2023-TIOL-468-HC-MP-CUS
Marina Enterprises Vs UoI
Cus - Petition was dismissed considering the provisions of Section 129-E of the Customs Act, 1962 which provides for pre-deposits for filing the appeal - It is submitted that the petitioner is not in a position to deposit the amount to avail the remedy of appeal and, therefore, petitioner seeks a review of the order – Counsel for respondent submitted that in the case of Chandra Shekhar Jha V/s. Union of India and Another 2022 SCC On Line SC 269, Supreme Court has clearly held that the provisions of the aforesaid Section are not discretionary and the appellant is bound by the aforesaid provision.
Held: Taking note of the fact that in the order under review, this Court has already referred to Section 129E of the Customs Act, there is no error apparent on the face of the order, which may call for the review of the same – Petition being devoid of merits, is dismissed: High Court [para 4, 5]
- Petition dismissed: MADHYA PRADESH HIGH COURT
2023-TIOL-467-HC-MP-CUS
Ashok Kumar Choudhary Vs DRI
Cus - Alleged smuggling of gold - Applicant seeks bail in the matter of offence punishable under Sections 135 of Customs Act, 1962 and Section 120-B, 201 of Indian Penal Code, 1860.
Held : Applicant is first-time offender of the Offence which is triable by the Magistrate and the maximum sentence is up to 7 years - The offence is compoundable also - He is in jail since 03.09.2022 - The trial has not begun so far - Only on the basis of marks on the gold bars, the expert gave an opinion that they are foreign-origin gold bars - However, it is a matter of evidence - No further custodial interrogation is required as a complaint has been filed - Without further commenting on the merits of the case, application is allowed and the applicant is directed to be released on bail upon his furnishing a personal bond in the sum of Rs.5,00,000/- with one solvent surety in the like amount - It is made clear that in case the applicant is found involved in any other criminal activity, then this bail order shall stand automatically cancelled: High Court
- Application allowed: MADHYA PRADESH HIGH COURT
2023-TIOL-466-HC-MP-ST
Anil Tiwari Vs UoI
ST - SVLDRS, 2019 - Petitioner contends that due to technical glitch, the determined amount could be credited in favour of the Revenue only on 01.07.2020 as against the last date for doing so being 30.06.2020 - Resultantly, discharge certificate under the Scheme was not issued in favour of petitioner, therefore, the present petition - It is submitted by Revenue that in the case of M/s Yashi Constructions - SLP(C) No.2070/2022 and the decision of Coordinate Bench in W.P. No.4805/2022 (M/s Metrics Ptomotions and Events 993 vs. Commissioner CGST and another) = 2022-TIOL-915-HC-MP-ST , law laid down is that the Scheme being statutory in nature has to be applied strictly in terms of the provisions contained therein and any deviation from the said Scheme would amount to opening a Pandora's box where benefits not contemplated by the Scheme would become available to assessees - More so, there is no challenge to the constitutionality of this Scheme.
Held: Court sees no reason to take a different view than the one taken by Apex Court (supra) and as well as by this Court (supra) - Consequently, petition is dismissed: High Court [para 5, 6]
- Petition dismissed: MADHYA PRADESH HIGH COURT
2023-TIOL-306-CESTAT-AHM
Aswani Industries Pvt Ltd Vs CCE & ST
CX - Appellant have discharged service tax under reverse charge mechanism in respect of services received in month of June, 2017 and payment of service tax was made on 13.07.2017 - They have filed ST-3 return for period ending on 30.06.2017 on 10.07.2017 - Since the service tax was paid on 13.07.2017 by no stretch of imagination same could have been mentioned in ST- 3 return filed on 10.07.2017 - Moreover, even the circular issued in this regard is applicable to only those cases where service tax was paid by 05th /06th of July, 2017 or at the most the same is paid before filing return - In case of service tax payment made after filing return, appellant was supposed to file a revised return incorporating the cenvat credit paid of service tax on RCM which appellant has failed to do - Therefore, appellant cannot get the benefit of Circular - Accordingly, payment of duty made by utilizing cenvat credit is not legal and correct - The right course of action for appellant was either to revise the return and show the adjustment or claim refund of cenvat credit under section 142 (3) of CGST Act, 2017 - Therefore, appellant's availment of cenvat credit of service tax paid on 13.07.2017 and utilization thereof for payment of excise duty for month of June, 2017 is not correct - Therefore, demand of cenvat credit is sustained - However, appellant has liberty to opt for alternate i.e. filing a revised return or claiming refund under Section 142 (3) of CGST Act, 2017 if permissible as per law - As regard the penalty, since there is no intention of appellant to evade any duty as appellant have discharged service tax and utilized the same though incorrectly but it was a revenue neutral situation as appellant is otherwise entitled for refund of the same amount - Hence, in absence of any mala fide, penalty under section 78 is not imposable - Therefore, penalty imposed under section 78 is set aside - Accordingly, impugned order is modified to said extent: CESTAT
- Appeal partly allowed: AHMEDABAD CESTAT |
