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2023-TIOL-634-HC-RAJ-GST
Sheetal Mittal Vs State Of Rajasthan
GST - Bail applications have been filed by petitioners apprehending arrest in connection with FIRs registered for the offences punishable under sections 406 & 420 of the IPC - Petitioners argue that they are engaged in trade and business and received certain goods from the accused; that they did not have any direct involvement in the alleged crime in question and they are consumers only and have been falsely implicated; that the alleged crime is purely of civil nature and it is a case of alleged non-payment of dues and not that of cheating and like offences; that the police has also recovered the goods in question and there is no need of any custodial investigation and, therefore, their applications seeking anticipatory bail be allowed - Counsel for Revenue submitted that from the investigations and the documents submitted by the accused-petitioners during the course of investigation were found to be fabricated as the GST number, name of the firm and other details were found to be non-existent; that the accused petitioners had submitted forged bills. Held: The so called documents submitted by the accused- petitioners, stating the purchase of clothes, were found to be forged and fabricated as the GST number, name of the Firm and other details were non-existing - The investigation further demonstrates that accused-petitioners were constantly in touch with main accused Harsh Garg and Sarvesh alias Vinod through calls indicating their active role in commission of the crime and deceiving the complainants by extracting money in tune to rupees three crores - Above narration itself is adequate and demonstrates that the accused persons were hand in glove with each other to squeeze the money from the complainants - It is also pertinent to note that an investigation against the accused persons is still pending and, therefore, custodial investigation may further lead to recovery and disclosure of facts for the allegedly misappropriated goods - Petitioners have so far evaded the custodial investigation by filing the criminal misc. petitions under Sections 482 Cr.P.C., which resultantly culminated in its dismissal and a further effort to escape from the arrest through the present bail applications, also miserably errs - Court is not inclined to grant the anticipatory bail to the accused-petitioners. Bail applications are dismissed: High Court
- Petitions dismissed: RAJASTHAN HIGH COURT
2023-TIOL-448-CESTAT-MUM
Jupiter Dyechem Pvt Ltd Vs CC
Cus - The issue at hand in the present appeals is w.r.t. addition of freight for computation of assessable value and confiscation for misdeclaration of country of origin, are disposed of by this common proceedings - The Adjudicating Authority proceeded on the finding that the cargo, covered by import general manifest no. 224501/23.01.2020 of MT Braveworth filed for discharge at Mumbai and purportedly taken on board at Sohar in Oman during the voyage out of Fujairah in UAE from 9th January 2020, was, in fact, loaded during clandestine call at Dayyer in Iran between 15th January 2020 and 18th January 2020, and cargo, covered by import general manifest no. 2244928/22.01.2020 of MT Chem Trader filed for discharge at Mumbai and purportedly taken on board at Jebel Ali on 16th January 2020 was, in fact, loaded during clandestine call at Bamder Imam Khomeini in Iran between 12th January 2020 and 14th January 2020, necessitating enhancement of freight component for recovery of additional duty and confiscation under section 111(m) of Customs Act, 1962 for concealment of place of origin with option to redeem on payment of fine under section 125 of Customs Act, 1962 along with penalties under section 114AA Customs Act, 1962 - The vessel, MT Braveworth, valued at Rs. 43,00,00,000, was also confiscated under section 115 (2) of Customs Act, 1962 with option to redeem on payment of fine of Rs. 10,00,000 granted to M/s Braveworth Shipping Co Ltd along with penalty of Rs. 1,50,000 under section 112 (a) of Customs Act, 1962 and Rs. 3,50,000 under section 114AA of Customs Act, 1962. Likewise penalty of Rs. 5,00,000 was imposed on Shri Mohammed Zakir Hossain, master of the vessel, under section 114AA of Customs Act, 1962 - The vessel, MT Chem Trader, valued at Rs. 57,00,00,000, was also confiscated under section 115 (2) of Customs Act, 1962 with option to redeem on payment of fine of Rs. 10,00,000 granted to M/s Chem Trader Tankers Pvt Ltd along with penalty of Rs. 90,000 under section 112(a) of Customs Act, 1962 and Rs. 5,00,000 under section 114AA of Customs Act, 1962 - Likewise penalty of Rs. 5,00,000 was imposed on Shri Dadi Suyadi master of the vessel, under section 114AA of Customs Act, 1962 while, interestingly and only in this matter, penalty of Rs. 90,000 under section 112(a) of Customs Act, 1962 and Rs. 3,00,000 under section 114AA of Customs Act, 1962 was imposed on M/s Atlantic Global Shipping Pvt Ltd, the agent of vessel in India. These details are narrated here, and only in passing, as the vessel owners/charterers and agents are not in appeal in this proceeding. Held - Relied entirely upon the factual matrix of the case, in the records as well as submissions, and the law as set out in Customs Act, 1962 to render the finding here - This is with deliberate intent, for demonstrating that it is obligatory on the part of adjudicating authority to evaluate the proposals put forth in the show cause notice on the basis of available facts and law and that any detriment, of duty or fine/penalties, visited upon an importer without examination of the role of the noticee on the circumstances leading to the conclusion of having breached Customs Act, 1962 is not only inappropriate but tantamount to executive overreach that rule of law abhors - Hence the Order-In-Original in question merits being set aside: CESTAT
- Appeal allowed: MUMBAI CESTAT
2023-TIOL-447-CESTAT-MUM
Bharat Heavy Electricals Ltd Vs CC
Cus - The appellant had filed an application dated 19.02.2020 before the Export Division (Assessment), Customs House, Mumbai for amendment in drawback Shipping Bill No. 2356231 dated 27.02.2019 filed in respect of exports made by them under Advance Licence (DEEC)-cum drawback scheme - In the Shipping Bill, the appellant had initially mentioned the code '9801', instead of the applicable code for Brand rate fixation as '980788411B' - The amendment was sought on the ground that the appellant was intending to claim brand rate of drawback in terms of Circular No. 29/2015-Customs dated 16.11.2015 - However, the request made the appellant was turned down by the adjudicating authority vide letter dated 03.03.2020, assigning the reason that there was no evidence on record to show that the error was genuine - Further, it has also been contended that the exporter-appellant did not submit any documentary evidences, present at the time of export, substantiating their claim for amendment of drawback serial number and that the export invoice also does not mention the claim for the appropriate code as 98078411B - Being dis-satisfied with the letter dated 03.03.2020, the appellant had preferred appeal before the learned Commissioner of Customs (Appeals), Mumbai - I - The appeal of the appellant was rejected.
Held - From the facts of the case and the documents furnished, the appellants wanted to impress upon the fact that the Brand Rate Fixation claim was existed at the time of export and thus, the application was appropriately made for amendment of the Shipping Bill in terms of Section 149 and Section 154 of the Customs Act, 1962 - However, on examination of the orders passed by the lower authorities, we find that the refence of documents relied upon by the appellants in this appeal were not at all considered by them and the claim of the appellants for amendment of the shipping bill was denied solely on the ground that the appellants did not submit any documentary evidence available at the time of export to substantiate their claim for amendment of the shipping bill - Hence the matter merits being revisited by the authorities concerned for considering facts w.r.t. amendment of shipping bill: CESTAT
- Case remanded: MUMBAI CESTAT
2023-TIOL-446-CESTAT-MAD
Jamals Vs CST
ST - The appellant had provided construction service and were paying Service Tax on the residential complexes built by them under works contract service till December 2008 - From January 2009 onwards, they did not pay Service Tax - Entertaining a doubt that the appellant having received an amount of Rs. 14,94,37,760/- for the construction service provided by them for the period from April 2009 to June 2010, a SCN dated 13.10.2010 came to be issued proposing to demand Service Tax on the ground that the construction work undertaken by the appellant did not come within the exclusion definition of "residential complex" under Section 65(91a) of the Finance Act, 1994, apart from applicable interest and penalty - Hence the present appeal.
Held - The issue at hand has been settled by the Apex Court vide the judgment in the case of Commissioner of C.Ex. & Cus., Kerala v. M/s. Larsen & Toubro Ltd. and the CESTAT co-ordinate Hyderabad Bench, in the case of M/s. Pragati Edifice Pvt. Ltd. - It is clear that no Service Tax could be levied on construction of residential complex on the appellant - The period of dispute here, as observed by us in the earlier paragraphs, is from April 2009 to June 2010 and hence, we are of the view that no Service Tax was exigible on the appellant: CESTAT
- Appeal allowed: CHENNAI CESTAT
2023-TIOL-445-CESTAT-DEL
Reliance HR Services Pvt Ltd Vs Asstt. CST
ST - The appellants are registered with service tax department and are engaged in the provision of 'manpower recruitment agency' and 'commercial training or coaching' services - During the course of audit conducted, it was noticed that the appellants have wrongly availed Cenvat credit on input services and invoices issued in the name of locations which are not included in the Centralized registration - A show cause notice dated 28.04.2012 was issued to the appellants and was confirmed by the Additional Commissioner vide order dated 30.03.2016 - On an appeal filed by the appellants, the Commissioner (Appeals) vide impugned order upheld the order of the original authority. Held - The availability of credit to the appellant is guided by Rule 9(2) of Cenvat Credit Rules and Rule 4A of the Service Tax Rules, 1994 - In terms of Rule 4A(1) of Service Tax Rules, 1994 the invoice or the challan shall be serially numbered and shall contain the name, address and registration number of such person (i.e. provider of the services); name and address of the person receiving taxable service; description and value of taxable service provided or agreed to be provided and the service tax payable thereon - We find that as submitted by the appellants, there is no requirement to indicate in the invoice, the registration number of the receiver, who avails Cenvat credit, i.e. in the instant case of the appellants - We also find that proviso to Rule 9(1) of Cenvat Credit Rules provides that even if the duty paying documents (i.e. the invoice, bill or challan issued by the person who is providing taxable service to taxable output service provider such as the appellant) does not contain all particulars but contain the details of duty or service tax paid or payable, description of the goods or taxable service, assessable value, (central excise or service tax registration number of the person issuing the invoice, as the case may be), name and address of the factory or warehouse or premises of first or second stage dealers or provider of output service, credit may be allowed - To this extent, there is force in the argument of the appellants - Hence the order in questions merits being set aside: CESTAT
- Appeal allowed: DELHI CESTAT
2023-TIOL-444-CESTAT-DEL
CCGST Vs Sonex Marmo Grani Pvt Ltd
CX - The issue arises for consideration is as to whether duty liability is of job worker who actually manufactured the goods or supplier of inputs, unless raw material supplier undertakes the responsibility of paying duty as per provisions of Notfn. 83/94-CE, 84/94-CE or 214/86-CE - Whether duty have been rightly calculated - In case of M/s Kartar Rolling Mills 2006-TIOL-46-SC-CX, Supreme Court has held that unless there is an undertaking by principal manufacturer that they would discharge duty liability, the job worker is liable to discharge duty on clearances from premises of job worker - The Tribunal in case of ETERNIT EVEREST LTD 2010-TIOL-682-CESTAT-DEL has held that duty has to be demanded from job worker and not from principal manufacturer, when transaction between the two are on principal to principal basis - The transaction between job worker and principal manufacturer are on principal to principal basis - It is not in doubt that marble slabs/tiles were manufactured by job worker and duty liability as per excise laws is only on manufacturer - The duty liability can be shifted to supplier of raw materials or semi-finished goods only if supplier gives an undertaking in terms of notification - This is a substantial condition which cannot be taken as a procedural condition, as it shifts the duty liability from job worker to supplier of raw materials or semi-finished goods - Until and unless this condition of giving undertaking is fulfilled, duty cannot be fastened on supplier of raw materials or semi-finished goods, as they were not the manufacturers of marble slabs/tiles - The condition of exemption notification has to be construed strictly and if any condition is not fulfilled, same cannot be applied to a situation - Matter remanded to original Adjudicating Authority with directions to calculate the quantum of marble slabs cleared on job work basis as per formula prescribed in tariff; to calculate duty on job work by taking value of job work goods (including cost of marble blocks); penalty amount under Section 11AC shall also be modified accordingly: CESTAT
- Matter remanded: DELHI CESTAT |
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