2022-TIOL-1584-HC-AHM-ST
Alliance Logistics Solutions Vs UoI
ST - SVLDRS, 2019 - Petitioner made a voluntary disclosure and an amount of Rs. 10 Lakh had been paid, however, sum of Rs. 29,56,239/- the petitioner could not pay because of the COVID-19 period and the death of one of the partners - Consequently, a notice u/s 87 of the FA, 1994 was issued and which is challenged by the petitioner - According to the petitioner, the notice is in contravention of Section 73 of the Finance Act since there is a mandate to adjudicate and the amount declared as voluntary disclosure of the petitioner cannot be taken as a final amount without any adjudicatory process. Held: Circular No. 1071/4/2019 , dated 27.08.2019 mentions that in case of the voluntary disclosure of duty not paid, the full amount of disclosed duty would have to be paid - However, there is nothing to say that the interest and penalty would be automatic and any recovery can be made without adjudication - Notice issued, returnable on 22.12.2022: High Court [para 6, 7]
- Notice issued: GUJARAT HIGH COURT
2022-TIOL-1582-HC-DEL-COFEPOSA
Neeraj Varshney Vs MoF Department of Revenue
COFEPOSA - Smuggling of gold - Petition has been filed seeking issuance of a writ of certiorari or any other appropriate writ or direction to quash and set aside the detention order dated 01.02.2022 passed by Respondent No.1.
Held:
(a) Whether the supply of illegible RUDs vitiates the 'subjective satisfaction' of the Detaining Authority thereby rendering the impugned detention order invalid?
+ 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. [para 28]
+ It is observed by this Court, from a perusal of the relevant original records that several RUDs; including not only those supplied to the Detenu; but also those on the record with the Detaining Authority, are illegible i.e., not readable. [para 30] + First issue is resultantly decided in favour of the detenu and against the respondents.
+ RUDs supplied to the detenu, as well as, relied upon by the Detaining Authority in arriving at its 'subjective satisfaction' were admittedly illegible, therefore, grossly violating the constitutional right of making an effective representation, guaranteed to the detenu under Articles 14, 21 and 22(5) of the Constitution of India. [para 34]
(b) Whether the detenu's constitutionally secured right of making an effective representation has been jeopardized, by the non-supply of relevant documents, in a language which the detenu understands; thereby rendering the order of detention illegal and bad?
+ It is relevant to point out, that the detenu, vide his representation dated 25.03.2022 before the Detaining Authority and representation dated 15.04.2022 before the Advisory Board, specifically requested for the supply of translated copies of relied upon documents. [para 36]
+ It is an admitted position that the relied upon WhatsApp chat of the detenu with Li Wen Tsung reproduced at page 58, of the subject RUDs, is in the 'Chinese' language; as admittedly retrieved from iPhone 13 Pro Max, of the said Li Wen Tsung, having IMEI No.353652138917310. [para 38] + The manner in which the signatures of the detenu are obtained on the above mentioned document, leaves no manner of doubt that the contents of the aforementioned document were never explained to the detenu in a language that the detenu understands; and simply because he had acknowledged the same with his signatures in English, does not mean that he is proficient in Chinese or could understand the contents of the documents, which are in Chinese. [para 39]
+ Supreme Court has observed that oral explanation or oral translation of the grounds of detention would not amount to communicating the grounds to a detenu because communicating the grounds of detention, effectively and fully to a detenu implies that the grounds must be furnished to him in a language which the detenu understands; and if that entails translation of the grounds into such language, then that is unquestionably a part of the Constitutional mandate. [para 46]
+ Further, in a catena of judgments, the Hon'ble Supreme Court goes further to say, that it is incumbent upon the Detaining Authority, to supply the documents 'relied upon' in the grounds of detention, translated into a language the detenu understands; and it is not necessary for the detenu to even demonstrate that any prejudice has been caused to him while obtaining translated version of the 'relied-upon' documents. [para 48] + Bench is constrained to observe that the second issue is also resultantly decided in favour of the detenu and against the respondent. [para 49] + It is observed that in the impugned detention order, only a passing reference has been made to the circumstance that the Directorate of Revenue Intelligence had issued rebuttal on 03.01.2022 to the subject retractions of the detenu dated 20.11.2021, i.e., approximately after forty four days. [para 51]
+ Once the Detaining Authority has relied upon the inculpatory statement of the co-accused, their retractions assumed great relevance in the factual backdrop of the present case. Consequently, the admissibility of the said statements becomes dubious once there is a retraction. [para 52] + It is also trite to state that the Sponsoring Authority was under a legal obligation to have placed the said retractions before the Detaining Authority for the latter's 'subjective satisfaction'. [para 53]
+ When a person is detained in pursuance to an order of preventive detention, the statutory authorities are constitutionally charged with the responsibility of ensuring that the grounds of detention, including legible/ translated copies of all RUDs and other relevant documents, that are considered whilst forming the 'subjective satisfaction', are provided to the detenu by the Detaining Authority; so as to enable the detenu to make an effective representation to the Advisory Board, as well as to the Detaining Authority.
+ Failure and non-supply of legible/translated copies of all RUDs despite a request and representation made by the detenu renders the order of detention illegal and bad in law; and vitiates the 'subjective satisfaction' arrived at by the Detaining Authority. [para 55]
+ Detaining Authority gravely erred in relying upon the illegible documents which is equivalent to non-placement of translated-RUDs in a language which the detenu understands; by the act of omitting them from due consideration, which consequently vitiates the 'subjective satisfaction' arrived at by the Detaining Authority. [para 56]
+ Impugned detention order stands invalidated. Writ petition accordingly succeeds. The detenu is directed to be set at liberty forthwith. [para 57, 58]
- Petition allowed: DELHI HIGH COURT 2022-TIOL-1171-CESTAT-AHM
B M Autolink Vs CCE
ST - The issue involved is, whether the discount given by M/s. Maruti Suzuki India Ltd. to appellant in connection with sale of vehicles which was further sold by appellant on principal to principal basis has to be considered as service charges towards Business Auxiliary Service and the same is liable for service tax or otherwise - The transaction between M/s. Maruti Suzuki India Ltd. and the dealer and subsequently sale transaction between the dealer and customs are purely on principal to principal basis - The vehicle manufacturer M/s. Maruti Suzuki India Ltd. on the basis of yearly performance of sale grants discount to dealer, this discount is nothing but a discount in sale value of vehicle sold throughout the year therefore, these sales discount in course of transaction of sale and purchase of vehicles hence, same cannot be considered as service for levy of service tax - In appellant's own case for different period, Commissioner (A) set aside the O-I-O demanding service tax on the same activity and allowed the appeal - This order has been accepted by department and following the same for a subsequent period, Superintendent- CGST, Kandla dropped the proceedings - This shows that the department has accepted that no service tax was payable on discount received by appellant - Impugned order is not sustainable hence, same is set aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
2022-TIOL-1170-CESTAT-MUM
Emcure Pharmaceuticals Ltd Vs CCE
CX - The claim of appellant is that, in special circumstances of non-existence of CENVAT credit account by closure of unit, they are in much the same boat as exporters unable to utilize accumulated credit who are entitled to be compensated through operation of Rule 5 of Cenvat Credit Rules, 2004 - There is also no doubt that decision of High Court of Karnataka in re Slovak India Trading Co Pvt Ltd 2006-TIOL-469-HC-KAR-CX had been followed by Tribunal in several disputes in circumstances of inability to utilize restored credit - Impossibility of utilisation of such credit upon restoration is not valid ground for monetisation as an alternative - Restoration of credit has placed the appellant no differently from that of having carried forward the credit till closure of units without having undertaken discharge of duty liability - Furthermore, duty liability had been discharged at the option of appellant; in revised appellate scheme, prescribed pre-deposit pending disposal was the sole mandate of law - The submission of appellant is thus devoid of logic or merit - Accordingly, no reason found to interfere with rejection of plea for monetisation of impugned amount: CESTAT
- Appeal dismissed: MUMBAI CESTAT
2022-TIOL-1169-CESTAT-KOL
TDK India Pvt Ltd Vs CCGST & Excise
CX - Appellant is engaged in manufacture of soft ferrite parts/components - SCN was issued to appellant alleging wrong availment and utilization of cenvat credit on Air Travel Agency Service, Works Contract Service and Construction Service - Regarding "Works Contract Service", it has been observed in impugned order that w.e.f. 01.07.2012, vide Notification No. 30/2012-S.T., reverse charge mechanism for Works Contract Service was introduced - This Notfn is applicable to individual/partnership firm and Hindu Undivided Family (HUF) - Appellant is a Private Limited Company and services are supplied by Private Limited Company - Accordingly, this Notfn is not applicable - Further, Commissioner (A) has also referred to Notification No. 26/2012-S.T. for valuation of service and abatement - This Notification is also not applicable - Therefore, credit disallowed under "Works Contract Service" cannot be sustained and same is set aside - Regarding, commercial and construction service, Commissioner (A) has observed that service recipient is required to make payment of service value on service along with service tax within three months from date of issuance of invoice - It is the submission of appellant that this aspect was never raised either in SCN or in O-I-O and Commissioner (A) has travelled beyond the scope of SCN and this issue has been raised for first time - He further submits that payments were made within normal period and therefore, credit is rightly availed - Accordingly, disallowance on this count is set aside - Regarding Air Travel Service, it is submitted that when it is not in dispute that said services were used only for Company's Executives to travel to achieve business objective and has not been used for employees' personal necessity, the credit of service tax paid on such services, cannot be denied in view of decisions in cases of Arkema Paroxides India Pvt. Ltd. 2016-TIOL-1353-CESTAT-MAD , Goodluck Steel Tubes Ltd. and Innovasynth Techologies (I) Ltd. 2014-TIOL-2440-CESTAT-MUM - Impugned order cannot be sustained and accordingly, same is set aside: CESTAT
- Appeal allowed: KOLKATA CESTAT
2022-TIOL-1168-CESTAT-AHM
Variety Lumbers Pvt Ltd Vs CC
Cus - Appeal filed against impugned order whereby Commissioner (A) has upheld the denial of refund of Special Additional Duty (SAD) paid on importation of Timber Round Logs on the ground of limitation - The refund claim was admittedly not filed within the period of one year as prescribed in Notification No. 102/2007-Cus. and same stands filed within a period of one year from the date of order of Supreme court - From the provisions of Section 27(1B) (C) of Customs Act, 1962, it is clear that refund claim can be filed in consequence of any judgment decree, or direction of appellate authority within one year - It is on record that issue related to refund of SAD was under litigation and attained finality after decision of Supreme Court - Therefore, as per provisions of Section 27 of Customs Act, 1962, limitation for filing refund claim shall start from date of decision of Supreme Court - From the Board's circular 15/2010-CUS , it is clear that appellant was not allowed to file refund claim by government till the issue on merit was settled by Apex court in appellant's own case 2018-TIOL-164-SC-CUS - Hence, refund claim was filed well within the stipulated time period of one year from the relevant date in terms of Section 27 of Customs Act, 1962 - Refund claim of appellant is not hit by limitation - Accordingly, impugned order is set aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
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