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2023-TIOL-120-SC-CX
CCE Vs Denis CHem Lab Ltd
CX - As per the Notification No.6/2000 - C.E. dated 01.03.2000, Serial No.47-A, exemption was provided from payment of excise duty insofar as the products (of Chapter 30) falling under the description of “intravenous fluids” - Subsequently, by Notification No.3 of 2001 - C.E. dated 01.03.2001 insofar as the subject products are concerned, it was stated as "Intravenous Fluids, which are used for sugar, electrolyte or fluid replenishment" - Taking into consideration the letter of the Deputy Drug Controller wherein it was specifically stated that Calcium Borogluconate and Calcium Magnesium Borogluconate are considered as sources of electrolyte and these were part of intravenous fluids the CESTAT held that the respondents/Assessees were eligible for the subject exemption - Aggrieved, Revenue is before the Supreme Court and it is contended that the product of the Assessee contained Boric Acid and Chlorocresol and, therefore, the purpose of the said product was for treatment of veterinary diseases such as milk fever, Tetany, liver damage etc.; that on account of the addition of the aforesaid chemicals to the said product, it would not be used for fluid replenishment per se but it is in the nature of a medicinal product, which was administered to animals such as cattle through the medium of intravenous fluids and, therefore, CESTAT is wrong to refer to the letter of the Dy. Drug Controller and extend the exemption - Assessee submitted that the addition of boric acid and chlorocresol was only to enhance the shelf life product, as such, and to ensure that the product does not decompose with the passage of time; that the composition of the product in question was nothing but what is in an intravenous fluid, in the sense that it consists of amino acids, sugar and electrolytes and is purely for the purpose of fluid replenishment and not a medicine for treatment of any disease as such.
Held : Intravenous fluids or solutions are made of chemicals, such as, sugar, electrolytes or amino acids and are necessary for the circulatory system to assimilate them and for the purpose of maintaining the electrolyte balance in the circulatory system of the body, whether of a human or an animal - The object and purpose of the grant of such an exemption is to ensure that these products are available at a reduced price and that, therefore, they can be easily accessible to be used for human beings or animals readily as it is in the nature of a life-saving product - The simple test that ought to have been followed was to note the composition of the product in question and not as to whether it was being used for treatment of any particular disease - A reading of the license issued to the Assessee makes it apparent that the composition of the product predominantly consists of Glucose (sugar) and electrolyte (minerals) which are essentially for the purpose of replenishment, not necessarily only used at the time of treatment for any particular disease but also as a preventive measure - Mere addition of Boric Acid and Chlorocresol, that too in minimal proportion, would not alter the character of the product - The product retains its essential purpose of replenishment; and not partake the character of a medicine used only for the treatment of any particular disease - CESTAT was justified in holding that the respondents/Assessees were entitled to the benefit of exemption as per the Notifications dated 01.03.2000 and 01.03.2001 - Appeals are, therefore, dismissed: Supreme Court
- Appeals dismissed: SUPREME COURT OF INDIA
2023-TIOL-950-HC-MUM-GST
Jem Exporter Vs UoI
GST - Petitioner has challenged the order of Commissioner(A) who has upheld the order of rejection of application for revocation of cancellation of registration and has also upheld O-in-O raising a demand of Rs.1,01,02,741/- and imposing interest/penalty - Petitioner submits that they had made an application for refund of ITC on exports of goods and services under section 54 of the CGST Act - Petitioner has stated that no demand could have been raised while processing the refund application, but at the most an order could have been passed rejecting the refund application; that the procedure for cancellation or suspension of registration and Rules 21A, 22 and 23 of the CGST Rules has also not been followed and the registration cannot be cancelled by issuing a notice under section 74 of the CGST Act; that the impugned order in appeal confirming the O-I-O is required to be set aside - Respondents contend that the Petitioner has failed to comply with mandatory pre-deposit of 10% for entertaining the appeal under section 107(6) of the CGST Act, 2017 ; that the appeal memo was not signed by the proprietor of the Petitioner and, therefore, the Appellate Authority was justified in rejecting the appeal on merits; that the Petitioner has purchased goods from IJM and the suppliers of IJM have been found to be non-existent, therefore, the ITC claimed by the Petitioner is not genuine and consequently, the Petitioner is not entitled to the refund; that the plea taken by the Petitioner that proper procedure for cancellation of registration and processing of refund application having not been followed, was not taken before the lower authorities.
Held: Commissioner (Appeal) was not justified in deciding the matter on merits after having come to a conclusion that the appeal is to be rejected on the ground of no proof of pre-deposit, failure to file certified copy of the order and the appeal not having been authenticated as per rule 26(2)(a) of the CGST Rules - If the appeal is rejected on this ground, then any adjudication on merits is not permissible by the Appellate Authority and would be without jurisdiction - Justice cannot be denied for failure to comply with the procedure without giving an opportunity to the Appellant to rectify the procedural defects - Order in Appeal dated 17th June 2022 is set aside and restored to the file of the Commissioner (Appeal) - Commissioner (Appeal) will issue a defect memo to the Petitioner pointing out the procedural defects in the appeal and would give adequate opportunity for rectifying the same - Petition is disposed of: High Court [para 10, 11, 17]
- Petition disposed of: BOMBAY HIGH COURT
2023-TIOL-949-HC-MAD-GST
Jai Balaji Paper Cones Vs Asstt. Commissioner Sales Tax
GST - Case of petitioner is that they had paid an amount to the second respondent by including GST on three invoices - It is therefore submitted that they cannot be asked to pay IGST - A registered person is not entitled to credit of input tax in respect of any supply of goods or services of both if tax is not paid to the Government - Registration of second respondent has been cancelled on 31.10.2018 before three invoices dated 23.11.2018 were raised - Thus, it is clear that second respondent could not have paid the tax to ex-chequer - Therefore, there cannot be a mandamus to first respondent contrary to provisions of respective GST Act of 2017 and the Rules made thereunder - Therefore, there is no merits in writ petition - The petitioner is however entitled to recover the amount from suppliers in the manner known to law: HC
- Writ petition dismissed: MADRAS HIGH COURT
2023-TIOL-948-HC-AHM-GST
Mohamed Zakir Husain Vs State of Gujarat
GST - The petitioner filed the present petition to seek release of vehicle owned by the petitioner which had been detained by the Department and duty demand had been raised with imposition of penalty - Though, the petitioner has requested for provisional release of the goods and conveyance, as provided under Section 67(6) of the Gujarat State Goods and Services Tax Act, 2017 , the Respondent-authority has not released the same.
Held - As a measure of interim relief, it is directed that the goods and vehicle of the petitioner shall be released provisionally, provided the petitioner complies with certain conditions, namely that the total amount of penalty, fine in lieu of confiscation of conveyance be deposite, fresh bonds to the fine in lieu of confiscation of the goods and that no order be passed by the Revenue in this regard: HC
- Writ petition disposed of: GUJARAT HIGH COURT
2023-TIOL-947-HC-AHM-CX
Standard Pesticides Pvt Ltd Vs UoI
CX - Commissioner of Central Excise (A) by an order dated 25.12.2017, reversed the order of Assistant Commissioner granting rebate by holding that though the bar of unjust enrichment is not attracted in case of rebate, however, the refund in the instant case should not have been paid / refunded as "unjust enrichment" clause gets attracted as the duty of excise paid by the manufacturer has been passed on to the merchant exporter - Tribunal held that as per Sec.35B it had no jurisdiction and the petitioner ought to approach the revisional authority – Petitioner submits that refusal of the Tribunal to entertain the appeal on the ground of remedy of revision was misconceived.
Held: Reading of the impugned orders i.e. of the Appellate Authority and that of the Tribunal, would indicate that the authorities below in-principle have accepted the fact that the bar of unjust enrichment is not attracted in case of rebate / refund cases - In the instant case, the respondent had exported goods through merchant exporter M/s. Syngenta India Limited - However, without any material on record and despite this clear observation, the department introduced the concept of "unjust enrichment" to reject the rebate claims of the petitioner - Even the Tribunal, invoking Sec.35(B) of the Act, unnecessarily relegated the petitioner to the revisional authority – The claims shall, in accordance with the order dated 21.06.2017, be processed and the amounts be paid to the petitioner within a period of eight weeks - Petition allowed: High Court [para 5.2, 5.3, 6]
- Petition allowed: GUJARAT HIGH COURT
2023-TIOL-946-HC-P&H-CX
Pr.CCGST Commissionerate Vs IOL Chemicals And Pharmaceuticals Ltd
CX - Benefit of Cenvat credit was allowed to the respondents with respect to steel items by holding that the same were capital goods in terms of Rule 2(a) of Cenvat Credit Rules, 2004 – Aggrieved by this Tribunal order, the present appeal by Revenue.
Held: A consistent view has been taken that benefit of Cenvat credit is to be given in respect of goods like angles, joists, beams, bars, plates, which go into fabrication of structures embedded to earth, which are to be treated as inputs for capital goods - The impugned order has been rightly passed after appreciating the facts in the right perspective and no ground is made out to interfere in the same - Appeal is dismissed: High Court
- Appeal dismissed: PUNJAB AND HARYANA HIGH COURT
Dinesh Chhotalal Bhuva Vs SIIB, APSC Customs
Cus - Application is preferred for bail under section 437 of Code of Criminal Procedure, 1973 - Applicant/accused was arrested on 04.07.2023 on allegations of indulging himself knowingly in misdeclaration of value of import diamonds and thereby allegedly committing an offence punishable under section 132 under section 135 (1) (a) punishable under section 135 (1) (i) of Customs Act, 1962 - The import of rough diamond is completely duty free - The single member panel initially held the value of imported rough diamonds as fair but thereafter three member expert panel valued it much lesser than declared value - From the statement and other evidence, it is revealed that applicant/accused is the person who imported seized diamonds by using IEC of M/s. Rampuria Exports Pvt. Ltd. which was obtained by them in 2017 - As per allegations, its value from declared value is found more than Rs. 6, 41,42,076/- than the actual value as per valuation done by three members expert panel - Earlier to it one member panel held that, the declared value is fair - Therefore, it is required to see at the time of adjudication proceeding whether the diamonds were over valued and there is involvement of any money laundering/terrorist financing - Moreover, kimberley process certificate is also required to be see whether corresponding to imported diamonds during adjudication proceeding - Now on 21.07.2023 applicant/accused asked re-shipment/re-export of those diamonds by sending letter through Jailor to concern authority of which copy is filed on the record - Though Special PP submitted that, it is not falling under provisions on the basis of which it is submitted then also its fate is required to be decided by concern authority - There was sufficient time with the respondent to investigate the offence in respect of role of applicant/accused in it - Though he earlier not responded the summons but now after rejecting his anticipatory bail application by Sessions Court, his arrest in case and detention in jail for a period the circumstance are changed - Therefore, it is just and proper to enlarge him on bail on certain terms and conditions: HC - Application allowed: BOMBAY COURT OF ADLL. CHIEF METROPOLITAN MAGISTRATE |
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