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2023-TIOL-475-HC-KOL-CX
Satyam Iron And Steel Company Pvt Ltd Vs CCE & ST
CX - Assessee is in appeal against the CESTAT order dated 25 January 2018 and the appeal was admitted on the following substantial questions of law viz. whether central excise duty can be demanded with reference to the installed capacity when the finished goods are not notified under Section 3A of the Central Excise Act, 1944 and there is no material to show any unrecorded manufacture or clearance of the finished goods?; whether impugned order of the tribunal upholding the demand made on the above basis was perverse? Held: The allegation is one of the suppression of the production and clandestine removal of excisable goods without payment of excisable duty - Therefore, the burden of proof is on the department to establish the charge of clandestine removal for which there should be cogent and relevant material to pen down the assessee on a charge of clandestine removal - In the instant case, Bench finds there was no material which was available with the Commissioner to come to such a conclusion - Unfortunately, the observation made in the audit objection was taken by the department as gospel truth and without conducting any enquiry or investigation, the authority straight away proceeded to issue the show cause notice - In fact, the reply given by the assessee to the Superintendent, Central Excise department at the first instance was not even taken note of and mechanically the show cause notice was issued - Neither the adjudicating authority nor the tribunal adverted into any of these facts - Admittedly, the audit objection was based upon the information culled out from the return filed by the assessee and, therefore, there can be no charge of suppression or wilful mis-statement and consequently the extended period of limitation could not have been invoked - Entire show cause notice has been built up on theory of assumption and presumption solely based upon the installed capacity of the two kilns in the assessee's factory without noting the factual details placed by the assessee , more particularly the period during which the kilns were shut down and as to how the department was fully aware of the shut down as the intimation given by the assessee were all acknowledged by the department - Order passed by the tribunal as well as the adjudicating authority are set aside - Appeal is allowed: High Court [para 12, 13]
- Appeal allowed: CALCUTTA HIGH COURT
2023-TIOL-474-HC-KOL-CUS
B Arun Kumar And Company Vs CC
Cus - Department took a stand that the two items imported are canalised items permissible for import by State Trading Corporation only - Thus, it was held that the imports have been unauthorisedly made in contravention of Clause 3(2) of Import (Control) Order, 1955 and with Section 3 of the Import and Export (Control) Act, 1947 as amended - Collector of Customs concluded that the goods have been imported unauthorisedly in contravention of the regulations and liable for confiscation - An option for redemption of the goods was made on payment of fine of Rs. 45 lakhs and Rs. 40 lakhs in respect of the two consignments - On remand, the Tribunal noted the facts of the case and pointed out that the question to be considered is whether the imported goods which are not covered by licence are liable for confiscation and whether the appellant / importer is liable for penalty - Tribunal concluded, by holding that there was no infirmity in order of the Collector in ordering confiscation of the imported goods which are not covered by the Additional Licences and imposing penalty on the appellant - Aggrieved by the order passed by the Tribunal, the present appeal has been preferred. Held: It cannot be disputed that the contract having been entered into and processed, it is virtually next to impossible to stop, the consignment mid sea which the Customs Department would be well aware and there are several procedures intervening such matters if at all it is feasible of being performed - Therefore, the Collector of Customs has faulted the appellant of not performing of an act (stoppage of the shipment in the mid sea) which was next to impossible - In any event, the conduct of the appellant should be examined on the date when they placed the order i.e. on 12th and 14th March, 1986 and the law on the subject was clearly in favour of the appellant and the concerned department were also of the clear view that canalized items can be imported on additional license - Bearing in mind the legal principles and taking note of the facts, Bench is of the view that the case on hand is a case where no penalty could have been imposed - Nevertheless, on the date when the goods were sought to be cleared from the Kolkata Port there was a clear bar for importing such goods under the additional licenses and this being a bar created under the policy which binds the appellant as additional licenses were issued under the policy, the appellant cannot escape from the rigour of imposition of redemption of fine - In the case on hand, the total quantity of both the products imported by the appellant more or less is 3700 metric tons and if the same yardstick as applied by the department in the case of Shashi Kant is applied to the case on hand the redemption fine could at best be imposed to the tune of around Rs. 50 to 53 lakhs and definitely not Rs. 80,00,000/- - Therefore, Bench is of the view that redemption fine imposed on the appellant was excessive and disproportionate and inconsistent with the stand taken by the department in other contemporaries imports of same product in the same factual background - Appeal is allowed in part and the orders passed by the authority imposing a redemption fine of Rs. 80,00,000/- is set aside and the fine stands reduced to Rs. 50,00,000/- and the penalty imposed on the appellants is set aside in its entirety - Excess amount of redemption fine and the entire penalty should be refunded to the appellant within a period of 45 days: High Court [para 8, 9, 10]
- Appeal partly allowed: CALCUTTA HIGH COURT
2023-TIOL-473-HC-DEL-CUS
Golden Tobie Pvt Ltd Vs Pr.CC
Cus - Petition filed impugning a seizure memo, whereby goods imported were seized - SCN was not issued within a period of six months from date of seizure - However, Court is informed that an extension was granted by concerned officer in terms of proviso to Sub-section (2) of Section 110 of Customs Act, 1962 - Undisputedly, extended period has also expired as more than one year has expired since the seizure of said goods - Revenue is directed to forthwith release the said goods unconditionally to petitioner - Since it is not disputed that SCN has not been issued, Court is refraining from examining other issues raised: HC
- Petition disposed of: DELHI HIGH COURT
2023-TIOL-307-CESTAT-DEL
Baba Ram Dev Construction And Engineer Vs CCE
ST - The appellant was engaged in providing various services which fell under categories of construction of complex services, management, maintenance and repair services - A SCN was issued to appellant demanding duty under various categories - The two Board's circulars relied upon by appellant explained the scope of various services and their taxability - The Circular discussed the scope of service tax on business exhibition services, airport services, transport of goods by air services, opinion poll services and construction services but it did not say anything about scope of service tax payable on "management, maintenance and repair services" - Similarly, Circular dated 10.09.2004 also discusses various changes made in Finance Bill (No. 2) 2004 to service tax provisions but this Circular also does not discuss the scope of management, maintenance and repair services" - Therefore, these two circulars do not come to the aid of appellant - Of the three heads under which service tax was originally proposed in SCN, demand under head "construction of complex services" has already been set aside by Commissioner (A) and appellant was not pressing the demand under head of "technical testing and analysis services" because of the very low amount of service tax involved - It is undisputed that the services were provided by appellant to Rajasthan Housing Board (RHB) and Public Health Engineering Department (PHED) - Before Commissioner (Appeals), appellant had contested the demand relying on provisions of section 98 of the Act which exempted non-commercial Government buildings during the period on and from 16 day of June, 2005 till 28 May, 2012 - Commissioner (A), however, found that appellant's services were not covered by this section as appellant had not managed or maintained or repair any non-commercial Government buildings, but had maintained pipelines as admitted by appellant itself - Tribunal fully agrees with Commissioner (A) - Undisputedly, appellant had not maintained any non-commercial buildings of Government, but had maintained pipelines which were not exempted under any notification or provision or circular presented before Tribunal - For these reasons, impugned order was correct and proper in confirming demand under head of management, maintenance and repair services - Appellant also contested demand on the ground of limitation - It is evident from SCN that appellant had not disclosed the value of these services which it had rendered to department - No reason found to hold that demand was time barred as appellant had suppressed the value of these services for department - Extended period of limitation has also been correctly invoked - As far as penalties under section 76 and 78 are concerned, they have already been reduced proportionately by Commissioner (A) in impugned order - No reason found to interfere with them - Impugned order is correct and calls for no interference, same is upheld: CESTAT
- Appeal dismissed: DELHI CESTAT |
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