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2022-TIOL-765-HC-DEL-CUS
Suresh Chand Gupta Vs State of Govt of Nct Delhi
Cus - Prosecution - Petition is filed under section 482 of the Code of Criminal Procedure, 1973 for quashing of order dated 5th March 2014 passed by CMM Patiala House Courts, New Delhi and to quash the CC No. 75/1/2013 under Sections 132 and 135(1)(a) of the Customs Act, 1962 and also order dated 29th July 2016 passed by ASJ, Patiala House Courts, New Delhi in Criminal Revision No. 47/2014.
Held:
+ As per Section 135(1)(a) of the Act, prosecution can be initiated if the market price of the goods exceeds Rs.1 Crore. It is an admitted fact that in the order dated 4th August 2011 passed by the Commissioner of Customs (Preventive), collective value of all the goods was taken to be Rs.77,16,288/- and it is further admitted that no appeal was preferred against the said order, which therefore, attained finality. [para 19]
+ In the present case there is nothing to show that the petitioners made any false declaration or prepared false documents and, therefore, he is not liable to be prosecuted under Section 132 of the Act.
+ Moreover, the complaint is barred by limitation inasmuch as per the provisions of Section 132 of the Act, which existed at the relevant time the punishment which could have been imposed for violating Section 132 of the Act could have extended for a period for a period of six months or with fine or with both and limitation in this case as provided under Section 468 of Cr.P.C . is only 1 year. [para 21]
+ In the present case, it was the duty of respondent No. 2 to prove its case against the petitioners and show sufficient evidence on record, however, the respondent No. 1 in the present case did not examine even the panch witnesses to prove its case. Therefore, the Court below has summoned the petitioner without any material on record for prima facie satisfaction. The impugned order, passed in the instant case, is bad in law in five folds: firstly, the prosecution of the petitioner cannot be initiated under Section 135(1)(a) of the Act as valuation of the goods is less than Rs.1 Crore; secondly, the respondent-department has not examined any witness to prove its case against the petitioner; thirdly, the complaint was admittedly barred by limitation; fourthly; the sanction by the Additional Director for prosecution is invalid and void-ab-initio; and lastly, the Court below while passing the summoning order has not assigned any reason for summoning the petitioner. [para 22]
+ Impugned orders passed by the Courts below summoning the petitioners and dismissing the criminal revision are bad in law. [para 23]
- Petition allowed: DELHI HIGH COURT
2022-TIOL-463-CESTAT-MUM
Aarti Industries Ltd Vs Pr.CC
Cus - Assessee is in appeal against order of confiscation of imported goods under Sections 111(d) and 111(m) of Customs Act, 1962 along with option for redemption on payment of fine under Section 125(1) ibid for re-export of goods to its origin along with penalty under Section 112(a) ibid - In O-I-O, adjudicating authority had noted that purity percentage was not available in purchased order and for that reason he disbelieved the copy of purchased order submitted by assessee - However, any prudent man, apart from being a judge, would have got the temptation to call for the lower Court's record and examine the purchase order himself that was being submitted to the adjudicating authority before giving a finding so as to make it rational and believable - Assessee's contention that it had not even filed any Bills of Entry prescribing description of goods imported to put the same in category of admitted statement is not disputed by any of the Authorities below - The order passed by Commissioner (Appeals) is illogical, inconsistent and not supported by any reason and therefore contrary to the dictates of Sections 129(2), 129(3) after making such further enquiry and 129(4) and in view of plethora decisions including the one passed by Uttaranchal High Court , discretionary powers of the Court can be interfered with when the order is arbitrary or perverse - The appeal is allowed enabling the assessee to re-export the goods without payment of any fine and penalty and the order passed by Commissioner (Appeals) is set aside: CESTAT
- Appeal allowed: MUMBAI CESTAT
2022-TIOL-462-CESTAT-DEL
Shekhawati Trading Company Vs CCGST
CX - The four appellants are petty distributors/sub-distributors of cigarettes, pan masala and other similar products of various small brands including Lucky Tobacco Co. Pvt. Ltd. - Penalty of Rs. 2 lakh each under Rule 26 of Central Excise Rules, 2002 was imposed on these appellants on the findings that these appellants are engaged in purchasing of cigarettes manufactured and clandestinely cleared by Lucky Tobacco Co. Pvt. Ltd. - Further, it was observed that these appellants have accepted the fact of receipt of clandestinely cleared goods in their statements recorded during investigation - Thus, it was held that they have abetted clandestine clearance of cigarettes by Lucky Tobacco Co. Pvt. Ltd. and accordingly, for alleged offence of acquiring possession, keeping, storing, concealing, selling and purchasing of non-duty paid cigarettes, penalty of Rs. 2 lakh was imposed - In view of order in case of Lucky Tobacco Co. Ltd . 2019-TIOL-2280-CESTAT-DEL , arising from same impugned O-I-O, cause of action against appellant also does not survive - Penalty against all these appellants is set aside: CESTAT
- Appeal allowed: DELHI CESTAT
2022-TIOL-461-CESTAT-AHM
Gujarat Guardian Ltd Vs CCE & ST
CX - The appellant as per Industries Association namely M/s. Valia Industries Association is only an association which includes the appellant also as its member - As per the Deed of Association, association was founded in name of M/s. Valia Industries Association for operating water supply for common benefit of all the members - The association engaged Shree Rang Services to handle the said water supply project - Shri Rang Services issued invoices for handling the water supply in favour of M/s. Valia Industries Association - M/s. Valia Industries Association proportionately shared the expenditure among the members of association as per actual use of services - It is clear that the appellant is in fact received the services and the expenditure for the same was borne by appellant only - As regards the objection raised by Revenue that invoices issued in favaour of M/s. Valia Industries Association is not valid invoice for taking credit, since there is no dispute that Shree Rang Services issued valid cenvatable invoices in favour of M/s. Valia Industries Association and on the basis of proportionate distribution of expenditure the appellant have availed credit - Since the appellant is member of association, as per the judgment of Supreme Court in case of Calcutta Club Limited 2019-TIOL-449-SC-ST-LB , there is no difference between Association and its Members - Accordingly, service provided by Shree Rang Services to M/s. Valia Industries Association is deemed to have been provided to its members - Therefore, appellant have received the service and borne the expenditure along with service tax, they are entitled for Cenvat credit - Accordingly, impugned order is set-aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
2022-TIOL-460-CESTAT-AHM
Seabird Marine Services Pvt Ltd Vs CCE & ST
ST - Appellants are in appeal against demand of Service Tax on "Storage and Warehousing services", demand of interest and imposition of penalties - The appellants are container freight station - They are providing services on the basis of a tariff card - There are standard packages which involved the complete service of container freight station (including storage for a specified limited time) at a particular rate - All the appellants are paying service tax on such services in case of import of goods - All appellants are charging "Storage and Warehousing" fees only in case the cargo stays in CFS beyond the period included in such package rates given in tariff cards - In those circumstances for charges for storages beyond the Warehousing period included in package rate, all appellants are paying Service Tax under category of "Storage Warehousing Services" - All CFS are paying Service Tax on reverse charge basis for transportation of cargo undertaken by their contractors from CFS to port and vice versa - Storage in container freight station is only incidental to cargo handling activity - The main purpose of Container freight Stations is to handle cargo for the purpose of import or exports - The main purpose of container Freight Stations is not Storage and Warehousing - No merit found in the order of Lower Authorities - The Circular No. 104/7/2008-S.T. issued by CBEC clarified that transportation is not an essential character of "Cargo Handling Services" but only incidental to "Cargo Handling Services" - The arguments in impugned orders that only the "Cargo Handling Services" provided in respect of transportation of goods would be classifiable as "Cargo Handling Services" is misplaced and liable to be rejected - Impugned orders are set aside: CESTAT
- Appeals allowed: AHMEDABAD CESTAT |
