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2022-TIOL-787-HC-KAR-ST
Vice Chairman Settlement Commission-II Vs Zyeta Interiors Pvt Ltd
ST - This intra Court appeal is directed against order 2021-TIOL-2011-HC-KAR-ST , whereby the petition filed by assessees has been allowed in part quashing impugned part of orders - The argument of Revenue is that the assessee was required to strictly adhere to provisions of Section 68[2] of FA, 1994 amended from time to time - Assessee argued that the photocopies of invoices not being the required documents to award CENVAT Credit prescribed under Rule 9 of CCR, 2004, Single Judge remanding the matter to Settlement Commission for reconsideration afresh is not tenable - As regards the issue of double taxation, merely for the reason that there was no strict adherence to ratio as envisaged during relevant point of time for payment of tax insofar as assessee and service provider, the assessee cannot be made liable to pay double tax - The discharge of entire tax amount is not disputed - Thus, reverse charge mechanism would not lead to double taxation - No grounds found to interfere with this finding of Single Judge - Moreover, CBEC Circular 341/18/2004-TRU [Pt.] also supports the case of assessee - Insofar as issue of photocopies of invoices based on which no CENVAT Credit was allowed, it is pertinent to note that Single Judge has remanded the matter for fresh consideration mainly on the ground that assessee is ready and willing to produce the original invoices - Hence, adjudicating upon the issue of award of CENVAT Credit on the basis of Photostat copies of documents would become academic - Without dwelling upon said issue, more particularly, in view of the assessee being ready and willing to produce the original invoices, case disposed of confirming the order of remand: HC
- Writ Appeal disposed of: KARNATAKA HIGH COURT
2022-TIOL-786-HC-GUW-CUS
Century Plyboards India Ltd Vs UoI
Cus - In furtherance of an enquiry in connection with import of EPCG Licenses by petitioner Star Cement Meghalaya Limited, a summon under section 108 of Customs Act, 1962 had been issued to Managing Director of petitioner Company by name - Petitioner relies upon a circular bearing C.B.E & C Letter F. No. 208/122/89-CX.6 which provides for an instruction to departmental authorities not to summon Managing Director/Directors of any Company for enquiry - No material is available on record to show that there is a reasoned view formed by Department that petitioner is not cooperating or that the presence of Managing Director specific is required for investigation for any reason - Departmental authorities are directed not to issue summons directly to Managing Director of petitioner Company and on the other hand to issue it to an authorized representative of Company in terms of provisions of Circular: HC
- Writ petition disposed of: GAUHATI HIGH COURT
2022-TIOL-785-HC-JHARKHAND-CX
Kota Dall Mill Vs Assistant Commissioner CGST & CX
CX - Petition filed against Order-in-Original No. 09/ Central Excise/Pr. Commr /2021 dated 12.04.2021 - Counsel for Revenue submits that the impugned order has been passed by the respondent No. 2 after following the principles of natural justice and the petitioner, instead of availing an alternative remedy of appeal before the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), as provided under Section 35 B of Central Excise Act, 1944 against the said Order-in-Original, straightaway approached this Court, hence the same is not maintainable.
Held: Admittedly in the instant case, the Order-in-Original has been passed and the thrust of argument of this petitioner is that principle of natural justice has not been complied in this case, and as such, the instant writ application is maintainable - However, after going through the Order-in-Original it clearly transpires that the Adjudicating Authority has held at page 47 of the order in O.I.O that opportunity of personal hearing was given to the petitioner on 17.11.2020 through virtual mode as well as physical mode, however, the noticee failed to appear; that on 17.12.2020, again the petitioner was given an opportunity of personal hearing through virtual mode as well as physical mode; that in response to personal hearing scheduled on 17.12.2020, the petitioner requested adjournment on the ground that the authorized person was suffering from COVID-19 and requested that personal hearing may be given on some other day; that finally, personal hearing in the case was held on 08.01.2021 when the noticee appeared and was represented by Sh. Mukesh Kasera , Manager (Finance) and Sh. Rahul Lakhwani , Authorized representatives - In view of the categorical finding in the Order-in-Original, it clearly transpires that principle of natural justice has been duly followed - Apex Court [ Radha Krishan Industries = 2021-TIOL-179-SC-GST ] has categorically held that exceptions to rule of alternative remedy arise where the writ petition has been filed for the enforcement of fundamental right or there has been a violation of principle of natural justice or the order or proceeding are wholly without jurisdiction or the vires of legislation is challenged - Apex Court has also held that when a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy - Coming to the facts of the case, there appears to be no violation of principles of natural justice - Moreover, the petitioner has prayed for quashing of the Order-in-Original for which there is a statutory remedy prescribed by the statute - It is also not the case of the petitioner that the Order-in-Original is passed without jurisdiction - None of the exceptions as carved by the Apex Court for maintainability of the writ application, bypassing the alternative remedy, has been met out in the instant application - Writ application is dismissed on the ground of maintainability itself with a liberty to the petitioner to prefer an appeal under Section 35B of Central Excise Act, 1944: High Court [para 9, 10, 11]
- Petition dismissed: JHARKHAND HIGH COURT
2022-TIOL-784-HC-MAD-CX
Raghav Industries Ltd Vs UoI
CX - Rebate - Petition dismissed holding that the appellant had availed the facility of duty drawback under the Customs Act and hence, the sanction of rebate of duty paid on the finished goods would amount to double benefit - Writ appeals filed.
Held: There are two different facts and circumstances projected by both the appellants and the respondents before this court - It is the firm stand of the appellants that they have not claimed any excess duty drawback, which is stoutly refuted by the counsel for the respondents - As such, taking note of the factual dispute arisen with regard to the availment of Cenvat Credit by the appellants, this court is of the view that it would be proper to remit the matter to the authority concerned to redo the entire process by considering Paras 6 and 15 ( i ) and (ii) of the Notification No. 68/2011-Cus. (N.T.) dated 22.09.2011 as well as Rule 2(a) and its proviso, after hearing all the parties concerned and thereafter, decide the issue on merits - The appellants are directed to file their submissions along with documentary evidence, within a period of three weeks and on such submission, the authority concerned shall consider it and pass orders, within a period of four weeks thereafter - Appeals disposed of: High Court [para 14]
- Appeals disposed of: MADRAS HIGH COURT |
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