2022-TIOL-1531-HC-MAD-CUS
Ishak Vs Chief CC
Cus - After completion of pleadings, for which purpose, the matter was adjourned from time to time, matter finally came up when submission of Assistant Solicitor General to the effect that customs authorities were in process of completing investigation and were proposing to issue SCN under Section 124 of Customs Act, 1962 was recorded - Revenue incidentally, point out that presence of petitioners may be required in course of investigation itself for which purpose, summons may be issued to them - Petitioners submit that presently there is a difficulty that they are facing in arriving in India on account of a ban on their arrival - Revenue claims lack of knowledge of any such ban and would further assure the Court that summons, if issued, will be accompanied by all acts necessary to facilitate the arrival of petitioners in India for purpose of their appearance before authorities - This is also recorded - It is made clear that investigation shall be conducted in accordance with law and shall be video graphed - The earlier orders of this Court to the effect that revenue shall preserve CCTV footages of seizures as well as movement of petitioners within the Terminal is reiterated - The recording will be retained till conclusion of proceedings in entirety, including appeal/revision - The petitioners are at liberty to seek copies of recordings and such copies, if and when sought, shall be supplied upon payment of necessary charges: HC
- Writ petition closed: MADRAS HIGH COURT
2022-TIOL-1135-CESTAT-KOL
Geotrans Maritime And Logistics Pvt Ltd Vs CC
Cus - The two appeals are filed, one by Company and the other by Director against order of Commissioner (A) against imposition of penalty of Rs. 5.00 Lakhs each on the Company as well as on Director under Section 114(i) of Customs Act, 1962 - Appellant is neither a Customs Clearing Agent nor an exporter/importer - Their main business activities remain restricted to booking of empty containers as per requirement of exporter and in appropriate cases merely suggested the suitable Clearing Agent to facilitate their export and with this their activities come to an end - Department proceeded against appellant on the ground that they failed to bring forward the real exporter and thereby abetted and connived with exporter in attempt of illegal export of prohibited goods - Allegation of abetting in attempted illegal export of prohibited goods are not supported by any direct, corroborative or cogent evidence - The entire proceedings against appellants have been framed on the basis of assumption and presumption without conclusively establishing any direct nexus between appellants and exporter - It is also not understood that why the exporter was not traced to bring entire proceedings to a logical end - It has been held time and again that separate penalty on company and the Director for same default should not be imposed - Impugned order is modified to the extent of setting aside of penalty of Rs. 5.00 Lakh each imposed under Section 114(i) of the Customs Act, 1962 on M/s. Geotrans Maritime & Logistics Pvt. Ltd. and its Director Shri Tirthankar Chakraborty: CESTAT
- Appeals allowed: KOLKATA CESTAT
2022-TIOL-1134-CESTAT-KOL
Rasad Explosive And Chemicals Vs CCE & ST
CX - SCN was issued alleging wrong availment of cenvat credit during period January, 2013 to December, 2013 and proposed to disallow and recover along with interest and imposition of penalty - Adjudicating Authority has relied upon Larger Bench decision of Tribunal in case of Vandana Global 2010-TIOL-624-CESTAT-DEL-LB for disallowance of cenvat credit as claimed by appellant, which is not at all applicable to the facts of present case - Chhattisgarh High Court in 2017-TIOL-2853-HC-CHATTISGARH-CX has distinguished the decision of Larger Bench of Tribunal on the findings that it is not a good law and various other High Courts have also expressed similar views - By respectfully following the decision of Chhattisgarh High Court, Tribunal views that the impugned demand cannot sustain and accordingly, same is set aside: CESTAT
- Appeal allowed: KOLKATA CESTAT
2022-TIOL-1133-CESTAT-DEL
Arun Joshi Vs CCGST, C & CE
CX - The issue involved is, whether appellants who are co-noticees in common SCN are entitled to benefit of conclusion of proceedings under Section 11A(1A) r/w proviso to sub-section (2) of Section 11A of Central Excise Act, 1944 - There is no ambiguity in provisions as contained in Section 11A(1A) r/w proviso to sub-section (2) ibid - Admittedly, the manufacturer- Shree Raj Pan Masala Pvt Ltd have deposited the duty alongwith interest and penalty during investigation before issue of SCN - Further, benefit of conclusion has been granted by Commissioner to the manufacturer - The Commissioner have failed to consider the scope and purport of words used in statute "other person" - The statute clearly provides that benefit of conclusion shall be applicable in respect of 'such person', that is the manufacturer or person of whom duty is demanded and 'other persons' which refers to co-noticees like directors, transporters, godown keepers and employees - Thus, following the interpretation given by Division Bench of Tribunal in case of Orbit Jewellers 2016-TIOL-1259-CESTAT-DEL , it is held that these appellants are also entitled to benefit of conclusion in terms of proviso to sub-section (2) r/w sub-section (1A) of Section 11A of Central Excise Act - Impugned order is set aside so far these appellants are concerned: CESTAT
- Appeals allowed: DELHI CESTAT
2022-TIOL-1132-CESTAT-AHM
Safal Construction Pvt Ltd Vs CCE & ST
ST - Revenue has demanded service tax on consideration received by appellant against co-development agreement between appellant and M/s. Pegasus Commercial Co-op Society Limited - Department contended that appellant's activity is Support of Business of joint venture therefore, they have provided Business Support Service - From the agreement, it is clear that appellant is not an agent and providing service to anyone else whereas appellant (SCPL) is an active party to joint venture with M/s. Safal Infrastructure Pvt. Limited and M/s. Pegasus Commercial Co-op Society Limited - The consideration is also on basis of profit of joint venture - Appellant (SCPL) is not providing any service to any other person and they were assigned the work in capacity of co-developer and not an agent - Therefore, it cannot be said that appellant have provided Business Support Service to any other person - Supreme Court in case of Mahindra & Mahindra Limited 2002-TIOL-62-SC-CUS-LB held that ordinarily the Court should proceed on the basis that apparent tenor of agreement reflects the real state of affairs - If strictly go through agreement, it is nowhere mentioned that appellant is a service provider to some service recipient - As per agreement, all the parties to co-development agreement have been assigned to their respective jobs and all have performed in favor of joint venture in which again all the three parties are participants - Therefore, it is clear that appellant have not provided any service to joint venture - The suppression of fact or any malafide to evade payment of service tax is not established - Therefore, demand of service tax is hit by limitation also - Impugned order is is set-aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT |
