|
2022-TIOL-704-HC-AHM-CUS
Nut Company Vs UoI
Cus - The petitioner filed a bill of entry for import of Srilankan Areca Nut availing the benefit of Notification No. 26/2000-Cus. - It is the case of applicant that despite final assessment of goods and payment of assessed customs duties, goods imported were not cleared - Upon making inquiries, applicant was told that there was some doubt as regards certificate of origin issued by Sri Lankan Authorities - Applicant submitted that for no good reason his client had to incur the liability towards detention/demurrage charges and ground rent to shipping lines and to CFS Agency - This happened only on account of action of Customs Department in not allowing clearance of goods imported by applicant - No mala fide intention or any extraneous consideration can be attributed to revenue in keeping the bills of entry pending till verification was being completed - The court should not fasten any liability to revenue - Writ application fails and is hereby rejected: HC
- Writ application rejected: GUJARAT HIGH COURT
2022-TIOL-703-HC-AHM-CUS
Akin Chemicals Pvt Ltd Vs DGFT
Cus - Applicants imported in recent past different consignments of Hexane Liquid Chemical - This Hexane Liquid Chemical can be utilized for Industrial purpose as well as for Food Grade purpose - The argument of Revenue is that what has been imported in name of Hexane Liquid Chemical to be utilized for Industrial purpose, is actually Hexane Liquid Chemical for Food Grade purpose - They tried to submit that there are two different products - What has been imported is for Industrial purpose but, when the samples were drawn and sent for analysis, the CRCL has certified it to be Hexane for purpose of Food Grade - An affidavit has been filed by one Dr. Manoj Nagariya, serving as Chemical Examiner in due deference to direction issued by this Court - According to him, result of tests carried out revealed all the characteristics stipulated in accordance with Indian standard 3470 : 2017 and in such circumstances, laboratory has reached to the conclusion that the parameters meet with requirements for Hexane, Food Grade - The apprehension on the part of respondents is that although Hexane was imported for purpose of industrial use, yet it could be diverted for purpose of Food Grade - It is not that the product imported cannot be used for industrial purpose - Court should not overlook the fact that there are 7 importers - The total value of entire consignment comes to around Rs. 240 Cr. and total quantity of Hexane, which has not been processed till this date comes to around 27,000 Metric Tones - Respondents are directed to assess the bills of entry for import of Hexane and permit clearance for home consumption of Hexane or for warehousing, as the case may be, subject to terms and conditions: HC
- Case deferred: GUJARAT HIGH COURT
2022-TIOL-412-CESTAT-MAD
Hyundai Motors India Ltd Vs CGST & CE
CX - The appellants are registered with Central Excise department as manufacturer as well as warehouse under Rule 9 and Rule 20 of Central Excise Rules, 2002 r/w Notification Nos. 35/2001-C.E.(N.T.) and 46/2001-C.E. (N.T.) as amended - During audit, it was found that they had cleared imported raw materials 'as such' on sale to their vendors and also 'stock transferred' to M/s. Mobis India Ltd. on account of business transfer on payment of duty - However, excise duty paid on such inputs cleared as such was not equal to CENVAT credit availed thereon inasmuch as the reversal included only CVD and related cess and not the Special Additional Duty (SAD) levied on imported raw materials which was originally availed as credit at the time of import - The foremost contention put forward by appellant is with regard to delay in adjudication of SCN - There is a delay of 10 years in adjudicating the matter - The observation made by adjudicating authority for confirming demand is that the appellants have not provided any evidence to show that they have reversed the SAD in respect of imported materials cleared as such - It is also stated that reversal shown in ER-1 was verified by Section Officer and found that they have not reversed SAD amount - If the adjudication had happened in close proximity with the reply furnished by appellant, they would have been in a better position to explain their defence - The High Court of Bombay in case of Parle International Ltd. 2020-TIOL-2032-HC-MUM-CX held that the inordinate delay of 13 years in adjudicating SCN is untenable - In the case of Bombay Dyeing 2022-TIOL-269-HC-MUM-CX , the High Court held that the delay of 16 years in conducting the adjudication is violation of principles of natural justice - The petitioner in the said case had filed reply within four weeks after receiving the SCN - The High Court held that it is not expected from petitioner to preserve the evidence/record for such a long period to be produced at the time of hearing of SCN - After replying to SCN, when no response is received from department with regard to personal hearing, petitioner may be under legitimate expectation that the reply has been received and accepted by department - Be that as it may, appellant has argued on ground of limitation also - In SCN, there is no specific allegation that appellant has willfully suppressed or mis-represented the facts with intention to evade payment of duty - In the absence of any specific allegation and proof that appellant has suppressed facts, extended period cannot be invoked - Appellant succeeds on the ground of limitation - The demand is held to be time-barred, impugned order is set aside: CESTAT
- Appeal allowed: CHENNAI CESTAT
2022-TIOL-411-CESTAT-BANG
Ultratech Cement Ltd Vs CCT
CX - Assessee is in appeal against impugned Order whereby the denial of refund made by Adjudicating Authority stood upheld - The reasons attributed for rejecting the refund are not sustainable since, as held by Bombay High Court in case of M/s. Sandvik Asia Ltd., the entries in Books of Accounts are immaterial and irrelevant and no presumption could be drawn against an appellant if it is shown on expense side - It is the well settled position of law that unless the Revenue has any documentary evidence, statute does not permit any action to be taken based only on assumptions and presumptions - Moreover, appellant has filed a certificate issued by a Chartered Accountant to the effect that appellant had not passed on the incidence of CENVAT Credit to its customers/any other person, which the Revenue has nowhere disputed nor is there any attempt made to dislodge the veracity of said certificate by any concrete evidence - Appellant had reversed the same subsequently after removal of goods and hence there is no scope to even allege that the same was charged or collected from appellant's customers - The denial of refund and consequently, impugned order, cannot be sustained, for which reason the impugned order is set aside: CESTAT
- Appeal allowed: BANGALORE CESTAT
2022-TIOL-410-CESTAT-BANG
XL Health Corporation India Pvt Ltd Vs CCT
ST - The appellant had collected certain amount as 'Notice Period Pay' or 'Bond Enforcement Amount' from their employees, who want to quit the job without notice or do not serve the organization for prescribed period as per terms of employment contract - During audit, it was observed by Department that appellants did not pay service tax on consideration received on account of 'notice pay' from employees - The term 'notice pay' mentioned in employment contract cannot be considered as a service, more specifically as taxable service inasmuch as neither of the parties to contract have provided any service to each other - Thus, phrase 'service' defined in Section 65B(44) of Finance Act, 1994 and 'declared service', as defined in Section 65B(22) ibid are not applicable for consideration of such activity as a service for purpose of levy of service tax - Further, amount received as compensation by appellants cannot be equated with term 'consideration' inasmuch as the latter is received for performance under the contract; whereas, the former is received, if other party fails to perform as per contractual norms - The Madras High Court in case of GE T & D India Limited has held that in absence of rendition of any taxable service, the amount received as consideration cannot be termed as taxable service for the purpose of levy of service tax thereon - In view of the settled position of law, no merits found in impugned order, insofar as it has upheld confirmation of adjudged demands on appellants - Therefore, impugned orders are set aside: CESTAT
- Appeals allowed: BANGALORE CESTAT
2022-TIOL-409-CESTAT-DEL
Puneet Bansal Vs CCGST, CE & ST
ST - While purchasing the different floors of a immovable property, appellants have been paying Service Tax along with demands which were raised by construction company at the completion of each milestone - There is also no denial to the fact that the High Court of Delhi in Suresh Kumar Bansal 2016-TIOL-1077-HC-DEL-ST has held that Service Tax could not be levied on value of undivided share of land acquired by buyer of dwelling unit or value of goods which are incorporated in project by Developer - The refund in question has been filed based upon aforesaid decision with respect to such amount of Service Tax as was already paid by appellants - The adjudicating authority have rejected the claim relying upon retrospective amendment under Rule 2A of Service Tax (Determination of Value) Rules, 2006 - Chartered Accountant certificate of auditor of Emaar, the builder on record is sufficient to show that Emaar has duly paid Service Tax for the period 2011-12 to 2017-18, which includes the period in question - Further, it is also acknowledged that element of Service Tax has been borne by appellant and the letter of Emaar as is available on record, shows that acknowledgement of Emaar to the said fact and it also conveys their no objection in favour of appellant to claim said refund - Keeping in view the same and decision in case of Shri Pulin Kumar , in fact with respect to the portion of same property as the one involved in both the appeals, no reason found to differ with the findings in said decision - Both the order under challenge are accordingly set aside: CESTAT
- Appeals allowed: DELHI CESTAT |
