2022-TIOL-717-CESTAT-AHM-LB
VRL Logistics Ltd Vs CC
Cus - A division bench of Tribunal, while hearing the appeal filed by appellant and connected appeals, noticed that two contradictory views had been expressed by division benches of Tribunal in Sameer Gehlot and King Rotors & Air Charter P. Ltd. 2011-TIOL-1785-CESTAT-MUM , for while in Sameer Gehlot benefit of exemption notfn 61 of 2017 the exemption notification that amended the earlier exemption notification 21 of 2022 was held to be available to importer of an aircraft that had been granted permit by DGCA for operating non-scheduled (passenger) services, benefit of said exemption notification was denied in King Rotors - The division bench, accordingly referred the matter to a larger bench of Tribunal to express its view as to which of the two views expressed by division benches was correct view - The exemption notfn dated 03.05.2007, on which revolves the entire controversy, grants 'nil' rate of duty on import of aircraft for non-scheduled (passenger) services as well as non-scheduled (charter) services subject to Condition 104 that is required to be fulfilled by an importer of aircraft for availing benefit of exemption notification. This issue has arisen because of view taken by division bench in King Rotors that earlier decision of division bench in Sameer Gehlot was per incuriam - It is clear that division bench examined said Condition of exemption notification and proceeded to take a view which was at variance with the view taken by earlier division bench in Sameer Gehlot - The division bench held that post importation nature of subjects of undertaking 'was not appreciated by Bench while taking of view that the requirement of undertaking to be made by importer was pre-importation condition' - According to division bench this 'mistake vitiated the decision' and, therefore, was rendered per incuriam - It is not possible to accept this reasoning given by division bench for holding that earlier division bench decision in Sameer Gehlot was rendered per incuriam - The principle of per incuriam has been developed in relaxation to rule of stare decisis - It, therefore, follows that principle of per incuriam can be applied for such decisions which have been given in ignorance of some statutory provision or some authority that is binding - The earlier decision may have appeared to be incorrect by a bench of co-ordinate jurisdiction on the ground that a possible aspect of matter was not considered or more aspects should have been considered - This cannot be a reason to hold that earlier decision by a co-ordinate bench was rendered per incuriam - The earlier judgment may seem to be not correct, but it would still have a binding effect on a bench of co-ordinate jurisdiction - There is no difficulty in holding that division bench in King Rotors was not justified in holding that the decision of earlier division bench in Sameer Gehlot had been rendered per incuriam as neither it was pointed out that provisions of a Statue or a judicial authority of binding nature had been ignored - Infact, all that the division bench in King Rotors observed was that 'the post importation nature of subjects of undertakings was not appreciated by bench'. The division bench of Tribunal in King Rotors held that since the flight operations are not open to public, aircraft would not be considered to have been used for non-scheduled (passenger) services - This view proceeds on an incorrect appreciation of definition of non-scheduled (passenger) services - The division bench of Tribunal in East India Hotels held that published tariff to public is a mandatory requirement of a non-scheduled (passenger) service and so if tariff is not published, use of aircraft would be as a private aircraft - It was also held that it is customs department that has to ensure compliance of undertaking - These views are not correct views - This apart, both Sameer Gehlot and King Rotors have been distinguished by division bench in East India Hotels for the reason that both these cases were covered by earlier CAR 1999, whereas the case before the division bench was covered by CAR 2010 - The aircraft had been purchased by East India Hotels on 21.05.2007 and SCN alleging violation of conditions of exemption notification was issued on 27.06.2008 - This SCN was, however, adjudicated upon by order dated 27.07.2010 - Thus, it would be CAR 1999 that would be applicable and not CAR 2010 - The two decisions in Sameer Gehlot and King Rotors could not, therefore, have been distinguished for the reason that CAR 2010 would apply and not CAR 1999 - The conclusion, therefore, that emerges is that King Rotors does not lay down the correct position of law. Conclusion: Thus, reference made to larger bench has not been rendered infructuous on dismissal of Appeal filed by department against order of Tribunal in Reliance Transport - Appellants have not violated condition (b) of Explanation contained in exemption notification - The aircraft imported for non-scheduled (passenger) services can be used for non-scheduled (charter) services - Aircraft imported by appellants cannot be classified as private aircraft - The customs authority cannot examine validity of permission granted by DGCA, in absence of cancellation of permit by DGCA - It is not mandatory for importer to issue air tickets for providing non-scheduled (passenger) service - CAR 2010 merely amalgamates CAR 1999 and CAR 2000 to provide a uniform code for operation of non-scheduled air transport services - It has restated and codified position stated earlier by DGCA through various clarifications and is explanatory in nature and the division bench in King Rotors was not correct in holding that deicision of Tribunal in Sameer Gehlot was rendered per incuriam - Appeals may now be listed before regular division bench for hearing: CESTAT Larger Bench
- In favour appellant: AHMEDABAD CESTAT
2022-TIOL-716-CESTAT-KOL
S K Kanjilal Vs CC
Cus - Appellant has challenged revocation of Customs Broker Licence - Tribunal do not find answers to appellant's contention that "Let Export" orders were issued after due verification by concerned officials and that export manifest was also generated, implying thereby that goods in question had cross the border - But, in any case, other than mere allegations of no advice and no due diligence, as Revenue has not brought on record the role/roles played by appellant and that which amounted to connivance, since it is the settled position of law that allegations howsoever strong, cannot take the place of proof - Revocation of licence was definitely not called for and hence impugned order is set aside - But, however, since appellant was also unable to satisfy on the aspect of advising its client and exercising due diligence, it would meet the ends of justice if a penalty by way of deterrent is imposed, inasmuch as, instead of forfeiture of full Security Deposit, Rs. 25,000/- of the sum is ordered to be forfeited under provisions of Regulation 14 of CBLR, 2018: CESTAT
- Appeal allowed: KOLKATA CESTAT
2022-TIOL-715-CESTAT-KOL
Larsen And Toubro Ltd Vs CCGST & CE
ST - Appellant is engaged in continuous supply of works contract and it initially raised provisional invoices on its contractor i.e. M/s. Jindal Steel & Power Ltd. - Approval for provisional invoice raised for months of January 2013, February 2013 and March 2013 was received in the month of July 2013 - It is the case of appellant that there was an inadvertent excess payment of Service Tax - In view of such excess payment of Service Tax, appellant in terms of Section 11B of CEA, 1944 r/w Section 83 of Finance Act, 1994 filed refund application in Form-R along with copy of ST-3 Return, TR-6 Challan, Invoice-wise statement - Copy of all these documents are part of Appeal Paper book - The Department's contention is that the claim of refund has been filed belatedly and the delay is of 1 (one) day - Supreme Court in case of Tarun Prasad Chatterjee have laid the law by holding that Section 9 of General Clauses Act, 1897 gives statutory recognition to well-established principle applicable to construction of statutes that ordinarily in computing period of time preserved, rule observed is to exclude the first and include the last day - The period of limitation should be calculated as per General Clauses Act and therefore refund application has been filed within time and rejection of refund is incorrect and needs to be set aside: CESTAT
- Appeal allowed: KOLKATA CESTAT
2022-TIOL-714-CESTAT-AHM
Ram Laxman Sthapatya Company Vs CCE & ST
ST - Assessee is in appeal against rejection of claim of refund of service tax under Section 102 of Finance Act, 1994 - Due to sensitive nature of contract, assessee could not produce the full text of contract before Revenue authorities and solely for that reason the refund has been rejected - Assessee have produced certificates of Garrison Engineers showing nature of work done and date of contract, which are two relevant factors needed for processing the claim - Merely because the original contracts could not be produced, due to them being covered by Official Secrets Act, rejection of refund claim is not correct - The orders of lower authorities do not examine said certificate - Original adjudicating authority will take Certificate on the face value and process the refund claim accordingly, for each contract and give finding - Matter is remanded to original adjudicating authority: CESTAT
- Matter remanded: AHMEDABAD CESTAT
2022-TIOL-713-CESTAT-MUM
J And S Creations Vs CCE
CX - Appellants are engaged in manufacture of Printed Cartoons, Labels/Stickers/Tags and Paper Folders/Booklets - On scrutiny of records, it was noticed that appellant during period July 2009 to April 2010, cleared the said goods bearing brand name/trade name of others, hence benefit of SSI exemption Notification No. 8/2003-CE was not admissible - Coordinate bench has already decided the issue in appellant's own case for period April 2006 to June 2009 - Following the same for subsequent period in appeal, value of aggregate clearance of diaries be included in computing the exemption limit prescribed under said Notification for the period in question - Thus, matter is remanded to Adjudicating authority to determine aggregate value of clearance and re-compute the demand with interest and penalty: CESTAT
- Matter remanded: MUMBAI CESTAT
