2022-TIOL-1029-HC-MUM-CUS
Gurjeet Singh Vs UoI
Cus -Petitioner impugns order dated 23.02.2009 passed by the Settlement Commission whereby the application filed u/s 127C stood abated by virtue of sub-section 6 inasmuch as the application was filed prior to 30.06.2007 and it did not get disposed before 29.02.2008, the cut-off date -Respondent also gave liberty to petitioner to file, in the interest of fair play and justice, the application afresh if they chose to do so -Petitioner submits that it diligently pursued its application at all times and it was the department that had resorted to challenging the interim order passed by the Settlement Commission belatedly and thereby creating an impediment in the progress of the proceedings before the Settlement Commission.
Held : Petitioner should be permitted to file an application afresh before the Settlement Commission and the Settlement Commission shall consider the same on merits in accordance with law - The provisions cannot be construed as punishing an applicant for the inability or failure of the Settlement Commission to dispose the application within the period specified where such delay in disposal is not attributable to petitioner - Otherwise it would amount to punishing petitioner for the inability of the Settlement Commission to fulfil its statutory obligation, for matters completely beyond his control -Petition disposed of: High Court [para 3, 5]
- Petition disposed of: BOMBAY HIGH COURT
2022-TIOL-1028-HC-AHM-CUS
Mohit Minerals Ltd Vs UoI
Cus - Import of Steam coal of Indonesian origin - Petitioner has challenged the reassessment order and the demand notice issued by the Deputy Commissioner.
Held: It is an undisputed fact that the petitioner imported 30720 metric ton steam coal and filed Bill of Entry on 28.09.2017 which was assessed provisionally under section 18 of the Customs Act - It is also undisputed that the petitioner was never informed about the final assessment/re-assessment of the said Bill of Entry and for the first time, respondent No. 4 by letter dated 05.07.2021 i.e. almost after two years and six months, informed the petitioner that the Bill of Entry No. 3415030 was finalized on 02.01.2019 - Thus, the respondent No. 4 has made final assessment/re-assessment of the said Bill of Entry ex parte in January 2019 without affording any personal hearing to the petitioner nor any reason for the variation being made to the said Bill of Entry as filed by the petitioner was communicated - It is also undisputed that no speaking order in support of the finalized Bill of Entry which has been varied has been issued to the petitioner at any point of time - As per the provisions of section 17(5) and section 18(1)(2) of the Customs Act, it is clear that the respondent authority is/are required to pass a speaking order on the reassessment within 15 days from the date of re-assessment of the Bill of Entry read with sub-section (2) of section 18 of the Customs Act - Respondent-authorities, therefore, ought to have granted opportunity of hearing to the petitioner and thereafter passed a speaking order as contemplated under section 17(5) of the Customs Act - Final assessment order dated 02.01.2019 passed by the respondent No. 4 and consequent further notices calling upon the petitioner to pay the amount of differential duty with applicable rate of interest are also set aside - Respondents are directed to pass a fresh order of final assessment/re-assessment by following the principles of natural justice and within a period of twelve weeks: High Court [para 7, 10, 12]
- Petition disposed of: GUJARAT HIGH COURT
2022-TIOL-1027-HC-MP-CUS
Mukesh Valecha Vs Superintendent of Customs
C us - Smuggling of gold - Applicant has filed this first bail application under Section 439 of the Code of Criminal Procedure, 1973 and is in jail since 14.4.2022 - Acting on a discreet information, the vehicle was intercepted and during the search of the vehicle, officers of DRI found 3 yellow metal bars wrapped in papers from the specially built cavity under the seat adjacent to the Driver seat - During the investigation the said 3 gold bars weighing 3 kg valuing at Rs.1,58,20,500/- and vehicle bearing registration number MP07-CK-8887 were seized and the accused Vaibhav, Vishal, Shankar and Dhiraj stated that they have no legal documents related to these gold bars and the bars are smuggled foreign origin gold bars - Vaibhav Jain and Vishal Jain also stated that they had purchased the above gold bars from Mukesh Bhai (applicant) and they gave him cash amount of Rs.1,56,60,000/- - Applicant submits that he is innocent and has been falsely implicated in this matter; that the DRI officers searched his premises on 13.4.2022 and no incriminating material or document was found during the search; that on the same day his shop was also searched by the DRI officers but nothing has been found against him; that Applicant's confessional statements were forcefully extracted by the DRI officers; that as per the allegation he has received only Rs.6,000/- as a commission for arranging the gold bars on the direction of co-accused Vaibhav Jain and Vishal Jain from the local market dealer one Mr. Lucky John and nothing has been seized from his possession; that, therefore, he be released on bail.
Held : Applicant Mukesh Valecha admits in his confessional statement under Section 108 of Customs Act, 1962 that he has supplied the said 3 gold bars of foreign origin having the same marking to Vishal Jain and Vaibhav Jain and he has not issued any sale invoice for the said 3 foreign origin gold bars having weight of 3 k.g. worth Rs.1,58,20,500/-, which was allegedly recovered by the DRI officials from the possession of the co-accused Vishal Jain, Vaibhav Jain, Dheeraj and Shankar Singh Yadav - Statement of Vinay Chabaria also states about modus operandi and chequered history of the present applicant - Earlier, another offence was registered against the present applicant for smuggling of 176 golden coins, therefore, it appears that present applicant is a habitual offender - Considering the value of gold already seized, the manner in which the gold were received in this country and the attendant circumstances, there can be no doubt that the occurrence is flagrant violation of the provisions of Customs Act - The relevant provisions of the Customs Act are intended to protect the fiscal and commercial interest of the nation - An offence like this must be viewed with all the seriousness - There is no doubt that the instant release of the applicant, who is involved in such activities, would hamper the investigation and the applicant may tamper with the evidence - Court is not inclined to grant regular bail to the present applicant - Bail Application is dismissed: High Court
- Application dismissed: MADHYA PRADESH HIGH COURT
2022-TIOL-1026-HC-AHM-CX
Memon Cooperative Bank Ltd Vs UoI
CX - Petitioner bank has sought a direction to the respondent nos. 1 to 4 to hand over the peaceful possession of the premises allegedly unlawfully locked by them and return the machinery allegedly illegally removed by them; to quash the auction notice issued by respondent no. 3 in respect of the properties described in the impugned auction notice and mortgaged to the erstwhile Memon Co-operative Bank in liquidation - Petitioner Memon Co-operative Bank Ltd., during the pendency of this petition, merged with the Bank of Baroda, had at the relevant time on 08.07.2004 sanctioned loan to respondent Nos.6 and 7 - The respondent Nos.6 and 7 created charge of equitable mortgage in favour of the Bank by depositing the title deeds - It appears that there were unpaid dues of the Customs Department also not paid by the petitioner-borrowers - The Department issued auction notice dated 19.04.2007 seeking to recover the dues from the respondent Nos.6 and 7 - This notice was challenged by the petitioner and the auction was stayed by the Court by passing interim order - However, on 12.06.2014, the said Special Civil Application No. 13271 of 2007 came to be dismissed - With the dismissal of the petition, interim relief also stood vacated - Central Excise Department issued fresh notice dated 11.04.2018 and this is now challenged.
Held: It transpires that certain material subsequent events have taken place post the impugned show-cause notice - Affidavit-in-reply is filed by the respondent Nos.8 and 9 in which the factum of properties having purchased by them in the auction is mentioned - It is stated that they purchased the plot in public auction - The GIDC has also registered the auction purchasers as the allottee in the records - It is further stated that the sale-deed is also executed in favour of the auction purchasers - respondent Nos.8 and 9 - In absence of any further prayer other than to challenge the auction notice, nothing further requires to be gone into in this petition and any adjudication is not called for - Petitioner is not precluded from taking appropriate recourse in law - Petition dismissed: High Court [para 5, 5.2, 6, 8.1, 9]
- Petition dismissed: GUJARAT HIGH COURT
2022-TIOL-1025-HC-MP-CX
Elora Tobacco Company Ltd Vs UoI
CX - Petitioner challenges the order dated 27.05.2021 whereby the respondents have refused to de-seal cigarette manufacturing machines and DG sets - By the Trade Notice 02/2015 dated 04.02.2015, a provision was made for sealing of the machine when the unit operated at a capacity lower than 50% of the total capacity of the machine - Vide impugned notice dated 27.05.2021, the request for de-sealing of the machine and DG sets have been declined by the respondents as the petitioner did not file a fresh declaration in compliance with Trade Notice 04/2020-2021 dated 18.01.2021 - Petitioner challenges this Trade notice as arbitrary and as a violation of Article 14 of the Constitution as well as being contrary to the provision of the Central Excise Act, 1944.
Held: Respondents have failed to highlight any provision in the Excise Act and rules and even in the CGST Act which gives authority to the competent authority to seal the machines of a running manufacturing unit - Hence clause 6.3 of Trade Notice dated 18.01.2021 is wholly unreasonable and inconsistent with the provision of the Central Excise Act and Rules and liable to be struck down - Central Excise Authorities cannot compel any manufacturer to utilize 50% of the machine hours in shift based on the declared capacity of the machine - The production of any goods always depends on demand in markets, availability of raw material, availability of electricity, manpower, working capital etc. - The only provision under the Excise Act is section 3A under which the Central Government can charge the excise duty on the basis of capacity of production in respect of notified goods and admittedly, the cigarette is not notified goods under Section 3A, therefore, apart from Section 3A, Counsel for Revenue has failed to point out any provision under the Act and Rules under which the Central Government can insist the manufacture to operate the machine up to 50% of its total production capacity machine hours - Since there is no mandatory provision in the statute to give production as per the capacity of the machine, then the respondents cannot compel any manufacturer to give a declaration or run the factory up to its 50% capacity - The Excise officer is posted there 24x7 hours to check the production and accordingly, charge the excise duty, therefore, no purpose would be served by keeping the record or insisting the manufacturer to declare the capacity of the machine - It is the responsibility of the Excise Officer to watch 24x7 hrs and check the capacity of production in the factory before removing the goods - Cigarette manufacturing Machine and two DG sets of the petitioner are under seal since the date of the raid and now more than two years have lapsed still the respondents are not ready to release them - The petitioner is unable to do the production, this has not only caused business loss to the petitioner but to the Central Government also in respect to the revenue - The impugned action of the respondents is wholly without jurisdiction for which the petitioner is liable to be compensated, hence instead of assessing losses caused in this writ petition, we leave it to the petitioner to take recourse available under the law against the respondents - As far as loss of revenue to the Government is concerned, the higher officials of the respondents shall take appropriate action against the responsible officers - Order impugned is quashed and the petition W.P. No. 23618/2021 is allowed with a cost of Rs 50,000/- payable to the petitioner - The respondents are directed to de-seal the machine and two DG sets forthwith: High Court [para 22, 23, 26, 27]
CX - Petitioner has in WP 23624/2021 challenged the action of the respondents by which they called the Chartered Engineer to assess the capacity of the machine.
Held : In view of the conclusions in the matter of WP 23618/2021, nothing is required to be adjudicated on the issue raised in WP 23624/2021 - Even otherwise, Section 145 of the GST Act gives the authority to seek an opinion from an expert, hence this writ petition is devoid of substance hence dismissed: High Court [para 25]
- Petition allowed/dismissed: MADHYA PRADESH HIGH COURT
