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Showing 61 to 80 of 405079 Records
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2024 (4) TMI 659
Rectification petition - Validity Of Order passed - discrepancy between the GSTR 3B return - belated filing of GSTR 1 by the Supplier - Petitioner unable to upload the reply on the portal - HELD THAT:- The petitioner has placed on record a certificate dated 31.10.2023 from Fivestar Impex India Private Limited stating that the supply was made under invoice dated 01.11.2017. A certificate from Prabhakaran & Associates, Chartered Accountant is also on record. The said certificate provides the details of invoice dated 01.11.2017 for a total value of Rs. 18,82,000/-. The e-mail dated 18.10.2023 is also on record. These documents were not taken into account while issuing the impugned order. For such reason, the order impugned herein calls for interference.
Therefore, the order dated 29.12.2023 is set aside and the matter is remanded to the respondent for reconsideration. The petitioner is permitted to submit a reply to the show cause notice within 15 days from the date of receipt of a copy of this order by enclosing all relevant documents. Upon receipt thereof, the respondent is directed to provide a reasonable opportunity to the petitioner, including a personal hearing, and thereafter issue a fresh order within two months from the date of receipt of the petitioner's reply.
The writ petition is disposed of on the above terms without any order as to costs.
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2024 (4) TMI 658
Validity Of assessment order - No opportunity of personal hearing - breach of principles of natural justice - difference in outward turnover between the books of account and various returns - HELD THAT:- From the impugned order, it appears that this request was not entertained and the order was issued on 31.12.2023. Although the order refers to a personal hearing notice issued on 31.12.2023, there is nothing on record to indicate that such personal hearing notice was issued. On examining the impugned order with regard to turnover discrepancy as between the different returns, it is noticeable that the petitioner explained the difference in its reply dated 28.07.2023 by pointing out that the lower amount was inadvertently reported in the GSTR 1 statement, which was subsequently rectified by filing the annual return. This aspect has not been noticed in the impugned order.
Thus, the impugned order dated 28.12.2023 is set aside and the matter is remanded for reconsideration. The petitioner is permitted to submit additional documents in support of its reply within 15 days from the date of receipt of a copy of this order. Upon receipt thereof, the respondent is directed to provide a reasonable opportunity to the petitioner, including a personal hearing, and thereafter issue a fresh order within two months from the date of receipt of additional documents from the petitioner.
The writ petition is disposed of on the above terms without any order as to costs.
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2024 (4) TMI 657
Validity Of Order Passed - documents submitted by the petitioner were disregarded - manufacture of alcoholic beverages - show cause notice issued - non payment of GST - limitation period - HELD THAT:- The operative portion of the impugned order, extract reveals that the assessing officer took into account the evidence placed on record, including the licence issued by the Excise Commissioner, the licence cum manufacturing agreement and the statements of Smt.N.Nalini and Shri.R.V.Ravikumar. Upon appraisal of such evidence, materiality and weight was assigned to such evidence while drawing conclusions. In exercise of discretionary jurisdiction under Article 226, I am not inclined to interfere with the impugned order in these facts and circumstances.
The impugned order is dated 11.12.2023 and this writ petition was filed in January 2024. As of the date of filing, the limitation period had not expired. As on date, the condonation period is on the verge of expiry. Thus, it is just and appropriate that the petitioner be permitted to present a statutory appeal.
Therefore, W.P.No. is disposed of by permitting the petitioner to present a statutory appeal within ten days from the date of receipt of a copy of this order. If such statutory appeal is presented within the aforesaid period, the appellate authority is directed to receive and dispose of the same on merits without going into the question of limitation. No costs. Consequently, W.M.P.No.10388 of 2024 is closed.
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2024 (4) TMI 656
Validity of assessment order - Violation of Stay Order against the operation of a notification extending the period of limitation - Jurisdiction of Central GST authorities since the petitioner is assessed to the State Tax Authorities - Cross Empowerment - HELD THAT:- The issue regarding cross-empowerment and the jurisdiction of the counterparts to initiate proceedings when an assessee has been allocated either to Central Tax Authorities or to the State Tax Authorities was examined in detail by this Court in Tvl.Vardhan Infraastructure's case [2024 (3) TMI 1216 - MADRAS HIGH COURT].
After examining the provisions, this Court has concluded that in the absence of notification issued for cross-empowerment, the authorities from the counterpart Department cannot initiate proceedings where an assessee is assigned to the counterpart. Therefore, the impugned Order-in-Original No.24/2023-GST, dated 26.12.2023 passed by the respondent is quashed.
However, liberty is given the State authorities to proceed against the petitioner in terms of the observations contained in the order passed by this Court in Tvl.Vardhan Infraastructure's case [cited supra].
Petition allowed.
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2024 (4) TMI 655
Denial of Input Tax Credit (ITC) - Proof of movement of Goods (E-way bill) not produced - Validity of Order passed - No reasonable opportunity to contest the tax demand - show cause notice issued alleging that the petitioner had wrongly availed of Input Tax Credit (ITC) - HELD THAT:- On perusal of the petitioner's reply, it appears that the petitioner submitted original tax invoices, the ledger account pertaining to the supplier concerned, bank statement and relevant GSTR returns. The petitioner does not appear to have submitted e-way bills, lorry receipts, weighment slips and the like to establish actual movement of goods. On examining the impugned order, it appears that the tax proposal was confirmed largely on the ground that there was no proof of actual movement of goods. By taking into account the nature of documents submitted by the petitioner, which include the bank statement showing payments made to the supplier, the GSTR 2A indicating the availability of ITC, it is just and appropriate that the petitioner be provided an opportunity to produce relevant documents to prove actual movement of goods. As a condition for remand, however, it is also necessary to put the petitioner on terms.
Thus, the impugned order dated 30.08.2023 is set aside and the matter is remanded for reconsideration on condition that the petitioner remits 20% of the disputed tax demand as agreed to within a period of two weeks from the date of receipt of a copy of this order. The petitioner is also permitted to submit additional documents within the aforesaid period to establish actual movement of goods. Upon receipt of additional documents from the petitioner and on being satisfied that 20% of the disputed tax demand was received, the 1st respondent is directed to provide a reasonable opportunity to the petitioner, including a personal hearing, and thereafter issue a fresh order within two months from the date of additional documents from the petitioner. As a consequence of the impugned order being set aside, the order of attachment is raised.
The writ petition is disposed of on the above terms without any order as to costs. Consequently, connected miscellaneous petitions are closed.
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2024 (4) TMI 654
Validity Of Order passed u/s 73 of the Central Goods and Services Tax Act, 2017 [“the Act”] - Demand - show cause notice issued proposing to cancel the GST registration - HELD THAT:- Since no show cause notice was issued prior to passing of impugned order, on the said technical ground alone, this order is liable to be set aside. The same is accordingly quashed.
It is clarified that it would be open to the respondents to pass an appropriate order after giving a proper show cause notice and an opportunity of personal hearing to the petitioner.
It is clarified that this Court has neither considered nor commented on the merits of contentions of either party and the impugned order has been set aside solely on the ground of infraction of principles of natural justice. All rights and contentions of the parties are reserved
Petition is accordingly disposed of in the above terms.
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2024 (4) TMI 653
Validity Of assessment order passed - SEZ unit - Supply of services without charging GST since it was a zero rated supply - turnover inadvertently reported under the column taxable value in GSTR-1 - HELD THAT:- The petitioner has placed on record the relevant tax invoice. Such tax invoice indicates prima facie that the supply was made to a SEZ unit and that it consequently qualifies as a zero rated supply. The GSTR-3B return of the petitioner is in line with the supply being zero rated. It is also noticeable from the invoice and returns that the supply pertained to the July quarter of assessment period 2017-18. This was during the nascent stage of GST implementation.
Thus, I am of the view that this is an appropriate case to provide an opportunity to the petitioner. Consequently, the impugned assessment order is quashed and the matter is remanded for re-consideration by the assessing officer.
The petitioner is permitted to submit a reply to the show cause notice within a maximum period of fifteen days from the date of receipt of a copy of this order by enclosing all relevant documents.
W.P. is disposed of on the above terms.
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2024 (4) TMI 652
Maintainability of Writ Petition since GST Appellate Tribunal not constituted - Order Appealable u/s 112 of the CGST/OGST Act, 2017 - Statutory benefit of stay - Non-constitution of the Appellate Tribunal as required u/s 109 - HELD THAT:- Taking into account the aforesaid Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019 dated 03.12.2019 issued by the Government of India and subsequent clarification issued by the Central Board of Indirect Taxes and Customs (GST Policy Wing) vide Circular No.132/2/2020 dated 18th March, 2020, we deem it proper in the interest of justice to dispose of this writ petition in the following terms, with the consent of the parties:-
(i) Subject to verification of the fact of deposit of a sum equal to 20 percent of the remaining amount of tax in dispute, or deposit of the same, if not already deposited, in addition to the amount deposited earlier under Sub Section (6) of Section 107 of the CGST/OGST Act, the petitioner must be extended the statutory benefit of stay under Sub-Section (9) of Section 112 of the CGST/OGST Act, for the petitioner cannot be deprived of the benefit, due to non-constitution of the Tribunal by the respondents themselves. The recovery of balance amount, and any steps that may have been taken in this regard will thus be deemed to be stayed.
(ii) The statutory relief of stay on deposit of the statutory amount, in the opinion of this Court, cannot be open ended. For balancing the equities, therefore, the Court is of the opinion that since order is being passed due to non-constitution of the Tribunal by the respondent-Authorities, the petitioner would be required to present/file his appeal u/s 112 of the CGST/OGST Act, once the Tribunal is constituted and made functional and the President or the State President may enter office. The appeal would be required to be filed observing the statutory requirements after coming into existence of the Tribunal, for facilitating consideration of the appeal.
(iii) In case the petitioner chooses not to avail the remedy of appeal by filing any appeal u/s 112 of the CGST/OGST Act before the Tribunal within the period which may be specified upon constitution of the Tribunal, the respondent-Authorities would be at liberty to proceed further in the matter, in accordance with law.
With the above liberty, observation and directions, the writ petition stands disposed of.
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2024 (4) TMI 651
Adjusting or attempting to adjust any portion of the refunds receivable by the petitioner against the stayed outstanding demand - condoned revised ITRs were submitted in respect of each of the Assessment years but refunds have not been received - petition may be disposed of directing respondent No. 4 to consider and decide his aforesaid representation expeditiously within the stipulated period fixed by this Court - HELD THAT:- Having considered the facts and circumstances of the case and considering the limited prayer made by the learned counsel for the petitioner, this petition is disposed of directing the respondent No. 4 to consider and decide the representation dated 18-8-2023 (Annexure P-2) and Annexure P-23 dated 8-12-2023 filed by the petitioner within a period of 60 days from receipt /submission of copy of this order.
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2024 (4) TMI 650
Reopening of assessment u/s 147 - as argued documents submitted by the petitioner were not taken into consideration while drawing up the assessment order - HELD THAT:- Findings were recorded that the assessee failed to submit export bills, proof of customs clearance, remittance proof, copy of purchase bills and confirmation of payment made to agriculturists. Out of these, export bills were certainly attached with the petitioner's reply on 15.02.2024. As regards purchase bills, the purchase ledger and the GSTR annual returns were filed. It is likely that much of the information requested for would be contained in these documents. However, it should be recognised that the petitioner does not appear to have submitted all necessary documents. Nonetheless, since the documents submitted by the petitioner were not discussed and no reasons are recorded for confirming the proposed variations, the impugned order calls for interference. Besides, it should be noticed that tax was imposed not only on deposits but also on withdrawals.
For reasons set out above, the impugned order is set aside and the matter is remanded to the 1st respondent for reconsideration. The petitioner is permitted to submit any additional documents within a maximum period of 15 days from the date of receipt of a copy of this order. Upon receipt thereof, the 1st respondent is directed to provide a hearing through video-conference to the petitioner and issue a fresh assessment order within a maximum period of two months from the date of receipt of additional documents from the petitioner.
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2024 (4) TMI 649
Rectification u/s 154 - disallowance of carrying forward of the loss - HELD THAT:- Since on account of disallowance of carrying forward of the loss for the financial year 2016-17 the petitioner would be denied to carry forward the said loss any further. By implication, the petitioner would suffer a loss and therefore, it is in that situation Sub-Section (3) of Section 154 stipulates issuance of notice and an opportunity of hearing. The said Sub-Section (3) otherwise has a mandatory force of law and it is this statutory requirement which has not been complied with as would be evident from the contents of paragraph No. 12 of the counter-affidavit (extracted above).
Thus, we are of the firm view that the impugned order of rectification passed by the 1st respondent is in violation of the statutory provision of Section 15393) of the Act, and therefore, the same is unsustainable. Accordingly, the same is set aside. The Writ Petition stands allowed.
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2024 (4) TMI 648
Determining the jurisdiction of appellate forum - jurisdiction of this Tribunal - HELD THAT:- Although certain benches of the Tribunal exercise its jurisdiction over more than one state, the explanation 4 to Standing Order dt. 01/10/1197 issued under rule 4(1) of Income Tax Appellate Tribunal Rules, 1963 prescribes that; the ordinary jurisdiction of the Tribunal should be based on the location of the Assessing Officer. The Hon’ble Supreme court’s decision in ‘PCIT Vs ABC Papers Ltd.’ [2022 (8) TMI 863 - SUPREME COURT], has put the issue of jurisdiction of appellate forum to rest by holding that, the ‘situs of the assessing officer’ is the only key factor for determining the jurisdiction of appellate forum irrespective of any administrative order passed u/s 127 of the Act in relation to transfer of cases.
Thus since the situs of the AO who framed the assessment is beyond the territorial jurisdiction of this Tribunal, therefore without offering our comments on threefold issue dilated at para 3 hereinbefore, we deem it fit to dismiss the present appeal of the Revenue and the cross objection of the assessee as are not maintainable, however with leave to file them before appropriate bench of the Tribunal which exercises the jurisdiction over the Ld. AO who framed the assessment. Appeal of the Revenue and Cross-Objection of the assessee stands DISMISSED.
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2024 (4) TMI 647
Eligibility of the assessee for exemption u/s 80P(2)(a)(i) or u/s 80P(2)(d) - interest income earned by a cooperative society from the schedule banks - appellant is a cooperative society engaged in the business of providing credit facilities to its members and accepting deposits from its members. It does not enjoy any license to carry on the business of banking from Reserve Bank of India.
HELD THAT:- Hon’ble Karnataka High Court in the case of Tumkur Merchants Souharda Credit Cooperative Ltd. [2015 (2) TMI 995 - KARNATAKA HIGH COURT] and Vaveru Co-operative Rural Bank Ltd [2017 (4) TMI 663 - ANDHRA PRADESH HIGH COURT] took a view that such interest income is attributable to the activities of the society and, therefore, eligible for exemption u/s 80P(2)(a)(i) of the Act. Similar view has been taken by the Hon’ble Calcutta High Court in the case of PCIT vs. Gunja Samabay Krishi Unnayan Samit [2023 (1) TMI 783 - CALCUTTA HIGH COURT] and Chennai Central Cooperative Bank Ltd. [2023 (1) TMI 1088 - MADRAS HIGH COURT]
The interest income earned on fixed deposits with cooperative bank/scheduled bank partakes character of the business income, which is eligible for deduction u/s 80P(2)(a)(i) of the Act. Therefore, direct the Assessing Officer to allow the exemption u/s. 80P(2)(a)(i) and section 80P(2)(d) of the Act. Thus, the grounds of appeal filed by the assessee stand allowed.
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2024 (4) TMI 646
Revision u/s 263 - "lack of enquiry” or “lack of investigation” - correct appreciation of conclusion that “interest on enhanced compensation during the assessment year under consideration ought to be treated as income from other sources u/s. 56(2)(viii) of the Act” - HELD THAT:- We find plausible reasons in the contention of the Ld. AR that that the issue under consideration is no longer res integra, in as much as that identical issue arises into the case of other individuals namely Gulshan Kumar S/o Mohari Ram [2024 (2) TMI 748 - ITAT DELHI] wherein exactly similar and identical order has been has decided the issue in favour of assessee as held since the order of the Ld. AO is based on the decision of the Hon’ble Supreme Court in Ghanshyam HUF [2009 (7) TMI 12 - SUPREME COURT] on the issue of taxability of interest received by the assessee under section 28 of Land Acquisition Act. it can at best be said to be a debatable issue on which two views are possible and the Ld. AO accepts one of the views. In this view of the matter too, the Ld. PCIT cannot assume revisional jurisdiction held by the Hon’ble Delhi High Court in CIT Vs. Hindustan Coca Cola Beveraces P Ltd. [2011 (1) TMI 138 - DELHI HIGH COURT]
Revenue has not pointed any change into facts and circumstances of the present case. We therefore, respectfully following binding precedent (Supra), hereby allow the appeal of the assessee by quashing the impugned order of the Ld. PCIT - Assessee appeal allowed.
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2024 (4) TMI 645
Validity of reopening of assessment - reasons to believe - assessee has claimed huge amortization expenses on goodwill - HELD THAT:- As undisputed fact that in the reasons AO has recorded the escapement of income on account of amortization of goodwill which was not claimed by the assessee in computation of normal provisions of the Act and with regard to adjustment in book profit computed u/s 115JB of the Act AO has not disturbed the same in the order passed u/s 143(3) r.w.s. 147 of the Act. So it is very clear that the reasons recorded are without verification of the records and accordingly, without application of mind.
AO has not bothered to even verify the information received with the assessment folder whether any such depreciation has been claimed by the assessee or not. It clearly reflects that the AO has mechanically recorded the reasons and issued the notice without applying his own mind. Ld. PCIT has also accorded approval u/s 151 of the Act based on the reasons recorded by the AO without ascertaining the actual facts of the case. Hon’ble Bombay High Court in case of Sharvah Multitrade Compant P Ltd. [2022 (1) TMI 372 - BOMBAY HIGH COURT] dealt with similar case and held that reassessment initiated based on reasons recorded on irrelevant facts and without application of mind cannot survive.
This, in our considered opinion, it is against the settled principles of law, as reopening of an assessment is an extraordinary power available to the ld AO and it should not be done in a cavalier manner. That is why the legislature in its wisdom had put lot of restrictions by imposing conditions for seeking approval and sanction from a superior officer in terms of section 151 of the Act.
AO recorded wrong facts on many count in the reasons recorded for reopening of the assessment i.e. AO recorded incorrect fact that assessee has claimed huge amortization expenses on goodwill and disallowed the same in the assessment order u/s 32 of the Act which was deleted by Ld CIT(A) by stating that no such expenses actually claimed by the assessee. The AO in the reasons also recorded incorrect fact that no assessment has been completed in this case u/s 143(3) but assessment u/s 143(3) r.w.s. 153C completed on 29/12/2017 as recorded by the AO.
AO also incorrectly stated that provisions of section 147(2)(b) are applicable, whereas in the facts of the case provisions of section 147(2)(c) are applicable where the onus on AO is higher to prove escapement of income. The AO, therefore, recorded wrong, incorrect and non-existing reasons for reopening of the assessment. It makes clear that there is a total non-application of mind on the part of the AO while recording the reasons for reopening of the assessment - Thus Reopening of the assessment is invalid and bad in law - Decided in favour of assessee.
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2024 (4) TMI 644
Disallowance of total job work charges paid to sister concern - invocation of section 40A(2) - HELD THAT:- Lower Authorities failed to make comparative study of the job work charges with any third party, therefore A.O. is not correct in making disallowance u/s. 40A(2)(b) of the Act. Thus the disallowance made by the Lower Authorities are hereby deleted. Thus Ground Nos. 1 to 4 raised by the assessee are hereby allowed.
Disallowance on adhoc basis on the job work charges - Addition at Rs. 2 per Kg for 16710 Kgs. on estimated basis on the job work carried out - HELD THAT:- CIT(A) confirmed the disallowance only on the ground that the smallness of the disallowance which is not excessive. However the Assessing Officer has not justified the above disallowance with proper evidence, but only on misconception of the correct facts. Therefore the adhoc disallowance made by the Assessing Officer is not sustainable in law. Therefore we direct the A.O. to delete the above disallowance.
Addition of duty drawback incentive which is offered for taxation on cash receipt basis in subsequent year - D.R. submitted that the assessee is not aggrieved by this issue and the CIT(A) already given relief to the assessee, hence this ground is liable to be dismissed - HELD THAT:- We find that the Ld. D.R. is correct in stating that the assessee is not aggrieved on this issue and there is already a direction given by Ld. CIT(A) to verify this issue and rectify the assessment accordingly. Therefore this ground raised by the assessee is hereby dismissed
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2024 (4) TMI 643
Maintainability of petition - availability of alternative remedy of appeal - compounding of offence - CESTAT has jurisdiction to entertain an application vis-a-vis compounding of an offence under Section 137 of the Customs Act, 1962, or not - HELD THAT:- Bearing in mind the submissions of learned senior counsel and also the fact that the CESTAT has now remanded the matter to the Chief Commissioner to reconsider the application filed for compounding of the offence under Section 137 of the Customs Act, 1962, the matter needs no interference.
The Chief Commissioner is now to re-consider the said application in accordance with law. The Chief Commissioner to dispose of the said application filed under Section 137 of the Customs Act as expeditiously as possible.
SLP disposed off.
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2024 (4) TMI 642
Revocation of Customs Broker Licence - forfeiture of security deposit - levy of penalty - mis-declaration of quantity of imported goods - violation of the provisions of Regulation 11(n) of CBLR, 2013 - HELD THAT:- From the facts of the present case, it is evident that the manner in which Shri Bansal was dealing with the appellant in relation to the imports for all practical purposes, he was the actual importer and Shri Praveen Singh Patwal was merely a dummy IEC holder. He categorically stated that whenever the consignment arrived, the documents were sent to him by Shri Rajesh Bansal or else his field boy used to go to the office of Shri Rajesh Bansal at Tip Top Market, Karol Bagh to collect the documents. More important was that after customs clearance, the goods used to go to the premises of Shri Rajesh Bansal at Karol Bagh is a pertinent factor which could not have been ignored by the appellant. Similarly, the payments used to be made by Shri Rajesh Bansal or Sunil Badlani. The entire working was within the knowledge of the appellant and the fact that this modus-operandi was followed in the past clearances of around 60-70 consignments clearly reflects connivance on the part of the appellant.
Also on same set of facts that Narendra Narula, Proprietor of GND Cargo Movers (CHA) was well aware of the fact that Shri Praveen Singh Patwal was the proprietor of M/s. Royal International and Shri Rajesh Bansal was actually importing the goods in the name of M/s Royal International, although Shri Bansal was not the proprietor of the said firm, show cause notice dated 29.11.2013 was issued under the Customs Act, 1962 and on adjudication, order-in-original dated 30.03.2018 was passed whereby penalty of Rs.10 lakhs was imposed on Shri Narendra Narula under Section 112 (a) of the Act. The findings given on the same facts in the collateral proceedings on adjudication are binding.
Customs broker is expected to act with great sense of responsibility and take care of the interest of both the client and the revenue. Violations even without intent are sufficient to take action against the appellant.
Proportionality of punishment - HELD THAT:- The adjudicating authority had taken a balanced view that CB cannot escape his duty of KYC verification just by obtaining photo copies of two identity and interest proof documents and therefore having violated regulation 11 (n) rightly revoked the CB license and forfeited the security deposit amount but refrained from imposing separate penalty on the appellant. In M/S FALCON INDIA (CUSTOMS BROKER) VERSUS COMMISSIONER OF CUSTOMS (AIRPORT & GENERAL) NEW DELHI [2022 (3) TMI 1268 - CESTAT NEW DELHI], the Tribunal was of the view that there is no reason to show any leniency once violation is noticed and it is not for the Tribunal to interfere with the punishment meted out by the disciplinary authority, i.e. the Commissioner, unless it shocks the conscience.
Referring to the provisions of Regulation 11(n) and the judicial pronouncements, Mr. Rakesh Kumar, learned Authorised Representative submitted that Shri Narula (CB) in his statement recorded under Section 108 of the Act accepted that he has not verified the antecedents of the importer as the documents were handed over by Shri Badlani, an Associate of Shri Rajesh Bansal, who is not the IEC holder and he also admitted that the imports were made through a dummy IEC holder - there are no infirmity or perversity in the conclusion arrived at in imposing the punishment by the impugned order.
The impugned order upheld - appeal dismissed.
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2024 (4) TMI 641
Valuation of imported goods - rejection of value - enhancement of value, on the basis of a price quote appearing on the internet website - Confiscation on account of mis-match colour, batch number and batch quantity, which occurred on account of mistake on the part of the foreign supplier - confiscation also on the ground that one batch number being omitted to be mentioned by mistake in the Test Certificate of the Testing Laboratory.
Enhancement of value - HELD THAT:- Merely on the basis of the quote available on particular website it is not sufficient to enhance the value of the imported goods. at the same time the value appearing on website is abnormally high i.e. 0.36 per piece therefore the matter needs to be reconsidered on the basis of other material, if any. It is also observed that for applying the value of contemporaneous import it will also be important to see various factor such as similar goods, same quality, country of the export and the time of import. Therefore, merely on the basis of the quote available on the website value cannot be enhanced.
Confiscation of the goods on the basis mis-match of colour, batch number and batch quantity - appellant submitted that the mistake has occurred in the part of the supplier which has subsequently been clarified by the supplier - HELD THAT:- It is prima facie found that because of this error it does not conclusively lead to any mala fide on the part of the appellant. The Adjudicating authority must reconsider the clarification given by the supplier and also to see that whether there is any intention to evade/ short paid the custom duty. It is also the submission of the appellant that even though this mistake has occurred the total quantity of the goods is matching. This aspect also needs to be re-looked into by the adjudicating authority.
Confiscation on allegation that in test certificate one batch number is mentioned wrongly - HELD THAT:- It is found that it was a typographical error and the testing laboratory has rectified the error. Once the typographical error has been rectified, the mistake dose not remains and after rectification only for the mere typographical error goods cannot be confiscated. Therefore the adjudicating authority has to reconsider this matter accepting the rectification of the error done by the concerned laboratory.
The entire matter needs to be reconsidered therefore the impugned order is set aside. The appeals are allowed by way of remand to the adjudicating authority for passing a fresh order.
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2024 (4) TMI 640
Valuation of imported goods - inclusion of royalty in the invoice value - Rule 10(1)(c) of the Customs Valuation Rules, 2007 - HELD THAT:- Impliedly, the direction of the first appellate authority is not relatable to goods under import or under proceedings for recovery of duty short-paid on import. A proceedings which does not pertain to goods under import or already imported and cleared is not a proceedings acknowledgeable under Customs Act, 1962. Neither Learned Counsel nor Learned Authorised Representative were able to evince notice under section 28 of Customs Act, 1962 for recovery of duty arising from proposed addition to declared value by recourse to rule 10(1)(c) of Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 or for finalization of assessment under section 18 of Customs Ac, 1962 which, other than section 124 of Customs Act, 1962, should be the requisite framework for adjudication and appellate disposal.
The order impugned before the first appellate authority has its origins in a peculiar institution of customs administration, viz., Special Valuation Branch (SVB) or GATT Valuation Cell (GVC), found in some of the older customs houses with specific remit to investigate acceptability of price declared for assessment of goods transacted between related persons. This arises from provisioning in section 14 of Customs Act, 1962 for assessable value to factor in relationship affecting price arrangement in transactions which frailty of human expression could but, in the nascent stage of harmonized approach to valuation, inadequately articulate as the norm or the deviation, and as remedies appurtenant thereto, to justify institutionalized support to assessment hierarchy.
Furthermore, from the absence of show cause notice, as well as response by or on behalf of appellant about fiscal detriment in proceedings, we may not be wrong in speculating that such imports as may be subject to oversight of Special Valuation Branch (SVB) are, invariably, assessed provisionally for finalization to be undertaken upon completion of ascertainment by Special Valuation Branch (SVB) - As appeal has not been directed before first appellate authority against order of such ‘proper officer’, it transgresses the remand jurisdiction of such appellate authority to issue directions to a ‘proper officer’ who has yet to undertake finalization. Direction to the ostensible ‘original authority’ is nothing but an exercise in futility and direction to the ‘proper officer’, and the statutorily empowered potential ‘original authority’, is beyond appellate jurisdiction of Commissioner of Customs (Appeals) before whom assessment was not under challenge.
There was no cause for grievance to initiate appellate remedies. Such opportunity would have presented itself after finalization. Implicit in acknowledgement of appellate remedy against ‘advisory’ of Special Valuation Branch (SVB) is another round of appeal through the first appellate authority on the same goods and on the same facts which does not sit well with the principle of comity of courts. The appeal before the first appellate authority was, thus, premature. This aspect of disposal of the appeal within the scheme of Customs Act, 1962, and the role of Deputy Commissioner, Special Valuation Branch (SVB) within it, had not been evaluated by the Commissioner of Customs (Appeals).
The impugned order set aside - appeal restored to first appellate authority to dispose off the pleas of the appellant-Assistant Commissioner in accordance with the scheme of Customs Act, 1962 - appeal allowed by way of remand.
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