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2022-TIOL-1412-HC-MAD-COFEPOSA
Abi Egg Traders Vs Asstt. Commissioner
COFEPOSA - Petitioner (detention) prays for a direction in the nature of certiorari for quashing of the detention order dated 28.12.2021, issued under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 against the petitioner/detenu; and for further directions that the detenu be set at liberty forthwith. Held: It would be pertinent to note that vide common judgment dated 02.05.2022, in the case titled Zakir Khan = 2022-TIOL-657-HC-DEL-COFEPOSA , this Court quashed and set aside detention orders issued against the co-detenus therein - It is well settled that under the provisions of Section 3 of COFEPOSA, it is only the detaining authority, which can ultimately decide to pass or not, a detention order against any person, and that too, after perusing each and every document and material placed before it - It is also not in dispute that the 'subjective satisfaction' of the detaining authority itself is to be arrived at after perusing all the relevant documents and material produced - It is also an admitted position that many of the RUDs placed before the detaining authority were illegible/dim/blank pages -Bench, therefore, finds considerable force in the contention that had the detaining authority itself perused the RUDs for arriving at its 'subjective satisfaction' and formulation of grounds, it would have been alive to the fact that many of the RUDs placed before it were wholly illegible - This issue is resultantly decided in favour of the detenu and against the respondent - Moreover, impugned detention order is arising out of the same investigation, and that the detenu was brought under the scanner owing to his abetment in offences committed by the detenus in the Zakir case (supra) - It is an admitted position on behalf of the respondents that the RUDs supplied to the detenu were the same as those supplied to the detenus in the case of Zakir (supra) - In view of the admitted position by the sponsoring authority, as well as, the detaining authority, Bench finds force in the argument that the present detenu is similarly placed as the detenus in the case of Zakir (supra) and would consequently, attract the ground of parity - Issues that arose for consideration are decided in favour of the detenu and against the respondents - Resultantly, the impugned detention order stands invalidated - The present writ petition accordingly succeeds; the detention order dated 28.12.2021 passed against the detenu is hereby quashed and set-aside - The detenu is directed to be set at liberty forthwith; unless his custody is required in connection with any other case: High Court [para 30 to 34]
- Petition allowed: MADRAS HIGH COURT
2022-TIOL-1411-HC-MP-CUS
Mukesh Valecha Vs Supdt. of Customs
Cus - Smuggling of gold bars - During the investigation 3 gold bars weighing 3 k.g. valuing at Rs.1,58,20,500/- and vehicle 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 and are being transported by them to Sagar - 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/- - DRI officials recorded the statement of accused persons under Section 108 of the Customs Act, 1962 - Applicant is in jail since 14.04.2022 for commission of offence punishable u/s 135 of the Customs Act, 1962 and seeks bail - Applicant submits that has received only the commission of Rs.6,000/- in the entire transaction; that no role has been attributed to the applicant for smuggling of the gold; that nothing has been recovered from his possession and no incriminating material was found from his possession, therefore, he should be released on bail. Held: After considering all the facts and circumstances of the case, arguments advanced by counsel for the parties, nature and gravity of allegation as also the fact that applicant's earlier bail application was rejected by this Court vide order dated 18.7.2022 on merit after considering all the facts and circumstances of the case, the arguments advanced by counsel for the applicant in this repeated application was considered at the earlier occasion, therefore, there are no material changes in the circumstances in which the applicant is entitled for bail - Therefore, this court is not inclined to allow this repeated bail application - Application is dismissed: High Court
- Application dismissed: MADHYA PRADESH HIGH COURT
2022-TIOL-1410-HC-MP-CUS
Vaibhav Jain Vs DRI
Cus - Smuggling of gold - Applicant has filed this first bail application in connection with commission of offence punishable under Section 135 of the Customs Act - During the investigation 3 gold bars weighing 3 k.g. valuing at Rs.1,58,20,500/- and vehicle 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 and are being transported by them to Sagar - Vaibhav Jain (applicant) and Vishal Jain also stated that they had purchased the above gold bars from Mukesh Bhai and they gave him cash amount of Rs.1,56,60,000/- - Applicant submits that he is engaged in the business of purchase of gold and making of jewellery; that the matter relates to civil in nature and there is no criminality; that Applicant has purchased the gold within the territory of India; needs immediate medical treatment and, therefore, should be enlarged on bail. Held: A pplicant Vaibhav Jain along with Vishal Jain both of them bought 3 golden bars from co-accused Mukesh Valecha in lieu of cash of Rs.1,56,60,000/- without any invoice, which was allegedly recovered by DRI officers from the possession of the present applicant Vaibhav Jain, co-accused Vishal Jain, Dheeraj and Shankar Singh Yadav; that d uring the investigation, investigating agency also collected the record of the call details, mobile phone belonging to the present applicant was seized and it was gathered that Mukesh Jain had sent a voice message to co-accused Mukesh Valecha, transcript of which is:-
From the investigation it is prima facie gathered that the present applicant along with other co-accused Vishal Jain, Dheeraj and Shankar Singh Yadav went to UlhasNagar to get 3 k.g. smuggled gold bars and they were carrying it in a specifically built secret cavity in the vehicle; that the applicant is found to be one of the mastermind behind the whole gold smuggling activities; Call data records also reveal that present applicant Vaibhav Jain and co-accused Vishal Jain talked 40 times during the period 1.1.2022 to 15.4.2022 - 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 - An offence like this must be viewed with all the seriousness - There is no doubt that the release of the applicant, who is involved in such activities, would hamper the investigation and the applicant may tamper with the evidence - Court is, therefore, not inclined to grant regular bail to the present applicant - Application dismissed: High Court
- Application dismissed: MADHYA PRADESH HIGH COURT
2022-TIOL-1021-CESTAT-CHD
CCE & ST Vs Orange Business India Solutions Pvt Ltd
ST - Issue to be decided is, whether services provided by assessee falls within category of "Intermediary Services" - Assessee had filed refund claims - Order of Commissioner granting refund for earlier period was also challenged by Revenue before Tribunal and the Tribunal vide order in Orange Business Solution Private Limited 2019-TIOL-1556-CESTAT-CHD dismissed the same after going into detailed facts of matter including the agreement between Orange Business Services and its customer and also taking into consideration the Guidance Notes of CBE&C dated 20/06/2012 clarifying the meaning of ‘Intermediary' - As the same has not been stayed or set aside in any appeal, therefore there is no reason to take a contrary view - Since the issue involved herein is no more res integra in view of said decision, therefore following the same no merit found in the appeal filed by the Revenue and same is accordingly dismissed: CESTAT
- Appeal dismissed: CHANDIGARH CESTAT
2022-TIOL-1020-CESTAT-AHM
Mrsp Marketing Services Pvt Ltd Vs CST
ST - Appellant have shown the income and booked in their profit and loss account as commission, accordingly, demand of service tax on commission under the head of Business Auxiliary Service was confirmed for the period 2004-2005, 2006- 2007 and 2007-2008 - As regard the dispute of classification of service, appellant have referred two invoices for period 2004-05 which makes it clear that appellant have provided service of Software Consultancy Service - As regard the mentioning in profit and loss account as commission it clearly appears that there is a mistake occurred in mentioning the expenditure in books of accounts - Therefore, service provided by appellant is of Software Consultancy Charges, accordingly, demand under Commission in the head of Business Auxiliary Service is not sustainable - Without prejudice, it is also found that service tax in Commission Agent Service was clearly exempted unconditionally under Notfn 13/2003- ST up to the period of 08.07.2004 - Entire demand for period 2004-2005 is on invoices issued on 15.04.2004 and 15.05.2004, therefore, these transactions are clearly under exemption - As regard the demand of Rs.73440/- for period 2006-2007, it is observed that even in books of account, appellant have booked expenditure under head of Software Consultancy Service, therefore, demand treating the receipt as commission under Business Auxiliary Service would not sustain - Appellant have made a fit case for waiver of penalty, accordingly, same is also not sustained: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
2022-TIOL-1019-CESTAT-MUM
Gee Ltd Vs CCE
CX - Appellant is registered with central excise department for manufacture of welding electrodes, M.S. coated wire, S.S. wire and blended powder/flux - They were availing benefit of Cenvat credit scheme - Investigations were carried on and statement of Shri S.M. Agarwal, Executive Director was recorded under Section 14 of Central Excise Act, 1944 - On completion of investigation, a SCN was issued to appellants - The demand made seeking to recover Cenvat credit from appellants which is in respect of processed goods actually cleared by them on payment of central excise duty has to be set aside - Appellants have filed a detailed statement of imported input M.S. coated wire 2007-2009 - A part of these imported goods has been used for manufacture of goods cleared on payment of duty and duly reflected in ER-1 returns filed - The remaining imported goods which were available in stock as such or contained in finished goods have been allowed to be traded by Revenue - A detailed calculation needs to be made by lower authorities to determine how much of credit pertained to inputs which were used by appellants for manufacture and clearance of dutiable goods - To that extent, amount reversed needs to be restored to appellants - For the purpose of this computation, matter needs to be remanded back to original authority - Section 142(3) of CGST Act has to be followed strictly - The concerned officer should consider granting cash refund of any amount due to appellants: CESTAT
- Appeal partly allowed: MUMBAI CESTAT
2022-TIOL-1018-CESTAT-DEL
CCGST Commissionerate Vs Troikaa Pharmaceuticals
CX - Issue involved is as to whether date of 'commencement of commercial production' should be treated as 01.01.2006 in terms of notification dated 10.06.2003 as contended by Department or it should be treated as 12.06.2006 as contended by assessee - A categorical finding has been recorded by Commissioner (A) that ingredients to manufacture tablets were received by assessee on 05.06.2016 - The date of commercial production, therefore, cannot be before 05.06.2006 - The Entrepreneur's Memorandum (EM) also records the date of 'commencement of commercial production' as 12.06.2006 - The first batch of medicines was manufactured by assessee on 12.06.2006 as is evidenced from Batch Packing Record BPR dated 12.06.2006 and this batch was approved by Quality Assurance Department of assessee only on 24.06.2006 whereafter assessee sold the first batch against an invoice dated 29.06.2006 - The dates of two records MFR and BMR as 01.06.2006 is contained in BPR dated 12.06.2006 of tablet by bifosa - This was first batch produced by assessee on 12.06.2006 - Contention of Department that date of commercial production should, therefore, be treated as 01.06.2006 and not 12.06.2006 is incorrect as both these documents are prepared as per standard operating procedure of good practices followed by assessee which is also prescribed under Drugs and Cosmetic Rules - There is, therefore, no infirmity in impugned order: CESTAT
- Appeal dismissed: DELHI CESTAT
2022-TIOL-1017-CESTAT-DEL
Polixel Security System Pvt Ltd Vs CC
Cus - The appellants have been engaged in import of goods for the project meant for Prayagraj Thermal Power Project Generation of Co. Ltd. The importer – appellants submitted a letter No.165/24/15-43/09 dated 12.03.2013 issued by Uttar Pradesh State in respect of Prayagraj Thermal Power Project about their eligibility for duty exemption as per Project Import Regulations, 1986 - The appellants also executed an indemnity bond and a cash security deposit in the form of Bank Guarantee - The Bill of Entry was filed by the appellants for clearance of goods and the clearance thereof was obtained at 'nil' rate of duty - The requirement for the same was the registration of contract of appellants under Regulations of PIR which was duly registered in Customs under Registration mentioned as above - However, Department vide Show Cause Notice as mentioned above while alleging the violation of Regulation 7 of PIR had proposed to deny the benefit of PIR for importing goods at 'nil' rate of duty, rather had proposed the recovery of total duty as above along with interest and the penalty. The said proposal was initially confirmed vide Order-in-Original as mentioned above - The appeals thereof have been rejected vide the orders under challenge. Being aggrieved the appellants are before this Tribunal. Held - Considering the provisions of Regulation 7 of Project Import Regulations, 1986 - Perusal of the provision reveals that the language used therein does not make the provision mandatory - There are conditions in the statute that some of those may be substantive, others may be mandatory and based on consideration of policy and some others may merely belong to the area of procedure - It will be erroneous to attach equal importance to the non-observance of all conditions irrespective of the purpose they were intended to serve - Seen in the light of this prospective, I opine that the conditions of provision / Regulation 7 are not mandatory, they are merely directory because there is nothing in this provision which disentitles the importer to avail the exemption if the statement is not submitted within the stipulated time and the provision itself provides for extending the period for submitting the statement: CESTAT + In the present cases the purpose of statute was to grant a beneficial rate of duty to the goods imported for setting up a new project, the appellants was such a project and had satisfied the conditions for eligibility Regulation 7 comes into force much after the imports are over and is actually meant only to facilitate finalization of provisional assessment. It did not have any effect on the eligibility to the lower rate of duty. I draw my support from the decision of this Tribunal in the case of Gas Authority of India Ltd. reported in 2003 (159) ELT 468 . High Court of Andhra Pradesh in the case of CCE, Hyderabad vs. Creative Indus Pvt. Ltd. reported in 2012 (282) ELT 349 where after a gap of ten years Department required the assessee to produce an installation certificate in terms of Regulation 7 of PIR the Tribunal held that there is no requirement of producing any Installation Certificate in terms of Regulation 7 of the Regulations. The Tribunal further held that there is no such condition for determining the eligibility of the concessional rate of duty. On appeal, the Hon'ble High Court upheld the decision and held that there is no reason to take a view different from that expressed by the Tribunal more particularly since there is no requirement of an Installation Certificate to be furnished by the assessee in the language of Regulation 7 above. (Para 13)
- Appeal allowed: DELHI CESTAT
2022-TIOL-1016-CESTAT-AHM
Insecticides India Ltd Vs CC
Cus - Issue involved is as to whether the refund claim of appellant have been rightly rejected on the ground that they had not challenged the assessment of Bills of Entry - The point of dispute is as to whether before filing refund claim of excess duty paid due to errors / mistakes, assessment order was required to be challenged - This very issue had been dealt with by Tribunal in cases of Tata Iron & Steel Co. Ltd. 2006-TIOL-1104-CESTAT-KOL and Celcius Refrigeration Pvt. Ltd. wherein the Tribunal has held that mention of wrong currency in bill of entry as application of wrong exchange rate is a clerical mistake and when on account of such clerical error a higher amount of duty has been paid, re-assessment is not required before filing of refund claim, as clerical mistake can be corrected in terms of provisions of Section 154 of Customs Act, 1962 - Payment of anti dumping duty is not due to assessment or reassessment of Bills of entry but merely by a letter from department, therefore there is nothing in bills of entry to challenge - Even the amount collected through a letter by department was also not adjudicated by due process of law such as issuance of SCN and adjudication thereof, for this reason also there is no need to file any appeal in order to claim the refund of anti dumping duty paid by appellant - Before filing of refund, it was not required for appellant to challenge assessment order and as such, judgment of Apex Court in case of Priya Blue Industries Ltd. is not applicable to the facts of this case, and therefore, impugned order upholding the rejection of refund claim on this ground is not sustainable - Accordingly, impugned order is set aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT |
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