2023-TIOL-1158-HC-AHM-GST
Arvindbhai Balubhai Vora Vs State of Gujarat
GST - Application is filed by applicant for regular bail after filing of charge-sheet in connection with FIR registered - The applicant is in custody since 14.02.2023 - Investigation is over and charge-sheet has been filed by Investigating Officer but till date charge has not been framed - No notice has been issued to applicant by GST authority - Since the charge sheet is filed; trial may take its own course - Other co-accused have been released on regular bail either by this Court or by Sessions Court - Applicant is ready and willing to give an undertaking to cooperate in investigation as and when it will be required by officer concerned - Considering the nature of allegations made against applicant in FIR, without discussing the evidence in detail, prima facie, Court opines that this is a fit case to exercise the discretion and enlarge the applicant on regular bail - Hence, applicant is ordered to be released on regular bail on executing a personal bond to the satisfaction of trial Court and subject to conditions - At the trial, trial Court shall not be influenced by observations of preliminary nature qua the evidence at this stage made by this Court while enlarging the applicant on bail: HC
- Application allowed: GUJARAT HIGH COURT
2023-TIOL-1157-HC-P&H-CUS
Shree Balaji Industries Vs Addl./Joint CC
Cus - The petitioner is seeking quashing of impugned order rejecting their request for grant of provisional release of goods imported vide Bill of Entry - As per notfn dated 26.04.2021 read with notification dated 21.06.2022, Watermelon Seeds fall in category of "restricted" after 30.09.2022 and for importing the same, a valid permit is required to be issued by competent authority which the petitioner did not have - The provisional release of Watermelon Seeds is rejected as "prohibited goods" - Watermelon seeds are restricted goods but they cannot be treated as prohibited goods and in absence of any permission/authorization for DGFT, provisional release can be done as per the judgment of Supreme Court passed in Atul Automations Pvt. Ltd. 2019-TIOL-35-SC-CUS-LB - Moreover, during the pendency of petition, report from Plant and Quarantine Department has come in favour of petitioner as regards Watermelon Seeds and in case of Red Kidney Beans, they have been ordered to be released provisionally subject to conditions as per impugned order - The order with same conditions can be passed in this case as well as Watermelon Seeds do not fall under "prohibited" category and they fall under "restricted" category as per notifications dated 26.04.2021 and 21.06.2022 - The provisional release can be ordered subject to final decision taken by Adjudicating Authority under Section 105 of Customs Act, 1962 - Impugned order is set aside qua Watermelon Seeds with direction to respondent to pass provisional release order of Watermelon Seeds as per conditions imposed in case of "Red Kidney Beans" under order dated 23.02.2023, within a period of one week: HC
- Writ petition allowed: PUNJAB AND HARYANA HIGH COURT
2023-TIOL-845-CESTAT-MUM
Hindustan Construction Company Ltd Vs CST
ST - Issue relates to confirmation of duty demand under section 73(2) of Finance Act, 1994 along with statutory interest on confirmed amount as per provision of section 75 with equal penalty under Section 78 and additional penalty under Section 77 of said Act against appellant for providing 'corporate guarantee' to one M/s Lavasa Corporation Ltd against loan obtained from various financial institutions in exchange of 'credit protection fee' - When both corporate guarantee and bank guarantee are held to be akin to each other, the only inference that can be drawn is that incorporation of one of it would mean presence of other - Having said so, Tribunal have no second opinion on the issue that purpose of 'corporate guarantee' and 'bank guarantee' are one and same and while one is the species the other one is its genesis - Difference that is undisputedly there is that "bank guarantee" is open to all its consumers while corporate guarantee is confined to subsidiary or related units of company - Contention of appellant that they being registered under Indian Companies Act, 1956 is not a 'body corporate' is unacceptable for the reason that Section 2(11) of Companies Act, 2013 defines 'body corporate' to include a private company, public company, personal company, small company, limited liability partnership and foreign company including a corporation incorporated under Companies Act, 1956 - The appellant having received consideration against providing guarantee to its related company M/s Lavasa Corporation Ltd in the form of 'corporate guarantee' and 'credit protection guarantee' service is liable to pay service tax and therefore, demand raised against appellant is justified except for extended period since the issue remained unsettled due to divergent opinion expressed by different judicial forums - The order passed by Commissioner is modified to the extent of setting aside the liabilities imposed on appellant for extended period: CESTAT
- Appeal partly allowed: MUMBAI CESTAT
2023-TIOL-844-CESTAT-BANG
Sun Microsystems India Pvt Ltd Vs CCE & ST
ST - Appellant had entered into Marketing Service Agreement with M/s Sun Micro Systems Pvt. Ltd., Singapore for the purpose of marketing/sales promotion, technical pre sales support services in India - Alleging that the services rendered by appellant classifiable under 'Business Auxiliary Services' covered under Section 65(19) of Finance Act, 1994 which is taxable w.e.f. 01.07.2003, and do not qualify to be an export service, a SCN was issued to appellant for recovery of service tax payable on services rendered during period from March, 2005 to December, 2007 and 01.01.2008 to 31.12.2008 with interest and proposal for penalty - There is no agreement between prospective customers of Sun Singapore in India and appellant - Appellant has entered into an agreement only with Sun Singapore - It is on the request and direction of Sun Singapore that appellant carried out the marketing activities in India and it is for these services that they get the consideration from Sun Singapore in convertible foreign exchange - Thus, service provided by appellant to Sun Microsystems PTE Ltd., Singapore, be considered as an 'export of service', consequently, impugned order passed by Commissioner cannot be sustained: CESTAT
- Appeals allowed: BANGALORE CESTAT |
