2023-TIOL-1165-HC-DEL-CUS
SMS Logistics Vs CC
Cus - CBLR, 2013 - Appellant had filed an appeal before the CESTAT against an Order-in-Original dated 15.11.2017 passed by the respondent revoking the appellant's Custom Broker License and further imposing a penalty of Rs.25,000/- - Since the CESTAT had rejected their appeal, therefore, the present appeal under Section 130.
Held: It is relevant to bear in mind that the proceedings under CBLR are in essence disciplinary proceedings to ensure compliance with the statutory provisions - It is essential that the Customs Department has full confidence in the Customs Broker and can proceed on the basis that he has discharged his obligations faithfully and with due diligence - Therefore, the punitive measure imposed by the Department is normally not required to be interfered with - However, in cases where it is found that the measure imposed is disproportionately excessive, the order of punishment would require to be interfered with - The question whether there was any loss of revenue as a consequence of actions of the appellant is a material factor for consideration by the respondent while determining the punitive measure to be inflicted on the appellant - It was conceded that there was no loss of revenue - CESTAT had failed to consider whether the punishment imposed was disproportionately high - Bench is of the view that the punishment of revocation of appellant's CB License is disproportionately excessive - Bench sets aside the impugned order revoking the appellant's CB License and directs that in the event the appellant seeks renewal of the CB License or applies afresh, the same would be considered in accordance with law - CB License was valid till 25.04.2023 and thus in any event would have expired - Appeal is disposed of: High Court [para 41, 48, 50, 52, 53]
- Appeal disposed of: DELHI HIGH COURT
2023-TIOL-1164-HC-DEL-GST
Xilinx India Technology Services Pvt Ltd Vs Special Commissioner
GST - Petitioner's application for refund of IGST of Rs.1,83,34,289/- was rejected, therefore, the present petition - According to the respondents, the petitioner and its holding company are establishments of a single person and, therefore, the services provided by the petitioner to its holding company did not constitute as export of services within the meaning of Section 2(6) of the IGST Act.
Held : The petitioner is a separate entity and it is settled law that identity of an incorporated company is separate from that of its shareholders - Services rendered by a subsidiary of a foreign company to its holding are not covered under Section 2(6)(v) of the IGST Act and the same is beyond any pale of controversy in view of the Circular dated 20.09.2021 issued by the CBIC - It is clear that the impugned order has been passed without application of mind and in disregard of the provisions of law - The relevant circular was brought to the notice of the respondents by the petitioner but respondent no.1 completely ignored the same and proceeded to pass the order mechanically - There is no ground whatsoever for holding the view that the petitioner is an intermediary - The terms of the Agreement are unambiguous - The petitioner has provided services on principal-to-principal basis - The services provided by the petitioner are on its own count and not facilitated by provision of services from any third-party services provider - Bench also express displeasure in respect to the cavalier manner in which respondent no.1 has passed the impugned order without considering the settled law and the Circular dated 20.09.2021 issued by the department despite the same being brought to its notice - Such orders, apart from unnecessarily increasing the burden of tax litigation, have a debilitating effect on the confidence of taxpayers in the tax department - Respondents are directed to forthwith process the petitioner's claim for refund along with interest - Petition allowed: High Court [para 9, 11, 12, 13, 14]
- Petition allowed: DELHI HIGH COURT
2023-TIOL-1163-HC-DEL-GST
Goyal Metal Udyog Vs CCGST
GST - Petitioner seeks a direction to the respondents to release the amount of Rs.50,70,000/- seized by the Respondents; to allow the Petitioner to adjust the amount of Rs. 11,41,750/- against future liability; to award cost.
Held: Insofar as the power under Section 67(2) of the CGST Act, to seize cash on the ground that it is unaccounted cash is concerned, the said issue is covered in favour of the petitioner by the recent decision in Deepak Khandelwal Proprietor M/s Shri Shyam Metal - 2023-TIOL-1007-HC-DEL-GST and, therefore, the currency seized is required to be released to the petitioner - Insofar as the petitioner's prayer for adjustment of Rs. 11,41,750/- against future liability is concerned, it is not disputed that the petitioner had deposited it voluntarily, therefore, petitioner is also not precluded from filing an appropriate application for refund of the said amount, if otherwise due - Respondent is directed to remit the proceeds of the fixed deposit (along with interest) to the bank account of the petitioner, within a period of one week - Petition allowed: High Court [para 13, 14, 18]
- Petition allowed: DELHI HIGH COURT |
