2022-TIOL-727-CESTAT-KOL
Sethia Oils Ltd Vs CCGST & Excise
ST - Vide O-I-O, Deputy Commissioner sanctioned refund being service tax amount paid on input services utilised for export of goods made under shipping bills of export as claimed by appellant - Subsequently, said order was reviewed - It was observed that since claimant is not registered with Export Promotion Council, therefore, appellant is not entitled for refund in terms of provision 3 (h) of Notfn 41/2012-ST - There is no dispute as to the fact that goods were exported by appellant - Once it is not in dispute that services are specified for refund purpose, and since Service Tax was actually paid on specified services pertaining to export activity, in terms of broad scheme of refund under Notfn 41/2012-S.T. as amended with clarifications, refund must be granted to exporter - The order passed by Commissioner (A) cannot be sustained as substantive benefit should not be denied to appellant if conditions are fulfilled - It is not the intention of Government to export taxes, hence after much research these schemes have been notified and if refund claims are rejected on such flimsy grounds, it defeats the very purpose of rebate schemes and traps the exporters under unnecessary litigations - Order under challenge not found as reasonable and justifiable and accordingly, same is set aside: CESTAT
- Appeal allowed: KOLKATA CESTAT
2022-TIOL-726-CESTAT-AHM
Demosha Chemicals Pvt Ltd Vs CCE & ST
CX - The fire has taken place in factory of appellant and certain excisable goods were destroyed - They have filed an application for remission of duty under Rule 21 of CER, 2002 which has been rejected by competent authority - The Commissioner has clearly recorded that the fire taken place in factory of appellant is similar to the fire which took place at the earlier occasion, despite this recording he has rejected the application on the ground that the appellant has not submitted documents and their explanation that whether the fire was avoidable or non-avoidable - When the Commissioner was not inclined to grant permission for remission of duty, he should have brought all points to the notice of appellant so they could have made proper defence and file documents if any, required - Without informing the appellant regarding views of Commissioner for rejecting the remission application is clearly a violation of Principles of Natural Justice - Therefore, case of remission of duty needs to be reconsidered by giving opportunity to appellant to make their submission on all the points which the Commissioner wants to raise - As regard the additional ground made by appellant in miscellaneous application that reversal of credit was not required and the same be adjusted against the duty if at all, any arise also needs to be reconsidered - Accordingly, matter remanded to Commissioner for passing afresh denovo adjudication order after granting sufficient opportunity to appellant to present their case: CESTAT
- Matter remanded: AHMEDABAD CESTAT
2022-TIOL-725-CESTAT-AHM
Shiv Shakti Inter Globe Exports Pvt Ltd Vs CC
Cus - Assessees, M/s SSIGL and Shri Aman Gupta preferred this appeal against order of Commissioner (appeals) upholding penalties imposed on them and Custom House Agent (CHA) M/s V Arjoon preferred this appeal because the Commissioner set aside order of Additional Commissioner where he had dropped the proceedings against the CHA and imposed penalty. Held : The issue of contention is whether 50 consignments of rice exported by M/s. SSIGPL were sold in UAE or ultimately reached Iran after these consignments were loaded off at Jabel Ali Port, Dubai - It is not proved beyond any shadow of doubt based on the statements relied on by the adjudicating authority that all 50 consignments of rice were sold in UAE instead of reaching Iran - The statements were not tested on the touchstone of section 138B, Customs Act - Statements of Shri Aman Gupta should have been examined by summoning him as a witness which was not done by the adjudicating authority - Dubai serves as a transhipment point for various goods, it is not unusual in using Jabel Ali port as a transit port due to heavy congestion in Bandar Abbas port, Iran - All documents in respect of the 50 consignments were in the name of Iranian buyers - Nothing on record showed that they were amended at any stage - Food exports to Iran also require a Phytosanitary Certificate issued by the Government which carry e-registration number, name of Indian exporter, consignee in Iran and number and quantity of bags etc - Therefore there was no scope for clearance of goods in UAE as all the documents were in name of Iranian buyers - Proceedings initiated by FEMA authorities concluded that all consignments had ultimately reached Iran - Further, DRI had ample opportunity to cause inquiries with the Dubai customs but did not do so - As per CBEC circular no. 999/2015-CX, transfer of property can be set to have taken place at the port where the shipping bill is filed after 'let export order' is issued - After said order was issued M/s SSIGPL cannot be held responsible if Iranian importer, who became the owner of goods, had given instruction to change ports - Section 133(d) and 133(i) of Customs Act were only invoked alleging violation of para 2.53 of Foreign Trade Policy and section 8 of FEMA, 1999 with regards to irregularities in respect of receipt of currency with regard to exported goods - Only FEMA authorities are competent to initiate proceedings in alleged violation of foreign exchange - Present case only had alleged violation of Foreign Trade (Development and Regulation) Act and FEMA, therefore custom authorities did not have jurisdiction to issue SCN - Penalty against M/s SSIGPL and Shri Aman Gupta set aside - Since it was established that goods were ultimately delivered to buyers in Iran, penalty against CHA set aside - Appeals allowed: CESTAT
- Appeals allowed: AHMEDABAD CESTAT
