2023-TIOL-811-HC-P&H-CX
CCE Vs Good Year India Ltd
CX - Proceedings initiated pursuant to the show cause notice dated 16.11.2005 were dropped by the Adjudicating Officer, vide order dated 20.03.2009 - The department filed an appeal against the above said order before the Tribunal and the same was also dismissed, vide order dated 20.02.2019 - No substantial question of law arises for consideration as with respect to this very assessment, show cause notice has already been dropped by this Court on 25.01.2007 in CEA No. 140-2006 and even SLP filed against this order has also been dismissed - Present appeal, therefore, stands dismissed: High Court
- Petition dismissed: PUNJAB AND HARYANA HIGH COURT
2023-TIOL-810-HC-KOL-CUS
CC Vs Shipping And Clearing Agents Pvt Ltd
Cus - Customs Broker Licensing Regulations, 2013 - Appeal against the order passed by Single Judge - Question which comes for consideration is whether the Tribunal was correct in refusing to accept the enquiry report on the ground that it is submitted after 90 days when the said period is directory - Obvious answer is in the negative - As five years have passed from the date of disposal of appeal by the Tribunal, sending the matter back to the Tribunal will further cause delay and hardship to the parties - Charge is found fully established as Shree Bappa Biswas, an employee of the Customs Broker categorically in his statement stated that he was fully aware that the goods were of prohibitory nature to make their export out of India and he conveyed this fact to both, the exporter and the CB - The C.B did not produce any material fact before the undersigned that either he had advised the exporter to comply with the provisions of the Act or had bring the matter to the notice of the Deputy Commissioner of Customs or Assistant Commissioner of Customs - In absence of the particulars which ought to have been obtained by the Enquiry Officer before arriving at the findings it would not be safe to put reliance on the statement of Bappa Biswas and accept the findings of the Enquiry Officer - Thus it appears that Enquiry proceedings were not conducted in an independent manner - Findings of the enquiry officer cannot be sustained as it is based on the statement of sole witness Bappa Biswas who could not be cross examined and the enquiry officer did not put questions to obtain material particulars with regard to his statement and the facts of the case, and relied fully on the statement of Shri Biswas before Assistant Commissioner of Customs - It appears that Pr. Commissioner of Customs (Airport and Admin) without taking into consideration the representation made by the respondent explaining different facts relating to the show cause notice, issued Order of revocation - Findings of the enquiry officer and decision of the Principal Commissioner of Customs (Airport and Admin) with regard Article of Charge-I, and Article of Charge-II are perverse and the same are set aside - Appeal thus stands disposed of: High Court
- Appeal disposed: CALCUTTA HIGH COURT
2023-TIOL-809-HC-KOL-CUS
CC Vs Shipping And Clearing Agents Pvt Ltd
Cus - Revocation of Customs Broker license - The petitioner is a customs broker who does operation in West Bengal-Bangladesh border area - The subject matter of this case is illegal exportation of contraceptives to Bangladesh - There are certain kinds of contraceptives which the Government of India subsidises for poor, as a result of which they are sold at a much cheaper rate in market than other contraceptives - Being so priced, Government of India does not permit its export so as to prevent other countries from enjoying the price benefit - Petitioner as a clearing house agent is accused of connivance with exporter by aiding and abetting this illegal exportation of contraceptives - The Commissioner by taking into account all the materials on record had made the order holding the petitioner guilty and revoking his licence altogether forfeiting his security deposit - The question which now arises is, whether Tribunal was right in not accepting enquiry report filed beyond time - Requirement to file the report within 90 days was not mandatory at all - Even if filed on 21st December 2015 well beyond 90 days, it had been taken on record by adjudicating authority - However, it was discretion of Tribunal as to what weight it would put on enquiry report - The Tribunal, presided over by a retired High Court Judge had on consideration of conduct of petitioner and the manner in which enquiry had been conducted including the time taken to submit it, decided not to attach any weight to it at all and rejected it - This was an exercise of discretion by Tribunal - Under Section 130 of said Act, an appeal on only a substantial question of law can be entertained - This is not such an exercise of discretion which is so grossly erroneous or unreasonable so as to render it perverse - Hence, no substantial question of law arises from impugned order of Tribunal - The licence of petitioner was suspended eight years ago and such suspension is continuing - Even if petitioner is adjudged guilty of illegal exportation of contraceptives to Bangladesh, eight years' suspension of licence has been proportionate punishment considering the dicta of a Division Bench of court in Marico Logistics Pvt. Ltd. 2022-TIOL-1033-HC-KOL-CUS - Court is not minded to interfere with the impugned judgement and order of Tribunal - The other Justice sitting on the bench shall take a decision in the matter, by a separate judgment and order to be delivered on a later date: HC
- Appeal dismissed: CALCUTTA HIGH COURT
2023-TIOL-611-CESTAT-KOL
Prudential Security Vs CCGST & CE
ST - Assessee is engaged in providing service under category of 'Security Service' - A SCN was issued, by which assessee was directed to show cause as to why Service Tax should not be recovered from them under proviso to Section 73(1) of Finance Act, 1994 along with interest in terms of Section 75 of said Act - Proposal for imposition of penalty was also made - Commissioner(A) though accepted excess payment made by assessee, but denied adjustment for not following the procedure by intimating jurisdictional Superintendent within a period of 15 days - It has been time and again held by Tribunal and superior Courts that substantial benefit should not be denied to assessee on account of procedural lapses - Accordingly, adjustment of excess amount paid by assessee should be allowed to be adjusted in subsequent returns - The question of charging interest on this account and imposition of penalty is not tenable and same is set aside - It has also been established time and again that one to one co-relation is not required and any amount paid in excess is eligible to be adjusted against demand of subsequent period - Further, as regards penalty imposed under section 78 of Finance Act, 1994 - Adjudicating authority has categorically recorded that details were obtained from ST-3 Returns and financial accounts of assessee - If assessee had recorded the amount in their books of account and filed returns indicating therein it cannot be said that provisions of section 78 of Finance Act, 1994 would be applicable inasmuch as there is no intention to evade Service Tax liability - Provisions of Section 78 do not get attracted - Accordingly, by invoking provisions of Section 80 of Finance Act, 1994, penalty imposed by Adjudicating authority under Section 78 of Finance Act, 1994 is set aside: CESTAT
- Appeal allowed: KOLKATA CESTAT
2023-TIOL-610-CESTAT-MUM
Greaves Cotton Ltd Vs CCE & ST
CX - The appellant is manufacturing excisable goods and availing credit on capital goods - The issue involved is availment of Cenvat Credit by appellant on customs duty alongwith interest paid by them through TR-6 challan on 'Greaves 1.51 Diesel Engine 77 KW' which they initially imported from China under Scheme 'ATA Carnet' for purpose of exhibition without payment of duty but later on decided to retain the same for Research & Development (R&D) purpose in order to use it as a prototype for manufacture of their goods - TR-6 challan has already been held as valid document by 1st appellate authority and Revenue has not challenged that issue by way of any appeal therefore it attained finality - The engine in issue is undisputedly falls under Chapter 84 therefore one limb of Rule 2(a) ibid has been fulfilled, the another limb is that it must be used in factory of manufacturer of final product - According to Commissioner, appellant has failed to submit any corroborative evidence to establish the use of said engine for any research purpose in their factory whereas appellant submits that all relevant evidences were produced by them before Commissioner - Appellant produced test data sheet in respect of LEAP 3 Cyl diesel engine variant indicating the use of imported engine in their factory - The test data sheet as produced may be a relevant document for their purpose but authority below will be the appropriate authority to appreciate the same and therefore without going into the other aspect viz. suppression by appellant, imposition of penalty, Tribunal is inclined to grant one more opportunity to appellant to produce evidences including test data sheet to establish the use of said engine for any research purpose in their factory and for that purpose matter remanded back to Commissioner (A) for deciding the same afresh - The issue regarding TR-6 challan has already attained finality - The appellant is directed to produce all relevant documents/ evidences they wish to rely upon in support of their submission before Commissioner (A): CESTAT
- Matter remanded: MUMBAI CESTAT |
