2023-TIOL-102-SC-SERVICE-LB
Dr Jaya Thakur Vs UoI
Service - Director of Enforcement - Petitioner seeks a writ, order or directions in the nature of certiorari for quashing of order dated 17th November 2021 passed by the respondent No.1 for further extension of tenure of the respondent No.2 - In Writ Petition (Civil) No.1106 of 2022, a further extension granted to respondent No.2 vide order dated 17th November 2022 has also been challenged - All these petitions also challenge the validity of Central Vigilance Commission (Amendment) Act, 2021, the Delhi Special Police Establishment (Amendment) Act, 2021 and the Fundamental (Amendment) Rules, 2021.
Held:
+ What has been provided by the Amendments to the CVC Act [Central Vigilance Commission (Amendment) Act, 2021] and the DSPE Act [Delhi Special Police Establishment (Amendment) Act, 2021] is that the period for which such Director of Enforcement or the Director of CBI holds office on his initial appointment may, in public interest, on the recommendation of the Committee, which under the statutory scheme was required to recommend the appointment of such Director, for the reasons to be recorded in writing, be extended up to one year at a time. The second proviso provides that no such extension shall be granted after the completion of a period of five years in total including the period mentioned in the initial appointment. [para 64]
+ Role of the judiciary is to ensure thatthe Legislature and the Executive function within the constitutional limits. The role of this Court is limited to examine as to whether the Legislature or the Executive has acted within the powers and functions assigned under the Constitution. [para 68]
+ Court has held that the statute enacted by Parliament or a State Legislature cannot be declared unconstitutional lightly. To do so, the Court must be able to hold beyond any iota of doubt that the violation of the constitutional provisions was so glaring that the legislative provision under challenge cannot stand. It has been held that unless there is flagrant violation of the constitutional provisions, the law made by Parliament or a State Legislature cannot be declared bad. [para 70]
+ It has been held that Parliament and the legislatures, composed as they are of the representatives of the people, are supposed to know and be aware of the needs of the people and what is good and bad for them. The court cannot sit in judgment over their wisdom. [para 71]
+ It has been held that the Court must make every effort to uphold the constitutional validity of a statute, even if that requires giving a strained construction or narrowing down its scope. [para 72]
+ Constitution of the Committee for appointment of Director of Enforcement is wider than what is ordered by this Court in the case of Vineet Narain (supra) and consisting of Central Vigilance Commissioner as well as Vigilance Commissioners. [para 84]
+ Extensions can be granted by the Government only if the Committees, which are constituted for recommending their appointment, recommend their extension, in public interest and also record the reasons in writing. [para 90]
+ It isclear that it is not at the sweet-will of the Government that the extensions can be granted to the incumbents in the office of the Director of CBI/Director of Enforcement. It is only on the basis of the recommendations of the Committees which are constituted to recommend their appointment and that too when it is found in public interest and when the reasons are recorded in writing, such an extension can be granted by the Government. [para 91]
+ When a committee can be trusted with regard to recommending their initial appointment, Bench sees no reason as to why such committees cannot be trusted to consider as to whether the extension is required to be given in public interest or not. [para 93]
+ Bench is unable to accept the arguments that the impugned Amendments grant arbitrary power to the Government to extend the tenure of the Director of ED/CBI and has the effect of wiping out the insulation of these offices from extraneous pressures. [para 94]
+ Benchis of the considered view that the challenge to validity of Central Vigilance Commission (Amendment) Act, 2021, the Delhi Special Police Establishment (Amendment) Act, 2021, and the Fundamental (Amendment) Rules, 2021 fails. [para 98]
+ Court rejected the contention [case of Common Cause (2021)] that the Government does not have a power to extend the tenure of the Director of Enforcement beyond a period of one year. In spite of holding this, this Court specifically observed in para 23 that no further extension shall be granted to the second respondent. In Common Cause (2021), this Court had not struck down any law, but had issued a mandamus which was binding on the parties before it. [para 102, 111]
+ Respondent No.1 could not have issued orders dated 17th November 2021 and 17th November 2022 in breach of the mandamus issued by this Court vide its judgment dated 8th September 2021 in Common Cause (2021). [para 116]
+ However, Bench is inclined to take into consideration the concern expressed by the Union of India with regard to Financial Action Task Force (FATF) review. We are further inclined to take into consideration that the process of appointing the Director of Enforcement is likely to take some time. In that view of the matter, we find that in order to ensure the transition to be smooth in the larger public interest, it will be appropriate to permit respondent No.2 to continue to be in office till 31st of July 2023. [para 119]
- Petitions disposed of: SUPREME COURT OF INDIA
2023-TIOL-98-AAR-GST
Aakash Food Products Pvt Ltd
GST - Applicant is a flour miller, engaged in providing services of crushing wheat provided by the State Government, into fortified atta which in turn is supplied by the State Government through Public Distribution System - Value of supply shall be the consideration in money as well as non-cash consideration which include gunny bags, bran and refraction - Supply of services by way of milling of food grains into flour (atta) to Food & Supplies Department, Govt. of West Bengal for distribution of such flour under Public Distribution System is eligible for exemption under serial no. 3A of the Notification No. 12/2017-Central Tax (Rate) since the value of goods involved in such composite supply does not exceed 25% of the value of supply: AAR
- Application disposed of: AAR
2023-TIOL-799-HC-P&H-CX
Pr.CCGST Vs Suraj Solvents And Vanaspati Industries
CX - It is the case of the department that the respondent assessee had also failed to declare to the department that the inputs on which the respondent intended to avail modvat credit would also be used in the manufacture of exempted goods and hence did not comply with sub-Rule 9 of Rule 57 CC(1) of the Rules, 1944 - Commissioner, Central Excise, in remand proceedings, vide order dated 23.06.2011 confirmed the demand of Rs.12,25,95,962/- by invoking the extended period of five years and penalty of equivalent amount was imposed - In appeal, the Tribunal vide order dated 25.04.2018 held that the demand of 8% of the value of exempted goods was not maintainable - Revenue is in appeal against the said order.
Held : By way of amendment in the Act, 2010, the Rules, 1944 were amended and Rule 57CCC was inserted for reversal of actual credit by the manufacturer availing the credit of specified duty in respect of inputs used for manufacture of final product, which was chargeable to duty or chargeable to nil rate of duty by payment of amount equivalent to amount of credit attributable to inputs used in the manufacture of such final products - As per Section 69 of the Act, 2010, the amendment was retrospective in nature and a person opting to pay the amount in accordance with the provisions of Rules, 1944, was required to pay the same along with interest specified thereunder - Respondent had reversed the MODVAT credit amounting to Rs.4,51,574/- on proportionate basis in respect of the inputs used in the manufacture of exempted final products and also paid interest @24% per annum on the amount of reversed credit during the pendency of the appeal pending before the Tribunal earlier - Respondent was bonafidely prosecuting its remedy before the appropriate forums till the date of reversing the credit - No doubt, the application contemplated under Section 69(2) of the Act, 2010 had not been moved by it before reversing the credit, but in the light of amended provisions of Rules, 1944, it was not necessary to consider this contention on merits since the amended provisions covered such situations like the present one - Tribunal had rightly set aside the demand of the appellant of tax of 8% of value of exempted goods and Bench sees no reason to allow the appeal - Revenue appeal is dismissed: High Court [para 8, 9, 10]
- Petition allowed: PUNJAB AND HARYANA HIGH COURT
2023-TIOL-798-HC-P&H-CX
Suraj Innovative Technologies Vs CGST & CE
CX - CENVAT - Petitioner was issued impugned show cause notice dated 24.02.2009 - Petitioner gave its reply dated 03.02.2010 - Respondent vide letter dated 16.02.2010 fixed the matter of hearing on 25/26.02.2010 and which was attended by the assessee - After a gap of 10 years, the respondent vide letter dated 10.02.2021 again fixed the matter for hearing on 19.02.2021 - On 13.02.2021, petitioner requested the respondent to adjourn the matter as he was travelling overseas and the hearing for re-fixed on 16.03.2021 - Petitioner is now challenging impugned SCN dated 24.02.2009 on the ground that in terms of s.11A as amended by the Finance Act, 2001, an order is required to be passed within a period of one year - Counsel for Respondent Revenue contends that show cause notice was transferred to call book on 24.12.2010 as the similar issue was pending in Supreme Court in the case of Commissioner of Central Excise, Indore vs. M/s Grasim Industries Ltd and vide judgment dated 11.05.2018 = 2018-TIOL-181-SC-CX-CB , the case was decided and thus, in the present case, the personal hearing was fixed for 19.02.2021; that in view of circular dated 26.04.2016 issued by CBEC, the delay of 10 years cannot be taken as a ground to quash the show cause notice.
Held: Issue in the present case is squarely covered in favour of the petitioner keeping in view the judgments referred to, especially the decision rendered in GPI Textiles Ltd.'s case ( 2018-TIOL-1686-HC-P&H-CX ) - Since, no interim stay has been granted by the Supreme Court in the above mentioned appeals, the present petition is allowed and the impugned show cause notice dated 24.02.2009 is set aside: High Court
- Appeal dismissed: PUNJAB AND HARYANA HIGH COURT
2023-TIOL-797-HC-P&H-CX
CCE & ST Vs Nandan Autotech Ltd
CX - CENVAT - DGCEI case is that the respondent was availing CENVAT Credit on raw material and furnace oil etc. without actual receipt of the said inputs; that the transport vehicles had not entered Information Collection Centres (ICCs) - Tribunal observed that M/s Nandan Auto Tech Ltd. had produced certificate issued by the Excise and Taxation Officer, Ludhiana, certifying that the assessee had received the material on each and every one of the disputed invoices - The department had not challenged the said certificate - Rather, said certificate was verified by the Excise and Taxation Officer, Ludhiana, who had confirmed that the certificate was duly issued by the office on 10.01.2006 - Keeping this in view, the Tribunal further observed that the assessee is entitled to avail CENVAT credit on the invoices in question - Revenue is in appeal against the order dated 14.03.2018 passed by CESTAT.
Held : Appellant Revenue has not been able to dispute the fact that the certificate was issued by the Excise and Taxation Officer, certifying that the assessee had received the material on each and every one of the disputed invoices - Once, such certificate had been issued, the benefit of CENVAT Credit cannot be denied to the assessee-respondent - The adjudicating authority, vide order dated 22.09.2008 confirmed the demand of Rs.3,73,537/-, out of Rs.1,40,05,657/- of CENVAT Credit on FO/LDO - Observations made by the adjudicating authority establishes that as per the investigation carried out by the CBI, the respondent had actually manufactured the goods and their export was genuine - Therefore, the respondent-assessee was entitled to claim CENVAT credit on the inputs of goods - No ground is made out to interfere in the impugned order as the same has been passed after appreciating the evidence in the right perspective - Revenue appeal is dismissed: High Court
- Appeal dismissed: PUNJAB AND HARYANA HIGH COURT
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