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2023-TIOL-1100-HC-MAD-GST
Active Pest Control Vs Deputy Commissioner
GST - Petitioner's registration was cancelled - Time limit for filing an appeal u/s 107 expired and for filing the application for revocation of cancellation also expired, therefore, the present petition.
Held: Government had itself recognised the difficulties of assessees and had given a amnesty scheme vide Notification No.03/2023-Central Tax dated 31.03.2023 - By virtue of the aforesaid scheme, assessee's registration whose registrations were cancelled before 31.12.2022 were given a reprieve - Court had in the case of Suguna Cut-piece Center 2022-TIOL-261-HC-MAD-GST held that the provisions of the GST enactments cannot be interpreted so as to deny the right to carry on Trade and Commerce to a citizen and subjects; that petitioners deserve a chance and, therefore, should be allowed to revive their registration so that they can proceed to regularise the defaults - The above Scheme has been now extended up to 31.08.2023 vide Notification No.23/2023 –Central Tax, dated 17.07.2023 - Although the above scheme applies to those whose registrations were cancelled before 31.12.2022, the intention of the Government is to allow the registrants, whose registration have been revoked to revive their registration to carry on the business - Court is of the view that the benefit of the scheme should enure to persons like petitioner also whose registrations was cancelled after the cut-off date of 31.12.2022 - Court is, therefore, inclined to dispose this writ petition by directing the petitioner to pay the arrears of tax together with interest before the cut off date on 31.08.2023 under Notification No.23/2023–Central Tax, dated 17.07.2023 - On petitioner remitting the arrears of tax and interest amount with the respondents, the registration of the petitioner shall stands restored forthwith - Writ petition is disposed of: High Court [para 4, 6, 8]
- Petition disposed of: MADRAS HIGH COURT
2023-TIOL-1099-HC-MAD-VAT
Mahindra And Mahindra Ltd Vs Deputy Commissioner (ST)
VAT - Commercial Taxes - TN VAT Act, 2006 - Writ petition was disposed by this Court vide its order dated 16.06.2015 and wherein the matter was remanded back to the respondent to pass speaking order after giving personal hearing to the petitioner - After the order was passed by this Court on 16.06.2015, the respondent has issued a notice on 07.10.2015 and the petitioner had also replied on 27.10.2015 - Thereafter, another notice was issued on 10.03.2023 which has now culminated in the Revision Order purportedly in compliance of the order passed by this Court on 16.06.2015 - Impugned order has been challenged by the petitioner on the ground that it is a non-speaking order.
Held: The impugned order merely reproduces the lengthy reply of the petitioner dated 27.10.2015 - The impugned order has been passed after awaiting for a long period after order dated 16.06.2015 was passed - The impugned order passed is without following the principles of natural justice, therefore, the impugned order is unsustainable - The case is remitted back to the respondent to pass a speaking order on merits in accordance with law within a period of eight weeks: High Court [para 5, 6]
- Petition allowed: MADRAS HIGH COURT
2023-TIOL-813-CESTAT-MUM
SK Universal Pvt Ltd Vs CC
Cus - Issue involved is alleged overvaluation of ‘cut and polished diamonds' - Adjudicating authority has relied upon two ‘trade advisory panel' reports to discard the declaration and to conclude that the goods had been overvalued warranting resort to confiscation under section 111 of Customs Act, 1962 and consequent penalties under section 112 of Customs Act, 1962.
Held: Even if the goods involved are ‘cut and polished diamonds', which appears to have been earmarked by customs authorities for special treatment insofar as examination and valuation are concerned, the rigour of Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 does not admit to any dilution therefrom - To do so, by adjudicatory assertion or appellate affirmation, would be to throw the doors open to whimsical assessment untrammelled by reasoned justification - Here the adjudicating authority has supplanted the task devolving on assessing authority to an outside agency without even the formality of adopting such valuation as its own - There is no finding that the declared value is inconsistent with the essence of section 14 of Customs Act, 1962 nor of any ground, within the prescription of rule 3(4) of Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 enabling recourse to subsequent alternatives - Nor is there any narration in the impugned order that can lead the Bench to conclude that the process set for invoking rule 12 of Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 had been taken to its logical conclusion - The value adopted in the impugned order has not been shown to lack the impediments enumerated in rule 9(2) of Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 which is essential as the reasons that prompted the ‘trade advisory panel' to arrive at the disputed values is not on record - He ld that the re-determination of value is not in accordance with the law - Impugned order set aside and appeals allowed: CESTAT [para 7, 8, 9]
- Appeals allowed: MUMBAI CESTAT
2023-TIOL-812-CESTAT-KOL
SNM Agency Vs CC
Cus - Commissioner of Customs (Airport & Admn.) imposed a penalty of penalty of Rs. 50,000/- on M/s. SNM Agency Kolkata holding Customs Broker Licence and ordered restoration of the CB Licence - Subsequently the said licence was restored on condition of payment of penalty of Rs. 50,000/- which they have duly paid - Nonetheless, the impugned appeal was filed on 27 May 2015.
Held: The Customs Broker has been charged with violation of regulations 18(c) and 18(f), thereby alleging mis-conduct and moral turpitude and, therefore, the imposition of penalty - The precise reason for imposition penalty under regulation 18(c) is that the Customs Broker did not appear before the Deputy Director DRI, Ahmedabad against the two summons issued to him - Commissioner has held that the said disobeying of summons amounts to complete disregard of law and also holds the said disregard as a mis-conduct, in view of his contention, of deliberate non-attendance in response to summons issued under Section 108 of the Customs Act 1962 - Insofar as the charge under regulation 18(f) is concerned, it is seen that the adjudicating authority has relied upon the conviction by the Additional Chief Metropolitan Magistrate, (ACMM) Ahmedabad under Section 174 and Section 175 of the Indian Penal Code, 1860 - The ACMM had ordered simple imprisonment till the rise of Court and a collective fine of Rs.1600 has been imposed and which has been paid - Bench is of the view that having suffered the imposition of penalty by the ACMM, Ahmedabad there is least of justification in imposition of penalty involving moral turpitude, under regulation 18(f) for the said act - Bench is also of the view that this may not actually be a case involving moral turpitude, be as it is certainly not linked to an immoral act on the part of the appellant - There is no justification in imposition of maximum penalty prescribed under the regulations - Bench feels that the ends of justice would be met by imposing a token penalty of Rs. 10,000/- on the appellant, under regulation 20 of the CHALR, 2004 - Appeal is disposed of: CESTAT [para 3, 3.1, 3.2, 5]
- Appeal disposed of: KOLKATA CESTAT
2023-TIOL-811-CESTAT-AHM
National Engineering Industries Ltd Vs CCE & CGST
CX - The issue relates to availment of cenvat credit on input services, which according to Revenue are ineligible in view of exclusion clause in definition of input service as defined under Rule 2(l) of CCR, 2004 - Authorities below have specifically noted that assessee has not provided any contract/ work order/ agreement with service provider to identify the work done on behalf of appellant - Assessee has only annexed certain copies of invoices, which were not figuring in annexure to demand notice and other invoices were found attached with appeal though such invoices of service provider were part of annexure enclosed to demand - Assessee has during hearing submitted a compilation including several agreements as well as invoices of various companies - On perusal of these documents, it is found that matter needs to be reconsidered by original authority - Therefore, it would be proper to remand the matter back to Adjudicating Authority, who may examine the case in light of documents which may be submitted by parties and definition of 'input service', which comprises of three components, namely, means clause, the inclusion clause and exclusion clause - Impugned order is set aside and matter is remanded back to Adjudicating Authority for reconsideration: CESTAT
- Matter remanded: DELHI CESTAT
2023-TIOL-810-CESTAT-AHM
Abbas Mussa Vs CCE & ST
ST - During course of audit, it was observed that the appellant was providing services to M/s Senor Metals Pvt. Ltd. - The contention of department is that the services provided by appellant is classifiable under category of "Manpower Recruitment or Supply Agency Services" and appellant failed to obtained Service Tax registration and making periodical payment of Service Tax - Accordingly, SCN proposing demand of Service Tax, penalties and interests covering the period from October 2011 to June 2012 was issued - Revenue sought to classify the activity of the appellant under 'Manpower Recruitment or Supply Agency Services' - From the invoice, it can be seen that the job undertaken by appellant is sorting, shifting and cleaning of container's materials and the charges for same was claimed 1 rupee per kg basis - This clearly shows that the service recipient is not concern about number of manpower deputed for job, whereas service recipient has assigned the job to appellant only in respect of sorting, shifting and cleaning of container's materials - The control of manpower in this fact is obviously with appellant and not with service recipient - It is clear that appellant have not provided the services of 'Manpower Supply or Recruitment Agency Services', this fact is not under dispute as on this basis only the Adjudicating Authority has dropped the proceeding initiated in SCN - This issue has come up time and again before Tribunal - In view of the said decisions on the identical issue in hand, appellant have not provided 'Manpower Recruitment or Supply Agency Services' - Therefore, demand made under said category is not sustainable: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
2023-TIOL-809-CESTAT-AHM
CC Vs Shankar Packaging Ltd
Cus - Assessee is engaged in manufacture and export of goods inter alia declared as Flexible Intermediate Bulk Container (FIBC) - On going through various export documents furnished by assessee, it was noticed that assessee had declared HS code of export goods as 63053200 in their Invoices & Packing lists whereas in ARE-1s they mentioned "Flexible Intermediate Bulk Containers-HSN code 63053200 ...C.Ex. Tariff 39231090 - Hence, it was observed that for Central Excise purpose assessee had declared HS code of subject goods under Chapter 39 and for Customs purpose they declared HS Code under Chapter 63 - It is a factum of same being woven which, inter alia qualifies to make it textile - Tribunal therefore, like in the matter of M/s CTM Technical Textiles Ltd inclined to remit the matter back to have a relook into CBEC Circular 8/92 and CBEC and Trade Notice 78/94 - While doing so, appellate authority shall consider the parameters laid down by Gujarat High Court in aforesaid decision and also the relevant section notes and Chapter Notes relating to Chapter 39 as well as Section XI of schedule 1 of Customs Tariff Act, 1975 as also the Chapter Notes relating to Chapter 54, 59, 60 and 63 to arrive at its decision, it shall also properly identify the product under dispute and whether the same is made from strips of up to 15mm or more - Further, as Tribunal found that EDI System indicates that both Flexible Intermediate Bulk Containers un-coated, as well as without mention of coating were imported during relevant time, differential treatment may be required to be considered, if goods are different - Further, while considering party's classification relating to Central Excise Tariff, the existence of analogous provision under Customs Act shall also be considered - The observation relating to 'textile' of High Court of Gujarat in general, wherever relevant Chapter Notes and section notes are not available shall be duly followed - The matter is accordingly remanded for reconsideration of all these points: CESTAT
- Matter remanded: AHMEDABAD CESTAT |
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