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2023-TIOL-142-SC-CUS
CC Vs Ganpati Overseas
Cus - Proceeding alleging under-invoicing of price and thereby evading customs duty by the respondents was initiated by the Directorate of Revenue Intelligence and carried forward by the customs department primarily on the basis of the price declared by the foreign supplier in the first set of export declarations filed before the Hong Kong customs authority - It was noticed that there was great discrepancy in the price mentioned in the export declarations and the price of the goods as per the import invoices - Appeals have been filed by the Commissioner of Customs (Imports), Mumbai u/s 130E of the Customs Act, 1962 against the common judgment and final order dated 27.06.2008 of the CESTAT - Issue that arises in the two appeals is whether the CESTAT was justified in holding that enhancement of value of the imported goods and the penalties imposed by the Commissioner of Customs (Adjudication-1), Mumbai on the respondents could not be sustained and consequently in setting aside the same.
Held : Adjudicating authority brushed aside the objections raised by the respondents that the copies of the export declarations relied upon by the Directorate of Revenue Intelligence and the department were not attested and were just Xerox copies - Adjudicating authority took the view that merely because the copies of the export declarations were just Xerox copies and were not attested, the said fact did not make those documents unreliable or unauthentic - It was held that the foreign supplier had accepted the factum of filing those declarations which the noticees did not deny - This finding of the adjudicating authority was negatived by the CESTAT - The Tribunal, while accepting the objections of the respondents that those declarations could not be relied upon for the purpose of enhancement of value not only because those were unattested photocopies but also for the reason that the foreign supplier had explained that incorrect price was erroneously mentioned in the “first set of export declarations” for which it filed a “second set” of export declarations showing the price of goods in question matching with the price as declared in the import invoices - The second set of export declarations was accepted by the Hong Kong customs authority but for showing incorrect price initially, imposed penalty which was paid by the foreign supplier - CESTAT also noted that no investigation was carried out by the customs authority with the HongKong customs authority indicating anything incriminating against the respondents - Therefore, CESTAT held that the value shown in the first set of export declarations could not form any reliable basis for enhancement of the value - Bench concurs with the view taken by CESTAT - First and foremost, the export declarations relied upon by the appellant and earlier by the Directorate of Revenue Intelligence were unattested photocopies - Since those documents were used as a piece of evidence against the respondents, it was necessary that those documents were required to have been proved as is understood in law - Unattested photocopies of the relied upon documents without anyone proving or owning up the veracity of the same would not have any evidentiary value - It is another matter that the very substratum of these documents was subsequently removed when the foreign supplier filed a second set of export declarations before the Hong Kong customs authority showing lower price matching the price of the goods declared in the import invoices -Bench need not go into the reasons necessitating filing of the second set of export declarations simply because, the Hong Kong customs authority had accepted the second set of export declarations albeit imposition of penalty for misdeclaration of price at the initial stage - It has also come on record that the foreign supplier had paid the penalty - If this be the position, there can be no justifiable reason for the appellant to harp upon the price of the goods as per the initial export declarations by placing reliance on the unattested photocopies of the first set of export declarations to prove under-invoicing for the purpose of evading customs duty - Bench finds that the department, after rejecting the price declared as per the import invoices, had invoked Rule 8 of the Customs Violation Rules straightaway instead of going through Rules 5, 6 and 7 thereof sequentially - This was approved by the adjudicating authority after rejecting the submission of the respondents that contemporaneous imports of similar goods by M/s Bharat Electronics and M/s K.S. International had prices comparable with the prices declared by the respondents in the import invoices -On a cumulative analysis of the facts and the legal position as alluded to hereinabove, Bench has no hesitation in coming to the conclusion that both the department as well as the adjudicating authority were not justified in rejecting the import invoice price of the goods as not correct and enhancing the price by straightaway invoking Rule 8 of the Customs Valuation Rules when there was no evidence before them to do so - In these circumstances, CESTAT was justified in setting aside the order in original - No error or infirmity is found in the impugned judgment and order of CESTAT - The appeals filed by the department are devoid of merit and those are accordingly, dismissed: Supreme Court [para 16, 17, 29, 41, 42]
Section 108 of the Customs Act, 1962 - Evidentiary value of statement - It has come on record that the Additional Sessions Judge in his bail order dated 26.05.1999 had mentioned that the statement of Mr. Yashpal Sharma recorded under Section 108 of the Customs Act may not have been a voluntary one - It may be mentioned that Mr. Yashpal Sharma vide his letter dated 25.08.1999 had retracted the statement made by him under Section 108 of the Customs Act - CESTAT noted the factum of retraction of the statement and, therefore, refused to give credence to such confessional statement - In the view of the Bench, no fault can be found with the approach of the CESTAT -The customs officer who is empowered under Section 108 to record statement etc. has the onerous responsibility to see to it that the statement is recorded in a fair and judicious manner providing for procedural safeguards to the concerned person to ensure that the statement so recorded, which is admissible in evidence, can meet the standard of basic judicial principles and natural justice - It is axiomatic that when a statement is admissible as a piece of evidence, the same has to conform to minimum judicial standards - Certainly, a statement recorded under duress or coercion cannot be used against the person making the statement - It is for the adjudicating authority to find out whether there was any duress or coercion in the recording of such a statement since the adjudicating authority exercises quasi-judicial powers: Supreme Court [para 18.1, 28]
- Appeals dismissed: SUPREME COURT OF INDIA
2023-TIOL-1287-HC-MAD-GST
Infac India Pvt Ltd Vs Deputy Commissioner
GST - Respondent has sanctioned a refund of Rs.16,52,157/-, after adjusting a sum of Rs.9,25,366/- as interest due from the petitioner on the amount utilized by the petitioner - Specific case of the petitioner is that the petitioner could have asked for refund of the amount that was lying unutilized in the Personal Ledger Account under the provisions of the Central Excise Act, 1944, as on 30.06.2017 - However, by mistake, the petitioner transitioned the amount lying in its Personal Ledger Account on 23.08.2017 as if it were an Input Tax lying unutilized, in accordance with Section 140 of the Act, 2017 - It is therefore, the case of the petitioner that the issue is neutral and there was no loss to the revenue.
Held: There is no doubt that the petitioner should have claimed refund of the amount lying unutilized in its Personal Ledger Account under Section 11B of the Central Excise Act, 1944, read with Section 142(3) of the Act, 2017 - The amount of Rs.25,77,523/- was wrongly transitioned under Section 140 of the Act, 2017 and was utilized towards Central and / or State GST - It has been allowed to be re-paid post facto out of Integrated Input Tax Credit which was lying unutilized - Thus, the tax liability stands squared up - Deduction of Rs.9,25,366/- towards interest was unnecessary as there was really no loss to the revenue - Therefore, the impugned order dated 31.01.2020 seeking to adjust a sum of Rs.9,25,366/- towards interest cannot be sustained - Respondent directed to refund the aforesaid sum of Rs.9,25,366/- to the petitioner within a period of eight weeks - Petition allowed: High Court [para 13, 16, 17, 19]
- Petition allowed: MADRAS HIGH COURT
2023-TIOL-1286-HC-MUM-GST
Prushin Fintech Pvt Ltd Vs UoI
GST - More than 20 representations addressed by the Petitioner to the Assistant Commissioner, Deputy Commissioner and the Commissioner of Maharashtra State Tax have not been responded - Petitioner has already filed its GST-return and despite which on the ground of non-filing of the return, a show cause notice dated 29th November 2022 and which is impugned.
Held: Bench is disturbed to notice the inaction on the part of the State officers to whom several representations were addressed, who have not even bothered to respond to such repeated representations - Eventually, the Petitioner was also required to approach the Hon'ble Cabinet Ministers of the Central Government, namely the Finance Minister and the Minister for Micro, Small and Medium Enterprises - Such an approach on the part of the State Officers, who are supposed to be dealing with the assessees is not expected and when it is informed to us that the policy of the Government is of an ease of during business - This itself is quite alarming - Commissioner of State Tax to explain as to why such an approach to generate unwarranted litigation, on the part of the Officers ought not to be deprecated and taken to the logical conclusion - Stand over to 10th October 2023 - In the meantime, the Respondents shall not proceed to hear the show cause notice: High Court [para 3, 4, 7, 10]
- Matter posted: BOMBAY HIGH COURT
2023-TIOL-1285-HC-MUM-CUS
Sinochem India Company Pvt Ltd Vs Asstt. CC
Cus - s.149 of the Act, 1962 - Petitioner prays for setting aside the order dated 29 October 2021 and directing the Respondent to redecide the amendment request of the Petitioner and carry out amendment of GSTIN details in the BOE.
Held: This was a clear case that on the documentary evidence which was available for consideration of the Assistant Commissioner the amendment to the BoE ought to have been allowed - It is not the case that the Assistant Commissioner did not have the authority to modify the document and more particularly in a situation that there was a bonafide mistake on the part of the Importer in entering the wrong GSTIN number - The case of the department is not of any illegality or any malafides on the part of the Petitioner, so as to deliberately effect the clearance of goods on a false or erroneous GSTIN - There is no material adverse to the Petitioner as to why the amendment of the Bill of Entry to change the GSTIN number of Head Office, Delhi to Vadodara, Gujarat ought not to have been granted - It would be none of the concern of the Custom Officer considering the scheme of Customs Act, as also the GST laws, that the Assistant Commissioner could have travelled beyond the provisions of Customs Act, in exercising jurisdiction under Section 149 - In exercising such jurisdiction, the Assistant Commissioner could not have taken into consideration something which was extraneous to the Customs Act - Directions of this court in its earlier order (supra) to the Assistant Commissioner were clear and unambiguous - Purport of the said orders passed by the Division Bench have been completely overlooked and/or nullified by the Assistant Commissioner in passing the impugned order - A serious view would be required to be taken when categorical observations of the Division Bench of this Court in its operative directions that the Petitioner's application be decided in the light of the observations made and in accordance with law, have been mischievously overlooked/misinterpreted and/or not applied by the Assistant Commissioner - Commissioner of Customs needs to look into such approach of the officers and not take it lightly so as to prevent a likelihood that such officers, for reasons best known to them, acting contrary to the binding orders passed by this Court - Steps being taken to appraise such situations to the concerned officers be informed by the Commissioner to the Registrar (Judicial) of this Court within a period of one month - Amendment to the Bill of Entry be issued within a period of one week - Petition allowed with cost of Rs.1,000/- to be paid personally by the Assistant Commissioner, who has passed this order to be deposited with the Maharashtra Legal Services Authority: High Court [para 11, 12, 13, 14, 16, 17]
- Petition allowed: BOMBAY HIGH COURT
2023-TIOL-1284-HC-MUM-CUS
Chokshi Arvind Jewellers Vs UoI
Cus - Seizure of gold bars - With an apprehension that the respondents are likely to sell the goods, this petition was filed on 11 September 2023 and urgently moved praying that the seizure memo dated 12 May 2023 issued by respondent No.4 be held illegal and be quashed and set aside, and for unconditional release of the said gold as seized by the respondent - Petitioner has contended that this is a case of blatant, arbitrary and illegal action on the part of the respondent Nos. 2 to 4 of having exercising the power of search and seizure merely on suspicion and by which the stock in trade / gold from the petitioner's shop has been seized and was not being released despite repeated letters - Counsel for respondents submits that the seized gold has already been disposed of by the respondents on 1 September 2023 i.e. prior to the filing of this petition.
Held: Following issues arise viz. whether the action of the respondents to sell the gold seized is legal and valid; particularly in the light of the letter of the SIO which refers to issuance of a show cause notice in dealing with the seized goods; if such an action of sale is held to be illegal, what should be the course of action, the law would mandate to be taken against the concerned officers so as to compensate the petitioner for the loss - Bench, therefore, directs the officers who were dealing with the matter to place on record a reply affidavit - Stand over to 4 October 2023: High Court [para 9, 10]
- Matter posted: BOMBAY HIGH COURT |
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