2023-TIOL-104-HC-KERALA-CUS
CBIC Vs Parayil Food Products Pvt Ltd
Cus - Appeal filed against order of Single Judge who observed and held that Court will not be justified in arriving at a conclusion as to whether the particular commodity was either "button" coming under Sl. No. 232 or "fasteners"/snap fasteners" coming under Sl. No. 282; that the Petitioners had an opportunity to challenge the finding by filing an appeal which was not opted by the petitioners - Petitioners, aggrieved by the above view of the single judge and also relegating the petitioners to avail the remedy of appeal, have filed the appeal. Held: The product imported by the petitioners under the subject bills of entry is not claimed as stated differently from the goods imported by the petitioner in the first round of litigation - After appreciating the entries in Notification No. 21 of 2002, the snap buttons imported by the petitioners by claiming exemption under the said notification, the adjudication as a matter of fact by this Court and confirmation by the Supreme Court, Bench is convinced that there is no disputed question of fact for verification by the appellate authority vis-a-vis the subject Bills of Entry and relegating the petitioners to work out the remedy of appeal - Even otherwise, at this point of time such course is avoidable and unnecessary both from the point of view of the importer and the department - Hence Bench is of the view that the judgment under appeal needs to be set aside, and accordingly, set aside and the Writ Petition stands allowed - However, it is made clear that the relief granted to the petitioners shall be limited to the subject consignments - The revenue is free to examine each one of the consignments imported by the petitioners and verify whether the product imported by the petitioners as a fact would fall within the same category of product considered by this Court while deciding the issue arising under Notification No. 21 of 2002 and whether such an entry is in operation under Notification No. 12 of 2012 and on factually being satisfied that the petitioners are entitled to exemption under an applicable notification extend such benefit or refuse the relief - Appeal allowed: High Court [para 10]
- Appeal dismissed: KERALA HIGH COURT
2023-TIOL-103-HC-KERALA-CUS
Kitex Garments Ltd Vs UoI
Cus - Appeal filed against order of Single Judge who observed and held that Court will not be justified in arriving at a conclusion as to whether the particular commodity was either "button" coming under Sl. No. 232 or "fasteners"/snap fasteners" coming under Sl. No. 282; that the Petitioners had an opportunity to challenge the finding by filing an appeal which was not opted by the petitioners - Petitioners, aggrieved by the above view of the single judge and also relegating the petitioners to avail the remedy of appeal, have filed the appeal. Held: The product imported by the petitioners under the subject bills of entry is not claimed as stated differently from the goods imported by the petitioner in the first round of litigation - After appreciating the entries in Notification No. 21 of 2002, the snap buttons imported by the petitioners by claiming exemption under the said notification, the adjudication as a matter of fact by this Court and confirmation by the Supreme Court, Bench is convinced that there is no disputed question of fact for verification by the appellate authority vis-a-vis the subject Bills of Entry and relegating the petitioners to work out the remedy of appeal - Even otherwise, at this point of time such course is avoidable and unnecessary both from the point of view of the importer and the department - Hence Bench is of the view that the judgment under appeal needs to be set aside, and accordingly, set aside and the Writ Petition stands allowed - However, it is made clear that the relief granted to the petitioners shall be limited to the subject consignments - The revenue is free to examine each one of the consignments imported by the petitioners and verify whether the product imported by the petitioners as a fact would fall within the same category of product considered by this Court while deciding the issue arising under Notification No. 21 of 2002 and whether such an entry is in operation under Notification No. 12 of 2012 and on factually being satisfied that the petitioners are entitled to exemption under an applicable notification extend such benefit or refuse the relief - Appeal allowed: High Court [para 10]
- Appeal allowed: KERALA HIGH COURT
2023-TIOL-70-CESTAT-DEL
NIIT Ltd Vs CCGST
ST - This appeal has been filed against rejection of refund claim of Service Tax - Under transitional provision Section 142 of CGST Act, 2017, limitation have been done away with for purpose of refund arising under existing law - Appellant have demonstrated during course of hearing by producing extracts from their accounts maintained on SAP system, wherein they have demonstrated that they have debited invoices which were raised and no service was provided and have also demonstrated the copies of credit notes issued to their customers - Appellant have not taken any credit in their accounts nor claiming transition refund by through Form TRAN-1 through GST regime - Further, appellant have passed bar of unjust enrichment as under the facts and circumstances they have not passed on any credit to their customers which is duly certified by their Chartered Accountant - Accordingly, impugned order is set aside - Adjudicating Authority is directed to grant refund within a period of 45 days alongwith interest as per rules: CESTAT
- Appeal allowed: DELHI CESTAT
2023-TIOL-69-CESTAT-DEL
Medista Overseas Vs CCE & CGST
Cus - The appellant is holder of license to manufacture drugs with help of supporting manufacturer who is named in license - Pursuant to manufacture, appellant sells pharmaceutical/drugs and mainly exports the goods - They filed shipping bill through EDI system for export of six drugs to overseas consignee M/s Bunty Pharmaceuticals, Monrovia, Liberia - It appeared to Revenue that appellant attempted to export spurious drugs as per report of Drug Inspector, are liable for confiscation under Section 111 of Customs Act, 1962 - Accordingly, SCN was issued proposing to confiscate the goods under Section 113(d) of Customs Act with further proposal to impose penalty under Section 114 and 117 of the Act - There was no requirement of "NOC" from Drug Controller in respect of export consignment vide Shipping Bill filed by appellant for export of drugs to Liberia - Further, Tribunal is satisfied from evidence led that the appellant was a genuine manufacturer duly licensed to manufacture and export of drugs - Even from test report of CDSCO, Mumbai, out of three drugs, two drugs namely B-CO syrup and Sabtron have been found to be of standard quality - Thus, whole proceedings by Customs Authority for confiscation are vitiated - Accordingly, impugned order is set aside: CESTAT
- Appeal allowed: DELHI CESTAT
2023-TIOL-68-CESTAT-DEL
Sindh Ispat Vs CCGST & CE
CX - The Adjudicating Authority rejected the refund claims of appellant holding that the same has been filed after one year from relevant date and accordingly, held that the claim is barred by limitation under Section 11B of Central Excise Act, 1944 - The Court Below has erred in rejecting the refund claim on ground of limitation, as evidently, the court below has failed to take notice of transitory provisions under CGST Act - Accordingly, refund claim is not barred by limitation - Adjudicating Authority is directed to grant the refund within 45 days along with interest under Section 35FF ibid @ 12% p.a.: CESTAT
- Appeal allowed: DELHI CESTAT
2023-TIOL-67-CESTAT-AHM
Sun Pharmaceuticals Industries Ltd Vs CCE
CX - Appellant a 100% EOU is engaged in manufacture of Bulk Drugs - During audit, officers observed that value of DTA sales by appellant was more than 50% of FOB value of physical exports made during these years - SCN was issued demanding short payment of excise duty alongwith interest and penalty - A perusal of Paragraph 6.8 of FTP would show that subject to conditionalities contained therein, an EOU unit can make a DTA sale - The primary condition being, that sales to DTA units is limited to 50% of FOB value of exports, subject to fulfillment of positive NFE on payment of concessional duty - Here, there is no dispute about DTA sale entitlement and achievement of positive NFE by appellant and intimation to development commissioner about DTA sale entitlement - Case of revenue is that during year 2012-13 and 2013-14, appellant has made excess clearances into DTA than their actual entitlement, i.e., 50% of FOB value of export and such excess clearance of goods into DTA were not entitled to get exemption of duties under Notification No. 23/2003-C.E. - Whereas appellant claimed that during year 2012-13 and 2013-14 there was no excess DTA sales and it was within entitlement - Department has not considered carry-forward sales entitlements which were utilized during disputed period - Commissioner wrongly interpreted the condition of Notification and denied the benefit of Notification for the reason that DTA clearances made by appellant were in excess of 50% of FOB value of physical exports made - Whereas, it is clear from guidelines of Appendix 14-I-H, if DTA sale entitlement is not utilized within same year then it can be carry forwarded and can be utilized in next two years - The said Appendix clearly provides that DTA sales entitlement shall be availed of within three years of accrual of entitlement - The detail charts related to DTA sale entitlement submitted by appellant clearly shown that during disputed period there was sufficient DTA sale entitlement balance with them and they have not exceeded the limit as disputed by department - Further, condition of notification only restricted that clearance into DTA is not more than of 50% of Free on Board value of exports made during the year - Appellant has not exceeded the said limit, they have correctly utilized carry forwarded balance which was valid upto three years from its accrual - Benefit of notification cannot be denied to appellant - Impugned order is not sustainable, same is set aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT |
