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2022-TIOL-436-CESTAT-DEL
Toshnek International Forwarders Vs CC
Cus - The issue in this appeal is whether penalty of Rs. 8 lakhs have been rightly imposed upon appellant who is a freight forwarder under Section 114 of Customs Act, 1962 - So far the objection as to jurisdiction of Additional Commissioner (SIIB) to issue SCN is concerned, it is not the case of demand of duty from appellant under Section 28(4) ibid - Accordingly, issue of jurisdiction is not involved and SCN have been rightly issued on allegation of violating provisions of Customs Act including bringing of prohibited goods in customs area, for export, by resorting to mis-declaration - From conjoint reading of statements of appellant alongwith statement of Sh. Sinder Pal, Sh. Rakesh Kumar and Others, it is evident that appellant have knowingly connived for money with Sh. Sinder Pal and Sh. Abhishek Gupta and others, in the export of prohibited goods, non-basmati rice, by resorting to mis-declaration and fraud - Further, admittedly in course of various statements recorded on different dates from appellant he has admitted the modus operandi and have stated in detail the modus operandi as well as the amount of remuneration he was getting from Sh. Sinder Pal, which leads to the conclusion that he had connived with Sh. Sinder Pal and Sh. Abhishek Gupta in export of prohibited goods for money - Accordingly, penalty imposed upon him is confirmed but same is reduced to Rs. 4 lakhs - So far the retraction is concerned before Court of Duty Magistrate, same is not of much consequence as appellant have admitted the misdoing in his various statements recorded on various dates and such statements are supported by co-accused and also corroborated with the live consignment for export, intercepted, and forgery noticed by Customs Officers to which the appellant has also admitted: CESTAT
- Appeal partly allowed: DELHI CESTAT
2022-TIOL-435-CESTAT-DEL
CCGST Vs M S Cargo Services
ST - Miscellaneous Application has been filed on behalf of respondent by widow of deceased proprietor of respondent Proprietorship firm praying for abatement of present appeal filed by Revenue - The case law as relied upon by appellant is clear to hold that where the respondent being an individual dead person, Revenue is not competent to file appeal against him - The proprietorship is equally and individual sole person as has also been clarified by Supreme Court in case of Shabina Abraham 2015-TIOL-159-SC-CX - The sole Proprietor of respondent expired on 15.10.2020 - Impugned request of abatement for first time was raised on 11.11.2021 - However, Apex Court vide its order in Misc. Application has ordered for exclusion of period w.e.f. 15 March, 2020 till 2nd October, 2021 - In computing the period of limitation for any suit, appeal, application or proceeding, period from 15.03.2020 till 02.10.2021 shall stand excluded - Consequently, balance period of limitation remaining as on 15.03.2021, if any, shall become available w.e.f. 03.10.2021 - In cases where limitation would have expired during the period between 15.03.2020 till 02.10.2021, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 03.10.2021 - In the event the actual balance period of limitation remaining, w.e.f. 03.10.2021, is greater than 90 days, that longer period shall apply - After excluding the said period as directed by Apex Court, present application falls within the period of limitation prescribed under Rule 22 of CESTAT (Procedure) Rules, 1982 - The request on behalf of respondent is hereby accepted - Appeal, accordingly, is hereby ordered to stands abated: CESTAT
- Misc application allowed: DELHI CESTAT
2022-TIOL-434-CESTAT-MUM
Vikas SSK Ltd Vs CCE & ST
CX - Issue relates to confirmation of duty demand equal to 6% of sale value of bagasse and an amount as 6% of pressmud sale value alongwith interest and penalty under Section 11 of Central Excise Act, 1944 r/w Rule 14 of Cenvat Credit Rules, 2004 against appellant - The relevant period covered in demand period is from December, 2015 to March, 2016 and during that period, bagasse and pressmud which were held in judgment of Supreme Court in M/s. DSCL Sugar Ltd. & Others 2015-TIOL-240-SC-CX as not manufacture items, for which Rule 6 of CCR, 2004 was made inapplicable - The Commissioner (A) had not tried to distinguish said judgment but had got beyond his authority to hold that the said judgment is per incuriam in an indirect way by holding that ratio of its earlier order passed in case of Jai Bhagwan Oil & Flour Mill Ltd. had not been placed before Supreme Court and thereby disregarded the importance and value of judicial precedent - Both the SCNs which were adjudicated upon have dealt with general provisions of CCR, 2004 and not newly inserted Explanation 1 & 2 in Rule 6(1) ibid that came into effect from 01.03.2015 - Further, as has been argued by appellant in M/s. Balrampur Chinni Mills Ltd. 2020-TIOL-334-HC-ALL-CX , Allahabad High Court had given a clear finding to the effect that the ratio laid down in judgment of M/s. DSCL Sugar Ltd. & Others case still holds the field after the insertion of explanation that was further explained through the Circular date 25.04.2016 treating bagasse to be non excisable goods, for which the Circular was quashed that was issued to explain the insertion of Explanation 1 & 2 in Rule 6(1) w.e.f. 01.03.2015 - It is needless to mention here that pressmud is a similar by-product and treated at par with bagasse - Impugned order is set aside: CESTAT
- Appeals allowed: MUMBAI CESTAT |
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