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2023-TIOL-534-HC-MAD-CUS
K P Manish Global Ingredients Pvt Ltd Vs Customs, CE & ST Settlement Commission
Cus - Settlement Commission - Mis-classification of goods - In respect of SCN dated 25.06.2018, the petitioner filed an application for settlement on 04.07.2019 and the Commission passed a final order on 07.07.2020 u/s 127C of the Act settling the case upon payment of differential duty along with interest - The Commission also permitted the applicant/petitioner to redeem the confiscated goods on payment of fine and also imposed penalty of Rs.4,50,000/- - Subject to the payment of redemption fine and penalty within 30 days the petitioner as well as the co-applicants were granted immunity from prosecution and were also permitted to receive back the PD bond and bank guarantee - Later, the petitioner filed another application on 14.08.2020 on the heels of order dated 07.07.2020 addressing the 17 transactions covered under demand notice dated 30.03.2018 and requested for settlement of this case and grant immunity - Commission rejected this application by its order dated 19.08.2020 invoking the bar u/s 127L - Petitioner is, therefore, before the High Court questioning the procedure adopted by the Bench in dismissing the application without hearing the petitioner.
Held: Legal issue that arises is as to whether the bar under Section 127L of the Act would apply in the present case - The phrase ' any other matter ' would bar an assessee from approaching the Settlement Commission ever, in the three situations set out under clauses (i) (ii) & (iii) in Section 127L(1) - This is by way of a caution/deterrent, to ensure that an assessee who approaches the Settlement Commission comes with a full and true disclosure placing all cards on the table in the spirit in which that Chapter must be seen to apply - In the present case, the case of the petitioner has been found to attract penalty and a sum of Rs.4,50,000/- imposed - In such an event, Bench is of the considered view that the bar under Section 127L would apply on all fours - Thus, merely because the petitioner has chosen to style the application culminating in the impugned order as a fresh application does not mean that the Settlement Commission has to close its eyes to the relief sought and the lineage of the matter, particularly the bar under Section 127L that must be strictly enforced - Petitioner ought to have, even at the original instance, included those transactions in the ambit of settlement application and hence having failed to do so cannot be granted a second innings merely to obtain the benefit of waiver - Writ Petition stands dismissed: High Court [para 20, 23, 24, 25, 28, 29]
- Petition dismissed: MADRAS HIGH COURT
2023-TIOL-533-HC-AHM-CUS
Preet Trading Company Vs Pr.CC
Cus - Petitioner submits that despite the stand of the Custom authorities in favour of the petitioners, the goods are not released because of the insistence of the respondents no.3 and 4-private parties, for payment of detention and demurrage charges.
Held: Only prayer which can be considered for the petitioners is in respect of release of goods, more particularly in light of communications dated 20.09.2022 and 07.10.2022 from the respondents no.1 and 2 Custom authorities - In view of the same, the stand of respondents no.3 and 4 could not be impediment in releasing the goods - The claim of detention and demurrage charges by the said private parties could be enforced by them by taking recourse to civil remedies in accordance with law, as may be permissible - Respondents are directed to release the goods which are under their custody within two weeks - Petition disposed of: High Court [para 10, 11]
- Petition disposed of: GUJARAT HIGH COURT
2023-TIOL-532-HC-AHM-CUS
Prenda Creations Pvt Ltd Vs Pr.CC
Cus - Import of watermelon seeds - When the custom authorities have issued no-objection certificate, prima facie case is made out for release of the goods - In that view, the competent custom authority is directed to release and facilitate the clearance of the goods of the petitioner - Objections raised by respondent Nos.3 and 4 - Respondent Nos.3 and 4 have been demanding the container detention charges and ground rent charges respectively from the petitioner from the date of import of the goods - In the meantime, the respondent Nos.3 and 4, who are the private entities and claiming their charges against the petitioner, are not precluded from initiating civil action against the petitioner - Rule returnable on 17.8.2023: High Court [para 6, 7]
- Interim order passed: GUJARAT HIGH COURT
2023-TIOL-347-CESTAT-KOL
Bata India Ltd Vs CCE
CX - The Appellant M/s. Bata (I) Ltd. manufactures footwear. Each pair of footwear is sold in packaged form - The assessee follows the system of assigning a 7 digit article number for its footwear - In respect of footwear, which pass the quality control inspection at the end of the assembly line, the 7 digit article number denotes the group, type, nature of basic upper material, colour, mutation and the design number - The 7 digit article number and the MRP of the footwear are printed on the insole or on the upper lining of the footwear at the component stage itself - Footwear which fail the quality control inspection at the end of the assembly line, are disposed of as 'Factory Seconds' at the reduced MRP - In order to differentiate between footwear which has passed the quality control inspection and 'Factory Seconds', the assessee follows the policy of changing the 7 digit article number of 'Factory Seconds' - In respect of 'Factory Seconds', the first 3 digits of the 7 digit article number are for the group – (gents/ladies/children) and the type of footwear – (sports, canvass/Hawaii, rubber/ leather) and the last 4 digits are for the MRP - For example Power Jogger which passes the quality control inspection carries article Number 839-7693 with MRP of Rs.699/- whereas 'Factory Seconds' of Power Jogger with reduced MRP of Rs.490/- carries article Number 800-0490 - Thus the assessee used self-adhesive paper stickers made of strong paper on which the particulars were printed with scratch proof ink and the adhesive used was such that the stickers affixed inside the footwear could not be removed without affecting the substrate and aesthetics of the footwear. Apart from permanently affixing the stickers on the footwear itself, on the box of such 'Factory Seconds', self-adhesive paper sticker with the new article number for factory seconds printed thereon was permanently affixed over the original number and self-adhesive paper sticker with the reduced MRP printed thereon was permanently affixed over the original price. Another self-adhesive sticker with the printed words 'Factory Seconds' was permanently affixed on the boxes - The factory seconds having separate 7 digit article number were invariably sold to the customers at the reduced MRP marked thereon - It is the case of the Appellant that they are availing the benefit of exemption Notification No.23/2004 dated 09.07.2004 and 5/2006 dated 01.03.2006 - The Notifications provide concessional rate of duty depending on the value of footwear subject to the condition that the rejected sale price is indelibly marked or embossed on the footwear - By the first Notification complete exemption was granted in respect of footwear of retail sale price not exceeding Rs.50/- per pair.
Held - The stickers are put on the rejected footwear after the completion of manufacture and there is no allegation against the Appellant that they have charged any higher price than the price put on the sticker on the rejected footwear - So far as the test report submitted by the Appellant is concerned, the Commissioner did not dispute the veracity of the said Certificate and there is no allegation against the Appellant that they have charged higher price than the price re-fixed on the rejected footwear - the Appellant has complied with the condition of the Notification - The fact that the affixed stickers are printed with indelible ink, the price originally printed on the footwear is blotted out, the chemical analyst's report indicates the ink made use of as scratch proof, the adhesive fixed the sticker permanently to the footwear & cannot be removed without impacting the substrate are enough to establish the fulfillment of the condition prescribed in the exemption Notification - Extending the Doctrine of Substantial Compliance, to the facts herein, the impugned benefit cannot be denied to the Appellants - Also there is no whisper of a suggestion to allege that the goods marked as 'Factory Seconds' were sold at premium prices or at a price higher than the mandatorily prescribed - The impugned order cannot be thus sustained: CESTAT
- Appeal allowed: KOLKATA CESTAT
2023-TIOL-346-CESTAT-DEL
Balmer Lawrie And Company Ltd Vs CST
ST - The disputed period is from 01.10.2008 to 31.3.2013 - The appellant is in appeal against confirmed demand of Rs.5,25,21,302/- along with interest payable thereon and equal penalty imposed on them - Department has filed the appeal against dropping of demand by adjudicating authority along with interest thereon - The primary issue for decision is issue on taxability of service tax on ocean freight and liability of tax on profit/mark up, which is no more res integra as same has been decided in catena of decisions, the latest being the judgment in case of M/s Tiger Logistics (India) Ltd. - As part of ocean freight or airfreight, overseas agent also raises invoices towards airline, fuel, surcharge, airline, security fee and agents and revenue share - Since these were associated components to transporting of goods by air or ocean, they were not subject to service tax: CESTAT
- Assessee's appeal allowed: DELHI CESTAT |
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