The Indirect Tax Weekly Flashback for the period 01 to 07 December 2024.
Delhi High Court
Ornaments And Jewellery Being Carried As Part Of Baggage Doesn’t Qualify As “Smuggling”; Delhi High Court Quashes Customs Duty Demand
Case Title: Luvleen Maingi Versus Union Of India
The Delhi High Court quashes customs duty demand ornaments and jewellery being carried as part of baggage does not qualify as “smuggling”.
The bench of Justice Yashwant Varma and Justice Ravinder Dudeja has observed that petitioner is a foreign national, who brought a chain and a kara by wearing them on his body while arriving from Bangkok. The same was not brought in a concealed manner.
Bombay High Court
Bombay High Court Quashes Order Imposing Harsh Penalty For Alleged Wrongful Availment Of Duty Drawback By Exporter
Case Title: Kailas Dhondibhau Argade V/s. The Union of India & Anr.
The Bombay High Court has quashed the order imposing harsh penalty for alleged wrongful availment of duty drawback by exporter and directed denovo consideration.
The Bench of Justice K.R. Shriram and Justice Jitendra S. Jain observed that the ground raised in the petitions are that the impugned order dated 30th November 2023 is an unreasoned order.
Madras High Court
Madras High Court Directs To Challenge DRI Action Before CESTAT Citing Cannon Judgement
Case Title: Deepak Bajaj Versus The Commissioner of Customs
The Madurai Bench of Madras High Court has directed the appellant/assessee to challenge Directorate Of Revenue Intelligence (DRI action) before Customs, Excise and Service Tax Appellate Tribunal (CESTAT) citing Cannon Judgement.
The bench of Justice Rmt.Teekaa Raman and Justice N.Senthilkumar has observed that in view of the decision of the Apex Court in the case of Commissioner of Customs Vs. M/s Canon India Private Limited, now the validity of the action of the DRI in issue show cause notice being appealed, the appellant has to approach the appellate authority namely, the CESTAT Act.
Kerala High Court
Kerala High Court Directs Customs Commissioner To Grant Detention Certificate To Enable Urea Importer To Claim Waiver Of Ground Rent Charges
Case Title: R. Krishnaprasad Versus Commissioner Of Customs
The Kerala High Court has directed the customs commissioner to grant detention certificate in terms of Handling of Cargo in Customs Areas Regulations, 2009 to to enable urea importer to claim waiver of ground rent charges.
The bench of Justice Gopinath P. clarified that detention certificate in terms of Handling of Cargo in Customs Areas Regulations, 2009 shall be issued only on the petitioner remitting the amount of the fine and the penalty.
Chhattisgarh High Court
Chhattisgarh High Court Upholds DRI Officer’s Power Of Seizure Of Gold And Silver Articles Citing Cannon Judgement
Case Title: Deputy Director, Directorate Of Revenue Intelligence (DRI) Government Of India Indore Zonal Unit Versus Vijay Baid
The Chhattisgarh High Court has upheld the power of the DRI Officer of seizure of gold and silver articles citing Cannon Judgement.
The bench of Chief Justice Ramesh Sinha and Justice Amitendra Kishore Prasad has observed that Principal Additional Director General and Deputy Director of DRI, who are customs officers, and thus empowered to dispense the functions in relation to Section 110(2) and Section 105 of the Act. Hence, there was no infirmity in the present case in extension of issuance of notice by the period of further six months and initiation of the search proceedings by DRI. Further the seizure in the instant case has been made by a Customs officer who is undisputedly the proper officer even if the ratio of Canon India judgment is applied.
Andhra Pradesh High Court
Andhra Pradesh High Court Grants Anticipatory Bail To Customs Officer Accused Of Maintaining Dual Identity
Case Title: Namarla Satyanarayana Vs The State of Andhra Pradesh
The Andhra Pradesh High Court in the case of Namarla Satyanarayana Vs The State of Andhra Pradesh granted anticipatory bail to the customs officer accused of maintaining dual identity.
The bench of Justice Dr. V.R.K.Krupa Sagar has observed that the dual identity of the accused is not a new discovery. On 04.02.2021 the department served a charge memorandum and articles of charges were served on the accused wherein this dual identity was referred to in detail. In that view of the matter, one could say more than three years delay in moving the criminal machinery.
CESTAT
Misdirection Of ‘Self- Assessment’ Is Inappropriate Exercise Of Statutory Authority: CESTAT
Case Title: Mahle Anand Thermal Systems Pvt Ltd versus Commissioner of Customs
The Mumbai Bench of Customs, Excise and Service Tax Appellate Tribunal (CESTAT) has held that misdirection of ‘self- assessment’ is an inappropriate exercise of statutory authority.
The bench of Justice Dilip Gupta (President) and C.J. Mathew (Technical Member) has observed that it is but right that superior authorities be made cognizant of circumventing law by field formations. A copy of this order may, therefore, be placed before Chairman, Central Board of Indirect Taxes & Customs (CBIC) for his attention.
No Service Tax Payable On Recovery Of Penalty Charges From Contactors For Delay In Providing Goods Or Service: CESTAT
Case Title: Madhya Gujarat Vij Company Limited Versus C.C.E. & S.T. – Vadodara-I
The Ahmedabad Bench of Customs, Excise and Service Tax Appellate Tribunal (CESTAT) has held that no service tax payable on recovery of penalty charges from contactors for delay in providing goods or service.
The bench of Ramesh Nair (Judicial Member) and Raju (Technical Member) has observed that penalty towards non fulfillment of the condition of the contract will not fall under Section 66 E (e) of Finance Act, 1994, therefore the service tax under the declared service cannot be recovered.
CESTAT Lacks Jurisdiction To Decide Appeal Against Order Relating To Any Goods Imported Or Exported As Baggage
Case Title: Sri Abdul Raheem Kaulani Versus Commissioner of Customs Hyderabad – Customs
The Hyderabad Bench of Customs, Excise and Service Tax Appellate Tribunal (CESTAT) has held that CESTAT lacks jurisdiction to decide appeal against order relating to any goods imported or exported as baggage.
The bench of Angad Prasad (Judicial Member) has observed that as per Section 129A(1) proviso of Customs Act, 1962 as mentioned above Tribunal has no jurisdiction to decide this appeal, therefore appeal is liable to be returned to appellant for filing before the appropriate authority.
Flexibility Can’t Be Equated With Department’s Lethargy: CESTAT
Case Title: M/s Kopertek Metals Pvt. Ltd. Versus Commissioner of CGST (West)
The Delhi Bench of Customs, Excise and Service Tax Appellate Tribunal (CESTAT) has held that flexibility cannot be equated with the lethargy of the Department or its officers. The Legislature has mandated the show cause notices to be adjudicated within six months .
The bench of Justice Dilip Gupta (President) and P.V. Subba Rao (Technical Member) has observed that the Legislature has mandated the show cause notices to be adjudicated within six months or one year as the case may be; it has provided flexibility only to the extent that if the same is not practicable/possible the period can be extended. The phrase ‘where it is possible to do so’ would only mean that wherever it is not practicable/possible to do certain act, the period can be extended. The same, however, cannot be an endless period without any plausible justification.
Limitation Period Can’t Be Invoked When Income Reflected In Balance Sheet & Profit And Loss Account: CESTAT
Case Title: Smt. Teena Gupta Versus Commissioner, Central Excise & Service Tax
The Delhi Bench of Customs, Excise and Service Tax Appellate Tribunal (CESTAT) in the case of Smt. Teena Gupta Versus Commissioner, Central Excise & Service Tax has held that the limitation period cannot be invoked when income is reflected in the balance sheet & profit and loss account.
The bench of Justice Dilip Gupta (President) And Hemambika R. Priya (Technical Member) has observed that the balance sheet and profit and loss account has been held to be public documents by various decisions and it stands concluded that when the income arising from various activities stand reflected in the said public documents, it cannot be said that there was any suppression or misstatement on the part of the assessee so as to invoke the longer period of limitation.
CESTAT Rules On Service Tax Liability On Handling Charges Collected By Car Dealers
Case Title: M/s Sky Automobiles Versus The Principal Commissioner
The Delhi Bench of Customs, Excise and Service Tax Appellate Tribunal (CESTAT) has ruled on the service tax liability on handling charges collected by car dealers in the case of M/s Sky Automobiles Versus The Principal Commissioner.
The bench of Justice Dilip Gupta (President) and P.V. Subba Rao (Technical Member) has observed that the invoices are issued by the appellant as authorised dealer of Maruti Suzuki. The invoices indicate that the sale was on ex-showroom basis and the price is indicated on this basis. In addition, that the appellant collected “other charges‟ from the customers. The ex-show room price included the price of the vehicle and the applicable VAT. In addition, the appellant collected an amount towards extended warranty and towards “other charges”.
