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2023-TIOL-902-CESTAT-DEL
Speedway Cargo And Courier Services Vs CC
Cus - The Assessee has been charged with contravening the provisions of the Courier Imports and Exports (Electronic Declaration and Processing) Regulations, 2010 and the Courier Regulations and the Public Notice dated 07.05.2019 issued by Commissioner Air Cargo Complex (Export), New Delhi - The Assessee imported at IGI Airport, a shipment of 178 boxes - These consignments were examined by the Special Investigation & Intelligence Branch of the Air Cargo Complex Commissioner of Customs (Export), New Delhi - Discrepancies were found with respect to 17 consignments - Proceedings were commenced under the Customs Act 1962 - The Assessee gave a letter stating that due to technical problem in software used for generating addresses in their foreign offices, the addresses were wrongly printed and the details of invoices were not double checked due to carelessness by the staff - The Assessee submitted cancellation receipts and KYc documents of the consignors and consignees and requested that a lenient view be taken - The proceedings culminated in the issue of Order-in-original, wherein the value of the goods, originally valued at Rs. 1,79,403/-, was enhanced under Section 111(l) and 111(m) of the Customs Act while giving an option to redeem on payment of Redemption Fine of Rs.80,000 and applicable duties and penalties of Rs. 7,000/- and Rs. 2,00,000/- were also imposed on the Assessee under Sections 112 and 114AA of the Act - The Assessee accepted the said Order dated 25.09.2019 and paid up the levies and did not file any appeal.
Held - The reasoning given by the Assessee cannot be accepted - It is very difficult to believe that there was a technical glitch and clerical error at both places abroad at the same time - The Assessee did not produce any evidence, either before the Commissioner or before this Bench to substantiate this submission - It only submitted that it had cancelled the consignments and returned the packets to the senders - However, no evidence of such cancellation was given. It is very difficult to believe that a courier agency working at an international level would work in this unprofessional manner - Assuming that the contention of the appellant that the consignments which were destined to Maharashtra and other States other than the seven States mentioned in the above cited Public Notice have by mistake arrived at Delhi - The most logical explanation would have been showing evidence to the effect that the consignments destined to the seven States had gone to other destinations, in case of any interchange as claimed by the appellants - However, no such evidence has been put forth by the Assessee - It has also not produced any evidence to indicate the cancellation of some consignments, whose addresses were found affixed on the boxes imported at Delhi - Therefore, we are of the considered opinion that the submissions of the Assessee is only a feeble attempt to cover up the lapses on its part - The Commissioner and the Inquiry Officer have observed that it was difficult to presume that mistake of the same nature happened in the software at two different offices at Bahrain and Doha - The Assessee itself accepted that the details of invoices were not double checked by their staff due to carelessness - The mismatch in the consignor/ consignee details was a modus operandi adopted by the Assessee to circumvent the Public Notice: CESTAT (Para 15)
+ The Enquiry Officer gave a clear finding that by acts of commission and omission, the appellant clearly violated the provisions of Regulation 4(2), 5(4), 12(1) (i), 12(1) (iii), 12 (1) (v), 12 (1) (vii) & 12 (1) (x) of the Courier Regulations, the provisions of Public Notice No.03/2019 and the provisions of Section 111 of Customs Act - The submissions made by the Assessee was also made before the Commissioner, who has considered all the submissions of the appellant and came to the conclusion that the appellant violated the provisions of the Courier Regulations; (P 17)
+ It is apparent from the facts of the case that the appellant had failed to comply with the provisions stipulated in Public Notices dated 7.5.219 and 15.5.2019 inasmuch eight boxes were destined to States other than that seven States in violation of the said Public Notices. We are in agreement with the submission of the learned Authorised Representative that the appellant mis-declared the particulars like consignee-consignor address, value, quantity and description of goods in the House Air Way Bills (HAWB) and that when the address of consignee was given wrongly, the appellant would have been in no position to obtain the requisite authorization from the actual consignor/consignee as mandated in the Regulation 12(1) (i) of the Courier Regulations. The appellant did not disclose/ declare the actual consignor/consignee for the purpose of the clearance of their goods. Therefore, the department was not wrong in alleging that the appellant had mis-declared the details in House Air Way Bills (HAWB), in terms of consignee-consignor address, value, quantity and description of goods. By applying the principle of preponderance of probability, we find it quite logical to accept the contention of the department that the the appellant had an intention to evade payment of customs duty. The conclusion is fortified by the fact that the appellant had accepted the enhanced value and paid up the differential duty without raising a protest. It is apparent that the appellant attempted to get the dutiable goods cleared in guise of gift consignments. But for the interception by Customs Officers, organised evasion and flouting of Rules on the part of the appellant would have gone unnoticed. The commissioner has brought out each of the violations of the Courier Regulations, by the appellant. Therefore, there is no doubt whatsoever, that the appellant violated not only the provisions of the Courier Regulations but also the provisions of Customs Act, 1962; (P 18)
+ The Government has been simplifying the law and procedure relating to imports through courier from time to time. Accordingly, lot of trust and reliance has been placed on the courier agencies. A very clear procedure has been put in place by way of Courier Regulations to stream line the imports through Courier mode. It was incumbent upon the appellant Courier agency to adhere to the Regulations in order to safeguard the interest of Revenue and the trust placed on them. The appellant Courier was mandated to work within legal framework of the Customs Act, 1962, Rules and Regulations made thereunder. The appellant failed to do so. The appellant did not exercise due diligence in submitting the correct and complete information to the assessing officer with reference to the impugned goods. By violating the Regulations, it had given scope for massive misuse of the facility given in addition to loss of Revenue. In short, the appellant courier agency has breached the trust reposed on it by the Revenue. Therefore, the revocation of License is justified and any leniency shown in the misconduct of this nature would send wrong signals. Punishment of revocation of Licence would certainly go a long way to act as a deterrent. In view of the above, there is no reason to interfere with the impugned order and, accordingly, the appeal is liable for rejection; (P21)
- Appeal dismissed: DELHI CESTAT
2023-TIOL-901-CESTAT-HYD
Hindustan Petroleum Corporation Ltd Vs CCE & ST
CX - Appellant is engaged in business of refining of Crude Petroleum and marketing various finished petroleum products - They have a refinery in Visakhapatnam holding appropriate registration under Central Excise enactments - They are clearing goods through pipeline as well as through coastal shipments to various destinations - On withdrawal of warehousing provisions for mineral oil products w.e.f. 06.09.2004, and introduction of requirement of payment of duty at the time of removal from Refinery, valuation of goods being offered for sale at different destinations (locations) became a moot point as far as levy of excise duty is concerned - Accordingly, during year 2007-08, provisional assessment was sought for determination of transactional value and excise duty payable - The products are supplied under costal movement, transaction value of product cleared from refinery cannot be determined for payment of exact duty unless exact quantity received in depot is known - At the time of costal clearance of product, duty is paid on an average basis as per Oil Coordination Committee Pricing Policy, as prescribed - Subsequently on receiving the break-up statement providing exact details of quantity and location are known, Appellant discharges differential duty (if short paid) - Appellant submits that the Asst. Commissioner, while finalizing the provisional assessments for year 2007-08, held that appellants have paid excess duty amount of Rs.2,41,90,489/- and short paid an amount of Rs.23,47,449/- towards interest - Aggrieved by Order, Appellant preferred an appeal before Commissioner (A) - The Appellant also submitted written submissions and requested to allow their appeal - However, Appellate authority has not considered the contentions of Appellants and passed non-speaking Order - The Adjudicating Authority is directed to consider all the issues which have been taken notice by this Tribunal herein and after hearing the appellant to pass a reasoned order in accordance with the law: CESTAT
- Matter remanded: HYDERABAD CESTAT
2023-TIOL-900-CESTAT-MUM
CST Vs Group M Media India Pvt Ltd
ST - Issue relates to legality of impugned order absolving liability of assessee from payment of Service Tax on volume discounts/incentives received from Media owners at the end of financial year - Service Tax has been discharged on the basis of invoice raised by media house by clients/ advertisers on the entire consideration amount and against service commission received by assessee from advertisers, service tax was also discharged but because of large volume of advertisement was facilitated by assessee, as a token of gesture/gratitude, media house passed on certain discount/incentives to assessee against which Service Tax was already discharged by themselves - Therefore, said incentive can't be equated with consideration to activities carried out by assessee for the reason that they had not promoted or canvased in placing of advertisement by its client on any specific media house and the choice of media house nested with clients, for which it can't be considered as any kind of activity against which incentive/discount was received by appellant as a consideration, apart from the fact that against placing the order of its client in print or broadcasting both media house as well as assessee had discharge their Service Tax liabilities - The only ground on which Review order is based is on decision of Tribunal passed in case of BBC World (India) Pvt. Ltd. 2009-TIOL-376-CESTAT-DEL way back in 2009 that is far before introduction of comprehensive taxation scheme in 2012 and that will have so application to present issue for the reason that for the period pre 2012, the issue had been settled by Tribunal in several decisions including in assessee's own case for two different periods and for the period post 2012, even though advanced ruling of AAR is not a binding precedent and binds only intra parties, the acceptance of said ruling by High Court of Madras would operate as a binding precedent for Tribunal besides the fact that any reward/incentive or discount received as an expression of gratitude or generosity is held consistently as not taxable: CESTAT
- Appeal dismissed: MUMBAI CESTAT
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