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2023-TIOL-1728-HC-DEL-CUS
CC Vs Sans Frontiers
Cus - Both, Revenue and exporter is in appeal - Petitioner impugns a demand notice dated 15.07.2020 demanding recovery of Duty Drawback amounting to Rs.54,72,204/-, which according to the respondent, was erroneously sanctioned and paid to the Firm - Controversy relates to the refund of a sum of Rs.54,80,710/- comprising of Rs.26,15,942/- being the duty drawback availed by the Firm plus Rs.28,64,768/- as interest, which was deposited by the Firm pursuant to a communication dated 12.03.2014 - The Firm had prevailed before the CESTAT and accordingly, the refund was sanctioned - Revenue claims that the same was done erroneously as the CESTAT had no jurisdiction to entertain any appeal relating to Duty Drawback - According to the Revenue, the order passed by the learned CESTAT is non est and, therefore, the sums refunded to the Firm are required to be recovered - Both, the Revenue and the exporter are in appeal before the High Court - Petitioner contended that the appeal was filed in relation to the penalty imposed, and not in relation to any claim for the Drawback and, therefore, the same was maintainable under Section 129A of the Customs Act; that the jurisdiction of the CESTAT is not excluded if the appeal is in relation to recovery of Drawback that has already been sanctioned.
Held: Chapter X of the Customs Act not only deals with the eligibility as to Drawback but also contains the provision for its recovery in case the Drawback has been paid erroneously - Even though proviso (c) of Section 129A(1) of the Customs Act mentions the word "payment", the same would also include the “recovery” of Drawback - This is because whether it is the claim for payment or the claim of the Revenue for recovery, both would include an adjudication on merits, that is, the eligibility and entitlement of the assessee for the Duty Drawback on the exports made by it - It would be erroneous to accept that the entitlement of the Firm claiming payment of Drawback cannot be considered by CESTAT, but the Revenue's demand for recovery of the erroneously paid Duty Drawback, can be considered by CESTAT - Another aspect, which cannot be ignored is that the appeal filed by the petitioner only relates to the imposition of penalty - It is settled law that competence of the Court to try a case goes to the very root of the jurisdiction - The inherent lack of jurisdiction makes the order passed by the Court void in law - There is also no inherent right to file an appeal and the same is granted by the statute - In the absence of any such right, CESTAT being a creature of statute, did not have any jurisdiction to entertain the same - No Court or Tribunal is empowered to usurp jurisdiction, which it does not have - Any order passed by a Tribunal that does not have the jurisdiction to pass such an order, is non est - The invalidity of such orders can be set up whenever they are sought to be enforced - It is well-settled that the order passed by a Court, which does not have the subject matter jurisdiction to adjudicate the issue, would be a nullity - No consent, waiver or acquiescence can confer jurisdiction upon a Court, which is otherwise barred by the statute - The order, passed by a Court having no jurisdiction, is non est and its invalidity can be set up at any stage and in any proceedings - Even if it is to be assumed that the Revenue had consented to the CESTAT hearing the appeal, the defect of lack of jurisdiction cannot be cured - Bench is of the opinion that the appeal preferred by the Firm before the CESTAT was not maintainable and the order passed by the Tribunal is thus void ab initio - Exporter should not be left remediless - Bench grants an opportunity to the Firm to prefer a revision, under Section 129DD of the Customs Act, against the order dated 14.05.2018 passed by the Commissioner (Appeals) - Question whether the CESTAT can pass the judgment in respect of a case falling under proviso (c) of Section 129A(1)(b) of the Customs Act is answered in the negative - Petition is disposed of: High Court [para 53, 54, 57, 61, 62, 64, 69, 81, 82, 86]
- Petition disposed of: DELHI HIGH COURT
2023-TIOL-1727-HC-KERALA-GST
Badha Ram Vs Intelligence Officer
GST - Application is filed u/s 439 of the Code of Criminal Procedure seeking regular bail - Petitioner, wholesale distributor of mobile accessories and electronic items, is the sole accused in the crime file registered based on complaint of the respondent u/s 132(1) of the Act, 2017 - It is alleged that the petitioner is supplying goods without issuing invoices, evading the tax payment, estimated at 6.14 crores, due from 2018 onwards - Petitioner submits that the 1st respondent wrongly included the income of two other concerns conducted by the petitioner's brother's sons, who have separate GST registrations; that 1st respondent has already seized documents, electronic records and other accompanying material, so further custodial interrogation is not necessary; that all the transactions are done based on invoices and bills, and all the transactions are recorded in the computer that was seized during the search; that, therefore, the petitioner be released on regular bail - Petitioner argued that going by the provisions of GST, particularly Section 132, it has to be seen that the power of arrest can be invoked only after an assessment is made and not before - Counsel for Revenue submitted that the contention that the arrest can be made only after the quantification cannot be accepted as it goes against the very section itself.
Held : The list of offences mentioned in sub-sections of Section 132 of the GST Act has no correlation to any assessment - Alternate argument that the petitioner can compound the offence under the CGST Act, both before and after the institution of the prosecution also cannot be accepted as there is nothing on record to show that the petitioner has offered to compound the offence or has paid the tax payable on such compounding or has admitted the liability - Therefore, the argument that arrest can only be after the completion of the assessment has no legs to stand - On verification, it was found that the petitioner had suppressed a total turnover of Rs.34,15,42,040/- for the years 2021-2022, 2022-2023 and 2023-2024 and has evaded tax approximately to the tune of Rs.6,14,77,567/- being 18% of the taxable turnover - Moreover, on 19.11.2023, the petitioner had given a statement that the software used at his business premises was changed immediately after the search and the Accountant of the firm was also dismissed from service; that the department suspects that the accused is tampering with the evidence and influencing the witnesses in the case - It appears that the apprehension is well founded and furthermore the investigation is only at a nascent stage - In the instant case, it has to be seen that for a proper investigation of the offence and to prevent the petitioner from causing the evidence of the offence to disappear or to tamper with the same, continued custody of the petitioner is warranted - A serious allegation is made, which warrants a thorough investigation - Bail application is dismissed: High Court [para 8, 9, 10]
- Application dismissed: KERALA HIGH COURT
2023-TIOL-1726-HC-ALL-GST
Rathore Building Material Vs Commissioner of State Tax
GST - Show cause notice dated 28-1-2023 contained the recital that if the returns were tendered in time stated therein, the proceedings shall be withdrawn - Petitioner furnished returns on 07.02.2023 - Nonetheless, the authorities went on to impose a penalty under section 125 of the GST Act by the impugned order dated 10-2-2023 - Impugned order also records that the petitioner submitted his reply on 7-2-2023 - Assessing authority, by the impugned order, while imposing penalty has also returned the findings that no reply to the show cause notice was tendered by the petitioner.
Held: The finding is vitiated on account of non-application of mind to the facts in the record - Since the petitioner had complied with the terms of the show cause notice by furnishing the returns, there was no lawful justification to impose the penalty - Impugned orders dated 10-2-2023 and the order dated 14-3-2023 are contrary to law and passed on non-application of mind; therefore, are set aside - Petition allowed: High Court [para 4 to 6]
- Petition allowed: ALLAHABAD HIGH COURT |
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