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2023-TIOL-1230-HC-DEL-CUS
Ajay Sagar Vs Pr.CC
Cus - Order-in-Original came to be passed with the Adjudicating Authority holding the petitioner liable to pay a penalty of Rs.25,00,000/- under Section 112 of the Act and Rs. 1,00,00,000/- under Section 114AA of the Act - Petitioner is stated to have filed an appeal before the CESTAT, however, the same was not numbered as the petitioner did not comply with the provisions of Section 129E of the Act - Petitioner seeks directions for waiver of the pre-deposit requirement as placed in terms of Section 129E of the Customs Act, 1962.
Held: Writ jurisdiction would be liable to be exercised "in rare but compelling and deserving cases, when the cause of justice requires such reduction" - It is manifest that the respondents had found that the petitioner was complicit and actively involved in the evasion of duty and the intent of these parties to mis-declare imports while acting in concert - Bearing in mind the material which has been relied upon and the nature of the allegations levelled against the petitioner, Bench finds itself unable to hold that his case would fall in the category of rare and exceptional cases - Prima facie , and solely for the purposes of examining whether waiver is merited, Bench has delved through the relevant record and find that the conclusions drawn by the respondents insofar as the petitioner is concerned can neither be said to be wholly perverse or unsustainable - Bench thus finds that the circumstances do not warrant the invocation of the extraordinary power conferred by Article 226 of the Constitution - Writ petition dismissed: High Court [para 12]
- Petition dismissed: DELHI HIGH COURT 2023-TIOL-1225-HC-KERALA-VAT
Vadakken Gold Exports Pvt Ltd Vs State of Kerala
On considering the Revision Petition, the High Court observes that the order of the VAT Tribunal does not have any findings on merits and that no prejudice was being caused to the Assessee and also that all legal contentions had been left open, with liberty to the Assessee to produce evidence substantiating its contentions. Hence the Court finds no grounds to interfere with the order of the VAT Tribunal.
- Revision Petition dismissed: KERALA HIGH COURT
2023-TIOL-1224-HC-DEL-CUS
D S Cargo Agency Vs CC
Cus - Appeal filed against order passed by CESTAT - Revocation of broker licence; forfeiture of security deposit and imposition of penalty - Question that arises for consideration is whether the Appellant, under Customs Brokers Licensing Regulations is liable for reporting an offence committed in relation to goods stored in the bonded warehouse, after the same have been imported and the professional role of the Customs Broker in clearance of the goods had ended.
Held: It is apparent that a Customs Broker is required to transact the business at the Customs Station either personally or through his/her authorized employee - In the facts of this case, there is no material on record to indicate/suggest that the Appellant had not carried out the work of filing the B/Es either personally or through his authorized employee - Therefore, in the opinion of this Court there has been no violation of Regulation 10(b) of CBLR, 2018 read with 11(b) of CBLR, 2013 and the Tribunal erred in holding that Mr. Sanjeev Maggu acted on behalf of the Appellant at the Customs Station - The obligation of the Appellant in the facts of this case was to facilitate clearance of goods for warehousing, at the Customs Station and no further - Therefore, the duty of the Appellant as a Customs Broker came to an end once the imported goods, after its clearance from the Customs Station, reached the public bonded warehouse - Appellant, admittedly was not charged with any responsibility for clearance of the goods from the public bonded warehouse for the purpose of re-export - The obligation of the Customs Broker under this Regulation has to be read in the context of the duties discharged by him/her under Section 146 of the Act - There is no duty imposed on the Customs Broker under the parent Act to report commission of acts or omissions of its principal, which are in violation of the provisions of the Act - Court however takes note that the Appellant was unable to provide the KYC records of the importer firms to DRI and Customs authorities despite undertaking to do so in reply to question no. 3 in its statement dated 14.07.2017 and thereby raising an inference of lapse in collecting the KYC documents - There is no finding against the Appellant that he, in any manner, connived with the importer firms or abetted the said firms in their wrongful actions in diverting the goods to the domestic market without payment of customs duty, which led to the loss to the revenue - There is no finding that the Appellant earned extra commission for the assignment for clearance of imported goods from the Customs Station or has partaken in the illegitimate gains made by the importer firms - Keeping in view the proportionality doctrine and keeping in view that the Appellant has already been unable to work for 4 1/2 years, this Court is, therefore, of the opinion that the impugned order of the Tribunal as well as the order-in-original dated 04.02.2019 to the extent that it revokes the Appellant's license and forfeits the security deposit is liable to be set aside; however, penalty of Rs.50,000/- is upheld - Appeal disposed of: High Court [para 12.1, 12.3, 14, 14.1, 15.3, 21, 21.1, 22, 23]
- Appeal disposed of: DELHI HIGH COURT
2023-TIOL-1223-HC-AHM-GST
Trishna Trading Service Pvt Ltd Vs UoI
GST - Freezing of bank accounts - Allegation of fraudulent transactions - Bench had vide its order dated 23.02.2022 disposed of the petition with a direction to the respondent no.2 to de-freeze the three bank accounts upon the writ applicant furnishing a bank guarantee of Rs.1.25 Crore and individual undertakings of the Directors of the company; that the bank guarantee shall continue till the statutory time period of all the three orders passed under Section-83 of the Act comes to an end - Vide letter dated 01.09.2023, the Additional Commissioner has informed the Counsel for Revenue that the bank guarantee tendered by the petitioner be released - In view of the same, the petition would become infructuous and the affidavit-cum-undertaking shall also cease to operate - Petition disposed of: High Court [para 6]
- Petition disposed of: GUJARAT HIGH COURT
2023-TIOL-1222-HC-AHM-GST
Hardik Kaushikbhai Joshi Vs UoI
GST - Cancellation of registration - Petitioner has prayed to quash and set aside the show cause notice dated 20.01.2023 and the impugned order dated 22.06.2023.
Held: It is not in dispute that the issue is covered by the decision in the case of Aggarwal Dyeing and Printing Works (2022-TIOL-504-HC-AHM-GST), which has set out procedure for cancellation of registration - Court had held that by issuing a cryptic show cause notice, the authorities had violated the principles of natural justice - From the impugned order as well as the show cause notice, the reasons for cancellation are not decipherable therefrom - On the aforesaid grounds, the show cause notice and the impugned order are quashed and set aside - The petition is allowed solely on the ground of violation of principles of natural justice: High Court [para 6 to 8]
- Petition allowed: GUJARAT HIGH COURT
2023-TIOL-886-CESTAT-BANG
Volvo Buses India Pvt Ltd Vs CCE
CX - The issues involved for determination are, whether the appellant is eligible to benefit of Notfn 6/2006 CE and 12/2012 CE as the case may be, in carrying out the activity of body building on chassis supplied/sold to them by VIPL and whether the demand is barred by limitation - Applying the concept of ownership, it is found that the appellant and M/s VIPL are independent legal entities - The chassis manufactured by M/s VIPL sold to appellant on payment of applicable VAT and excise duty - There is no condition appended to such sale which would indicate the transfer of title, possession is incomplete - Appellant after receipt of chassis undertake the activity of bodybuilding and dispose of buses to their customers - Merely because the appellant and M/s VIPL belong to a common group of companies, transaction between them cannot be considered other than sale or purchase of chassis and Ownership of chassis not transferred after sale of same by VIPL to Appellant - Immediate ownership of chassis manufactured by M/s VIPL got transferred to appellant, a distinct legal entity, after payment of full price and transfer of ownership of chassis is completed on delivery opposition of sale in view of definition of sale or purchase under Section 2(h) of CEA, 1944 - Further, the clause 1.7 of Chassis Supply Agreement and Master Agreement providing license to manufacture entire range of products of 'AB Volvo' like trucks, buses, construction equipment to M/s VIPL does not establish the case that ownership of chassis after being sold by M/s VIPL to appellant continued to vest on chassis manufacturer i.e. M/s VIPL - Similarly, various clauses in Technology License Contract between Volvo Bus Corporation, Sweden and appellant also do not lead to any inference that legal ownership of chassis continued to remain on chassis manufacturer VIPL being belonging to same group company - Therefore, on merit appellants are eligible to benefit exemption Notfns 06/2006-CE and 12/2012-CE - On the issue of extended period of limitation, appellant have approached Department through letter informing the activity of bodybuilding to be undertaken by them on duty paid chassis purchased from M/s VIPL and clearing the same by availing exemption under Notfn 06/2006-CE - Also, they have filed an application seeking Registration for said activity - Allegations of suppression of fact of bodybuilding on supplied chassis by M/s VIPL and availing benefit of exemption Notifications have not been established - Consequently, invoking of extended period is also not justified - Appellant succeed both on merit as well as on limitation: CESTAT
- Appeals allowed: BANGALORE CESTAT
2023-TIOL-885-CESTAT-AHM
Priyanka Developers Pvt Ltd Vs CCE & ST
CX - The appellant was issued SCN proposing to disallow and recovering cenvat credit under Rule 14 of CCR, 2004 read with Section 11 A (1) of Central Excise Act, 1944 - It also proposed to recover interest under Rule 14 of Cenvat Credit Rules, 2002 read with erstwhile Section 11 AB of Central Excise Act, 1944 - However, equal penalty amounting to was also proposed under Rule 15 (2) of Cenvat Credit Rules, 2004 read with Rule 25 of CER, 2002 - The contention in SCN is that the appellant while availing Notfn 30/2004-CE though reversed the cenvat credit attributed to input, input in process and input contained in finished goods - However, after such reversal there was a balance of cenvat credit remained unutilized to the tune of Rs. 1,02,08,846/- which the appellant have kept on carrying forward the same every month - Out of said amount the appellant utilized the amount of Rs. 4,42,539/- for payment of excise duty on removal of input namely POY as well as duty on paper tubes got manufactured on job work - Case of department is that while availing exemption Notfn 30/2004- CE, appellant was not entitled to utilize cenvat credit lying unutilized after reversal - Since the Notfn 30/2004-CE is undisputedly a conditional one therefore clause (ii) of the Rule 11 (3) is not applicable - Consequently, remaining amount of unutilized cenvat credit shall not lapse - Appellant has utilized an amount of Rs. 4,42,539/- out of unutilized cenvat credit which is not barred under any of provision - Issue is no longer res-integra - Accordingly, the impugned order is set aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
2023-TIOL-884-CESTAT-AHM
Prime Developers Vs CCE & ST
ST - As regard the first issue that whether construction of residential complex with material is taxable before 01.06.2007, undisputedly construction of residential complex was provided by appellant along with material which stands established and admitted as per SCN wherein the demand was raised after extending abatement of 67% which is given only when the service is provided along with material - Therefore, the fact that the construction was provided along with material is not under dispute - If this is be so then the service is clearly classifiable under works contract service and up to 01.06.2007, service tax was not leviable on works contract service was held by Supreme Court in case of Total Environment Building System P. Ltd = 2022-TIOL-62-SC-ST - As regard the period post 01.06.2007, demand is not sustainable on the ground that despite the service of works contract service, demand was raised under construction of residential complex - Since the service tax of works contract service demanded under different head i.e. Construction of Residential Complex the same is not legal and correct - As per Board Circular 108/2/2009 , construction service provided by builder/developer was not taxable up to 01.07.2010 - It is clear that up to 01.07.2010 there was no service tax on Construction of Residential Complex - Therefore, for this reason also demand is not sustainable, hence, same is set aside - As regard the refund in respect of deposit made against aforesaid demand, since the demand itself is set aside, appellant is entitled for refund as consequential benefit - The contention of revenue is that the deposit made by appellant is covered by provision of Section 73 (3) of Finance Act, 1994 - In case of payment made under section 73 (3), firstly assessee is required to pay the amount of service tax along with interest and same need to be intimated to department and simultaneously department is not supposed to issue SCN - Admittedly assessee issued SCN demanding service tax, therefore, this case is not covered by provision of section 73 (3) of Finance Act, 1994 - Hence, rejection of refund on that count is baseless and not tenable - Demand of service tax is set aside - Consequently, assessee is entitled for refund: CESTAT
- Appeals allowed: AHMEDABAD CESTAT
2023-TIOL-883-CESTAT-DEL
Del Trade International Pvt Ltd Vs Pr.CC
Cus - The appellant has imported product Amoxicillin Sodium with Clavulanate Potassium through Bill of Entry - They claim the product as one classified under Tariff Entry No. 30032000 - Department, however, objected said classification pointing out that product merit classification under CTH 29411030 which attracted anti- dumping duty as per Notfn 21/2017 - In view of acknowledgement of department to clarification dated 22.11.2019 with respect to product in question, Tribunal need to known as to whether in light of said admitted document, the product imported by appellant i.e. Amoxicillin sodium with Clavulante Potassium is liable for anti-dumping duty in terms of final findings - Admittedly, letter is the response to clarification sought by appellant from DGTR - From said letter, it is clear that while clarifying regarding anti-dumping duty on import of 'Amoxicillin Trihydrate from China PR in light of final findings recommending anti-dumping duty on import of 'Amoxicillin Trihydrate' from China PR - It is held that product in question is not covered under notification vide which anti- dumping duty was imposed upon another product called 'Amoxicilin Trihydrate' - Though, impugned clarification was not available to adjudicating authority below but in light of said clarification duly conceded by department, it is held that anti-dumping duty as has been levied on Amoxicillin Sodium with Clavulanate Potassium, the product imported by appellant is not sustainable - For this reason, order under challenge is set aside: CESTAT
- Appeal allowed: DELHI CESTAT |
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