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2023-TIOL-1597-HC-MAD-CUS
Micro Carbonates Pvt Ltd Vs CC
Cus - Petitioner submits that the first respondent had construed that the appeal should have been filed by the petitioner within a period of two weeks from 26.03.2013 (the date on which the order was passed by the Division Bench of this Court) and dismissed the appeal filed by the petitioner vide the said impugned order on the ground that it is barred by limitation - Petitioner further submits that the order copy of the writ appeal was received by the petitioner only on 26.04.2013 and since the appeal was filed within a period of 4 days from the date of receipt of the order copy i.e., on 29.04.2013, the said appeal is filed within the time limit.
Held : Only issue that has to be decided in the present case is as to whether the word "today" mentioned in the order passed by the Division Bench refers to the date [26.03.2013] on which the order was passed or to the date on which the order was issued to the petitioner (i.e., the date on which the order was made ready) [25.04.2013 (the date on which the Superintendent, Copyist Department, had signed the order)] - Court is of the considered view that the petitioner will be able to file the appeal only when the order copy is received by them, otherwise, the respondent will not entertain the appeal - Therefore, for all practical purposes, the word "today" in the order passed by the Division Bench has to be construed as the date on which the order was ready to issue - Since the order copy was received by the petitioner only on 26.04.2013, the appeal, which was filed on 29.04.2013, was filed well within the period of limitation prescribed - Impugned order is set aside in entirety and the Court remits the matter back to the first respondent for re-consideration - Writ petition is disposed of: High Court [para 7, 8, 11]
- Petition disposed of: MADRAS HIGH COURT
2023-TIOL-1596-HC-MAD-CUS
Precious Metals Refiners Pvt Ltd Vs Pr.CC
Cus - Petitioner seeks a writ of mandamus to release the goods, viz. Gold Dore Bars of Guinea by extending benefit of notification 96/2008-Cus and also AIDC Notification No.011/2021-Cus., dated 01.02.2021 by accepting the Country of Origin Certificate issued by Government of Guinea under Duty Free Tariff Preference Scheme for Least Developed Countries (Combined Declaration and Certificate).
Held : Court is of the view that, it need not labour much to resolve the controversy raised in the Writ Petitions inasmuch as the petitioner has come forward to pay 100% duty under protest - Authority concerned is directed to consider the petitioner's request and release the goods subject to payment of 100% duty by the petitioner within a week's time - Respondents are also directed to adjudicate the matter as expeditiously as possible, preferably, within a period of three months - Writ Petition is disposed of: High Court [para 5, 6]
- Petition disposed of: MADRAS HIGH COURT
2023-TIOL-1595-HC-MAD-CUS
Fusion Clothing Company Vs Deputy CC
Cus - Drawback - Petitioner challenges adjudication order as well as the recovery notice. Held: Court is of the considered view that in the present case, the proof of receipt of the sale consideration was filed on 03.04.2017, 28.06.2019 and on 04.04.2017 and it is for the Department to verify the sale consideration received - Since in both, the adjudication order and the recovery notice, they have not mentioned about these particulars, therefore, the matter is remitted back to the respondents for fresh consideration after taking into consideration the documents filed by the petitioners - Writ Petitions are disposed of: High Court [para 7]
- Petitions disposed of: MADRAS HIGHI COURT
2023-TIOL-1594-HC-DEL-GST
Bansal International Vs Commissioner of Delhi GST
GST - Petitioner's claim for interest of Rs. 13,12,761/- calculated at the rate of 9% per annum, on the refund of GST already granted, was rejected, therefore, the present petition - According to the petitioner, the Adjudicating Authority has misinterpreted the provisions of Section 56 of the DGST Act inasmuch as the petitioner claims that he is entitled to interest for the period immediately after the expiry of sixty days from the date of the first application for a refund and not after sixty days from the application filed after succeeding in his claim for refund before the Appellate Authority.
Held: It is apparent from the scheme of the CGST Act that an order in respect of an application for refund is required to be made within a period of sixty days from the date of receipt of an application, complete in all respects - The provisions of Section 56 of the CGST Act read with the provisions of Sections 54(7) and 54(8) of the CGST Act makes it amply clear that an applicant would be entitled to interest on the amount of refund due for the period commencing from the date immediately after the expiry of sixty days from the date when an application (complete in all respects) has been received and acknowledged by the proper officer - The petitioner's entitlement for interest cannot be defeated merely because the proper officer passed an incorrect order, which is subsequently rectified in the appellate proceedings - It is well settled that an interpretation of a statute that leads to an absurd result must be eschewed - A statute must be interpreted to further its object - The object of providing a period of limitation is clearly to deny the remedies to a person who has not availed the same within the period as stipulated - Thus, the applicant cannot be denied interest on account of the time involved in appellate fora - Once an application for refund under Section 54(1) of the CGST Act has been filed, the same requires to be carried to its logical conclusion - If the said claim is denied by the Adjudicating Authority and the applicant prevails before the Appellate Authority, the order of the Appellate Authority is required to be implemented - However, in one sense, the subsequent application filed by a person pursuant to succeeding before the Appellate Authority, is solely for the purposes of giving a nudge to the process of disbursal of the refund claim and for the proper officer to determine and disburse the interest as payable - The proviso to s.56 merely enhances the interest payable [as @9%] to a person for the period commencing from the date immediately after sixty days from the date of his application filed pursuant to its entitlement to refund claim attaining finality - Impugned order is set aside and petition is allowed: High Court [para 13, 14, 15, 22, 33, 34]
- Petition allowed: DELHI HIGH COURT
2023-TIOL-1593-HC-MAD-GST
Lenovo India Pvt Ltd Vs Joint CGST
GST - Challenge in these Writ Petitions is to the Order-in-Appeal passed by the first respondent, Joint Commissioner of GST (Appeals-1) and to direct the second respondent, Assistant Commissioner of GST and Central Excise to sanction the refund amount along with interest immediately - Petitioner submits that they are a Domestic Tariff Unit (DTA Unit) and for supply of goods/services to SEZ units made during the months of December, 2019 January 2020 and February 2020, they filed applications for refund through GSTN Portal claiming refund of IGST paid along with required declarations and undertakings, which is inclusive of Statement-4 along with copies of tax invoices with endorsement made by the Specified/Authorized Officer in respective SEZ - However, the second respondent rejected the said applications on various grounds viz. ( i ) Inordinate delay in obtaining Endorsement; Inappropriate Endorsement; Endorsement does not state that goods supplied were for authorized operations; ii) POD was made not at the time of filing applications but at the time of filing reply/personal hearing, and the same is barred by limitation, and (iii) Mismatch of details, as the endorsement date mentioned in the invoices differs from the endorsement date mentioned in Statement-4. Held: In the present case, the question of payment of tax does not arise since the petitioner has paid IGST but there was delay in obtaining the endorsement. Thus, once the assessee had paid the tax and the goods have entered SEZ and obtained endorsement to that effect and furnished the same for the purpose of refund, at any cost, refund cannot be denied for any reason whatsoever - The delay in obtaining the endorsement and producing the same at any cost would result only in a delay of entertaining the application for refund and in which case, the affected party would only be the petitioner and the interest of the Department not going to be affected in any way - In the case on hand, it is an admitted fact that the goods have entered into SEZ and duty has also been paid by the petitioner - Therefore, the failure to obtain endorsement within 45 days is not due to fault on the part of the petitioner and it is for the AO to make endorsement in time, for which, the petitioner cannot be found fault with - Delay in obtaining the endorsements, or mistake, if any, in such endorsements are all technical irregularity and so long as the signature is not doubted, the petitioner cannot be penalized for the actions of AO, which is beyond the control of the petitioner and by such means, deprive the petitioner's right to claim benefit under 16(3)(b) of IGST - Findings rendered by the respondent-Department with regard to the denial of claim by citing the delay in obtaining endorsement, endorsement is inappropriate, etc., are set aside - If it is the case of the respondent-Department that the petitioner has filed the applications with deficiencies, the respondent-Department ought to have issued any memo pointing out such deficiency under Rule 90(3), instead the second respondent has accepted the petitioner's applications and issued acknowledgment, and therefore, it is not open to the respondent to contend that the supporting documents were filed with a delay - When the taxpayer made a claim for refund and if there are any discrepancies or defects in the application made for such claim, the Officer concerned should come forward to assist the assessee bearing in mind the above principles laid down by the CBDT [No.14 of 1955 dated 11.04.1955] - The terms used in said Section 54(1) "may make application before two years from the relevant date in such form and manner as may be prescribed", which means that the assessee may make application within two years and it is not mandatory that the application has to be made within two years and in appropriate cases, refund application can be made even beyond two years - The time limit fixed under Section 54(1) is directory in nature and it is not mandatory - Therefore, even if the application is filed beyond the period of two years, the legitimate claim of refund by the assessee cannot be denied in appropriate cases - Court is of the view that both the first and second respondent have committed a serious flaw in the decision making process and, therefore, the impugned orders have to be held to be unsustainable - Writ Petitions are allowed - Impugned orders are set aside and the second respondent is directed issue the refund within a period of 30 days: High Court [para 14.4, 14.5, 14.6, 14.7, 15.3, 15.6, 15.7, 17]
- Petitions allowed: MADRAS HIGH COURT
2023-TIOL-1592-HC-MAD-GST
Parle Agro Pvt Ltd Vs UoI
GST - Petitioner has prayed for a Certiorarified Mandamus to call for the records of the decision of the 3rd respondent GST Council's Minutes of Meeting taken on 22nd December, 2018 classifying "flavoured milk" under HS Code No. 2202 instead of HS Code 0402 as being contrary to the decision of the Hon'ble Supreme Court in Commissioner versus Amrit Food = 2015-TIOL-256-SC-CX ; to direct the 2nd respondent to classify the goods under Chapter 0402 in accordance with the binding precedent in Commissioner Vs. Amrit Food.
Held : Till 2005, flavoured milk was specifically classified within the purview of Heading 0404 of the Central Excise Tariff Act, 1985, which fell for consideration in Commissioner versus Amrit Food = 2015-TIOL-256-SC-CX - However, after introduction of eight (8) Digit Code in the Central Excise Tariff Act, 1985 and the Customs Tariff Act, 1975, with effect from 28.02.2005, Sub Heading 2202 90 30 was specifically inserted for "Beverages Containing Milk" in the respective Tariff enactments - The Central Government had however classified "Flavoured Milk" under sub heading 2202 90 30 as a "Beverage Containing Milk", for the purpose of fixing rate, vide Notification No.03/2005-CE, although Chapter 4 to the Second Schedule to Central Excise Tariff Act, 1985, did not exclude "Flavoured Milk" made out of dairy milk - Later, Notification No. 17/2008 -CE dated 27.03.2008 was issued under Section 11C of the CEA, 1944, whereby "Flavoured Milk" which was classified under the Sub Heading 2202 90 30 was exempted between 28.02.2005 and 14.06.2007 - Though under Notification No.03/2005-CE dated 24.02.2005 [w.e.f 28.02.2005] as amended by Notification No.28/2007-CE dated 15.06.2007, the Central Government classified "Flavoured Milk" under Chapter Sub Heading 2202 90 30 and exempted "Flavoured Milk", Entry 11A was omitted by Notification No.15/2011-CE dated 01.03.2011 - Thereafter, "Flavoured Milk" was subjected to tax at 1% with reference to its Maximum Retail Price (MRP) under Notification No. 49/2008 -CE(NT) - In Notification No. 49/2008 -CE(NT) dated 24.12.2008, the expression used was "Flavoured Milk of Animal Origin" - This classification was an artificial classification by bringing "Flavoured Milk of Animal Origin" under Heading 2202 90 30 - These Notifications which classified "Flavoured Milk" / "Flavoured Milk of Animal Origin" as "Beverage Containing Milk" were erroneous - It was an artificial classification adopted by the Central Government while issuing Notifications under Section 5A & Section 11C and Section 4A of the Central Excise Act, 1944 - Since these Notifications classified "Flavoured Milk" / "Flavoured Milk of Animal Origin" as "Beverage Containing Milk" under Sub-Heading 2202 90 30 and were never contested by Assessees, as they benefited them, it cannot mean "Flavoured Milk" in fact did fall under Heading 2202 of the Customs Tariff Act, 1975 - These classifications adopted in the respective Notifications issued under the older regime are not relevant for determining the correct classification under the new regime - "Flavoured Milk" has to be classified only under Heading 0402 of the Customs Tariff Act, 1975 and not under Heading 2202 of the Customs Tariff Act, 1975 - Therefore, Bench is of the view that although the contention of the petitioner for the relief based on the decision of the Supreme Court in Amrit Food = 2015-TIOL-256-SC-CX cannot be accepted, nevertheless, the petitioner is entitled to relief - "Flavoured Milk" that was proposed to be manufactured at the time of institution of the Writ Petition merits classification under residuary Sub Heading 0402 99 90 of the Customs Tariff Act - The 3rd respondent GST Council has given a wrong recommendation - It also cannot determine the classification - Determination of classification also does not fall within the preserve of the 3rd respondent GST Council - Having adopted classification of ‘Goods' and ‘Services' under the First Schedule to the Customs Tariff Act, 1975, the 3rd respondent GST Council cannot impose a wrong classification of "Flavoured Milk" as a "Beverage Containing Milk" under the residuary item as "Non-Alcoholic Beverages" under Sub Heading 2202 90 30 of the Customs Tariff Act, 1975 - The impugned recommendation of the 3rd respondent GST Council cannot be upheld - Classification ought to have been independently determined by the Assessing Officer - Power of the 3rd respondent GST Council is merely recommendatory - It is for the Government to fix appropriate rate on the goods that are classifiable under the Customs Tariff Act, 1975 - As long as the Customs Tariff Act, 1975 is adopted for the purpose of interpretation of Notification No. 1/2017 -CT(Rate) dated 28.06.2017, classification has to be strictly in accordance with the classification under Customs Tariff Act, 1975, irrespective of the fact that concessions were given under the earlier regime by the Central Government under Sections 5 & 11C and Section 4A of the Central Excise Tariff Act, 1985 - Bench leaves it open for the Government to issue a fresh Notification for amending Entry Nos. 8 [Schedule I] & 50 [Schedule II] to Notification No. 1/2017 -CT(Rate) to tweak the rate of tax, recognizing the well settled principle of law that in taxing matter, latitude can be given to the authorities while fixing the rate of tax - The Central Government can either tweak the rate on the recommendation of the 3rd respondent GST Council or by itself - Writ Petitions stands allowed: High Court [para 109 to 124]
- Petitions allowed: MADRAS HIGH COURT |
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