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2023-TIOL-524-CESTAT-MUM
CC Vs Kiran Gems Pvt Ltd
Cus - All that remains for resolution in dispute is that of valuation of impugned goods - Value, at the best of times, is difficult to ascertain for, ultimately, it remains a buyer-seller transaction and their mutual agreement on price to be paid - More so, in a commodity such as 'rough diamonds' which is surrendered to Man by Mother Earth and in the nature of all primary produce that is, generally, not used as such, 'price discovery' is a complex tangle of factors - Insofar as these goods, as presented for clearance, are concerned, its appearance is highly deceptive and contingent upon skill in cutting to reveal capability of capturing light for reflecting it back - Though the declared classification has been referred to, and discussed with reference to representative samples drawn by expert valuers and concluded thereto on conformity with prescriptions, nothing turns on that for any detriment under section 111 of Customs Act, 1962 directly; indeed, that was not an aspect agitated in appeal of importer before first appellate authority - From the reports of expert valuers, Tribunal is unable to ascertain that conformity; indeed, in crossexamination at adjudication stage, Mr Surajratan Agrawal was disinclined to disclose the manner in which suggested value could be justified lest it compromise his professional and commercial interest - The lack of credibility of such reports cannot be overstated ever - It is quite possible that purposeful misdeclaration of value by importers of articles, such as 'rough diamonds', may warrant recourse to rule 9 of Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 but the peculiarities of a trade upon which customs officials may be entirely dependent for expertise and whose activities may, even validly, be veiled under layers of secrecy may not be found by assessing officers to be of concern but the law cannot be ignored - Tribunal cannot carve out exceptions to the law and, if at all, such opinion is to be relied upon, the valuer must, unequivocally, be prepared to narrate and stand by, justifications for such value - Absent that, substituted value will fail the test of law, as it does in present dispute and will have to be held as untenable even at the cost of declaring such instructions, if any, as not implementable - The orders of lower authorities leave no room for doubt that there is no difference in rate of 'nil' duty, corresponding to either of tariff items – declared or substituted – in dispute, with implication that Customs Tariff Act, 1975 is not germane to impugned goods - It is not the case of lower authorities that any other law, requiring declaration of 'value' in bill of entry for any purpose other than assessment to duty, has been breached insofar as present dispute is concerned - In such circumstances, section 14 of Customs Act, 1962, or any Rules framed thereunder, is not of relevance to the impugned goods - Consequently, Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 cannot be brought to bear on impugned goods - The valuation is purely academic and thus, reiterate earlier observation that agencies of State must restrict their statutory intervention only within the intent of statute - Any excess of that will not only imperil their action but also have consequences in law - Tribunal stop with the consequence of action being imperiled to set aside the impugned order and allow the appeals of importer and the individual-appellants with consequential relief - The importer may, if it chooses to, exercise right to re-export without any restraint on the goods subject to compliance with section 50 of Customs Act, 1962 - Upon seeking of re-export, the goods shall be released to them within a period of one month: CESTAT
- Revenue's appeal dismissed: MUMBAI CESTAT
2023-TIOL-517-CESTAT-MUM
Mula Sahakari Sakhar Karkhana Ltd Vs CCGST & CE
CX - Appellant had a co-generation plant to generate electricity - Part of electricity was used within factory for manufacture of sugar and part of electricity was supplied to Maharashtra Electricity Board (MSEB) - Appellant have availed CENVAT Credit of duties and Service Tax paid on inputs and input services going into manufacture of electricity - Entire CENVAT Credit availed by appellant has been reversed alongwith interest - The question whether interest is appropriately paid or not, cannot be decided in view of the fact that O-I-O does not reflect clearly the interest to be paid by appellant - During hearing what is appropriate interest that should have been paid by appellant could not be specified by Revenue - Merely by saying that interest was short paid will not be sufficient to interfere in issue particularly since neither O-I-O nor O-I-A did specify the quantum of interest that was required to be paid - It was possible to arrive at the quantum of interest by original authority since the entire CENVAT Credit was paid back on 30.12.2016 and O-I-O was issued on 27.02.2017 - Therefore, penalty imposed on appellant is set aside: CESTAT
- Appeal allowed: MUMBAI CESTAT
2023-TIOL-516-CESTAT-MAD
A Vijayakumar Vs CCE & ST
ST - The Appellant is alleged to be rendering Cargo Handling Service, without registering with the Department - This appears to have prompted the Officers of Headquarters Preventive Unit, Salem, to visit the premises of the appellant on 06.07.2008 - During their visit, the officers required the Books of Accounts, Balance Sheet, Agreement, etc., for verification - Later, on 17.07.2008, they appear to have recorded a statement from the appellant - The appellant revealed the nature of his work, of loading cement from containers at Railway Goods Shed, Salem, to the trucks; transporting the same to the godown of M/s. J.K. White Cement Works at Salem / to the customers at various places in Tamil Nadu - The Appellant also admitted to be unloading goods from trucks at the godown of M/s. J.K. White Cement Works, Salem - The Appellant would raise bills for the above works as per the rate fixed in the agreement entered into with M/s. J.K. White Cement Works on 01.12.2004, renewed on 01.02.2008 - The Appellant admitted to have registered with the Department under GTA, but had not paid any tax - Hence, the Department issued a Show Cause Notice dated 12.04.2010 proposing to demand Service Tax under 'Cargo Handling Service' for the period from 24.12.2004 to 17.06.2008, appropriate interest under Section 75 of the Finance Act, 1994 and penalty under Sections 77 and 78 of the Finance Act, 1994.
Held - The clarification issued by the Board in the above CBEC Circular No. 104/7/2008-S.T. dated 06.08.2008 mainly addresses the issue in respect of a GTA who also incidentally and by virtue of a single composite contract, undertakes activities like loading/unloading, packing/unpacking, transshipment, temporary warehousing, etc., for which the GTA issues a consignment note - It is thus clarified that transportation is not the essential character of Cargo Handling Service, but only incidental to the same - It also clarifies that where the service provider is registered under GTA and issues consignment note for transportation of goods by road, then the service is to be treated as GTA and not Cargo Handling Service - It is seen from the activities of the appellant, as forthcoming from the orders of the lower authorities as well as the Show Cause Notice, that they clearly fall under the definition of cargo handling service and therefore, there is no fault with the demand - It is also found that the evasion of tax is blatant, that is to say, the Appellant though got itself registered under GTA and promptly collected the service charges as well, but however, it did not bother to remit at least the tax collected and hence, the same cannot be anything short of evasion - Over and above this, it is also a fact borne on record that the Appellant did not even file ST-3 returns within the prescribed time - Thus, we are convinced that even this contention of the appellant as to the invoking of extended period of limitation lacks merit - The judgments quoted by the Appellant are distinguishable - There is no merit in the present appeal: CESTAT
- Appeal dismissed: CHENNAI CESTAT
2023-TIOL-515-CESTAT-CHD
Meenu Rathore CB Vs CCE & ST
Cus - The present appeal was filed to contest vires of an order passed by the Adjudicating Authority in revoking license of appellant under Regulation 17(1) of CBLR 2018 for failure to comply with the provisions of Regulation 10 and 13(2) of CBLR 2018 & ordering forfeiture of security deposit under Regulation 14 as well as imposition of penalty under Regulation 18 r/w Regulation 14 of CBLR 2018 - The appellant was ranted customs broker licence by the Commissioner custom, Amritsar and was permitted to work as customs broker at various customs stations - The appellant is engaged in the customs clearance of import and export - An SCN dated 19.07.2022 alleging that the appellant sub-leased the Customs broker license and facilitated violations of Section 50 of the Customs Act, 1962, export of goods against requirement under Customs Valuation Rules, 2007, violation of provisions of the Foreign Trade Act, 1992, 1993 & not following Regulation (1) of the Foreign Exchange Management Regulation, 2000, 2015 and r/w Section 8 of Foreign Exchange Management Act, 1999, provisions of Hazardous and other Wastes Rules, 2016.
Held - The submissions made by the Counsel for the appellant do not have force and are devoid of merit - There are serious allegations made in the SCN dated 19.07.2022 against the appellant for contravention of regulation 10(b), 10(d) and 10(n) of licensing regulation, 2018 - We also find that on the alleged allegations an inquiry officer was appointed who after affording adequate opportunity to the appellant submitted the inquiry report on the basis of which SCN was issued and the allegations of violation were proved against the appellant - The Commissioner in the impugned order has considered each and every submission made by the appellant and has given reasoned finding - The Division Bench decision of the Principal Bench in the case of Swastik Cargo Ageny Vs. commissioner of Customs relied upon by the DR wherein identical allegations were there against the customs broker and the Division Bench after considering the various decisions of the Supreme Court and the High Court has upheld the revocation of Customs broker license of the customs broker - Hence appellant is guilty of violation of Regulation 10(b), 10(d) and 10(n) CBLR, 2018 - No merit in the present appeal: CESTAT
- Appeal dismissed: CHANDIGARH CESTAT |
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