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Showing 161 to 180 of 407114 Records
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2024 (5) TMI 820 - CALCUTTA HIGH COURT
Cancellation of registration of the petitioner under the WBGST Act, 2017 - failure on the part of the petitioner to file its returns for six months - HELD THAT:- From the proceedings initiated by the respondents it would transpire that the show cause notice was issued on the petitioner for cancellation of the petitioner’s registration on account of failure on the part of the petitioner to file its returns. Incidentally, the said show cause notice was issued at a point of time when the country was under lock down. Although, the cancellation order of the petitioner’s registration dated 17th March 2021 records that the petitioner had submitted a response on 15th May 2020, it is found from the pleadings filed by the petitioner that the petitioner was denied such opportunity to file its response.
Be that as it may, taking into consideration the fact that suspension/revocation of license would be counter productive and works against the interest of the revenue since, the petitioner in such a case would not able to carry on its business in the sense that no invoice can be raised by the petitioner and ultimately would impact recovery of tax, the respondents should take a pragmatic view in the matter and permit the petitioner to carry on its business.
Application disposed off.
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2024 (5) TMI 819 - CESTAT NEW DELHI
Recovery of central excise duty - proviso to section 11A of the Central Excise Act, 1944 with interest and penalty - HELD THAT:- The date 10.05.2022 has been wrongly mentioned instead of 25.07.2022. The rest of the averments in the said paragraph are the averments that are contained in the order dated 25.07.2022 - It is, therefore, more than apparent that the matter was heard by the Additional Commissioner on 25.07.2022 and not by Principal Commissioner, but the order has been passed by the Principal Commissioner. This clearly defies all principles of natural justice. The officer who was required to adjudicate the show cause notice should have heard the matter, but it clearly transpires from the records provided to the appellant by the department itself under the Right to Information Act that the matter was actually heard by the Additional Commissioner.
This statement made by the Deputy Commissioner is clearly contradictory to the information supplied by the department itself to the appellant under the Right to Information Act. The Deputy Commissioner should have at least looked at the Ordersheet to find out who had actually heard the matter instead of just stating that the appellant has made an incorrect and baseless statement.
The matter is remitted to the Adjudicating Authority to pass a fresh order - Appeal allowed by way of remand.
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2024 (5) TMI 818 - CESTAT HYDERABAD
Valuation of export goods - Iron Ore Fines - transaction value - FOB price - Export duty - contemporaneous exports - corroborative evidence - HELD THAT:- Only when the Revenue doubts the transaction value and then follows the Valuation Rules sequentially before adopting the contemporaneous value, we can take the view that Department has the correct approach. In this case, such a situation has not arisen.
The Learned AR relies on the case law Obulapuram Mining Company Pvt Ltd., Vs CCCE & ST, Guntur 2018 (10) TMI 223 - CESTAT HYDERABAD also goes into these aspects. In that case, the Tribunal has held that after rejecting the value under Rule 8 the Adjudicating Authority is required to go through the Rules 4 to 6 in a sequential manner which was not done and hence the matter was remanded.
On the other hand, in this present case, the Adjudicating Authority has not rejected the transaction value and infact has taken the view that it has correctly reflected as per the documentary evidence placed. The Department was not agitated by the findings of the Adjudicating Authority and no further Appeal was filed by the Revenue. Hence the issue of transaction value being correct has reached finality.
Thus, we allow the appeal with consequential reliefs, if any, as per law.
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2024 (5) TMI 817 - ALLAHABAD HIGH COURT
Application For grant of Bail - offence punishable under Sections 135 - smuggling - cigarettes of foreign origin - HELD THAT:- Considering the nature of allegations and accusation against the applicant, the severity of the punishment if convicted and the period of incarceration as well as the fact that no apprehension has been expressed by the learned counsel for the Customs that the applicant is at the risk of fleeing justice or that he would tamper with evidence or influence any witness, hence, at this stage, without expressing any opinion on the merits of the case, this Court is of the view that the applicant is entitled to be released on bail.
In case of breach of any of the conditions, it shall be a ground for cancellation of bail.
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2024 (5) TMI 816 - CESTAT AHMEDABAD
Valuation of service - calculation of service tax - value of free housing/ accommodation facility provided by the appellant to the CISF personnel should be treated as additional consideration flowing to CISF and the value of such facilities need to be included in the service value or not - HELD THAT:- The matter is no longer res Integra as this Tribunal in case of M/s. CISF V/s. Commissioner of Central Excise and Service Tax, Rajkot [2024 (4) TMI 391 - CESTAT AHMEDABAD] has already decided the issue at hand in favour of the appellant.
The impugned Order-In-Appeal is without any merit and the same aside - appeal allowed.
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2024 (5) TMI 815 - ITAT DELHI
Foreign Tax Credit (FTC) u/s 90 r.w. Article 25 India US Treaty (DTAA) - Claim denied as Assessee could not file Form 67 online along with return - HELD THAT:- Section 90 of the Act provides that Govt. of India can enter into Agreement with other countries for granting relief in respect of Income on which taxes are paid in country outside India and such income is also taxable in India. Neither Section 90 nor DTAA provides that FTC shall be disallowed for non-compliance with any procedural requirements.
FTC is Assessee’s vested right as per Article 25 of the DTAA read with Section 90 and same cannot be disallowed for non-compliance of procedural requirement that is prescribed in the Income Tax Rules. Since the Form 67 has been filed, the same could be verified by the AO and to give relief accordingly.
As decided in case of Sambhaji and others vs. Gangabai and others [2008 (11) TMI 393 - SUPREME COURT] that procedural law should not ordinarily be construed as mandatory; the procedural is always subservient to and is in aid to justice. Therefore, filing of Form 67 as per provision of Section 90 r.w. Rule 128(9) of the Act is a procedural law and should not control the claim of FTC.
Section 90(2) of Income Tax Act, where the Central Govt. of India entered into a DTAA, the provisions of the Act would apply to the extent they are more beneficial to a taxpayer. Therefore, the provisions of DTAA override the provisions of the Act, to the extent they are beneficial to the assessee. Such contentions of the assessee, however, could not be controverted seriously by the Learned DR.
We dispose of this appeal by setting aside the issue to the file of the Learned AO with a direction upon him to verify the details of Form 67 as claimed to have been filed by the assessee in regard to claim of FTC, for A.Y. 2018-19 and to give relief to the assessee in accordance with law. Assessee’s appeal is, therefore, allowed for statistical purposes.
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2024 (5) TMI 814 - ITAT DELHI
Addition u/s 68/69A r.w.s. 115BBE - HELD THAT:- CIT(A) has given a finding that the assessee did not file any documentary evidence regarding cash deposits which is a subject matter of the impugned addition. However, it is the contention of the assessee that the assessee had provided documentary evidence to the Assessing Authority. This fact is required to be verified at the end of AO if the claim of the assessee is found to be correct, the AO would delete the impugned addition. Hence, this issue is restored to the file of AO for decision afresh. Ground No.3 raised by the assessee is accordingly, allowed for statistical purposes.
Disallowance of deduction claimed under Chapter VI-A - deduction u/s 80C - AO rejected the claim on the basis that the assessee failed to furnish any supporting evidences - as contended by the assessee that the amount was deposited in PPF Account and hence, he was entitled for deduction u/s 80C - HELD THAT:- Having considering the submissions of the assessee, this contention needs verification at the end of AO and the AO would verify the correctness of the claim of the assessee that the amount was deposited in PPF Account if it was found that amount was deposited in the PPF Account of the assessee during the Financial year, the AO would delete the addition.
Adhoc disallowance of business expenditure - HELD THAT:- There is no dispute that the impugned addition is based on adhoc disallowance of the expenditure. It is seen from the assessment order that the AO had made adhoc disallowance @ 25% on the basis that no explanation was offered by the assessee. As find that there is no basis of adopting 25% expenditure being not related to the business of the assessee. Since, the impugned addition is based upon merely, surmises and without giving clear finding, the impugned addition is hereby deleted. Ground No.5 raised by the assessee is accordingly, allowed.
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2024 (5) TMI 813 - KARNATAKA HIGH COURT
Levy of GST on Extra Neutral Alcohol (ENA) supplied by the petitioner - Validity of show cause notice - HELD THAT:- The respondents placed reliance on the recent decision of the Hon’ble Apex Court Union of India in UNION OF INDIA & OTHERS VERSUS COASTAL CONTAINER TRANSPORTERS ASSOCIATION & OTHERS [2019 (2) TMI 1497 - SUPREME COURT] where the Apex Court held 'We find force in the contention of the learned senior counsel, Sri Radhakrishnan, appearing for the appellants that the High Court has committed error in entertaining the writ petition under Article 226 of Constitution of India at the stage of show cause notices. Though there is no bar as such for entertaining the writ petitions at the stage of show cause notice, but it is settled by number of decisions of this Court, where writ petitions can be entertained at the show cause notice stage. Neither it is a case of lack of jurisdiction nor any violation of principles of natural justice is alleged so as to entertain the writ petition at the stage of notice.'
Therefore, it is clear that the Apex Court frowned upon the practice of approaching this court on issuance of show-cause notice, without giving written explanation to enable the authority to consider his defence and to pass appropriate orders. Therefore, the petitioner has rushed to this court to challenge the show-cause notice without availing the opportunity given to him to submit his written explanation. Therefore, the writ petition is not maintainable.
The writ petition is dismissed.
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2024 (5) TMI 812 - CESTAT BANGALORE
Detention of imported item - restricted goods - import of Multi-Function Devices (Digital Photocopiers and Printers) - violation of the Foreign Trade Policy, 2015-2020 framed under Sections 3 and 5 of the Foreign Trade Act and the Wastes Management Rules - Absolute Confiscation - Penalty - HELD THAT:- We find that the issue is no more res-integra. The issue regarding confiscation of used Digital Multifunctional machine was considered by various authorities including the Hon’ble Supreme Court in the matter of Commissioner of Customs Vs. M/s Atul Automation Pvt. Ltd. 2019 (1) TMI 1324 - SUPREME COURT and Digital Express 2020 (10) TMI 184 - KARNATAKA HIGH COURT.
In the absence of any evidence regarding margin of profit, it is settled that, such goods can be allowed to be redeemed on payment of redemption fine of 10% of enhanced value and penalty of 15% of the enhanced value. Thus, there is no infirmity in the order of allowing release of goods subject to payment of fine and penalty as held by Appellate authority.
It was not the case of Commissioner (appeals) that goods in the case were not liable for confiscation, since they are imported in violations of various non-tariff provisions of Customs Act and other Statutory provisions.
Thus, appeals are partially allowed and upheld the order of confiscation. However adjudicating authority is directed to release the goods imported under Bill of Entry No. 3626892 dated 16.10.2017 to respondent on payment of appropriate Customs duty on enhanced value and on payment of redemption fine of Rs. 3,70,000/- and penalty of Rs. 1,85,000/-. Similarly, adjudicating authority is directed to release the goods imported under Bill of Entry No. 3504084 dated 05.10.2017 to respondent on payment of appropriate Customs duty on enhanced value and on payment of redemption fine of Rs. 3,00,000/- and penalty of Rs. 1,50,000/-.
In the result the appeals are allowed partially subject to the above conditions.
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2024 (5) TMI 811 - ITAT MUMBAI
Estimation of profit - Validity of order of CIT(A) in reducing the gross profit @ 7.89% as against the 100% addition made by the AO - Bogus purchases - non genuine parties to cover-up the purchases from grey market - addition u/s 69C - CIT(A), has erred in reducing gross profit @ 7.89% as against the 100% addition made by the AO - HELD THAT:- As in assessee's own case for assessment year 2007 – 08. [2019 (6) TMI 1722 - ITAT MUMBAI] and thereafter, determined that only the balance profit which was disclosed by the assessee in genuine trade and non genuine trade could be added to the total income of the assessee. The coordinate Bench in the appellate order found that gross profit of non genuine purchases 7.64% whereas the gross profit of the assessee from other purchases is 7.89%, and therefore, the difference of 0.25% was added to the total income of the assessee. Therefore, the issue has been decided on the merits of the case in the appeal of the assessee arising out of the same appellate order. Appeal filed by the AO is dismissed.
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2024 (5) TMI 810 - CESTAT AHMEDABAD
Valuation - Inclusion of equalized handling charges from their customers on excisable goods in the assessable value - HELD THAT:- This very issue in the appellant’s sister concern i.e. MESSRS MIRA INDUSTRIES VERSUS C.C.E. -AHMEDABAD-II [2023 (4) TMI 655 - CESTAT AHMEDABAD] this Tribunal has taken a view that the handling charges recovered from the customers is not includible in the assessable value.
The facts of the above case and the case in hand are absolutely identical. Therefore, following the judgment of Mira Industries, in the present cases the handling charges is not includible in the assessable value of the excisable goods. Accordingly, the demand in this respect is not sustainable.
Appeal allowed.
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2024 (5) TMI 809 - CESTAT AHMEDABAD
Non-payment of Service Tax on various services provided - providing manpower supply and recruitment agency service to various parties - no proper findings given by Adjudicating Authority - violation of principles of natural justice - HELD THAT:- It is found that while confirming the service tax demand the Adjudicating Authority has not indicated any work order to prove that the activity undertaken by the appellant is in fact that of supply of manpower and recruitment agency service while the appellant is claiming that they were engaged by various parties for completion of the various job works and construction of road etc. - The Adjudicating Authority has not given his finding whether the appellant has been providing the services in the SEZ area or not or whether they are entitled for the exemption from payment of Service Tax for the services provided by them to SEZ developer or SEZ unit.
The Adjudicating Authority should give a fresh opportunity of hearing including the opportunity of presenting all the relevant papers/documents/evidences to the appellant and re-decide the matter afresh.
The appeal is allowed by way of remand.
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2024 (5) TMI 808 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI
Violation of principles of natural justice - non-speaking order - impugned order has not dealt with the various prayers made by the Appellant in the application and has confined its order with the claim which has been admitted by the RP - HELD THAT:- This matter requires a relook by the Adjudicating Authority for the purpose of recording a finding on each prayers sought in the application after taking into consideration the pleadings as well as the evidence brought on record. As according to us, the impugned order is totally nonspeaking.
Application is hereby restored and the matter is remanded back to the Adjudicating Authority to decide the application again by recording reasons while dealing with the prayers made in the application - appeal allowed by way of remand.
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2024 (5) TMI 807 - CESTAT KOLKATA
Liability of appellant, as a sub-contractor, to pay Service Tax when the main contractor has paid Service Tax on the services rendered - Consulting Engineer Service - services of supervision, coordination and monitoring in respect of engineering and technical works under the Yamuna Action Plan Project - extended period of limitation - penalty - HELD THAT:- The appellant has rendered the services to M/s. Tokyo Engineer Consultants Co. Ltd. as a sub-contractor. It is on record that the main contractor has paid Service Tax on the entire bill amount. However, it is observed that the Board has issued the Circular dated 23.08.2007 wherein it has been clarified that a sub-contractor is liable to pay Service Tax separately even if the main contractor discharges Service Tax on the entire amount. Accordingly, the appellant is liable to pay Service Tax on the services rendered by them as a sub-contractor.
Invocation of the extended period of limitation - HELD THAT:- The appellant cannot be faulted for not paying Service Tax for the period prior to the issue of the clarification by the Board. Further, the entire issue was within the knowledge of the Department and there is no evidence brought on record to establish suppression of facts with intention to evade payment of tax on the part of the appellant. Accordingly, the extended period of limitation cannot be invoked to demand duty in this case.
In the case of M/S SHREE RANIE GUMS & CHEMICALS PVT. LTD., M/S JAINSONS (INDIA) INDUSTRIES, M/S BASANT, M/S SATYAM ENTERPRISES (UNIT I) AND M/S SHREE RAM GUM CHEMICALS LTD. VERSUS CCE, JAIPUR-II [2017 (5) TMI 1303 - CESTAT NEW DELHI], this Tribunal has held that the demand raised by invoking the extended period includes normal period of limitation within it. Thus, when it is held that the extended period of limitation is not invokable, the demand for the normal period of limitation survives.
Penalty - HELD THAT:- It is observed that no suppression of facts with intention to evade payment of Service Tax exists in this case. Hence, in the facts and circumstances of the present case, no penalty is imposable on the appellant.
The demand of service tax for the extended period of limitation is set aside. The demand, if any, for the normal period of limitation, is confirmed along with interest - No penalty is imposable on the appellant - appeal disposed off.
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2024 (5) TMI 806 - GUJARAT HIGH COURT
Implementation of the Resolution Plan and change in management and control - demand for period prior to the approval of the Resolution Plan by the NCLT - HELD THAT:- It was submitted that similar facts were recorded by this Court vide order dated 25th August 2022 passed in R/Tax Appeal No.32 of 2019, holding that the said R/Tax Appeal No.32 of 2019 is required to be disposed of as having become infructuous and abated with regard to any liability of any nature whatsoever having extinguished in view of the implementation of the Resolution Plan and change in management and control of the assessee in view of the provisions of Sections 31 and 32A of the IBC as per the decision of the Hon’ble Apex Court referred to therein.
Applying the ratio laid down in the case of Ghanashyam Mishra and Sons v. Edelweiss Asset Reconstruction 2021 (4) TMI 613 - SUPREME COURT, as the facts are identical, these Tax Appeals are disposed of as abated and the proposed questions are, accordingly, not answered.
In view of disposal of the Tax Appeals, Civil Applications would not survive and are, accordingly, disposed of.
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2024 (5) TMI 805 - CESTAT CHANDIGARH
Abatement of appeal - Resolution Plan approved by NCLT - recovery of CENVAT Credit with interest and penalties - HELD THAT:- The identical matter has been considered by two coordinate benches of the Tribunal in the case of M/s Jet Airways (India) Limited vs. Commissioner of Service Tax-IV [2023 (5) TMI 767 - CESTAT MUMBAI] and Hyderabad Bench in the case of Icomm Tele Ltd. vs. Commissioner of Central Tax, Puducherry [2023 (10) TMI 1344 - CESTAT HYDERABAD]. It is pertinent to refer the findings of Mumbai Bench of the Tribunal in the case of M/s Jet Airways (India) Limited [2023 (5) TMI 767 - CESTAT MUMBAI] which was disposed of and it was ordered that the appeals stand abated once the Resolution Plan has been approved by NCLT and the CESTAT has become functus officio in the matters relating to this appeal.
Once the Resolution Plan has been approved by the NCLT, thereafter, the present appeal stands abated as the CESTAT has become functus officio in the matter relating to the present appeal - the appeal filed by the appellant is disposed of as abated.
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2024 (5) TMI 804 - CESTAT AHMEDABAD
Abatement claim - entire manufacturing process in the factory has remained closed for the period from 17.10.2014 to 31.10.2014 - Rule 10 of the Chewing Tobacco and Unmanufactured Tobacco Packing Machines (Capacity Determination and Collection of Duty) Rules - HELD THAT:- Firstly there is no denying of the fact that the manufactured goods which were in the stock were duty paid goods and the Rule 10 only provides a facility that if the assessee has any order pending for dispatch of the goods in that case they are free to clear the goods within the first two days, it has not been stipulated that all the goods which are manufactured and pending in the stock are to be cleared within a period of two days. It is important to take note that Rule 10 only mentions the word “May” that itself signifies that the manufacture is free to avail facility of clearing the goods for two days at the commencing of the closer period. This provision basically meet the requirement of dispatches of the goods or sale of the goods to match the requirement of pending dispatch orders.
It is settled Principal of the law that the word as provided in the statute or notification has to be read as it is rather than basically interpreting them in different way Hon’ble Supreme Court in case of BANSAL WIRE INDUSTRIES LTD. VERSUS STATE OF UP. [2011 (4) TMI 77 - SUPREME COURT] has held that 'It is a settled principle of law that the words used in the section, rule or notification should not be rendered redundant and should be given effect to. It is also one of the cardinal principles of interpretation of any statue that some meaning must be given to the words used in the section. Expression "Wire rods and wires" which is mentioned in item no. (xv) would not and cannot cover the expression "tools, alloy and special steels of entry no. (ix) nor it would refer to the expression "Iron and Steel" as each item used in entry nos. (ix) and (xv) are independent items not depending on each other at all.'
Rule 10 provides that assessee “May” clear the goods for first two days of the commencement of the closer period, it does not mean that all the manufactured/ stocked goods need to be cleared within two days. The appellant have fulfilled all the conditions of Rule 10 of the Tobacco Manufactured Rules, 2010 - Therefore, they are entitled for the abetment of the duty for the closer period of the manufacturing machines.
The impugned order in appeal is without any merit and the same is set aside - Accordingly the appeal is allowed.
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2024 (5) TMI 803 - CESTAT KOLKATA
Reversal of CENVAT Credit - units sold after the Completion Certificate (CC) - exempt services or not - scope of SCN - HELD THAT:- The Grounds taken by the Revenue before the Commissioner (Appeals) is not known since neither side has filed the copy of the Revenue’s Review Order Order and Grounds taken by the Revenue. The Commissioner (Appeals) has passed the Order to the effect that the Appellant is not eligible to take full Cenvat Credit since they were also providing exempted service in the form of sale of units after the issuance of Completion Certificate. He has also dealt with the issue as to whether the Appellant can take the benefit of Cenvat Credit as well as abatement when they are following the procedure given under Notification No. 1/2006-St as amended from time to time. As to whether the Commissioner (Appeals) has traversed beyond the scope of SCN can be seen only after going through the Department’s Grounds before him are considered, which presently is not available to the Bench.
Since the Show Cause Notice addressed several issues about the credit taken, return shown in the ST-3 etc., it would be important to get these facts verified. In the absence of all the documents being placed before the Bench, it would not be fair to come to conclusion at this juncture. Accordingly, in the interest of justice, the matter is remanded to the Adjudicating Authority to get all the documentary evidence including the Audit Report, Grounds taken by Revenue before the Commissioner (Appeals), properly verified and pass a considered decision.
Matter on remand.
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2024 (5) TMI 802 - ITAT AHMEDABAD
Addition u/s 50C r.w.s. 56(2)(vii) (b) - Additions in the hands of the buyer of the property - difference between the purchase price as per sale deed and the jantri value of the property on which the stamp duty was paid - Assessee is co-owners of the same property - As submitted the assessee was a buyer of the property, no capital gain could have arisen in her hand, therefore, the provision of Section 50C of the Act was not applicable at all in this case - HELD THAT:- An addition could have been made under this Section only if any immovable property, with stamp duty value exceeding Rs. 50,000/-, was acquired without consideration. In this case, the property was not acquired without consideration. Therefore, the provision of Section 56(2)(vii)(b) of the Act is not found applicable in this case. This provision was amended by the Finance Act, 2013 w.e.f. 01.04.2014 whereby the difference between the stamp duty value and the actual sale consideration was made liable for addition as ‘income from other sources’.
As explicitly mentioned in the Memorandum that the existing provision was applicable to immovable property received without consideration only and that it did not cover cases of inadequate consideration. In order to include the cases of inadequate consideration, the provision of Section 56(2)(vii)(b) of the Act was amended with effect from 01.04.2014. It is categorically mentioned that this amendment was effective from 01.04.2014 onwards and applicable to A.Y. 2014-15 and subsequent years. Therefore, this amendment cannot be extended to past years. Accordingly, no addition u/s. 56(2)(vii)(b) of the Act could have been made in A.Y. 2012-13 u/s. 56(2)(vii)(b) of the Act in the case of inadequate consideration. Therefore, the addition as made by the AO cannot be sustained.
Addition u/s. 69C - CIT(A) was also wrong in confirming the addition u/s. 50C r.w.s. 69 of the Act. As already discussed earlier, the provision of Section 50C of the Act is not applicable in the case of buyer and the department never had any case of making any addition u/s. 69C - addition u/s. 69C could have been made only in respect of actual investment as made by the assessee in the property and not in respect of jantri value. The addition u/s 69 also can’t be sustained for the reason that case was reopened to consider the difference between jantri value and actual purchase value. When the addition on the issue on which the case was reopened is not sustained, no other addition is permissible. The CIT(A) had also not issued any show cause notice to the assessee for making the addition u/s. 69C of the Act. Therefore, the order of the CIT(A) is cancelled.
Appeal preferred by the assessee is allowed.
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2024 (5) TMI 801 - CESTAT HYDERABAD
Cancellation of warehouse licenses - Penalty u/s 117 - fake insurance policies and port allotment letters - violations of Rules made - appellant submits that there is no provision for submission of NOC from the Port; there was a mistake on the part of the employee of the appellant in submitting not genuine/ fake insurance policies; genuine insurance policies were available for license - HELD THAT:- The appellants are alleged to have submitted fake insurance policies in respect of some licenses; though, the appellants argue that the submissions of licenses within the renewal period was not required and at best can be termed as superfluous and the same would not have any bearing on the licenses; it is evident that the management of the appellant were not aware of the fact of submission of such fake licenses which was done by an employee. I find that this will not absolve the appellant of the commission of the offence, if any. There is no mention of any criminal complaint was registered against the employees of the appellant and if so, what was the outcome of the same. Though, the same is not relevant to see the veracity of the licenses, it could throw light on the mala fides of the appellant, if any.
Revocation of licenses - Revenue is free to take action against the licenses which are obtained by fraud or mis-representation, such an action cannot be excessive and needs to be commensurate to the commission of offence, more so, looking into the fact that the Adjudicating Authority has allowed continuation of warehousing operations for a period of three months to enable the clearance of cargo. It is also seen that the Adjudicating Authority categorically holds that the appellants have paid the applicable dues to the Vishakhapatnam Port Authorities in respect of all the warehouses which was not disproved in the investigation.
This gives an indication that the Adjudicating Authority had an idea at the back of his mind that the license can be continued notwithstanding the submission of fake/ nongenuine insurance policies in respect of some licenses. Thus, it would have been in the fitness of things if the two licenses Nos.16/2020, 24/2018, for which genuine insurance policy was available, were not cancelled. Similarly, I find that the appellant’s argument that mere possession of fake NOCs has no bearing on the case as the NOCs were not even required to be submitted.
Penalty on the Director - Revenue has not brought out any violation committed by Shri Venugopal for being liable for penalty under Section 117 of the Customs Act, 1962. I am of the opinion that unless there is a specific provision in the Rules/ Regulations to impose penalty under such Rules/ Regulations, recourse cannot be taken to the general provisions unless provided for. Further, learned Adjudicating Authority merely avers that mens rea is not required for imposition of penalty ibid. The issue of mens rea comes when any of the violations have been highlighted. In the absence of the same, the imposition of penalty on Shri Venugopal under this Section is not legally sustainable.
Thus, Appeal is partly allowed by setting aside the cancellation of license and imposition of penalty on Shri M. Venugopal, Director of the appellant. Accordingly, Appeal stands allowed.
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