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2023-TIOL-257-HC-AHM-CUS
Rugs Rural Vs Pr.CC
Cus - Petitioner had sought release of consignment comprising Chinese Knotted Woollen Carpets which were detained by the respondent no. 2 on 06.01.2021 - Court had allowed the petition by directing the consignment of the carpet to be released without loss of time within one week - Since the consignment had not been released inspite of the specific direction of the Court, the present petition - Petitioner had requested the respondent no. 5 to waive the demurrage and issue the delivery order through several e-mails, but, it denied the request and insisted on the payment of the demurrage charges - Question that needs to be addressed is the non-compliance of the directions of this Court and waiver of the demurrage and detention charges by the respondent no. 5.
Held: The present respondent is only a carrier of the goods and not a public authority - It was not a party in the previous petition and was not heard while directing the release order on 07.01.2022 - The direction for release of goods issued in the previous petition was only to the other respondents and not to the present respondent - Grievance of the petitioner against the respondent - public authorities had already been addressed by the Court by its previous order and the public authorities are directed to release the cargo where their role has come to an end - The respondent [carrier] had denied releasing of the petitioner's cargo as there are heavy container detention charges payable on the said cargo - The said charges are legally recoverable from the petitioner as the container was lent to the petitioner under the contract of carriage and the detention is in exercise of its right to lien over the said goods - Hence, the petition will not survive and the petitioner cannot be granted the directions which have been sought for from this Court as that would amount to interfering with the agreed terms of contract between the parties as held by the Apex Court in case of Mumbai Port Trust vs. M/s. Shri Lakshmi Steels and Ors. [ 2017-TIOL-270-SC-CUS] - The question as to whether the release of goods without charging the detention or the demurrage charges, is the issue directly before the CESTAT - The respondent no. 5 is also in the process of filing the application for early hearing of the Customs Appeal before the CESTAT - Therefore, on the issue of detention charges, the order of the CESTAT shall govern the parties as it would also require the authority concerned to enter into the merits of the facts - Bench would, therefore, choose not to decide the contractual terms between the parties at this stage - The respondent - Customs Authority has acted fairly by expressing that it is not going to charge the demurrage charges, however, the shipping line would have a right and lien over the goods until the matter is decided by the CESTAT - There shall a need to direct furnishing of some security which should be in the form of the bank guarantee - The respondents shall release the consignment imported on the petitioner furnishing the bank guarantee to the tune of Rs. 16,00,000/- for a period of six months; the fate of detention charges claimed by the respondent no.5 shall be governed by the decision of the CESTAT; CESTAT to complete pending proceedings within twelve weeks - Petition partly allowed: High Court [para 4.7, 4.8, 11, 12]
- Petition partly allowed: GUJARAT HIGH COURT
2023-TIOL-151-CESTAT-DEL
RMC Switch Gears Ltd Vs CCE
CX - Appellant manufactures boards, panels, cabinets and pays central excise duty - They also avails Cenvat credit as per rules - During investigation initiated at M/s Bhushan Steels Ltd. who supplied HR Coils and other inputs to appellant, it appeared that M/s Bhushan Steels had undertaken processes which did not amount to manufacture but had paid central excise duty - Appellant is a buyer of materials and had paid the amount as duty of excise and not as an amount under section 11D of Central Excise Act, 1944 - The goods have been correctly received and accounted for - If Revenue was of opinion that M/s Bhushan Steels had wrongly assessed its duty liability and paid certain amount as duty of excise when in fact the activities did not amount to manufacture at all, the officers who had jurisdiction over M/s Bhushan Steels should have examined this matter while assessing the returns filed by M/s Bhushan Steels and taken appropriate action - The officer who issued the SCN had jurisdiction over appellant and not over M/s Bhushan Steels - Therefore, Jurisdictional Officer cannot decide or determine if activities of M/s Bhushan Steels amounted to manufacture or not - Therefore, SCN itself was issued without any authority of law - No doubt, SCN intends to recover Cenvat credit availed by appellant but the basis for such of recovery is assertion that activities of M/s Bhushan Steels who had supplied goods did not amount to manufacture - Neither appellant in this case who is only the buyer of goods nor Assistant Commissioner who has jurisdiction over appellant had any jurisdiction or right to change the assessment made by M/s Bhushan Steels - Appellant cannot be expected to conduct an investigation into activities of each of its suppliers to decide and determine if processes which it undertook amounted to manufacture and further determine if amount of duty was actually leviable on such manufacture and thereafter take credit of duty - Nothing found in Cenvat Credit Rules or Central Excise Rules or the Act which places such an obligation on any appellant who is buyer of goods - The SCN and consequent orders are set aside on this ground as well: CESTAT
- Appeal allowed: DELHI CESTAT
2023-TIOL-150-CESTAT-DEL
Hanon Climate Systems India Pvt Ltd Vs CC
Cus - Appellant claims to manufacture air conditioning systems for automobiles and for this purpose imported Aluminium Alloy coils and filed two Bills of Entry to clear imported goods - They did not include anti-dumping duty on imported goods while self assessing duty - On a query raised by assessing officer, appellant took the stand that no anti-dumping duty as per Notification No. 23/2017-Cus (ADD) as alleged by department, was leviable on imported goods because the goods were covered by exclusion clause (vii) of notfn - If disputed goods are covered by this clause, no anti-dumping duty is leviable on goods - Dispute is only whether the goods are covered by this clause or not - According to appellant they are covered by this clause and according to Revenue they are not - Disputed goods were described as 'Aluminium alloy coils' and there is no dispute that these were not clad - Non-clad or unclad aluminium coils are exempted from Anti-Dumping Duty notification as per clause (vii) as per clarification provided by DG in his letter - It is evident that it was not a relief provided to petitioner but it is a ruling regarding interpretation of notification - Therefore, its benefit will equally apply to anybody else - Impugned order cannot be sustained: CESTAT
- Appeal allowed: DELHI CESTAT
2023-TIOL-149-CESTAT-MUM
Skoda Auto Volkswagen India Pvt Ltd Vs CCE
CX - The dispute in this appeal of assessee, enhancement of assessable value directed by Commissioner calls for resolving controversy over attributing liquidated damages, arising from non-fulfillment of contracted purchase in supplementary agreement between appellant and M/s Volkswagen Group Sales India Pvt Ltd and M/s Audi AG, to the performed part of contract - The finding of original authority is, without saying in so many words, based on 'transaction value' in section 4(1) of Central Excise Act, 1944 not being truly reflected in invoices and, therefore, to be enhanced to extent of 'liquidated damages' representing additional consideration - It is clear from section 4 that several elements enumerated therein combine to designate such price as 'transaction value' on which appropriate rate of duty would, in accordance with section 3 apply - These are the price to be sole consideration for sale of goods sold by manufacturer for delivery at the time and place of removal and to the extent that assessee and buyer are not related to each other - It is clear from section 4 of Central Excise Act, 1944 that any deviation from any of elements enumerated therein would require treatment prescribed in Central Excise (Determination of Price of Excisable Goods) Rules, 2000 - In the situation in which adjudicating authority was compelled to go beyond the declared price, to arrive at finding of additional consideration, resort to rule 6 therein is of essence - It is evident that in absence of any finding thereof, it would not be appropriate for such value to be loaded on vehicles already produced - In event of rejection of invoice value as transaction value, it was not open to adjudicating authority to re-determine value without recourse to Central Excise (Determination of Price of Excisable Goods) Rules, 2000 - As the order is deficient in such finding and more particularly as SCN leading to impugned order is also equally silent, adjudicated demand, fine and penalties flowing therefrom would not survive - Consequently, impugned order is set aside: CESTAT
- Appeal allowed: MUMBAI CESTAT |
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