2022-TIOL-1200-HC-DEL-CUS
Ramesh Wadhera Vs CC
Cus - The grievance of petitioner is that they have not been provided the documents which were referred to in SCN and they are not being afforded the opportunity to cross-examine the persons whose statements are relied upon - Revenue is directed to furnish copies of all such documents which are in their physical possession after which petitioner shall file their final reply within two weeks - Once replies are filed, adjudicating authority will fix a date for cross-examination of witnesses - While adjudicating the SCN, concerned authority will bear in mind, the objection raised by petitioners, as regards his jurisdiction - Adjudicating authority will deal with this aspect of matter, while passing the final order, concerning the aforementioned SCN: HC
- Writ petitions disposed of: DELHI HIGH COURT
2022-TIOL-1199-HC-DEL-CUS
Meenakshi International Vs Pr.CC
Cus - Petitioner sought a direction to respondent to return/release back seized gold jewellery to petitioner in compliance of final order passed by Tribunal - Against order of Tribunal, revenue had preferred an appeal before Allahabad High Court who dismissed the appeal, on account of tax effect being below the prescribed monetary limit - The Tribunal concluded that proceedings initiated against petitioner were beyond jurisdiction of Customs department - The best way forward would be that revenue should be directed to comply with order passed by Tribunal - However, in order to secure interests of revenue, petitioner is directed to furnish a personal bond - A personal bond amounting to Rs.8,00,000/- based on order passed by Commissioner (A) will be furnished by petitioner within a period of one week - Once the bond is furnished to revenue, concerned authority will release the subject gold, at the earliest, though, not later than two weeks: HC
- Writ petition disposed of: DELHI HIGH COURT
2022-TIOL-865-CESTAT-MUM
Siddhivinayak Constructions Vs CCGST
ST - The original authority in adjudication order has stated that he is taking up matter for adjudication and passing the order ex-parte inasmuch as appellant did not appear for personal hearing fixed on several dates - Appellant had filed writ petition before Bombay High Court, challenging the Circular dated 10.02.2012 - Thus, it transpires that principles of natural justice have not been properly followed, while passing both the adjudication as well as impugned order by lower authorities - Hence, matter remanded to original authority for fresh adjudication of dispute: CESTAT
- Matter remanded: MUMBAI CESTAT
2022-TIOL-864-CESTAT-MUM
Sea Eagle Dredging Marine Infrastructure Pvt Ltd Vs CST
ST - Appellant has contended that CENVAT Credit availed by them is as per statute and accordingly, denial of said benefit in impugned order cannot be sustained - Grievance of revenue is that non-imposition of penalty in impugned order is not proper and justified - Since both sides agree that issue regarding availment of CENVAT Credit and imposition of penalty should be looked into afresh by original authority, matter remanded with a direction to re-adjudicate the matter with regard to findings made in impugned order, concerning availment of CENVAT Credit and imposition of penalty therein - Further, original authority should also examine the taxability issue of disputed service whether same should be liable for payment of Service Tax under provisions of Service Tax statute: CESTAT
- Matter remanded: MUMBAI CESTAT
2022-TIOL-857-CESTAT-AHM
GRP Ltd Vs CCE & ST
CX - Appellant procure rubber dust which is sieved & grinded/crushed and accordingly, Crumbed Rubber Powder is obtained - It is also known as Tread Rubber Powder - The properties of goods remain the same even after grinding process - By this process, only physical form is changed - Appellant had cleared said crumb rubber powder at Nil rate of duty - SCNs have been issued proposing to demand duty on said product relying on definition of 'Excisable Goods' as prescribed under clause (d) of Section 2 of CEA, 1944 which was amended by adding an explanation that for purposes of this clause, 'goods' include any article, material or substance which is capable of being bought and sold for a consideration and such goods shall be deemed to be marketable - Tribunal in its order in appellant's own case 2006-TIOL-283-CESTAT-MUM held in favour of appellant holding that said process does not amount to manufacture - In impugned order Commissioner (A) has totally ignored the case laws cited by appellant including that in their own case - Commissioner (A) has relied solely on Circular of CBEC explaining the definition of manufacture - When the issue regarding exact identical process has been settled by Tribunal, not once but three times, still the Commissioner has totally ignored the same - Since the issue is identical to cases decided earlier in appellant's own case thrice, respectfully following the said decisions, impugned order is set aside: CESTAT
- Appeals allowed: AHMEDABAD CESTAT
2022-TIOL-856-CESTAT-MAD
Tamilnadu Trade Promotion Organization Vs CGST & CE
ST - The only issue to be decided is, whether appellant is entitled to refund under Section 11B of CEA, 1944 of the amount claimed to have been paid as pre-deposit - Appellant has paid tax twice and Revenue has not disputed the same - It has to be presumed that there has, in fact, been double payment of tax; firstly, under Service Tax regime and secondly, again under G.S.T. regime - Adjudicating Authority having referred to certificate issued by Chartered Accountant, has not at all discussed anything about it and has proceeded to hold that appellant had passed on the duty element to ultimate service recipients and hence, there was unjust enrichment, which is not in accordance with requirement of law - The Adjudicating Authority has extracted a table to assume that appellant had collected Service Tax from service recipients, which is exactly contrary to the stand of appellant, which is duly supported by evidence in form of a certificate issued by a Chartered Accountant - When such an evidence is placed on record, it is incumbent on Adjudicating Authority to examine and discuss as to why he is not accepting the same; but without any such exercise, Adjudicating Authority has ignored the evidence submitted by appellant - There is also no whisper even in impugned O-I-A - The fact that appellant claimed refund itself shows that remittance which was subsequently claimed as refund was not paid in accordance with law and hence, same would partake the character of an amount being paid under protest or same being paid by mistake - Hence, rejection orders of lower authorities are not in accordance with law, which cannot therefore be sustained - Impugned order is set aside: CESTAT
- Appeal allowed: CHENNAI CESTAT
2022-TIOL-855-CESTAT-KOL
Mining Associates Pvt Ltd Vs CCGST & CE
ST - Issue is with regard to applicability of rate of Service Tax in respect of services provided to Central Mining Planning and Design Institute Limited (CMPDIL) vide work orders - Case of appellant is that said services were rendered prior to 01.04.2012 when rate of Service Tax on said service was increased from 10% to 12% vide Notification No. 2/2012-S.T. - It is the case of Department that supplementary invoices were raised in month of July 2012 and effective rate of Service Tax has been changed from 10% to 12% w.e.f. 01.04.2012 - The Supreme Court in case of Association of Leasing and Financial Service Companies 2010-TIOL-87-SC-ST-LB has observed that taxable event is rendition of service - Impugned tax is different and distinct from tax on sale of goods under Entry 54 List II of VIIth Schedule to Constitution - Therefore, rate of tax applicable on date on which services were rendered would be the one that would be relevant and not the rate of tax on date on which supplementary invoices were raised - Therefore, taxable event in so far as Service Tax is concerned, is rendition of service - Taxable events in appeal had admittedly occurred prior to 01.04.2012 - At that point of time rate of Service Tax applicable in respect of services in question was 10% and not 12% which came into effect only on or after 01.04.2012 - The issuance of supplementary invoices in month of July 2012 would not make any difference because it is not receipt of payment which is taxable event, but the rendition of service - Following the ratio as laid down by Supreme Court in case of Association of Leasing & Financial Service Companies , impugned orders are set aside: CESTAT
- Appeal allowed: KOLKATA CESTAT
2022-TIOL-854-CESTAT-KOL
Pankaj Mittal Vs CC
Cus - Appellant was found in position of Indian currency and Thai Baht in excess of permissible limit under FEMA notfn FEMA 6(R)/RB-2015 under FEM (Export and Import of currency) Regulations, 2015 - Appellant's contention is that money was legally procured from his savings; he was not aware of rules and regulations pertaining to export of currency; when he was intercepted, he truthfully declared currency available with him; his statement was not recorded immediately; relied upon documents for not provided along with SCN - It is not the case of appellant that he has declared upfront the currency in his position while he was travelling abroad and currency he carried was within limits prescribed under notfn - In terms of Regulation Indian Currency over and above Rs.25,000/- is not permissible to be taken outside India - As far as Customs Act is concerned, knowledge or otherwise are not material for rendering goods liable for confiscation - Currency was attempted to be exported and was brought within limits of customs area contrary to restrictions and prohibitions imposed by Customs Act or any other law for time being in force, is liable for confiscation - All the criteria mentioned therein are satisfied - Provisions of Section 113 of Customs Act, 1962 and Section 114 ibid are attracted - As regard to issue of allowing redemption of confiscated goods, original authority as well as appellate authority have ordered absolute confiscation of currency and have imposed penalty under Section 114 ibid - Issue involves an individual who is travelling Abroad for his personal work - No business dealing are alleged or indicated - It is not the case of Department that appellant was aware of provisions of Rules and Regulations - Though by virtue of provisions of Customs Act goods came to be liable for seizure, they cannot be equated with goods - The observation of Apex Court in case of Rajgrow Impex LLP and Ors. comes into play - It was held that discretion has to be exercised judicially and, for that matter, all the facts and all relevant surroundings factors as also implication of exercise of discretion either way have to be properly weighed and balanced decision is required to be taken - Absolute confiscation is not warranted - Any punishment needs to be commensurate with offence - Tribunal is inclined to accept that impugned currencies can be permitted to be redeemed on payment of suitable fine and penalty, further reason, should be reasonable: CESTAT
- Appeal partly allowed: KOLKATA CESTAT
