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2022-TIOL-800-HC-MAD-CUS
Black Gold Technologies Vs JCC
Cus - Petitioner has imported cut Tyres at Tuticorin Port for setting up a factory in Tamil Nadu at Tuticorin - However, till date, no factory has been set up - It is submitted by the respondent that during the course of investigation, the petitioner had stated that the imported Tyres were meant for the manufacture of Rubber Crumb and Granules and that a factory had been set up in Rajasthan - Respondent further states that jurisdictional authorities were requested to search the premises of the importer at Delhi and Jaipur at Rajasthan; that the Joint Commissioner, Jaipur, vide Letter dated 03.03.2020, informed that there was no factory named 'M/s. Black Gold Technologies' functioning at the above said address; that the above facts have been elaborated in the show cause notice but instead of producing evidences for their ownership and existence of their factory in the given address, the importer has contested that various Government Agencies have issued certificates such as, MSME Certificate, GST Registration Certificate, dated 29.09.2017, Certificate dated 03.05.2017 and authorization issued by Rajasthan State Pollution Control Board for functioning of their Company at the said premises; that all the documentary evidences produced by the importer for existence of their Company have been issued prior to November 2019, i.e., date of registration of M/s. Anju Plastics at the above said address; that the import of used rubber tyres has taken place during January and February 2020 and hence the onus is on the importer to substantiate that their factory has been functioning in the address mentioned above till now and the imported goods would be processed further in their factory itself; that it is not mandatory to extend the benefit of cross-examination of Mahazar Witness or the Officers, who investigated the case - Petitioner submits that the impugned orders have been passed in gross violation of principles of natural justice inasmuch as the order rejecting the request for cross-examination was made on 23.06.2021 and thereafter, the impugned order has been passed on 29.06.2021. Held: The impugned order dated 29.06.2021, has been passed within six days from the date of the above said order (rejecting the request for cross-examination) - The information that is gathered by the respondent during investigation is meant only for ascertaining the facts - It is not necessary for the Department to inform the sources of the information - It is required for the Department to issue show cause notice articulating the proposal in the show cause notice for imposing the penalty - If the Department relies on any statement of any Officer or a Mahazar witness, then, it is for the Department to produce such Officers or Mahazar witness for cross-examination - The Department has to decide the case on preponderance of probability as to whether the petitioner had a probable case for justifying the import as freely imported goods under Chapter 4004 - In this case, the import is from the United States of America - It is not clear why the import has been made through Tuticorin Port, in the tip of the Peninsula in the Bay of Bengal - If the petitioner's case is that the import was made for their factory in Rajasthan, the petitioner would have chosen other Ports, which are nearer to Rajasthan either in Gujarat or in Maharashtra or in Goa or in Kerala on the Western Coasts - This needs to be properly explained by the petitioner - If the petitioner indeed operates a factory in Rajasthan, it is open for the petitioner to file a copy of the GST Registration of the factory and details of documents to substantiate that the petitioner had indeed manufactured the Rubber Crumbs and Granules and sold to various Contractors/statutory authorities engaged in laying of roads - These are the documents which the petitioner is required to produce before the authorities to substantiate that the imported goods do not fall within the purview of restrictions in the Foreign Trade Policy 2015-2020 - This exercise has not been carried out - Under these circumstances, the impugned orders are quashed and the cases are remitted back to the respondent to pass a fresh order within a period of three months: High Court [para 15, 16]
- Matter remanded: MADRAS HIGH COURT
2022-TIOL-799-HC-DEL-CX
Delhi And District Cricket Association Vs ACCT
Whether once statute provides for payment of interest and stipulated conditions are fulfilled, Revenue would be obliged in law to pay interest on refund of unutilized cess - YES: HC
- Assessee's petition allowed: DELHI HIGH COURT 2022-TIOL-476-CESTAT-AHM Voxco Pigments And Chemicals Pvt Ltd Vs CCE & ST
ST - Assessee is in appeal against impugned order whereby Commissioner (A) has rejected the refund claim only on the ground of time bar - They had filed the refund claim on 01/06/2017 - Thereafter, on audit query, assessee had decided to reduce the refund claim and, therefore, withdrew the earlier claim and thereafter filed claim for Rs. 7,92,262/- - Since the assessee had filed refund claim for amount of Rs. 12,25,023/- which was well within the stipulated time period of 01 year as prescribed under section 11B of Central Excise Act, 1944, the subsequent refund claim of Rs. 7,92,262/-must be treated as in continuation of earlier refund as this amount is out of total refund of Rs. 12,25,023/- - Therefore, date of filing of refund claim should be reckoned as the claim of first filing of refund claim and not as per the date of filing the revised refund claim - This view is supported by judgment in case of United Phosphorous Ltd. and M/s Fives India Engineering & Projects Pvt. Ltd. - Therefore, assessee's refund claim cannot be rejected on the basis of time bar - Matter remanded to Adjudicating Authority for passing a fresh order: CESTAT
- Matter remanded: AHMEDABAD CESTAT
2022-TIOL-475-CESTAT-MUM
Sim Enterprises Vs CC
Cus - Issue relates to mismatch of description of goods in import document and subsequent sale invoices that form the sole ground of rejection of refund claim of 4% SAD by refund sanctioning authority - Statutory Auditor namely Chartered Accountant had issued certificates in respect of all five refund claims, which are also annexed to appeal memo and noted in O-I-O as well as O-I-A, which were also produced along with original sale invoices - Therefore, erroneously applying CBEC Circular 15/2010-Cus concerning filing of fraudulent documents like duplicates invoices to seek refund against stock not sold out, is not at all applicable to appellant - Further, there is clear findings of Madras High Court in case of Johnson Lifts Pvt. Ltd. concerning admissibility of CA certificate along with original sale invoice wherein it was clearly stipulated that department is bound to accept the description of goods in import documents as well as sale invoice to be one and the same, on the strength of certificate/correlation statement issued by Statutory Auditor - The appellant is entitled to get a refund with applicable interest and department is directed to pay the same within a period of 3 months: CESTAT
- Appeal allowed: MUMBAI CESTAT
2022-TIOL-474-CESTAT-MUM
Neosym Industry Ltd Vs CCE
CX - This Tribunal by earlier order has remanded a batch of appeals on the ground that principles of natural justice have been violated by adjudicating authority in as much as cross examination of various persons were not afforded and also the relied upon documents/records were not provided to noticees before adjudication of dispute - Since Tribunal has remanded the matter by keeping all issues open for discussion by original authority, appeals cannot be decided in isolation inasmuch as the issue to be addressed by original authority in case of denovo adjudication proceedings, will have ultimately effect for deciding the fate of present appeals - Hence, matter is remanded to original authority to decide the issue as per direction contained in order passed by Tribunal: CESTAT
- Matter remanded: MUMBAI CESTAT
2022-TIOL-473-CESTAT-AHM
Heranba Ind Ltd Vs CCE & ST
CX - The issue involved is that whether the appellant's refund claim of service tax paid on reverse charge mechanism which was otherwise not payable is governed by Section 11B - Plea of appellant is that, since the service tax on reverse charge mechanism was not payable by appellant but the same was paid by mistake therefore, it is not a service tax payment hence, the refund of said amount is not governed by Section 11B - There is no dispute that whether service tax was payable or not, appellant have paid the amount as service tax only therefore, the refund of same is governed by Section 11B, there is no other provision for refunding the said amount - If on the pretext that since the amount of duty or service tax is not payable, Section 11B will not be applicable, any amount of refund arise only when it is not payable therefore, in any case Section 11B will not be applicable and become redundant which is not the intention of the legislators - Since the appellant filed the refund claim after stipulated time period of one year as provided under Section 11B, same is time barred - Accordingly, impugned order is upheld: CESTAT
- Appeal dismissed: AHMEDABAD CESTAT |
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