2022-TIOL-NEWS-281 Part 2 Dated : Thursday, December 01, 2022

CX - A matter involving somewhat similar issue was closed by court, whereupon a proposal was made by revenue to Central Board of Indirect Taxes and Customs to file a special leave petition - The Board, via its communication categorically indicated that an SLP should not be preferred, keeping in view the monetary limit; however, question of law could be kept open in terms of Section 35R of Central Excise Act, 1944 - Accordingly, this appeal is also closed: HC

ST - SVLDRS, 2019 - Petitioner is impugning an order dated 12th February, 2020 passed by Respondent No.3 rejecting Petitioners' Application under Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 on the ground that the amount of duty in the case of Petitioners was not quantified on or before 30th June, 2019.

Held : Section 125(1)(e) does not disqualify a person who has been issued a show cause notice after 30th June, 2019 - It only says if a person has been subjected to an inquiry or investigation or audit and the amount of duty involved in the said inquiry or investigation or order has not been quantified on or before 30th June, 2019 - The only requirement, therefore, is to see whether the amount of duty involved has been quantified on or before 30th June, 2019 - The answer to this is, amount of duty has been quantified - This is because in the reconciliation statement submitted, the amount of duty payable has been quantified as Rs.97,82,935/- - In the statement of Petitioner No.2, recorded on 26th June, 2019, in answer to question No.6, an amount of Rs.97,82,935/- has been admitted - Out of this, Rs.48,00,700/- has been paid by Petitioner and what was remaining was only Rs.48,82,235/- - Even in the impugned order, Respondents have in paragraph No.2 stated "as per the DGGI report amount quantified before 30.06.2019 was Rs.97,82,935/-" - Therefore, before 30th June, 2019, the amount of duty involved has been quantified - Petitioner was, therefore, eligible to make a declaration - Respondents are directed to issue Form-3 within two weeks so that Petitioner can pay the remaining amount and close the file - Petition disposed of: High Court [para 4, 6]

Cus - The Petitioner filed an appeal against demand determined in O-I-O - Tribunal returned a finding that adjudicating authority had failed to comply with requirements of Section 9D of Central Excise Act, 1944 as no opportunity of examination and cross-examination of witnesses was extended to petitioner herein - In de novo proceedings, SCN survives only for adjudication of tax dues of Rs. 1,11,35,419/- - For determining the amount payable by petitioner under SVLDR Scheme, amount of tax dues to be taken into consideration would be for Rs. 1,11,35,419/- i.e., the amount confirmed by original authority in the first round of litigation since the said assessment was accepted by Department - Petitioner cannot be prejudiced on account of order of remand in appeal filed by it, which resulted in O-I-O being set aside for re-determination - Case of Petitioner is also covered by judgment in Jyoti Plastics Pvt. Ltd. 2020-TIOL-1874-HC-MUM-CX , which has been accepted by Department - The stance taken by Department in relying upon SCN for determining tax dues at Rs. 1,34,66,456/- is contrary to its stand before CESTAT, wherein it accepted the determination of tax dues at Rs. 1,11,35,419/- - Said stance by Department creates an anomalous situation as it causes prejudice to Petitioner who has, infact, succeeded in its appeal and matter is pending in remand - Submissions of department cannot be accepted as same will lead to an absurdity and make the scheme arbitrary - Since Petitioner seeks to avail the benefits of Scheme and is willing to pay tax dues determined as per demand raised in O-I-O, he cannot be denied the said option and he cannot be put in a worse-off situation for having succeeded in his appeal - Determination of tax by Designated Committee in Form No. SVLDRS-3 is set aside - Department is directed to issue a fresh Form No. SVLDRS-3 to the Petitioner and determine tax dues on the basis of Rs. 1,11,35,419/- under Section 127 of the Act and accompanying Rules: HC

- Petition disposed of: DELHI HIGH COURT

Cus - By impugned orders, both dated 31st December 2021, respondents have allowed the refunds of petitioner on merits - However, instead of disbursing the same to petitioner, respondents have suo -moto adjusted the said refunds against the demand confirmed against petitioner vide Order-in-Original dated 28th November 2014, therefore, the present petitions - Order-in-Original dated 28th November 2014 was passed confirming the demand proposed by a Show Cause Notice dated 5th June 2013 - Even prior to the issuance of the said Show Cause Notice, during the investigation proceedings being carried out by respondents, petitioner had paid towards duty under protest an amount of Rs.4,78,67,608/-.

Held : Vide paragraph 3.1 of the Circular No.984/8/2014-CX dated 16th September 2014, it is stated that any payments made during investigation proceedings can be considered towards the pre-deposit mandate imposed by Section 129E of the Customs Act - Since appellant (petitioner) had already paid Rs.4,78,67,608/- (well in excess of 7.5% of the total demand of Rs.5,23,16,494/- imposed vide Order-in-Original dated 28th November 2014) during the investigation proceedings, no separate stay application was filed by petitioner - The balance demand of duty, penalty, and interest stood automatically stayed in terms of Section 129E and the circular dated 16th September 2014 - Moreover, said Appeal No. C/85678/15 which covered the said order-in-original and which was the subject matter in dispute in Writ Petition No.475 of 2020 was decided on 9th November 2022 and whereby CESTAT was directed to consider petitioner's appeal on merits once again and disposed of, preferably within twelve weeks - Since the Appeal No. C/85678/15 of petitioner has been restored to the CESTAT, no recovery in excess of 7.5% of the duty in dispute can be made by respondents - Impugned orders dated 31 December 2021 are quashed and the respondents are directed to refund Rs.67,64,925/- and Rs.60,58,966/-, together with applicable interest, within eight weeks - Petitions disposed of: High Court [para 7, 8, 9, 10]

Cus - Petitioner filed an application before CESTAT for rectification of mistake - The said application came to be dismissed by an order dated 26th August 2019 which is impugned in this petition - According to CESTAT, by filing the appeal before the Apex Court, petitioner has exhausted its remedy and withdrawal of the appeal subsequent to invoking the jurisdiction of the Apex Court to avail of a provision in law encoded for rectification of a mistake without express leave of the Court to do so was not permissible and, therefore, the application came to be dismissed.

Held: Order dated 4th October 2016 is a common order and if the application of three other applicants/appellants is allowed on the ground that certain documents placed on record have not been considered and those are not party specific documents, certainly that benefit, should also be extended to petitioner in this case - Doctrine of merger would not apply in this case and this is because the Apex Court while permitting leave to withdraw the appeal has not passed any order on merits - Gross injustice would be caused to petitioner if this petition is not allowed - Impugned order dated 26th August 2019 is set aside and CESTAT is directed to consider petitioner's appeal on merits once again and disposed of preferably within twelve weeks - Petition is disposed of: High Court [para 6, 12, 13]

Cus - Petitioner imported various quantities of Glucometers and filed Bill of Entry classifying Glucometer under item 9027 - Cumulative assessable value of the said goods was to the tune of Rs.5,44,42,993/- - Petitioner paid customs duty at NIL rate and paid IGST of Rs.65,33,159/- at the rate of 12% - In the SCN, it is alleged that the subject goods fall under CH 9018; that Petitioner has mis-declared the goods and demanded differential duty of Rs.30,79,295/- was payable - Petitioner, being aggrieved by an order dated 31st December, 2020 passed by Respondent No.2, has approached this Court – It is submitted that the CESTAT in the case of Bayer Pharmaceuticals Pvt. Ltd. = 2015-TIOL-2159-CESTAT-MUM has held that these goods, i.e., Glucometers consisting of Glucose meter, test strips, Lancet device and user guide will get classified under heading 9027 and not under 9018 and this decision is binding on the adjudicating authority – Counsel for Revenue submitted that the Petition ought to be rejected since Petitioner has an alternate efficacious remedy of filing an Appeal before CESTAT.

Held : Respondent No.2 has not even examined the merits of the case when there was a binding order of CESTAT in the case of Bayer (supra) - Having considered the judgment of Bayer (supra), relegating Petitioner to exercise its alternate remedy would be a mere exercise in formality - As the Tribunal has already expressed its views in an identical matter and has classified the Glucometer under 9027, an Appeal to CESTAT against impugned order would be a mere idle formality - Moreover, with this background, Petitioner will also have to make compliance with an onerous precondition of mandatory pre-deposit - When the order is ex facie erroneous and patently in violation of principles of judicial discipline and doctrine of stare decisis , this is a fit case for the Bench to exercise its jurisdiction under Article 226 of the Constitution of India - Moreover, there are no disputed facts and the only issue to be considered is whether the Glucometer should get classified under item 9018 or item 9027, which has already been considered by CESTAT - Since this is already concluded by CESTAT, on this ground alone, the impugned order requires to be quashed and set aside - Impugned order dated 31st December, 2020 is hereby quashed and set aside and so also the consequential notices of demand: High Court [para 9, 10, 13]