ltd Vs CCGST
ST - Appellant is registered with Service Tax Department and maintains proper records and have been filing their periodical return - He has contended that the amount of Rs. 14,36,098/-, which was payable under reverse charge mechanism have been paid and the details mentioned in ST-3 return filed by appellant from time to time for the period - Such payments were made vide various challans as mentioned in ST-3 return - There is total dereliction of duty in passing a reasoned order in accordance with law, as appellant submitted that they have already paid the duty - It was the duty of Commissioner (Appeals) to get verified such claims - Under no circumstances, such claim of appellant can be rejected summarily by a non-speaking order - Appellant has also contested SCN as bad, for the period April, 2012 to March, 2015, for invoking extended period of limitation - On the issue of limitation, only allegation is that the SCN is issued pursuant to AG audit - Allegation in SCN is not sufficient for invocation of extended period of limitation, as admittedly, appellant has maintained regular books of accounts which are audited by auditor nominated by the AG of State - Extended period of limitation is not invocable and accordingly demand for the period April, 2012 to March, 2015 is set aside - Commissioner (A) has not recorded and not given any finding with respect to ground of taking of excess credit, which has been explained by appellant, that the same was due to cenvat credit taken short, which was noticed later on in the month of September, 2014 when audit was finalised - In view of cogent explanation, this ground is also allowed in favour of appellant and the demand of cenvat credit is set aside - There is no contumacious conduct of fraud or suppression of facts by appellant, penalty imposed under Section 78(1) Rs. 3,69,970/- or (Rs. 3,27,503/- + Rs. 42,467/-) is set aside - Further penalty of Rs. 1,49,752/- under section 78 is also set aside: CESTAT
- Appeal allowed: DELHI CESTAT
2022-TIOL-328-CESTAT-BANG
Centroid Polymer Technologies Vs CCT & CE
ST - Issue relates to the refund claims which arose as a consequence of introduction of Section 104 of Finance Act - The appellants have taken industrial land on long term lease from Kerala Industrial Infrastructure Development Corporation (KINFRA) and paid upfront amount on long term lease along with service tax to KINFRA who in turn paid service tax to the Government - As per amendment carried out vide Finance Act, 2017, no service tax is payable on one time upfront amount in respect of taxable service provided or agreed to be provided by a State Government industrial development corporation or undertaking to industrial units by way of grant of long term lease of 30 years or more of industrial plots, shall be levied or collected during the period commencing from the 1st June, 2007 and ending with the 21st September, 2016 and sub-section (2) of Section 104 provided for refund of service tax paid during this period - Issue is no longer res integra and appellants have a strong case in their favour on merits as well as procedure - This Bench has gone into both the issues in case of Comfort Night Linen Products 2021-TIOL-460-CESTAT-BANG and held that the refund is due to appellants - Impugned orders are not sustainable, same are set aside: CESTAT
- Appeals allowed: BANGALORE CESTAT
2022-TIOL-327-CESTAT-MAD
Akshara And Company Vs CC
Cus - The appellant is contesting redemption fine and penalty imposed by authorities below - The goods have already been exported - Adjudicating authority has stated that importer had no knowledge of presence of undeclared items in container - He has proceeded to impose penalty observing that even in absence of mens rea , penal provisions under Section 112 of Customs Act, 1962 can be invoked - The Apex Court in case of Siemens India Ltd. has held that the redemption fine cannot be imposed when the goods are exported - The redemption fine imposed is unwarranted and same is set aside - With regard to penalty apart from imposing redemption fine, adjudicating authority has imposed a penalty under Section 112(a)(i) & (ii) of Customs Act, 1962 - The undeclared goods have come to light after screening of container by Department - Penalty can be reduced to Rs. 50,000/- : CESTAT
- Appeal partly allowed: CHENNAI CESTAT |
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