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2023-TIOL-1320-HC-ALL-GST
Baghel Trading Co Vs State of UP
GST - The petitioner submits that impugned order was neither communicated, nor served upon them - It was further submitted that revenue has failed to appreciate the word "communicated" used in section 107 of GST Act in contrast to word "served" used in section 169 of GST Act - He further submits that sub-section (1) of section 169 of GST Act provides the mode of services, i.e., by registered post or speed post, communication on e-mail, making available on common portal, by publication in newspaper or by affixation - However, as per sub-section (2) of section 169, the order is deemed to be served only in case the service is effected by tendering or published or a copy thereof is affixed in the manner as provided in sub-section (1) - It was further submitted that Statute nowhere provides that order made available on common portal is deemed to be served and clauses (c) & (d) of sub-section (1) of section 169 of GST Act are not covered by sub-section (2) of section 169 of GST Act - Therefore, appeal preferred by petitioner was within limitation but authority has arbitrarily dismissed the appeal as time barred - Revenue may file counter affidavit within a period of four weeks - In counter affidavit, the State shall specifically averred as to how and under what manner, deeming service as per clauses (c) & (d) of sub-section (1) of section 169 can be said to be deemed service as per sub-section (2) of section 169 of GST Act - In the meantime, no coercive action shall be taken against petitioner pursuant to impugned order, provided the petitioner deposits 50% of disputed tax amount in accordance with law within a period of two weeks - Any amount already deposited by petitioner shall be adjusted against the deposit to be made under this order: HC
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Appeal disposed of: ALLAHABAD HIGH COURT
2023-TIOL-1319-HC-JHARKHAND-ST
Kamaladitya Construction Pvt Ltd Vs Pr.CCGST & CE
ST - Section 73 of the Finance Act, 1994 - Petitioner is challenging the legality and validity of the impugned show cause notice dated 24.12.2014 - The petitioner has further challenged the legality and validity of notice of personal hearing dated 06.06.2022 issued by the Respondent No.3 fixing personal hearing on 21.06.2022 - Petitioner informs that they had also filed an application on 15.06.2022 under RTI Act, 2005 asking several questions as to the reasons for delay of more than 7 years in adjudicating the impugned show cause notice and action calling for personal hearing - Pursuant to that application, a letter dated 11.07.2022 was supplied to the petitioner-company which clearly indicates that no reason has been assigned as to why pursuant to issuance of show cause notice dated 24.12.2014, the adjudication proceeding was kept pending. Held: It is pertinent to note that the words "where it is possible to do so" is elastic only when there are reasonable grounds beyond the control of the adjudicating authority to conclude adjudication within the time frame given under Section 73(4B) and not otherwise - If there is no reasonable explanation, the elasticity would not be available - It is fairly well settled that legislature never wastes words or says anything in vain - It is settled presumption of law that the Legislature does not waste words or say anything in vain - Each word in the enactment must be allowed to play its role, however, significant or insignificant the same may be, in achieving legislative intent and promoting the legislative object - The statute has to be so construed that every word has a place and everything is in place - In the fiscal statute, more particularly a provision such as the present one regulating period of limitation must receive strict construction - The law of limitation is intended to give certainty and finality to legal proceedings and to avoid exposure to risk of litigation to litigants for an indefinite period to future unforeseen event - Section 73 (4B) of the Chapter V of the Finance Act 1994 recognizes the well settled principle that delay in 'adjudication of a dispute causes prejudice to parties and is contra to Article 14 of the Constitution of India 1950 - This provision recognizes that delay in adjudication of a matter causes prejudice and detriment to the party and is however contrary to Article 14 of the Constitution of India, 1950 - Fixing personal hearing of the petitioner and taking up adjudication after more than 7 years from the date of issuance of the impugned Show Cause Notice dated 24.12.2014 in the instant case is unreasonable, arbitrary, oppressive, and violates Article 14 of the Constitution and such proceedings stand vitiated due to inordinate and unreasonable delay - In the instant case, period of more than 7 years from the issuance of impugned Show Cause Notice on 24-12-2014 cannot be said to be reasonable period for taking up/concluding adjudication proceedings - Section 73(1)/ 73(4) of Chapter V of the Finance Act, 1994 provides 5 years as a maximum period which, in any case, should be taken as reasonable period within which the adjudication should be completed - Bench has no hesitation in quashing the impugned show-cause notice dated 24.12.2014 and impugned notice dated 06.06.2022 and the same are hereby quashed and set aside - Petition allowed: High Court [para 9, 11, 13, 14, 16] ST - Section 73 of the Finance Act, 1994 - Petitioner is challenging the legality and validity of the impugned show cause notice dated 24.12.2014 - The petitioner has further challenged the legality and validity of notice of personal hearing dated 06.06.2022 issued by the Respondent No.3 fixing personal hearing on 21.06.2022 - Petitioner informs that they had also filed an application on 15.06.2022 under RTI Act, 2005 asking several questions as to the reasons for delay of more than 7 years in adjudicating the impugned show cause notice and action calling for personal hearing - Pursuant to that application, a letter dated 11.07.2022 was supplied to the petitioner-company which clearly indicates that no reason has been assigned as to why pursuant to issuance of show cause notice dated 24.12.2014, the adjudication proceeding was kept pending. Held : It is pertinent to note that the words "where it is possible to do so" is elastic only when there are reasonable grounds beyond the control of the adjudicating authority to conclude adjudication within the time frame given under Section 73(4B) and not otherwise - If there is no reasonable explanation, the elasticity would not be available - It is fairly well settled that legislature never wastes words or says anything in vain - It is settled presumption of law that the Legislature does not waste words or say anything in vain - Each word in the enactment must be allowed to play its role, however, significant or insignificant the same may be, in achieving legislative intent and promoting the legislative object - The statute has to be so construed that every word has a place and everything is in place - In the fiscal statute, more particularly a provision such as the present one regulating period of limitation must receive strict construction - The law of limitation is intended to give certainty and finality to legal proceedings and to avoid exposure to risk of litigation to litigants for an indefinite period to future unforeseen event - Section 73 (4B) of the Chapter V of the Finance Act 1994 recognizes the well settled principle that delay in 'adjudication of a dispute causes prejudice to parties and is contra to Article 14 of the Constitution of India 1950 - This provision recognizes that delay in adjudication of a matter causes prejudice and detriment to the party and is however contrary to Article 14 of the Constitution of India, 1950 - Fixing personal hearing of the petitioner and taking up adjudication after more than 7 years from the date of issuance of the impugned Show Cause Notice dated 24.12.2014 in the instant case is unreasonable, arbitrary, oppressive, and violates Article 14 of the Constitution and such proceedings stand vitiated due to inordinate and unreasonable delay - In the instant case, period of more than 7 years from the issuance of impugned Show Cause Notice on 24-12-2014 cannot be said to be reasonable period for taking up/concluding adjudication proceedings - Section 73(1)/ 73(4) of Chapter V of the Finance Act, 1994 provides 5 years as a maximum period which, in any case, should be taken as reasonable period within which the adjudication should be completed - Bench has no hesitation in quashing the impugned show-cause notice dated 24.12.2014 and impugned notice dated 06.06.2022 and the same are hereby quashed and set aside - Petition allowed: High Court [para 9, 11, 13, 14, 16]
- Petition allowed: JHARKHAND HIGH COURT
2023-TIOL-1318-HC-DEL-CX
Pawan Jain And Sons Vs UoI
CX - Petitioner impugns the order of the revisionary authority whereby the claim for refund of duty paid on inputs for executing the export obligations under Rule 18 of the Central Excise Rules, 2002 read with notification No. 41/2001-CE (NT) dated 26 June 2001 was declined - The impugned order dated 27 September 2019 is assailed in the instant writ petition, inter alia, on the grounds that the Revisionary Authority totally misconstrued Clause 4 (c) of the Notification dated 26 June 2001 which permitted removal of waste on payment of duty if such waste was manufactured or processed out of the factory of the applicant seeking rebate; and that the petitioner was entitled to seek rebate in terms of modified SION norms fixed in terms of the letter dated 18 March 2004 issued by the Office of Assistant Commissioner, Central Excise and not as per the norms fixed by the DGFT; and that the petitioner accordingly manufactured the product consuming 1.882 kgs of SS Flats for the manufacture of 1.00 kg of SS Utensils - It is deposed by the Revenue representative that the waste product of the petitioner was marketable and arose regularly in the ordinary course of business, and therefore, dutiable, despite the fact that the main product, viz. S.S. Utensils was exempted from duty under notification No. 10/2003 dated 01 March 2003; and since, no CENVAT credit facility was available to the petitioner during the relevant period, hence, it was liable to pay duty on scrap from the cash ledger; that the petitioner filed declaration as per ARE-1 in terms of notification No. 41/2001 dated 26 June 2001 that made application of input-output norms applicable as existing at the time of exports. Held: It is borne out from the record that pursuant to application moved by the petitioner on 08 January 2004, the office of the Assistant Commissioner of Central Excise vide letter dated 18 March 2004 fixed the input output ratio - petitioner has not placed on the record a copy of its letter dated 08 January 2004 and it is not clear if the said letter pertained to any request about fixation of input-output norms with regards to export obligations already undertaken or to be taken in future - Ordinarily the input output ratio fixed vide aforesaid communique dated 18 March 2004 could not have been applied retrospectively - There is a merit in the plea advanced by the petitioner that Para 4(c) of the notification 41/2001 dated 26 June 2001 also specifies that even in the case of waste from manufacturing process outside the factory of the applicant seeking rebate, the removal of such waste or sale thereof is neither prohibited nor it debars a claim for rebate under the said rule or notification - It is evident that in terms of the notification No. 10/2003 dated 01 March 2003, the description of the goods in question was covered vide item No. 28 viz. HSM 7323.90, which is code for S.S. Utensils, read with item No. 51, where the rate of duty is spelt out to be 'NIL', meaning thereby that no duty was payable on such waste and scrap arising during the course of manufacture of the same goods, therefore, the impugned order dated 27 September 2019 holding that pre-conditions provided by the Notification No. 41/2001 dated 26 June 2001 were not met by the petitioner, is perverse and cannot be sustained in law - Order dated 27 September 2019 is hereby set aside and the matter is remanded back to the Adjudicating Authority to decide the rebate claims of the petitioner after affording a fresh opportunity for hearing - Petition disposed of: High Court [para 9, 10, 13, 16, 17]
- Petition disposed of: DELHI HIGH COURT
2023-TIOL-938-CESTAT-DEL
Incredible Indian Moments Pvt Ltd Vs Commissioner (Appeals) And Addl. Director General
ST - The appellant is a Tour Operator and is registered as such with Service Tax Department and it has been paying service tax on taxable services which it provided - Its business mainly consists of organising tours for foreign tourists to India - The appellant's records for period July 2012 to March 2014 were audited and it was felt that appellant was responsible to pay service tax on services of taxis which it had hired on reverse charge basis in view of Notfn 30/2012-ST issued under section 68(2) of Finance Act, 1994 - To provide these services, appellant hires taxis - Thus, services of taxi operators are input services to appellant - Taxi operators were paying service tax on their services considering themselves liable to pay service tax and appellant has been taking CENVAT credit of such service tax - To charge service tax again on reverse charge basis from appellant (the service recipient) would result in double taxation on same service - Even otherwise, notification refers to persons 'not in the same line of business' and NOT 'persons engaged in the same business' and the two are distinct - 'Similar line of business' has a much wider connotation and therefore, it includes their tour operator services as well - Since the appellant is in similar line of business, it was not covered under S. No. 7 (a) of notification - No grounds found to invoke extended period of limitation under proviso to section 78(1) - There is no fraud or collusion or wilful mis-statement or suppression of facts or violation of the Act or Rules with an intent to evade payment of service tax - Appellant has been filing service tax returns regularly and it is for officers to scurtinise them and if necessary, call for information and if it is felt that service tax has not been correctly assessed, make the best judgment assessment and issue a notice under section 78 within normal period of limitation - If such scrutiny is not done and a demand is not raised within time and any tax escapes assessment, responsibility for it rests squarely on officer and not on assessee - If appellant had paid service tax under reverse charge mechanism, it would have been entitled to CENVAT credit on it immediately because it is its input service - Thus, entire exercise is revenue neutral and in such a situation, appellant cannot be alleged to have had an intent to evade payment of service tax - Demand, interest and penalties need to be set aside - Impugned order of Commissioner (A) cannot be sustained: CESTAT
- Appeal allowed: DELHI CESTAT
2023-TIOL-937-CESTAT-DEL
Bharat Heavy Electricals Ltd Vs CCGST, C & CE
CX - Appellant is engaged in manufacture of heavy industrial equipments and execution of various power projects - Pursuant to implementation of GST regime w.e.f. 01.07.2017, appellant migrated to GST regime - Part of Cenvat credit balance as on 30th June, 2017, which was not permissible to be transferred to GST regime, amounted to Rs. 13,13,638/- - Accordingly, appellant filed refund claim which was rejected - Admittedly, appellant had preferred appeal within condonable period of 60 days - There is no lack of diligence on the part of appellant in presenting their appeal - Although there is error or mistake on the part of staff or clerk in filing of appeal, but there is also constructive error or negligence on the part of receiving clerk in Department - Either such clerk should have directed and guided the person, who had come to file appeal, to the right counter - Alternatively, it was the duty of Assistant Commissioner to forward the appeal papers to office of Commissioner (A), as it has been received by him mistakenly - Thus, appellant has filed the appeal on 26.09.2018 and Commissioner (A) have erred in taking the date of filing appeal as 15.03.2022 - Appeal was filed in proper time as permitted under law - The impugned order is set aside and appeal is allowed by way of remand to Commissioner (A) to hear the appellant on merits and pass a reasoned order, in accordance with law: CESTAT
- Appeal allowed: DELHI CESTAT
2023-TIOL-936-CESTAT-KOL
Vijay Kumar Singh Vs CC
Cus - Based on specific information concerning illegal import of cut betel nuts from Nepal into India, S.H.O. of Mufassil Police Station, Siwan, intercepted a truck coming from Gopalgunge side - The examination revealed it to be laden with cut betel nuts - The driver along with three other occupants present at the time of interdiction, however could not produce any documentation in relation to the cut betel nuts being transported - The driver however informed that the goods belong to one Shri Munna Mishra of Motihari and he was carrying the cut betel nut from Nepal to be delivered at Balia - The Customs Officer upon taking over the said case seized the said 5700 kgs of cut betel nuts, packed in 100 bags, under Section 110 of the Customs Act 1962 - Investigations were also undertaken with Shri Bijay Kumar Singh the claimant of the said goods - In defence he submitted a copy of invoice No. 133 dated 13th March, 2016 issued by Shri Arvind Kumar Shahee, Patna alongwith a copy of order dated 24th March, 2015 - As per investigations carried out and the statements of Shri Bijay Kumar Singh recorded under Section 108 of the Customs Act, the said cut betel nuts were procured by him from M/s Shree Shai System, Patna, under cover of above referred invoice and that the goods were seized while in transit - Investigation undertaken with Shri Sai Systems, Patna confirmed that the impugned goods were sold by them to the appellant and they in turn had procured the said goods from Customs Division, Forbesganj, vide order dated 24th March, 2015 - On appeal, the Commissioner (Appeals) upheld the orders of the adjudicating authority confiscating the said cut betel nut, allowing their provisional release imposition of redemption fine penalty on the various notices, besides confiscating and allowing provisional release of the truck carrying the impugned goods. Held - The Department has not discharged the burden cast on itself, to establish the smuggled character of goods - Since being non-notified items the smuggled character of the goods is required to be established by the Department led by positive evidence and for any legal action, it has to be beyond an iota of doubt - That the goods were of a perishable nature, or that the appellants have not given any valid reason to hold on to the goods for this long, and such like questions do not come to the help of the department for discharge of their onus - On the contrary the fact of mould infection is indicative of goods being old and their improper storage etc., thereby lending support to the plea of the appellants - No evidence has been led by the Department to establish that the seized/confiscated cut betel nut were actually smuggled and of foreign origin - Finding laches in the version of the appellant cannot bail out the department in discharge of the specific onus cast upon them to prove their smuggled character - It is observed from the investigations undertaken, that the Department has thus miserably failed in establishing the foreign origin of the seized, confiscated and provisionally released cut betel nuts - There being no shred of any positive piece of evidence led by the revenue, to establish the smuggled nature of the goods, being non notified goods, the onus is on the Department to establish smuggled foreign origin of the cut betel nuts - The Appellants have discharged their burden on the basis of invoice tendered and related procurement source - Moreover, it is not the case of the Department that the goods were not procured in auction by the supplier Shri Arvind Kumar Shahee: CESTAT Held - Questions, such as to why the goods being perishable were stored for such a long period, that no way bill, no form D-IX applicable for sale of goods were produced, no lorry receipt or transportation documents given, that the identity of seized goods did not match with the identity of auctioned goods, ipso facto do not establish least of conclusively, that the said goods were smuggled into the country - The Revenue has not discharged its burden, least of all with cogent evidence - This is a clear case of assumptions and presumptions, a premediated assessment and failure to conduct proper investigations by the jurisdictional authorities - If the veracity of the invoice tendered by the appellant was doubted, the show cause notice issued does not indicate of any further efforts made and investigations carried out by the Department towards discharge of their burden - It is a fact that the show cause notice states that testing of the samples of the product to be by Arecanut Research and Development Foundation, Mangalore revealed the product of Burmese origin and heavily infected with moulds. However, the Patna High Court in the case of Salasar Transport Company & Another (MJC No.2185/2013) had pointed out that the accredited nature of the said organization was not established and it had therefore accepted the argument that no legal liability could be attached - The Revenue has failed to state even we bit to establish the foreign/cross border territories the said goods (if at all were smuggled) had passed through to establish their smuggled character - The report of Arecanut R&D Foundation has not been discussed, any further in the order - This fact on the contrary, could lend some support to the argument of the appellants that the impugned goods said to have been procured out of Customs auction vide order dated 24.03.2015 and betel nuts being highly perishable when tested found the product to be highly fungal infected unfit for human consumptions, as being nearly 2 to 3 years old - All these do not absolve the Department in discharge of their mandate under the statute. Assailing the evidence tendered by the appellants could sullify it, but it does not help the department to tide over its primary responsibility and onus casted upon them under Section 123 of the Act: CESTAT
- Appeals allowed: KOLKATA CESTAT |
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