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2023-TIOL-1632-HC-MUM-ST
Hongkong And Shanghai Banking Corporation Ltd Vs UoI
ST - Challenge raised in this petition is with regard to an amount of Rs.56,19,84,075/- being retained by the respondents, which is contended by the petitioner to be without any authority in law and not a tax as leviable or payable by the petitioner - Petitioner has contended that such amount was deposited Under Protest to buy peace, in the event of any prospective demand towards service tax and interest on "interchange income" - It is also the case of the petitioner that no show cause notice in respect of an 'interchange income' was issued to the petitioner for the period from October, 2007 to June, 2012 - On 22 October, 2012, the audit group raised objections for non-payment of service tax on the interchange income, earned during the said period - As a fallout of the objections as raised by the audit group, although no demand was raised, the petitioner made a deposit of an amount of Rs.56,19,84,075/- between the period 22 October, 2012 to 3 June, 2013 - The petitioner has contended that on 13 June, 2013, a Final Audit Report No. 198/2012-2013 was issued, however, no show cause notice was issued in relation to appropriation of aforesaid amounts, which was deposited by the petitioner under protest towards any tax demand.
Held: Bench is not shown any material, that the deposit in question as made by the petitioner under protest, would have any lien of the department under law, that too merely because an issue on the interchange income is pending adjudication in the case of Citibank N.A. ( 2021-TIOL-262-SC-ST ) - It would not ipso facto mean that any deposit of the amount under protest would partake the character of a lawful levy, so as to bring about a legal consequence of the appropriation of amounts, so deposited as a levy - The department had clearly failed in setting into motion the provisions of law to raise any levy to collect service tax on the transaction in question - Thus ex-facie the department has no authority to retain such amount - In fact, retaining such amount would amount to an unjust enrichment - It is well settled that once such amounts were deposited by the petitioner and were retained by the department without the authority in law, the claim of the petitioner for refund could not have been denied - In such circumstances, it was appropriate for the petitioner to invoke the jurisdiction of this Court under Article 226 of the Constitution praying for writ for directing refund of money illegally retained / withheld - It is limpid that the respondents have retained the amounts in question without authority in law - Such amounts are required to be refunded to be petitioner along with interest - Refund of the amount be granted to the petitioner as ordered along with applicable interest within a period of four weeks - Petition allowed: High Court [para 30, 31, 32, 33, 34]
- Petition allowed: BOMBAY HIGH COURT
2023-TIOL-1631-HC-RAJ-GST
Shree Cement Ltd Vs UoI
GST - It is claimed that the action of the officials of the CGST/SGST of issuing simultaneous show cause notices on the same subject matter is contrary to Section 6(2)(b) of the CGST/SGST; that the Administrative Authority in the case of petitioner is the Central Government, however, in violation of the guidelines, the officials of the State GST official has also issued show cause notice to the petitioner. Held: Issue Notice - Till the next date, the respondents shall not pass any final order in the proceedings initiated pursuant to the show cause notices dated 26-9-2023, 27-9-2023 and 6-10-2023: High Court [para 3, 6]
- Interim order passed: RAJASTHAN HIGH COURT
2023-TIOL-1630-HC-DEL-GST
Att Sys India Pvt Ltd Vs CGST
GST - Petitioner prays that directions be issued for revoking the order cancelling of the petitioner's GST registration - It is the case of the petitioner that SCN was issued to the petitioner on 27.11.2020 proposing to cancel the petitioner's GST registration for the reason - Filing zero return for last six months - Pursuant to the said SCN, an order dated 26.12.2020 was passed, cancelling the petitioner's GST registration. Held : SCN does not mention any time or date for personal hearing - Thus, the petitioner was not afforded a hearing to contest the SCN - The impugned order cancelling the petitioner's registration is void as it has been passed in violation of the principles of natural justice - As noted above, the impugned order is not informed by reason - It does not set out any ground for cancelling the petitioner's GST registration - Thus, said order cannot be sustained - Bench directs that the petitioner's GST registration be restored forthwith - Petition disposed of: High Court [para 16, 17]
- Petition disposed of: DELHI HIGH COURT
2023-TIOL-1629-HC-MUM-CUS
Chetak Technology Ltd Vs UoI
Cus - Import of "Lithium Ion Cell" - Principal allegation by department is that the goods as imported by the petitioner were not complying with the requirements prescribed by the Bureau of Indian Standards, inasmuch as it was observed that BIS markings / stickers were not found on the imported goods, and that such marking/labels were fixed on the cartoons / packages - goods detained - On the backdrop of the order dated 17 July 2023 passed by this Court, the petitioner approached respondent No.4 - Deputy Commissioner of Customs by a letter dated 24 July 2023 requesting for release of the goods - The request for such release was again reiterated by the petitioner by letters dated 16 August 2023 and 23 August 2023 - As the request of the petitioner for release of the goods was not being considered, the present petition has been filed. Held: Counsel for respondents has fairly stated that there is no seizure memo issued and physical possession of the goods has not been taken over by the customs - There is nothing on record to indicate that the goods are actually seized under any seizure memo or physical possession of the goods are taken by the customs - If this is the situation, then certainly it is a case of a simpliciter detention of the goods without exercising powers under section 110, which was available to the Customs to seize the goods - There is a show cause notice issued to the petitioner under section 124 of the Act, by which the petitioner was called upon to show cause as to why the goods should not be confiscated - However, mere issuance of show cause notice under section 124 would not change the status of the goods, as they are lying today, which is simpliciter detention and without seizure or any physical taking over of the goods as the law would mandate - If that be so, then there is no question of the provisions of Section 110A of the Customs Act being attracted, which inter alia provides for provisional release of goods "seized" under section 110 in the manner as prescribed by the said provision - Bench is of the opinion that although the show cause notice is challenged in the present proceedings, the proceedings of the show cause notice are required to be independently taken forward - Bench permits the petitioner to reply to the show cause notice and directs that the same be decided as expeditiously as possible within a period of two months - Held that the goods are illegally detained and without any powers being exercised by the customs authorities under section 110 of the Act and that too for such a long period - Petition partly allowed: High Court [para 25, 27, 28]
- Petition partly allowed: BOMBAY HIGH COURT
2023-TIOL-1628-HC-JHARKHAND-CX
Central Coalfields Ltd Vs UoI
CX - Clean Energy Cess - petitioner has challenged the order dated 29.09.2020 passed by respondent no. 3 - By the said order, respondent no. 3 has confirmed the demand of Clean Energy Cess amounting to Rs. 470,83,42,400/- under Section 11(A) of the Central Excise Act, 1944 read with Rule 6(5) of the Clean Environment Cess Rules, 2010 (herein after to be referred as Cess Rules) along with interest under Section 11AA/11AB of the Central Excise Act, 1944 and penalty under Section 11AC of the Central Excise Act, 1944 - The argument of the Assessee is that for all the supplies made w.e.f. 01.07.2017, petitioner is paying GST Compensation Cess at the rate of Rs. 400/- per tonne - In the event Clean Energy Cess is paid on such coal, this would result in payment of both Clean Energy Cess and GST Compensation Cess on the same transaction twice over. Held : The demand in the instant case is on the coal lying on stock as on 30.06.2017 and removed subsequently - Cess & Tax are two different components or aspects - A Cess is a form of Tax levied by the Government on Tax with specific purpose till the time the Government gets enough money for that purpose - It is different from usual Tax like excise and income Tax - In other words, a Cess is imposed as an additional Tax besides the existing Tax - Thus, the Cess on a particular commodity cannot come under the purview of double taxation and will not hit by Article 265 of the Constitution of India - Liability to pay cess only accrues at the time of production and its payment is scheduled when the coal is removed in view of Rule 4 and 6 of Cess Rules since, as per section 83(3) of Finance Act, 2010 levy is on production of coal - Rule 4 and 6 deals only with time and manner of payment/discharge of cess and not the rate - By virtue of Section 83(3), payability is created, only payment is to be done in the manner provided in Rule 4 & 6 - Bench is of the considered opinion that the Revenue is right is demanding the tax on production which was lying on stock as on the date of amendment and repeal of Clean Energy Cess, for the sole reason that the taxable event was production and only the payment was deferred at the time of Removal - Issue No.(i) is decided in favour of Revenue inasmuch as Revenue is entitled to levy Cess under Clean Energy Cess, 2010 which has been repealed by the GST Compensation Cess under the Goods & Services (Compensation to States) Act, 2017 - Assessee is liable to pay Cess for the normal period including interest over the same - Issue no. (ii) and Issue No.(iii) (part) is decided in favour of Assessee, inasmuch as, no penalty under Section 11AC can be levied as demand of Cess and further extended period of limitation cannot be invoked - Adjudication order dated 29/09/2020 is hereby, quashed and set aside to the above extent - The matter is remitted back to the adjudicating authority (Respondent no. 3) to recalculate the amount of clean environment cess confirming the demand to normal period of limitation - Petition partly allowed : High Court [para 15, 16, 17, 22, 24] Limitation - Present case is an interpretational issue and petitioner was paying GST Compensation Cess with a bona-fide belief that Clean Energy Cess was not payable - Therefore in such circumstances, no penalty under Section 11AC can be levied as demand of Cess under the extended period of limitation is unsustainable - Further, as the allegation of suppression and wilful intent to evade tax is baseless and incorrect, penalty under Section 11AC(1)(c) of the Central Excise Act, 1944 cannot be imposed: High Court [para 17, 22, 25]
- Petition partly allowed: JHARKHAND HIGH COURT
2023-TIOL-1049-CESTAT-MAD
Komatsu India Pvt Ltd Vs CGST & CE
CX - No NCCD was paid by appellant in respect of Chassis captively consumed in the production of Dumper Trucks - While chassis are fully exempt from excise duty vide notification no. 67/95-CE dated 16/03/1995, there is no exemption in respect of NCCD - The department was of the view that as there is no exemption from payment of NCCD, as per notification 67/95, the appellant is liable to pay NCCD in respect of chassis, the intermediate product which is captively consumed. Held: The issue whether NCCD is a duty of excise for the purpose of Exemption Notification issued under Section 5A of the Central Excise Act, 1944 has been considered in the case of Tatra Trucks India Ltd. Vs CCE - 2008-TIOL-1209-CESTAT-MUM - It was held that NCCD is a duty of excise and the benefit of exemption notification no.67/95 would be available for NCCD also - Since the Bench has already found the issue on merits as to whether the exemption under notification 67/95 is available to NCCD, in favour of assessee, it does not think it necessary to delve into the arguments on classification - Impugned order is set aside and appeal is allowed with consequential relief: CESTAT [para 16.7, 16.19, 17]
- Appeal allowed: CHENNAI CESTAT
2023-TIOL-1048-CESTAT-ALL
Mahesh And Co Pte Ltd Vs CC
Cus - The present Miscellaneous Application was filed under Rule 41 of the CESTAT (Procedure) Rules 1982 for implementing Final Order No.71733-71742/ 2019 dated 12.09.2019 and subsequent orders passed by the Tribunal in terms of Rule 41 of CESTAT Procedure Rules, 1982, for implementing this order - In the order, the Commissioner of Customs Noida, was directed to permit the Applicant to re-export the Gold jewellery covered under under Airway Bill, within 2 months' time - As per the order, the Appellant wrote to the Commissioner Of Customs concerned, seeking permission to re-export the jewellery - Such letter was forwarded by the Additional Commissioner (Adjudication) to the Additional Director DRI, for necessary action - Aggrieved by the order of the Tribunal, Revenue filed Customs Appeal Nos. 17 to 19 of 2020 along with a stay application before the Allahabad High Court which was admitted but no stay was granted - In fact no order was passed by the High Court on the stay application filed by the Revenue - Despite the fact that no stay was granted by the High Court, the officers concerned did not permit re-export of the Gold jewellery as directed by the Tribunal - The appellant was compelled to file an application under Rule 41 of the CESTAT (Procedure) Rules, 1982 - Vide request made by the Revenue, the Tribunal allowed further time to the concerned revenue authorities to pursue their stay application before the High Court - Vide order dated 24.03.2021, again time was allowed to the Revenue to get a suitable order in the matter from the High Court - Again on 31.05.2021, Tribunal allowed the time to the revenue to clarify on the issue of getting the stay application listed - Also the revenue was asked to consider the proposal made by the Counsel for the appellant to allow redemption for re-export against a bank guarantee - As per the directions given in the miscellaneous order, the appellant vide its Letter dated 9th July, 2021 submitted a certified copy of this order along with the Bank Guarantee issued by UCO Bank dated 08.07.2021 in favor of Commissioner of Customs (Exports), Air Cargo Complex, New Delhi - The appellant requested for permitting re-export of the gold jewellery as was directed by the Tribunal vide Order on 12.09.2019 - Despite this, the Commissioner of Customs (Export) Air Cargo Complex, New Delhi has not permitted the re-export of the said gold jewelry even till today despite the applicant reminding the Commissioner a number of times - Subsequently appellant filed another application under Rule 41 of the CESTAT (Procedure) Rules, 1982 registered as Customs Miscellaneous Application No.70117 of 2021 seeking directions for the Commissioner Customs to comply with the earlier order of this Tribunal. Vide order dated 22.09.2021 Tribunal allowed time to the revenue to explain why the order passed by the Tribunal on 21.06.2021 has not been implemented - This miscellaneous application was allowed by Miscellaneous Order No.70056 of 2021 dated 17.11.2021 - The Principal Commissioner of Customs, Noida and Commissioner of Customs (Exports) IGI Airport, New Delhi were directed to strictly comply with the order passed and to allow re-export of the goods of the appellant within 10 days and report compliance in writing on 29.11.2021 - The concerned Commissioner failed to comply with this order also and filed an application for rectification of the mistake in the order of 12.09.2019 - The application so filed was dismissed by the Tribunal vide Miscellaneous Order No.70044-70045 of 2022 dated 13.06.2022 - Subsequent to the dismissal of the Rectification of Mistake application which in any case was filed much beyond the stipulated period as per Section 129 (B)(2) as per which this Rectification of Mistake application were to be filed within 06 months and were filed much later than that only to delay the cause of justice - Hence the present Miscellaneous Application came to be filed under Rule 41 of the CESTAT Procedure Rules 1982. Held - We have considered the application along with the submissions made in this matter - After the order passed in 2019 specific directions have been given twice while miscellaneous orders are given by the Tribunal under Rule 41 of the CESTAT (Procedure) Rules, 1982 setting conditions for re-export by way of Bank Guarantee of Rs.10 lakhs - However, in a flagrant violation of those directions Revenue Authorities namely Commissioner of Customs (Export) IGIA New Delhi is not permitting the re-export of the goods even after taking the Bank Guarantee as directed - It is noted that order of 12.09.2019 was passed by this Tribunal after giving due hearing to the Revenue and after proper examination of the facts and law on the said subject the judgment of 12.09.2019 was to be followed invariably since the decision of higher Authorities are binding on all the Authorities working within the jurisdiction of that Appellate Authority-CESTAT - From the facts as narrated above it is quite evident that concerned officers are acting in defiance of the orders of this tribunal, by violating the principles of judicial discipline - Sufficient time and opportunity has been given to the concerned authorities to act as per the law, and follow the rule of law as has been provided by the Constitution of India - However the arrogance of these officers by not implementing the orders of this tribunal is self evident even when by the order dated 21.06.2021, the Tribunal by asking the applicant to file a bank guarantee and keep it alive till the disposal of the Appeal Filed by the revenue before Allahabad High Court has protected the interests of revenue: CESTAT Held - Contempt - For causing delay in implementation of the earlier orders of this Tribunal without any valid justifiable reasons a cost of Rs.2,00,000/- is imposed on the concerned Commissioner Customs Export IGI Airport, New Delhi - We note that Revenue should not suffer on account of the cost being imposed for the arrogant behavior of the concerned Commissioner and this amount needs to be paid by the concerned Commissioner or recovered from his salary and be deposited to the P.M. Cares fund within a fortnight of receipt of this order - Matter is referred to the High Court of Allahabad under Section 10 of Contempt of Court Act, 1971 which provides as under, for the consideration as to whether contempt proceedings should be initiated against the Respondent Commissioner and Commissioner of Customs (Export) IGIA, New Delhi: CESTAT
- Miscellaneous Application disposed of: ALLAHABAD CESTAT |
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