2023-TIOL-623-HC-DEL-NDPS
Quentin Decon Vs Customs
NDPS - Applicant seeks regular bail under Section 439 of the Criminal Procedure Code, 1973 in Case registered by the Customs Department, under Sections 21/23/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 pending trial before the Court of the learned Special Judge (NDPS) - The applicant stated that the contraband [of Heroin] that he was carrying was handed over to him by one Mr. John in South Africa and that he had instructions to leave the same in a specified room at Hotel Sarthak Palace, Multani Dhanda , Paharganj , New Delhi and immediately leave the place thereafter - The applicant and co-accused Sydney John-Brain O' Grady were arrested on 27.06.2021 and have been in judicial custody since then - It was argued by the applicant that Investigating Officer was required to produce the 10 packets (recovered from the present applicant) as alleged in the panchnama for sampling proceedings and the samples were required to be drawn from each of the said 10 packets; that, however, to the contrary, the Investigating Officer produced the same after mixing the contents of each of those packets and samples have been drawn from the said mixture of contraband and not from each packet, which is contrary to law; that he only raises the issue of defective sampling for the purpose of the bail application.
Held: In the present case, contents of the ten packets were homogeneously mixed together and samples were drawn before the Metropolitan Magistrate - In view of the aforesaid, this Court is of the opinion that the procedure adopted with respect to contraband in the present case is not defective in nature at this stage - The applicant will get ample opportunity to prove that the said recovery was defective and samples drawn were not the true representatives of the samples recovered, during the course of trial before Special Judge - It is pertinent to note that, the said standing orders cannot be exhaustive enough to cover all factual scenarios at the time of seizure of the contraband - Various factors like nature of contraband seized, the volume/quantity of the seizure, place of seizure, time of seizure, etc. will be relevant to determine any non-compliance thereof and effect of such non-compliance - In the opinion of this Court, whether the samples drawn would be a true representative sample of the contraband recovered, can be answered by the chemical analyst, who analyses the sample and gives his/her opinion - Special Judge during the course of the trial will have the advantage of the testimony of the chemical analyst as well as the production of contraband seized in the Court - It is pertinent to note that the case property is still there for any further analysis if so required, therefore, it is premature at this stage to say that the samples drawn are not true representative samples of the contraband seized - Present application is dismissed and disposed of accordingly: High Court [para 31, 32, 33, 34]
- Application dismissed: DELHI HIGH COURT
2023-TIOL-622-HC-DEL-CX
Kama Ayurveda Pvt Ltd Vs UoI
CX - SVLDRS, 2019 - Show-cause notice dated 09.08.2019 proposed a demand of Rs. 35,02,692/- for the period July 2014 to June 2017 - According to the respondent department, since there was no official communication from the Department quantifying any tax liability prior to the issuance of the show cause notice dated 09.08.2019, the tax dues cannot be stated as quantified prior to the stipulated date for affording the benefit of the Scheme - 30.06.2019 - Petitioner is aggrieved by the order dated 03.02.2020 passed by respondent rejecting the application filed by them under SVLDRS, 2019.
Held: Contention that the tax dues would be quantified only on culmination of investigation and issuance of show cause notice, is unmerited - It runs contrary to the provisions of Section 123(c) of the Act as well as the Circular No.1071/4/2019-CX.8 issued by CBIC dated 27.08.2019 - The petitioner had admitted its liability in the initial stages and had voluntarily disclosed the same in its communications - The respondents have proceeded and accepted the quantification - The impugned decision of the Designated Committee rejecting the petitioner's declaration on the ground that tax dues are not quantified, is rejected - Petition is allowed: High Court [para 31, 32]
- Petition allowed: DELHI HIGH COURT
2023-TIOL-621-HC-DEL-ST
Ideal Broadcasting India Pvt Ltd Vs UoI
ST - SVLDRS, 2019 - Case of the petitioner is that whereas they had claimed relief under ‘litigation category', respondent has classified the 'tax dues' arbitrarily under the "arrears category" and allowed lesser rebate-slab - It is deposed that the Department has already issued SVLDRS-4 (Discharge Certificate) dated 03.07.2020 to the petitioner; that as per paragraph 2 (vi) of the Circular No. 29.10.2019, the petitioner was made eligible to file a declaration subject to withdrawing the appeal and that once the appeal had been withdrawn, payment of dues raised by its authority attained "finality" as there was no pending litigation; and that it was categorically stipulated that the declaration would have to be filed under the "arrears" category as explained vide FAQ No. 6, and, therefore, the Department on behalf of respondents no. 2 and 3 pray for dismissal of the present petition.
Held : A comprehensive and harmonious interpretation of Section 123(a)(1) read with Section 124(1)(a) of the Scheme leaves no scope for doubt that on withdrawal of the appeal filed post 01.07.2019 and on filing of declaration, its case was to be considered under the "arrears" category so much so that the petitioner even accepted the calculation computed by the Department and paid the payable amount as mentioned in the SVLDRS-3 without any demur or protest on the basis of which Discharge Certificate was issued on 03.07.2020 - Once the pending litigation had been withdrawn, the demand of duty raised by the tax authorities attained "finality" and a fortiori fell under the definition of "amount in arrears" and the declaration was rightly considered under the "arrears" category - No merit in the present writ petition, hence same is dismissed: High Court [para 18, 21]
- Petition dismissed: DELHI HIGH COURT
2023-TIOL-620-HC-DEL-GST
M R Overseas Vs UoI
GST - Refund of ITC - Lower authorities have rejected the petitioner's claim for refund of ITC pertaining to goods supplied to SEZ units (zero rated supply) [period August 2017 to March 2018] and hence the present petition - Adjudicating Authority issued a show cause notice, proposing to reject the petitioner's application on the ground that it was time-barred - The petitioner's request for condonation of delay on account of mitigating circumstances resulting from the outbreak of Covid-19 was not accepted - According to the petitioner, the refund in respect of the supplies made during the period of February 2018 to March 2018, is within the period of limitation; if the period after 01.03.2020 to 28.02.2022, is excluded.
Held: On 05.07.2022, the Central Board of Indirect Taxes and Customs (CBIC) issued a circular, being Notification No.13/2022-Central Tax, whereby the period of 01.03.2020 to 28.02.2022 was to be excluded for calculating the period of limitation for filing an application under Sections 54 and 55 of the CGST Act - It is apparent that neither the Adjudicating Authority nor the Appellate Authority has considered the petitioner's claim that the delay is required to be condoned - In the circumstances, Bench considers it apposite to set aside the orders dated 26.05.2021 and 25.02.2022 impugned in this petition, and remand the matter to the Adjudicating Authority for considering afresh, in light of the notification dated 05.07.2022 - Petition disposed of: High Court [para 5, 8]
- Petition disposed of: DELHI HIGH COURT
2023-TIOL-619-HC-DEL-CUS
RK Agroexport Pvt Ltd Vs UoI
Cus - Petitioner has been denied the benefit of Merchandise Exports from India Scheme (MEIS) in respect of certain Shipping Bills as contemplated under the Foreign Trade Policy, 2015-2020 - The petitioner has been denied the said benefit for the reasons that the petitioner had checked the box 'N' (for No) instead of 'Y' (for Yes) in the reward column pertaining to MEIS - Petitioner claims that the same is an inadvertent error and although they had sought to correct the said mistake, however, the same was not permitted, hence the petition.
Held : In respect of various cases, jurisdictional customs authorities have examined and allowed amendment under Section 149, on merit, in terms of the relevant policy guidelines issued from CBIC from time to time - Based on advisory dated 11.04.2023 issued by the Directorate General of Foreign Trade respondents shall follow the methodology as set out thereunder and process the petitioner's request for benefits under the MEIS - Petition allowed: High Court [para 7 to 9]
- Petition allowed: DELHI HIGH COURT |
