2023-TIOL-1013-HC-MAD-VAT
Chennai Petroleum Corporation Ltd Vs Deputy Commissioner (ST)-III
Whether recovery notice and garnishee notice merit being set aside where they have been issued without noting that Stay had been granted by the VAT Tribunal in respect of the matter at hand - YES: HC
- Writ petition allowed: MADRAS HIGH COURT
2023-TIOL-777-CESTAT-DEL
Shatabdi Pest Control Vs CC & CGST
ST - The Commissioner (A) has dismissed the appeal on the ground that appeal had been filed beyond statutory time limit of 2 months specified under section 85 of Finance Act, 1994 and condonation of delay application was not filed for condoning the delay - It is not in dispute that order dated 30.03.2016 was received by appellant on 12.04.2016 and appeal was filed before Commissioner (A) on 11.07.2016 - It is, therefore clear that appeal was filed within extended period of one month contemplated under section 85(3)(a) of Finance Act - Thus, in case an application for condonation of delay had been filed, Commissioner (A) could have examined whether appellant was prevented by sufficient cause from filing the appeal within stipulated period of two months - The issue that arises for consideration is, whether an opportunity can now be provided to appellant to move an application for condonation of delay - The Kerala High Court in case of The Federal Bank Ltd. in an identical matter, held that if there is delay, the office should have brought the fact to notice of petitioner and given an opportunity to explain the delay, more particularly if appeal was registered without noticing that there was any delay - Tribunal deems it appropriate to provide an opportunity to appellant to move an application for condonation of delay - In case such an application is filed, an appropriate order shall be passed by Commissioner (A) - The order dated 29.12.2017 passed by Commissioner is accordingly, set aside with liberty to appellant to move an appropriate application for condonation of delay within a period of one month - If such an application is filed, Commissioner shall decide it on merits: CESTAT
- Appeal allowed: DELHI CESTAT
2023-TIOL-776-CESTAT-AHM
Hussain Sheth Ispat Vs CC
Cus - Appellant is engaged in importation of old and used ships/vessels for breaking purpose, they contracted for purchase of ship MV Ocean Beauty for breaking with M/s. Navamosa Navigation and entered into Memorandum of Agreement (MOA) - It appears that during final assessment of bill of entry, appellant was called upon to submit original documents, and vide letter appellant submitted notarized commercial invoice, bill of sale - The commercial invoice showed Light Displacement Tonnage (LDT) of vessel 12310 plus an additional 401.323 MT steels plates on the tank top over area of 3432.7 m2 - Based on this, department proceeded to recover differential duty - Parties have agreed a lump sum purchase price of USD 5,815,747; there is no reference to LDT made for arriving at the purchase price by parties to the agreement, in other words purchase price agreed between parties is not in proportion to LDT - Further, it is not the case of revenue that any consideration over and above the agreed purchase price has been paid by importer to the foreign seller - Revenue has sought to assess higher duty only on the basis of commercial invoice submitted wherein details of additional LDT of 401.323 MT is mentioned - There is otherwise no corroboration whether LDT mentioned in MOA and survey report is inclusive of 401.323 MT or otherwise - It is observed that parties have agreed upon a lump sum price of USD 5,815,747 for the ship as a whole and absent any allegation or evidence of extra consideration having been made by importer over and above the said price, transaction value as declared by importer has to be accepted - Lower authorities clearly erred in loading the assessable value entirely based on LDT when the LDT is irrelevant for assessment of duty - Said issue is already decided by Tribunal in case of J.R.D. Industries - Impugned order cannot be sustained, same is set aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
2023-TIOL-775-CESTAT-AHM
Astral Pharmaceuticals Industries Vs CCE & ST
CX - The only question needs to be answered is, whether the original adjudicating authority of refund claim was required to issue a SCN before appropriation of confirmed dues - It is a matter on record that amount of duty and penalty which has been confirmed by Additional Commissioner vide his order dated 07.01.2010 has already attained finality - Appeal filed by appellant against this order has already been rejected by Commissioner (A) - Tribunal do not find any order on the confirmed dues as per order of Additional Commissioner dated 07.01.2010 - It is a matter on record that Assistant Commissioner processed the refund claim of appellant and thereafter the entire amount which was deposited by them amounting to Rs. 7,49,664/- has been sanctioned and as per the provisions of Section 11 of Central Excise Act, 1944, the confirmed dues amounting to Rs. 5,89,662/- has been appropriated from refund amount due to the appellant - Therefore, no legal short-coming found in order of Adjudicating Authority - As no stay found on the confirmed dues and as per provisions of Central Excise Act, 1944, the officer sanctioning the refund is authorised to make deductions of any tax dues which are recoverable from the appellant - Appeals are without any merit and deserve to be dismissed: CESTAT
- Appeals dismissed: AHMEDABAD CESTAT |
