2022-TIOL-1211-HC-DEL-CUS
Delton Cables Ltd Vs UoI
Cus - Petitioner prays to set aside the order dated 27.04.2022 passed by Single Judge with directions to respondents to refund Terminal Excise duties under the FTP 2009-14 in light of Policy Circular 11/2015-20 dated 23.07.2018 issued by respondent no.2.
Held: The finding of the Single Judge in W.P.(C) 1712/2021 that the claim of refund of Terminal Excise Duty is dependent upon the name of the Appellant being duly endorsed by the Project Authority, and that the Appellant has been unsuccessful in showing any provision under the Foreign Trade Policy 2004-09 in terms of which endorsement of certification by the main contractor was envisaged sufficient for the purpose of refund of Terminal Excise Duty and, therefore, in the absence of such certification, the benefits as contemplated in Clause 8.6.2 of the FTP 2009-14 cannot be extended to the Appellant herein does not require any interference - Single Judge while exercising jurisdiction under Article 226 of the Constitution of India was, therefore, justified in coming to the conclusion that the finding of the DGFT in its Order dated 21.03.2016 did not require any interference: Division Bench High Court [para 43]
- Appeal dismissed: DELHI HIGH COURT
2022-TIOL-1210-HC-DEL-NDPS
Mohd Ahsan Vs Customs
NDPS - During the course of the hearing in the bail application one of the points that arose for consideration was whether the recovery of 110 bottles of ' Phensedyl New' weighing 100 gms each and having a Codeine concentration of 0.17% per bottle would be considered as 'commercial quantity' under the NDPS Act - Single Judge of this Court in Iqbal Singh vs. State (BAIL APPLN. 645/2020) had held that cough syrup bottle ( Onerex ) containing Codeine Phosphate would fall outside the scope of the definition of 'manufactured drug' under Section 2(xi) of the NDPS Act - Single Judge, while hearing the present bail application noted that the case of the applicant was to the extent that since each bottle contained only 0.17% Codeine concentration, the same cannot be categorised as 'commercial quantity'; that only the weight of Codeine concentration in each of the bottles should be taken into account, which in the present case would be 18.70 gms (0.17% x 110), bringing the case in the category of 'intermediate quantity' and therefore, rigours of Section 37 of the NDPS Act would not be applicable - However, Single Judge in the present matter observed that judgment of the Supreme Court in Hira Singh = 2020-TIOL-84-SC-NDPS-LB does not make any distinction between manufactured drugs with a miniscule percentage of narcotic substance and other mixture of narcotic drugs or psychotropic substance out of a neutral substance; that the judgment of Iqbal Singh (supra) is therefore contrary to a plain reading of the judgment of the Supreme Court; that since cases of this nature are common there is a strong possibility that different Single Judge Benches of this Court may take different opinions while deciding as to whether the rigour of Section 37 would be attracted or not in such cases and, therefore, it would be in the interest of justice that an authoritative and final pronouncement is made by a larger Bench of this Court.
Held: Bench is of the considered opinion that the judgment in Iqbal Singh (supra) is not contrary to the judgment of the Hon'ble Supreme Court in Hira Singh (supra) - Single Judge in Iqbal Singh (supra) has merely stated that the determination of the 'commercial quantity' or otherwise would only be relevant in a case where the prosecution establishes that the recovered substance was either a narcotic drug or a psychotropic substance - Issue, therefore, is whether a cough syrup containing Codeine manufactured by a licensed manufacturer would fall within the definition of 'manufactured drug' under the NDPS Act or not - In the present case, the seized substance i.e. 110 bottles of ' Phensedyl New' is a 'preparation' within the meaning of Section 2(xx) of the NDPS Act - Such 'preparation' to be declared as 'manufactured drug' would have to be notified by the Central Government under Section 2(xi)(b) of the NDPS Act - All 'manufactured drugs' are included within the definition of the 'narcotic drug' under Section 2(xiv) of the NDPS Act - In other words, a preparation to be included in the NDPS Act, would at the first instance have to be declared a 'manufactured drug' - As per the Entry 35 of notification [S.O. 826 (E) dated 14.11.1985 and S.O. 40(E) dated 21.09.1993 and S.O. no. 1431 (E) dated 21.06.2011], if any 'manufactured drug' within the meaning of Section 2(xi)(b) of NDPS Act contains not more than 100 mg of Methyl Morphine, commonly known as Codeine, per dosage unit, and in that drug, Codeine is compounded with one or more ingredients and if in the said drug the concentration of Codeine is not more than 2.5% in undivided preparation, and the drug has been established in therapeutic practice, it will not be a 'preparation' within the meaning of 'manufactured drug' and, therefore it will not to be a 'narcotic drug' - To clarify this position, on 26.10.2005, the Drug Controller of India, has written a letter to the State Drug Controller clarifying that by virtue of the fact that these preparations contain Codeine and its salts, they do not fall under the provisions of NDPS Act and Rules of 1985 but they fall under Schedule H of the Drugs and Cosmetics Rules and are governed by the said rules - Single Judge in Iqbal Singh (supra) came to a prima facie conclusion that ' Onerex ' cough syrup containing 0.17% of Codeine was below the prescribed threshold and could not, therefore, be construed as a 'manufactured drug' by dissecting its ingredients and considering them in isolation - A combined reading of Rule 52A of The NDPS Rules and Entry no. 35, in the aforementioned notification, would demonstrate that the exception carved out in Entry no. 35, of the aforesaid notifications, with respect to codeine, has been further qualified by way of its inclusion under the category of 'essential narcotic drug' under Section 9(1)(a)( va ) of the NDPS Act 1985 - The amended provision i.e. Section 9(1)(a)( va ) of the NDPS Act and the rules made thereunder clearly and unequivocally declare that any substance covered under the description given in the Table to Rule 52A(3) would be considered as an 'essential narcotic drug', even if the said substance is otherwise covered under The Drugs and Cosmetic Act including cough syrup containing codeine phosphate - Aforesaid amended provisions of the NDPS Act and the Rules made thereunder were not brought to the notice of the Single Judge of this court in Iqbal Singh's case (supra) as well as to the notice of the division bench of the Hon'ble Allahabad High Court in Vibhor Rana's case [where it is held that Phensedyl New Cough Linctus (contains merely 0.2 % Codeine) is not a Narcotic Drug and any dealing in this drug would not be subject to the provisions of the NDPS Act ] - Questions (a) and (b) referred to the Bench are, therefore, answered thus - (a) If the contraband seized falls within the provisions of NDPS Act, the weight of the neutral substance would not be ignored while determining the nature of the quantity seized, whether small quantity, commercial quantity or in between; (b) If the alleged contraband seized falls within the definition of 'manufactured drug' under Section 2(xi) of the NDPS Act, then the entire notification including the aforesaid 'Note 4' will be applicable: High Court Division Bench [para 24, 25, 27, 29, 30, 31, 42, 43, 45, 48]
- Reference answered: DELHI HIGH COURT
2022-TIOL-1209-HC-AHM-CUS
Stainless Steel Pipes And Tubes Manufacturers Association Vs Directorate General Trade Remedies
Cus - Anti-dumping duty - Imports of 'Stainless-Steel Seamless Tubes and Pipes' Originating in or Exported from China PR - It is the grievance of the petitioners that the Impugned Disclosure Statement was issued on 29.08.2022 by the Respondent No. 1 without considering the Rejoinder filed by -the Petitioner No. 1.
Held: The time period of one year contemplated in Rule 17 for the purpose of completion of investigation and publishing final findings is to expire today [09.09.2022] as the exercise of anti-dumping investigation had started on 10.09.2021 - Additional Solicitor General makes a statement upon the instructions received Director General of Trade Remedies, New Delhi, that the aforementioned representations dated 22.03.2022 as well as 06.09.2022 as given and submitted to the Designated Authority shall be duly considered by the Designated Authority - Petitioners are permitted to re-submit to ensure that they reach the Designated Authority - Court does not express any opinion on the merits - Petition is disposed of: High Court [para 5, 5.1, 6, 7]
- Petition disposed of: GUJARAT HIGH COURT
2022-TIOL-1208-HC-DEL-ST
Ambika Pillai Designer Salon Vs CBIC
ST - SVLDRS, 2019 - This is the second round of litigation for the petitioner - Petitioner, a cancer patient, had requested the designated authority for an extension of 1 month for the deposit of the subject amount, via the letter dated 16.07.2020.
Held: Response of the respondents/Revenue shows that they have not dealt with the question, as to whether any leeway was granted to any other person, concerning the extension of the deadline provided in the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - Inasmuch as due to Covid-19, the initial deadline, which was fixed as 30.06.2020, was extended to 30.09.2020 - Respondents/Revenue are expected to deal with the petitioner's representation, having regard to what has been observed by the coordinate bench on 11.05.2022 - Since the same has not been done thus far, the writ petition is disposed of, once again, with a direction to the respondents/Revenue to pass an order within six weeks, which would deal with the issue highlighted herein above, and in the order dated 11.05.2022 - Petition disposed of: High Court [para 6.4, 7.1, 9]
- Petition disposed of: DELHI HIGH COURT
2022-TIOL-1207-HC-MP-ST
Sigma Construction Company Vs UoI
ST - SVLDRS, 2019 - WCS - Application of petitioner seeking benefit of waiver of interest amount of Rs.4,77,847/- for late deposit of tax dues has been rejected on the ground of ineligibility, therefore, the present petition.
Held: Division Bench of Allahabad High Court in Beenu Gupta = 2021-TIOL-131-HC-ALL-ST dealing with the issue of waiver of interest amount arising from late deposit of tax arrears rejected the petition of the assessee - However, High Court of Chhattisgarh dated 22.06.2021 in WPT No. 89/2021, the decision of the Division Bench of Ahmedabad High Court dated 27.02.2020 in R/Special Application No. 21744/2019 have held that the component of interest is a part of expression "amount in arrears" and "amount of duty" under the Scheme of 2019 - In view of the conflicting views, it would be appropriate that the Competent Authority i.e. the respondent No. 2 should apply its mind on the said issue as to whether component of interest levied due to late deposit of tax dues, can be waived under the Scheme of 2019 or not - Petition stands disposed of with directions - Respondent no. 2 to complete the exercise within 60 days: High Court [para 3.1, 4, 5, 7]
- Petition disposed of: MADHYA PRADESH HIGH COURT
