2022-TIOL-968-HC-MUM-CUS
Waaree Energies Ltd Vs Addl. Commissioner of Customs
Cus - Goods namely 'Solar Module-540W' were imported without requisite labelling prescribed under the Bureau of Indian Standards Act, 2016 (BIS) - Additional Commissioner passed an order inter alia confiscating the goods but gave an option to redeem the same on payment of redemption fine for the limited purpose of re-export - Commissioner (Appeals) allowed the appeal only to the limited extent that instead of re-exporting the goods, he permitted labelling on the basis of the license that petitioner had to fulfil the conditions of BIS provisions - Petitioner has been addressing communication to respondents who conveniently sat over the communications and failed/neglected to comply with the directions given in the order in appeal, therefore, the present petition was filed - Respondent Revenue has filed an affidavit without disclosing the name of the officer who has filed the affidavit. Held : Bench finds a rubber stamp of one D.S.Garbyal , Commissioner of Customs NS-V - Bench also notices that in page 109, it is stated - solemnly affirmed on this 30 day of June 2022 whereas in the verification it is mentioned that - solemnly affirmed on this 24 day of June 2022, therefore, whoever is the person who has affirmed the affidavit has not even bothered to read the affidavit - This is not a trivial technicality - Such improper affirmations are seriously impeaching the integrity of the records and proceedings - It indicates how much seriousness an officer of the level of Commissioner of Customs pays attention to an affidavit they filed in a Court of law - Therefore, Bench directs the said D.S. Garbyal or whoever the person who has affirmed the said affidavit to present himself or herself before the Court Master to re-affirm the affidavit - Since the appeal has been filed along with the stay application before the CESTAT, respondents are directed to serve a copy of the appeal and the stay application upon the petitioner - If respondents do not obtain a stay within four weeks, within one week of expiry of said four weeks, respondents shall strictly and meticulously comply with the directions given in the order dated 22.03.2022 passed by the Commissioner of Customs (Appeals) - Petition disposed of: High Court [para 5, 7]
- Petition disposed of: BOMBAY HIGH COURT
2022-TIOL-967-HC-MAD-CUS
Alstom T And D India Ltd Vs Asstt. DGFT
Cus - Challenge in the writ petition is to the denial of Duty Free Credit Entitlement [DFCE] Certificate to the petitioner. Held: The dispute is as to whether the petitioner was status holder or a Star Export House - The said question is answered by the order of the very Department made on 16.06.2006 wherein the petitioner has been recognized as a Star Export House as on 01.04.2003 - Therefore, it is clear that the petitioner had satisfied the requirements of the amended provisions of the scheme - The stand of the respondents that de hors the amendment, the petitioner should have been a status holder for the year 2002-03 is in negation of the rights conferred on the petitioner under the Amendment issued on 07.04.2005 under Public Notice No. 69/2004-09 - Order impugned is set aside - There will be a direction to the respondents to issue the relevant benefit under the current scheme known as "Merchandise Exports from India" Scheme formerly known as "DFCE Scheme/Target Plus Scheme" to the petitioner as claimed - Petition allowed: High Court [para 10, 11]
- Petition allowed: MADRAS HIGH COURT
2022-TIOL-966-HC-MUM-ST
Your Fitness Club Pvt Ltd Vs UoI
ST - SVLDRS, 2019 - Petitioner states that though From No. SVLDRS-3 is dated 13.03.2020, petitioner never received Form No. SVLDRS-3 but only received an email without indicating any amount - Petitioner has further averred that he was logged out / was unable to access the portal and that even any email / sms / intimation was not received by petitioner. Held : What is important to note is the fact that petitioner had a serious problem in accessing the portal has not been denied - Petitioner has also annexed screen shots of the portal when petitioner made attempts to find out status of the declaration - Petitioner has strangely even received a message that no taxpayer was found in the credentials or the PAN number mentioned therein - Bench finds that there was serious problem in the portal, otherwise if such taxpayer was not found, petitioner should not have even received a show-cause-notice in the first place - Without going into the merits of the matter, Bench is of the view that interest of justice requires that it makes a limited interference - Form SVLDRS-3 is set aside - Petitioner is permitted to respond to Form No. SVLDRS-2 that it has received and file Form No. SVLDRS-2A afresh - If it is technically not feasible to file in the portal, respondent No. 5 will inform petitioner about that within two weeks of this order getting uploaded - In such case, within one week of receiving such communication, petitioner shall file physical copy of form No. SVLDRS-2A or objections with respondent No. 5 who shall consider petitioner's submissions and pass such order as deemed fit in accordance with law: High Court [para 7 to 9]
- Petition disposed of: BOMBAY HIGH COURT
2022-TIOL-965-HC-DEL-ST
B-Earth And Spire India Pvt Ltd Vs UoI
ST - SVLDRS, 2019 - Petition is directed against the statement dated 12.02.2020 issued by respondent no. 4 in the prescribed form, i.e., SVLDRS-3 - Petitioner seeks a declaration that the impugned statement is ultra vires section 66B of the Finance Act 1994 and Chapter V of Finance Act, 2019 - Petitioner's grievance is that the tax dues paid have not been adjusted by the Designated Committee. Held : Statute is to be construed in a manner that absurdity and mischief is avoided, as unreasonable results can never be the intendment of the legislature - Where a taxing statute is impregnated with ambiguity, the benefit of doubt enures in favour of the assessee - Expression "total amount of duty" in clause (d) of section 123 of the 2019 Act, in the opinion of the Bench could only mean the total amount of outstanding duty payable by a declarant making voluntary disclosure, as it could never have been intended by the legislature that the revenue would collect and/or recover tax liability which has already been discharged by the declarant - Proviso appended to sub-section (1) of section 126 of the 2019 Act, states that the designated committee will not make a verification in respect of a declaration made by a declarant falling under the voluntary disclosure category - The scheme provides that a declaration filed under the voluntary disclosure category is to be accepted without verification, unless proved wrong - The expression "total amount of duty" which is mentioned in clause (d) of section 123 of the 2019 Act, could only mean outstanding duty - Any other interpretation would render the provision manifestly unjust, arbitrary, unfair and unreasonable - This interpretation aligns with paragraph 2(iv) of the circular dated 25.09.2019 and paragraph 2 (ii) of the circular dated 29.10.2019 - The only way by which clause (d) of section 123 of the 2019 Act can be saved, is by holding that the expression "total amount of duty" would mean that which is payable after adjusting the amount of tax liability already discharged/paid by the declarant - The obvious intent of the legislature in forging the scheme under the 2019 Act is to encourage assessees to make a clean breast of their affairs and resultantly, extend the necessary benefits to the revenue by adding to their financial wherewithal, sans the attendant difficulties and costs that would otherwise have to be incurred to initiate recovery and/or legal proceedings - It would suffice if a direction is issued, quashing the impugned statement dated 12.02.2020, and consequentially respondent no. 4 be called upon to issue a fresh statement in the prescribed form i.e., SVLDRS-3, after taking into account the pre-deposit made by the petitioner towards tax liability, as indicated in its declaration made in the form SVLDRS-1 - Petition disposed of: High Court [para 13.1, 13.5, 13.7, 13.8, 13.10, 13.11, 13.12, 15, 18] ST - Interpretation - Respondents have placed reliance on the judgement rendered by the Supreme Court in Dilip Kumar's case ( 2018-TIOL-302-SC-CUS-CB ) by ignoring the fact that in this case, Bench is not called upon to interpret an exemption notification and, therefore, the construction of provisions of section 123(d) cannot enure to the benefit of the revenue: High Court [para 17]
- Petition disposed of: DELHI HIGH COURT
2022-TIOL-964-HC-KERALA-CX
Poduval Industries Vs CCT & CE
CX - Appeal filed against CESTAT order wherein the challenge against the order of Commissioner (Appeals) was repelled - CESTAT dismissed the appeal by observing that 'by connivance of two parties, sovereign function of payment of duty cannot be avoided' and confirmed the order passed by the Commissioner (Appeals) demanding CE duty of Rs. 10,52,892/-. Held: Tribunal has not gone into the merits of the case, nor the grounds raised in the Appeal Memorandum of the appellant - The finding entered by the Tribunal cannot be sustainable in law - No reasoning is stated for dismissing the appeal - In view of the matter, Bench is of the considered opinion that the final order of the Tribunal has to be interfered with - In the result, the Appeal is allowed, and order of the Tribunal is set aside and the matter is remitted to the Tribunal, for reconsideration afresh, in accordance with law - Appeal allowed: High Court [para 5]
- Appeal allowed: KERALA HIGH COURT
2022-TIOL-963-HC-MUM-CX
Tufropes Pvt Ltd Vs UoI
CX - Petitioner manufactured the resultant product mentioned in the Advance licences by utilizing the duty paid raw materials procured from Reliance Industries Ltd and exported the resultant products out of India - In all the export documents, however, i.e., ARE-1 and shipping bills, petitioner erroneously indicated the numbers of advance licences and also indicated that shipping bills were filed under DEEC cum-Drawback shipping bills but which was a factual error as there were no advance licences in force, the same having been invalidated - Petitioner claimed drawback of Rs. 34,19,258/- and which was sanctioned to them but later SCN was issued for recovery of erroneously granted drawback and which order was confirmed by the original as well as revision authority, therefore, the present petition. Held: It is indisputable that petitioner did not use any HDPE granules procured under the advance licences by direct import but procured the granules from indigenous source, i.e., Reliance Industries Ltd. - If that is the factual position, petitioner should be entitled for the drawback - The factual position notwithstanding the error in the shipping bills, which an alert petitioner could have amended on time, petitioner will be entitled and should be granted the drawback as it was rightly granted earlier by the DGFT - Impugned order is quashed and set aside - The show cause notice impugned in the petition is also discharged - Any amount deposited with the authorities shall be refunded along with applicable interest if any, within 4 weeks of petitioner making the application for refund - Petition allowed: High Court [para 9, 10, 13]
- Petition allowed: BOMBAY HIGH COURT
2022-TIOL-962-HC-MUM-CX
Tata Yazaki Autocomp Ltd Vs UoI
CX - According to respondent No. 2, the EOU was not entitled to discharge the duty payable on DTA clearances from Cenvat credit, but the duty discharged by DTA unit in this case was substantially from Cenvat credit account and only partly from the current account. Held: Bench finds it rather difficult to accept this argument because whether it is by way of Cenvat credit or through current account, the fact is that there has been a payment; the only obligation for assessee is to pay the duty on the goods sold and admittedly, it has been paid - Bench is unable to agree with the contention of respondent No. 2 in the absence of any specific prohibition that payment cannot be made through Cenvat credit for goods manufactured by EOU - Bench is also unable to accept the stand of respondent No. 2 that even though petitioner has already paid Rs.7,31,58,191/- through the DTA unit, the amount should once again be paid through the EOU unit and petitioner should apply for a refund of the amount paid through the DTA unit - If petitioner is compelled to do that, it would only mean that petitioner has to pay the said amount twice and then claim refund - It is open for respondents to calculate if the figures really tally and if there is difference in amounts paid and amounts adjusted, respondents may take such further steps as advised - Respondents to cancel the bank guarantee and return the same to petitioner within four weeks: High Court [para 9, 10, 13, 14]
- Petition disposed of: BOMBAY HIGH COURT
