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2022-TIOL-665-HC-KOL-CUS
Vinod Kumar Jain Vs Rajesh Jindal, Pr.CC
Cus - Application has been filed by the petitioner in contempt petition in CC No. 08 of 2022 to grant leave to add the container freight station (CFS) and the Shipping Line as party respondents in the contempt petition. Held: + It is not in dispute that the detention certificate has been received by the Shipping Line as well as the CFS - Bench is informed that the CFS has complied with the direction issued by the Customs and waived/is agreeable to waive the demurrages - However, the Shipping Line has not obeyed the direction of the department which was directed by this Court to issue the detention certificate. It is their submission that one of the two options should be allowed to the Shipping Line that is to protect their interest as provided under the contract or to grant liberty to them to independently challenge the detention certificate. [para 22] + Bench is of the clear view that the Shipping Line is not only a necessary party to the proceedings but also a proper party to the proceedings. So far as the CFS is concerned, they also did not initially comply with the terms of the detention certificate and only during the pendency of this contempt application, it appears that they have complied with or agreeable to comply with the terms and conditions of the detention certificate. Therefore, in order to give a binding direction, the CFS is also held to be a proper and necessary party to the present proceedings. [para 30] + The Shipping Lines by a conscious act have submitted themselves to the provisions of the Act and the Regulations and they have been issued a licence for such purpose. Therefore, it would be too late for the Shipping Line to contend that they will continue to exercise their rights by referring to the provisions of the Contract Act which is general law by ignoring the provisions of a Special Act namely the Customs Act and a special regulation namely 2009 and 2018 Regulations to which they have submitted themselves and unequivocally agree to abide by the conditions stipulated therein. [para 34] + Having held that the Shipping Line would fall within the definition of "Customs Cargo Service Provider", the 2009 Regulation is held to be applicable and they are required to comply with the mandate under the said Regulation and in particular Regulation 6 (1) therein and they are not entitled to charge any rent or demurrage on the goods seized or detained or confiscated. [para 36] + Bench is of the clear view that the Shipping Line appears to have been "sitting on the fence" and watching the proceedings and to see as to what extent this Court may exercise its jurisdiction under the provisions of the Contempt of Courts Act. Therefore, the Shipping Line could be very well hauled up for having obstructed to the implementation of the order and direction issued by this Court in its letter and spirit. [para 40] + IA No. GA 01 of 2022 is allowed and the proposed parties added as respondents in contempt petition. [para 31, 47] + Bench does not propose to initiate any action for contempt against the Shipping Line or the CFS but direct the Shipping Line and the CFS to comply (within three days) with the terms of the detention certificate issued by the Customs in its letter and spirit and consequently waive the detention charges and demurrages on account of the detention of the cargo along with the container by the proper officer of Customs from the date of detention till the date the cargo along with the container is released from the Customs Barrier. [para 48, 49] + Matter listed on 25.04.2022 for reporting compliance. [para 51]
- Application allowed: CALCUTTA HIGH COURT
2022-TIOL-664-HC-KOL-CUS
Welcome Air Express Pvt Ltd Vs CC
Cus - Smuggling - Red Sander-wood in logs - Commissioner of Customs (Administration & Airport) revoked the CHA license granted to the appellant and forfeited the security deposit - This order was challenged by the appellant but the Tribunal by order dated 25th May, 2015 dismissed the appeal which is impugned before the High Court. Held: Dropping of the penalty proceedings in the case on hand cannot have any impact on the revocation of the licence granted under the CHALR - While dropping the penalty proceedings the appellant has not been exonerated but as the appellant themselves stated that at best they can be proceeded against under the Regulation (CHALR), the Commissioner was of the view that penal action need not be initiated under the Customs Act - Therefore, the Commissioner on remand has rightly understood the scope of remand and the purport and import of the order-in-original dated 05.01.2012 - There is a categorical finding on fact which could not be assailed by the appellant, to the effect that the appellant did not know who the exporter was and the appellant did not directly receive the export order or the consignment from the exporter - This having been admitted, it would clearly show that they have failed to discharge their statutory obligations under Regulation 13 (b) and 19 (8) of the CHALR - Thus, the order passed by the tribunal does not suffer from any illegality or perversity - Consequently, the substantial questions of law have to be answered against the appellant - The appellant has not been completely exonerated by the Commissioner while dropping the penal action under the Customs Act - The admitted fact is that the appellant did not receive the export order from the exporter which is mandatory under the Regulations - Merely by placing reliance on the "Let Export Order" said to have been given by the Customs authorities at the first instance cannot exonerate the appellant nor can it in any manner waive or dilute the obligations of the appellant as the CHA as specified under the Regulations - The letter given by the exporter dated 07.11.2008 is a document which has been created so as to enable the appellant to wriggle out of the conspiracy which was hatched, therefore, the adjudicating authority as well as the tribunal rightly did not give any credence to the letter dated 07.11.2008 - Therefore, indirectly the appellant has paved way for denigrating the environment of the country by aiding an attempt to plunder its natural resources more particularly a very rare species of tree which predominantly grows in the Indian Sub-continent - Bench affirms the order passed by the tribunal and consequently confirms the punishment of revocation of the CHA license granted to the appellant and forfeiture of the security deposit - The substantial questions of law are answered against the appellant - Petition dismissed: High Court [para 24, 25, 31, 32, 33, 34]
- Petition dismissed: CALCUTTA HIGH COURT
2022-TIOL-387-CESTAT-AHM
Phillips Carbon Black Ltd Vs CCE & ST
CX - The issue involved is that whether the appellant is entitled for cenvat credit in respect of outward GTA for period prior to 01.04.2008 - Prior to 01.04.2008, the services related to removal of goods was "from the place of removal" which was replaced as amended w.e.f. 01.04.2008 as "up to the place of removal" - Therefore, the Cenvat Credit prima facie is available in case of outward transportation for services availed from the place of removal up to the customers place - However, Board Circular No. 97/8/2007-ST has prescribed certain conditions for allowing credit which need to be satisfied - Since the adjudicating authority has not verified the fact that, whether the said conditions of Board Circular have been complied with or not, matter is remanded for passing a fresh order after verifying the documents: CESTAT
- Matter remanded: AHMEDABAD CESTAT
2022-TIOL-386-CESTAT-DEL
Hindustan Zinc Ltd Vs CCE & CGST
CX - The issue involved is, whether the appellant is entitled to cenvat credit of service tax paid for availing GTA Service for despatching their finished goods on FOR destination basis to their buyers - Admittedly, transportation charges have been incurred from factory gate to premises of customers - The 'place of removal' is the premises of buyer, not the factory gate of buyer, as the finished goods are cleared by appellant on 'FOR destination basis' - Accordingly, appellant is entitled to cenvat credit on GTA service for outward transportation of the goods on FOR destination basis - Impugned order is set aside: CESTAT
- Appeal allowed: DELHI CESTAT
2022-TIOL-385-CESTAT-BANG
United Spirits Ltd Vs CCT
ST - The issue involved is, whether the appellant is liable to pay service tax on reverse charge basis on various fees paid by appellant to State Excise Department or to the Government agencies during their business of manufacture, import and sale of alcoholic beverages for human consumption - The adjudicating authority, though dropped the demand on licence fee, but confirmed the demand on all other fees - There is no difference between licence fee and other fees as these fees are not charged against any service provided by State Government - These fees were charged as per Statutory levy; therefore not against provision of any service - Since there is no service is existing against fee paid by appellant to State Government, service tax cannot be charged on said fees - This issue is no longer res integra as the same has been considered by Tribunal in Anheuser Busch Inbev India Ltd. 2021-TIOL-128-CESTAT-BANG - Following the ratio of said judgment, fees paid by appellant to State Government during manufacture and trading of alcoholic beverages does not amount to provision of any service - Accordingly, no service tax can be demanded: CESTAT
- Appeal allowed: BANGALORE CESTAT
2022-TIOL-384-CESTAT-MUM
Mihan India Ltd Vs CCE & ST
ST - Appellant have contested only part of demand but entire interest and penalty - Original authority confirmed the demand raised in SCN and Commissioner (Appeals) only partly allowed the appeal that had relation with pure supply of goods - While, accepting the additional grounds raised in appeal as pure law points, it is to be noted that the power of CESTAT is limited to examination of legality of order passed by Commissioner (Appeals) and not like Commissioner (Appeals)' power under Section 35A(3) of Central Excise Act, 1944 that authorises him to make such further enquiry as may be necessary and pass such order as he finds just and proper - Since, exemption notification would only cover part of disputed period, its application to entire proceeding can only be determined by adjudicating authority - In the absence of any finding on its application for wants of its invocation at the time of adjudication proceedings, it would be just and proper to remand the matter back to original adjudicating authority for fresh adjudication concerning application of Notification No. 25/2012-S.T. and its amended Notification No. 9/2016-S.T., so as to arrive at a conclusion on sustainability of such duty demand including invocation of extended period: CESTAT
- Matter remanded: MUMBAI CESTAT |
