2023-TIOL-301-HC-DEL-CUS
CC Vs R P Cargo Handling Services
Cus - Revenue is in appeal against order of CESTAT - Question is whether Tribunal was correct in holding that a show cause notice under Regulation 20 of the Customs Brokers Licensing Regulations, 2013 (CBLR) is required to be received by the customs broker within a period of ninety days of the receipt of the offence report and it is not sufficient that the notice is sent within the said period of ninety days. Held: Tribunal in a latter decision in D.S. Cargo Agency = 2019-TIOL-1551-CESTAT-DEL has taken a view which is contrary to the impugned order - There is a distinction between issuance of notice and service of notice and the words 'issue' and 'serve' are not synonymous - The said words may be construed as interchangeable only if the context of the statute makes it necessary to do so - Tribunal has erred in holding that the Commissioner was required to serve a notice to the respondent within a period of ninety days from the date of receipt of the offence report - The Commissioner was required to issue a notice within the period of ninety days and there is no dispute that it had done so - Question is answered in the favour of the Revenue against the respondent - The appeal is allowed - The impugned order is set aside and the matter is remanded: High Court [para 23, 25, 26, 27]
- Matter remanded: DELHI HIGH COURT
2023-TIOL-300-HC-KOL-CUS
CC Vs CRI Ltd
Cus - Review application has been filed by the revenue - Ground raised by the review applicant is that in the light of the decision of the Supreme Court in the case of M/s. Asean Cableship Pte. Ltd . = 2022-TIOL-22-SC-CUS , the order passed by this Court holding that the appeal is not maintainable does not lay down correct legal principle, and, therefore, calls for review. Held : In the instant case, the stand of the department is that the goods dealt with by the respondent/assessee are not covered by the exemption notification - If that be so, the appeal is maintainable before the Supreme Court - No grounds have been made to review the judgment and order of this court dated 7.3.2022 - Review application stands dismissed: High Court
- Application dismissed: CALCUTTA HIGH COURT
2023-TIOL-299-HC-DEL-CUS
Great Nuts Impex Pvt Ltd Vs CC
Cus - Appellant proposed to import into India a preparation of Betel Nuts known as 'Boiled Supari' packed in consumer packing and bulk packing - The proposed items included, (i) API Supari; (ii) Chikni Supari; (iii) Unflavoured Supari; (iv) Flavoured Supari; and (v) Boiled and Cut Supari - The said appellant proposed that the afore-mentioned goods be classified as Betel nut product known as “Supari” under sub-heading 2106 90 30 - Customs Authority of Advanced Ruling (CAAR) found that the goods in question were classifiable under heading 0802 and not under sub-heading 2106 90 30 as contended by applicant, hence the present appeal. Held : Decision in the case of Crane Betel Nut Powder Works v. Commissioner of Customs and Excise, Tirupathi & Anr. ( 2007-TIOL-37-SC-CX ) squarely covers the issue involved in the present cases - CAAR relied on the decision of the Supreme Court in Crane Betel Nut Powder Works (supra) and held that the same would continue to be classified under Chapter 8 of the Customs Tariff - Supplementary Note 2 of Chapter 21 of the Customs Tariff expressly provides that the goods covered under the sub-heading "Betel nut product known as 'Supari'" would mean "any preparation containing betel nuts" - Thus, the goods covered under the said sub-heading would necessarily have to be a preparation that contains betel nuts as against the product being treated as betel nut - It would, therefore, not be apposite to classify the products in question as those covered under Chapter 21 of the Customs Tariff - Appeal dismissed: High Court [para 24, 26, 27, 28]
- Appeal dismissed: DELHI HIGH COURT
2023-TIOL-177-CESTAT-MUM
S C Vankudre Vs CCE
CX - The limited issue for determination is conformity of findings of lower authorities with terms of remand - Dispute pertains to proposal of central excise authorities to include 2 nos. 'cold rolling machines' - claimed by appellant to be 'standby' and functionally inoperable - in assessment under 'compounded levy scheme', in pursuance of rule 96 ZA - ZV of Central Excise Rules, 1944 along with Notification No. 109/94-C.E. (N.T.) between January 1997 and January 1998 culminating in assessment of differential duty - Appellant uses 'aluminium sheets' produced by them which are cut as 'circles' for subsequent conversion into aluminium utensils - Circles are cut by deploying 'cold rolling machine' and the scheme prescribes levy at Rs. 7500 per month per machine which was alleged to have been evaded insofar as two other machines are concerned - The findings of first appellate authority appears to be rhetorical with intent to eliminate improbability coupled with mere restatement of observation of Tribunal for adoption of conclusion that is vague - That is not consistent with specific aspect highlighted in order of remand requiring ascertainment of claim of appellant that the machines were, in fact, non-functional - This the lower authorities have failed to do - As the order of remand has not been complied with, it would be only fit and proper for impugned order to be set-aside: CESTAT
- Appeal allowed: MUMBAI CESTAT
2023-TIOL-176-CESTAT-DEL
Shree Rishabhdev Marble And Minerals Pvt Ltd Vs CC
Cus - The present proceedings before this Court emanate from a letter which cannot be treated as a proper SCN - No reason or evidence to support the allegation has been brought on record by assessee in aforesaid letter - While same has been collated, as per contention of revenue subsequently after search, as allegedly certain discrepancies were found which indicated violations - It, therefore, appeared to Department that imputations in letter dated 6.1.2020 were later on found to be true - Same, however is a subsequent development, but at the time SCN was issued, the allegation was merely based on suspicion - Clearly, therefore, there is violation of natural justice and manifestation of arbitrariness - Matter related to seizure at job worker premises is part of separate proceedings - For the purposes of present proceedings before this Court, it is found that SCN is improper and unsustainable and proceedings based thereupon are liable to be set aside - It is, therefore, ordered accordingly - However, it is made clear that Department in future, is free to consider rejection of lapsed permission, if any conclusive evidence is available to them from proceedings relating to seizure: CESTAT
- Appeal allowed: DELHI CESTAT
2023-TIOL-175-CESTAT-KOL
S K Sarawagi Company Pvt Ltd Vs CCGST & CE
ST - Issue involved is as to whether appellant is eligible to refund of services availed in relation to export of goods under Notfification No. 41/2007-S.T. - As per said Notfification No. 41/2007-S.T. certain co-relations are required to be made before sanctioning refund claims - It is observed from C.B.E. & C. Circular No. 120/01/2010-S.T. that exporters were facing certain difficulties in relation to one to one co-relation between input services and exports made - Appellant brings to the notice of Bench para 3.2.1 of C.B.E. & C. Circular to argue that self-certification of exporter or a Chartered Accountant, if given, is sufficient to sanction refund - C.B.E. & C. has clarified that only a broad co-relation of input services and Service Tax paid is required to be made with respect to exports - This Circular was relied upon by appellant before Adjudicating Authority - So far as admissibility of Service tax paid on GTA Services is concerned, it is observed that similar refunds were allowed by CESTAT in case of Jumbo Mining Ltd 2012-TIOL-510-CESTAT-BANG - Though the clarification was with respect to Notfification No. 5/2006-C.E. (N.T.) but it clearly conveys that in budget 2009 the scheme under Notfification No. 41/2007-S.T. was simplified in Notfification No. 17/2009-S.T. by providing self certification or Chartered Accountant's certification about co-relation and nexus between input Services & exports - That above logic can be followed for Notfification No. 5/2006-C.E. (N.T.) where such simplification of Notfification No. 17/2009-S.T. may not be available - Impugned order cannot be sustained and is accordingly set aside: CESTAT
- Appeal allowed: KOLKATA CESTAT
2023-TIOL-174-CESTAT-MAD
Jain Housing And Construction Ltd Vs CST
ST - Appellant is a developer engaged in development of residential projects and during course of its business, it enters into composite contracts with buyers - SCNs issued proposing to levy Service Tax with respect to various projects executed by appellant under Construction of Residential Complex Service and Works Contract Service - Issue involved is no more res integra as same stands settled by decision of Apex Court in case of M/s. Larsen & Toubro Ltd. 2015-TIOL-187-SC-ST, which has been followed in case of M/s. Real Value Promoters Pvt. Ltd. 2018-TIOL-2867-CESTAT-MAD - Said ruling of Chennai Bench of CESTAT covers the periods both prior to 01.06.2007 and post 01.06.2007 and the ratio laid down therein applies to case on hand - Therefore, issue is settled in favour of appellant - The other issue involved is levy of Service Tax on miscellaneous income which was treated as receipts towards construction services - Appellant would submit that they had made certain payments towards purchase of land to M/s. Norne Homes Pvt. Ltd. and hence same was not a consideration received for providing any service - Issue of Service Tax liability on miscellaneous income is not justified as same is answered by rulings of CESTAT in M/s. Synergy Audio Visual Workshop P. Ltd. 2008-TIOL-809-CESTAT-BANG and M/s. Reynolds Petro Chem Ltd. 2022-TIOL-731-CESTAT-AHM - Following the same, impugned order is set aside: CESTAT
- Appeals allowed: CHENNAI CESTAT |
