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2022-TIOL-728-HC-GUW-CX
Sanjib Das Vs UoI
CX - The petition has been filed challenging Demand-cum-Show-Cause Notice as well as the Corrigendum dated 21.02.2022 and for a direction that respondent authorities should provide an opportunity of pre-SCN consultation to petitioner - A Perusal of Circular dated 11.11.2021 stipulates that concept of pre-show cause notice consultation in Central Excise and Service Tax was introduced vide Board's instructions dated 21.12.2015 as a trade facilitation measure - A perusal of said Circular does not bring anything new - What it does is that it clarifies the Board's instructions dated 21.12.2015 which was reiterated in Master Circular 1053/02/2017-CX, and as such, said Circular, in view of judgment of Supreme Court in WPIL Ltd. 2005-TIOL-51-SC-CX-LB, is to be considered to operate retrospectively from the date of Board's instructions dated 21.12.2015 read with Master Circular dated 10.03.2017 - As the stand taken by respondent authorities in impugned SCN that the petitioner had suppressed material facts, same would come within exception as mentioned in Clause 5 (d) of Circular dated 11.11.2021 and as such it was not mandatory for respondent authorities to have a pre-show cause notice consultation - Another aspect also needs to be looked into, i.e., whether the authority which had issued Demand-cum-Show Cause Notice dated 31.12.2021 had authority to do so - The power so exercised by authority is a statutory power conferred upon respondent authorities under Section 73 of FA, 1994 and as such issuance of SCN cannot be said to be without jurisdiction - As regards to suppression of facts, Court is at the stage of deciding whether said Demand-cum-Show Cause notice is beyond the jurisdiction and this Court having held that the respondent authorities issuing the Demand-cum-Show Cause Notice have exercised the authority within the realm of Finance Act, 1994, this Court would not like to go into the said question as any opinion rendered may affect the petitioner or respondent as the case may be. Considering that petitioner has approached this Court and matter has been pending adjudication, Court deems it proper to permit the petitioner to submit his show cause reply within a period of 30 days before adjudicating authority as mentioned in Corrigendum dated 21.02.2022 - Upon furnishing said show cause reply, adjudicating authority is directed to offer petitioner an opportunity of hearing either online or physically in person or through the authorized representative: HC
- Writ petition disposed of: GAUHATI HIGH COURT
2022-TIOL-727-HC-MP-CUS
Uwas Recyclers LLP Vs Customs Authority of Advance Rulling
Cus - The appellant is a limited liability partnership firm - The company has obtained registration with the Directorate General of Foreign Trade (DGFT) with a valid Importer-Exporter Code (IEC) - The appellant intended to import the goods in question from South Africa, and submitted an application under section 28H before the Custom Authority for Advance Rulings seeking the classification of the goods in question as "waste and scrap" under Custom Tariff Item (CTI) 72044900 as defined as waste and scrap under the Note 8(a) of Section XV - The appellant has applied for obtaining the order from CAAR in order to get exemption under Serial No. 368 of Notification No. 50/2017-Cus dated 30.06.2017 as amended vide notification No. 02/2021-Customs dated 01.02.2021 - In terms of 13 of CAAR, the Customs Authority for Advance Rulings vide letter dated 18.06.2021 appointed respondent No. 2 as Jurisdictional Commissioner for providing relevant records/comments on the application filed by the appellant. Respondent No. 2 vide letter dated 07.07.2021 approved the classification of "the goods in question" in support of the appellant - The appellant was given an opportunity for a personal hearing on 05.08.2021 by respondent No. 1, thereafter, sought certain clarification vide email dated 10.08.2021, to which the appellant replied vide email dated 17.08.2021 - Respondent No. 1 vide impugned order dated 27.08.2021 has held that the goods in question cannot be classified as waste and scrap as the same is classifiable under Tariff Item 7209 90 00 - Hence the present appeal. Held - The goods in question are having a thickness between 0.30 mm to 4 mm, width is from 900 mm to 1400 mm with weight ranging from 200-800 kgs and lengths between 15 to 20 meters has rightly been categorized as flat-rolled products not waste and scrap. As per item No. 7204, Ferrous waste and scrap; remelting scrap ingots of iron or steel and the appellant is claiming under the item No. 7204 49 00 i.e. other because same is not falling in any of the items from 7204 10 00 to 7204 50 00 - The Authority has considered the product in question under heading 7209 i.e. Flat- Rolled Products of Iron or Non-Alloy steel, of a width of 600 MM or More, Cold-Rolled (Cold-reduced), Not Clad, plated or coated - In this category, only the width or thickness was mentioned irrespective of the length of the roll - The appellant is intending to import coils having a thickness ranging from 0.30 mm to 4 mm and a width of 900 mm to 1400 mm, these physical parameters satisfied the explanation given in the above chapter is Flat-rolled products - The authority in para 10 has elaborately discussed how the coldrolled products are manufactured. In general terminology the waste and scrap materials are not liable to be used in the same form, they are treated as waste and scrape unless melted but Flate products are being used in manufacturing sectors like automobiles, railway, shipping, pressure vessel, boiler pipe, domestic appliances etc - It might be waste and scrap to the manufacturer but purchasers or manufacturers of any other product can use this by cutting or finishing as these goods in question can be used as raw material to make a new finish product - The authority has considered IS 2549:1994 i.e. code for classification of processed ferrous scrap which provides the standard for classification of processed ferrous scrap and found it does not apply to the product in question. As per the appellant, the goods in question are not used for recovery of metal by re-melting by way of repair, renovating or re-rolling these goods can be adapted for other use, hence, it is not wholly metal waste and scrap and is not liable to be classified under subheading 7204 - Even otherwise the appellant is an importer and does not intend to use the product for himself, the appellant will sell the product after import to various other manufacturers, therefore, it can not be decided on an application by the importer that the goods in question are being purchased as waste and scrape - No merit in the present appeal: HC
- Appeal dismissed: MADHYA PRADESH HIGH COURT
2022-TIOL-427-CESTAT-MUM
CCE Vs Jain Irrigation Systems Ltd
CX - Revenue is in appeal against impugned order wherein Commissioner (Appeals) has set aside the order of Adjudicating Authority of refusing to grant registration to assessee on the ground that its company is operating on premises of another company who had outstanding Central Excise dues - Several documents including request for release of BOZA to Tahasildar made by Superintendent of Central Excise & Customs and official liquidator letter photo copies are produced by assessee to substantiate that only arrears of land related revenue were to be borne by assessee, for which no other dues can be recovered from them - These are the documents procured subsequent to filing of appeal in Tribunal but the dispute is unrelated to recovery of old dues - First and foremost point to be considered is that whether Rule 9 of the Central Excise Rules, 2002 prohibits issue of two registration certificates for one and the same premises that formed the basis of adjudication order - On a bare reading of Rule 9, no such prohibition is apparent - Moreover, a company that had under gone a process of liquidation is deemed to be non-existent for which waiting for a request from the said company to deregister it is irrelevant and is not dependent on subsequent registration of any company functioning from the said premises, existence of which remained undisputed in view of its acquirement of right, title and interest over the property through an official liquidation apparently in an auction process that was done in compliance to the order passed by Bombay High Court and in view of the fact that carrying out business over the said property including filing of its return before all competent authorities bear testimony to the fact that assessee is the rightful owner of the said property, it is entitled to get a registration for its business activities carried out from the premises in question: CESTAT
- Appeal dismissed: MUMBAI CESTAT
2022-TIOL-426-CESTAT-MUM
Ramesh Transport Company Vs CC
Cus - Appellant is a Customs broker holding licence under Regulation 7(1) of CBLR, 2013 (now CBLR, 2018) - Investigation was undertaken by Serious Fraud Investigation Office (SFIO) in the matter of M/s ABC Cotspin P Ltd. on the basis of complaint made by various banks like SBI, BoB and Axis Bank that M/s ABC Cotspin P Ltd. committed a fraud on them by availing export finance by submission of export bills without making exports - Licence of appellant was suspended and subsequently revoked - Commissioner concluded that the evidence on record clearly indicated that the Customs broker was working in a manner to facilitate fraud and had violated obligation cast upon them under the CBLR - Aggrieved, appellant has filed the appeal - Appellant submits that proceedings were initiated against appellant and also customs broker M/s Harin Transport and after considering the same set of evidence and investigation, the Commissioner at Nagpur had dropped the entire proceedings against M/s Harin Transport.
Held: On the same set of evidences, two different findings have been recorded by the Commissioners at Nagpur and Mumbai - Such a discrimination which leads to revocation of licence of one Customs broker and permits them to operate without any hindrance is nothing but discrimination contrary to Article 14 of the Constitution - Further, the procedure for exports starts with filing of checklists on ICEGATE portal - If the same is not backed by the proper shipping bill within 15 days, the check list gets purged - It is not understood as to how the issuance of the checklist by Customs broker was a fraud under the Customs Act - Even if the same was an offence under some other Acts, the appellants needs to be tried in terms of those Acts and should not have been inflicted with the punishment sought to be inflicted in terms of CBLR, 2018 - Impugned order cannot be sustained - Appeal allowed: CESTAT [para 4.4, 4.6, 4.8, 5.1]
- Appeal allowed: MUMBAI CESTAT
2022-TIOL-425-CESTAT-MAD
CC Vs Ram Impex India Pvt Ltd
Cus - Assessee had filed refund claim of SAD in terms of Notification No. 102/2007-Cus. as amended by Notification No. 93/2008-Cus. - Commissioner (Appeals) observed that the appeals filed by department are time-barred for the reason that the review order has been passed beyond the time-limit of three months as stipulated under Section 129(D)(3) of Customs Act, 1962 - They ordered for return of appeals to department to resubmit the same with documentary evidence to establish the date on which review authority has received the order passed by adjudicating authority and actual date of passing the review order - Commissioner (Appeals) has granted several chances to department to furnish details with regard to date of receipt of order passed by adjudicating authority - In fact, date of order of adjudicating authority itself is not furnished in many orders - The department has failed to comply with directions passed by Commissioner (Appeals) and thereupon he had no other way but to dispose of the appeals on the ground of limitation - However, Commissioner (Appeals) instead of dismissing the appeals on limitation has given a further chance to department to resubmit the appeals after obtaining details with regard to date of receipt of order by reviewing authority - Department has not been able to furnish any details as to the date of receipt of order by reviewing authority - This Tribunal had also granted several adjournments to department to obtain these details - The review order passed by department is beyond the time-limit prescribed under sub-section (3) of Section 129D of Customs Act, 1962 and therefore the appeals filed before the Commissioner (Appeals) are time-barred - No grounds found to take a different view: CESTAT
- Appeals dismissed: CHENNAI CESTAT
2022-TIOL-424-CESTAT-DEL
Tarkeshwar Das Construction Company Vs CCE & CGST
ST - The issue involved is, whether the refund of Rs. 2,00,000/- has been rightly rejected - Appellant was engaged in Works Contract Service and was registered with Department - With effect from 01.07.2017 when GST was implemented, appellant was registered with GST regime and was granted new Registration number under GST Rules - Appellant had deposited the said amount of Rs. 2,00,000/- during course of audit and the said amount has been recognised in audit report, although, it was deposited under new registration number - Said amount has not been adjusted at adjudication stage nor at the stage of settlement under SVLDR scheme - Thus, the said amount is lying with Department by way of revenue deposit - For such amount of Revenue deposit, there is no question of any limitation as provided under Section 11B of Central Excise Act, 1944 and the appellant is entitled to refund of said amount - Accordingly, Adjudicating Authority is directed to grant refund of Rs. 2,00,000/- with interest under Section 11BB ibid as per rule: CESTAT
- Appeal allowed: DELHI CESTAT |
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