Subscription   Feedback   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
Articles Highlights TMI Notes SMS News Newsletters Calendar Imp. Links Database Experts Contact us More....
Extracts
Home List
← Previous Next →

M/s Vijal Marine Services Versus The Commissioner of Customs And Central Excise

Refusal of refund of duty paid under protest - Duty demanded for cost recovery charges - No challenge to the adjudication by the competent authorities of the amounts - Held that:- there was no statutory Appeal filed from the demand for bonding costs claimed by the competent authority upon assessment. So, as no Appeal has been preferred against such adjudication, the question of filing an application for refund of the amount would not arise at all. Therefore, the Tribunal was justified to come to .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ed Counsel appearing for the Respondent. 2. The above Appeal challenges the Order dated 15.10.2009 in Appeal no. C-1140/2008 passed by the Customs Excise and Service Tax Appellate Tribunal, Mumbai. Upholding the Order dated 16.07.2008. 3. The Appeal was admitted by an Order dated 13.07.2010 on the following substantial question of law : "Whether the Appellate Tribunal was right in holding that the claim for refund of cost recovery charges was not maintainable as a refund claim on account of .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

and were granted licence bearing no. 01/04 dated 27.01.2004 which was renewed up to 31.12.2007 under Sections 58 and 66 of the Customs Act, 1962 for deposit of the imported dutiable goods in a private bonded warehouse and utilization of such goods in terms of Regulation 5 of the Manufacture and other Operations in Warehouse 1966 on execution of the bond, and the sanction was accorded to the Appellants to carry out manufacturing process and other operations. In terms of Regulation 6 of the said .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

onding of the vessel. An application filed by the Appellants to refund of the amount paid was rejected by the Assistant Commissioner vide letter dated 03.03.2008. Being aggrieved by the said refusal for the refund, the Appellants preferred an Appeal before the Commissioner of Appeals which was dismissed by an Order dated 16.07.2008. Being aggrieved by the Order of the Commissioner, the Appellants preferred an Appeal before the Appellate Tribunal which came to be dismissed by an Order dated 15.10 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ies fixing the amount payable by the Appellants. Learned Counsel as such pointed out that the Appellants were entitled to seek the refunds of the amounts which the Appellants were not liable to pay from the concerned authorities. Learned Counsel has thereafter taken us through the impugned Orders passed by the authorities as well as by the Appellate Tribunal to point out that this aspect has not at all been correctly considered by the authorities below to come to the conclusion that the claim fo .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

. Learned Counsel has relied upon the Judgment of the Apex Court reported in AIR 1962 SC 1314 in the case of Sir Chunilal V. Mehta & sons Ltd. vs. Century Spinning and Manufacturing Co. Ltd. Learned Counsel has further submitted that the Appellants sent a letter, inter alia, stating that the excessive amounts were paid towards the cost recovery based on a demand by the Respondents which the Assistant Commissioner by Order dated 03.03.2008 came to the conclusion that the cost recovery charges .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

s below are totally erroneous and, as such deserves to be quashed and set aside. Learned Counsel further pointed out that on these technical grounds, the refunds which the Appellants are entitled should not be refused and, as such, the impugned Order be quashed and set aside. 6. On the other hand, Shri C. A. Ferreira, learned Counsel appearing for the Respondent, has supported the impugned Orders. Learned Counsel has pointed out that the demand was made after an adjudication and, as such, unless .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e have carefully considered the submissions of the learned Counsel and we have also gone through the records. In the present case, it cannot be disputed that a demand was raised by the Assistant Commissioner for the payment of cost recovery charges. Section 128 of the Customs Act, reads thus : "Section 128: Appeals to Commissioner(Appeals)-(1) Any person aggrieved by any decision or order passed under this Act by an Officer of customs lower in rank than a Commissioner of Customs may appeal .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

for reasons to be recorded in writing: Provided that no such adjournment shall be granted more than three times to a party during hearing of the appeal. (2) Every appeal under this section shall be in such form and shall be verified in such manner as may be specified by rules made in this behalf." 8. On plain reading of the said provisions, a decision or Order passed under the Act, can be challenged by filing an Appeal before the Commissioner of Appeals. When such an Appeal is preferred, th .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e question that is raised there is little scope for doubt that in a case where an adjudicating authority has passed an order which is appealable under the statute and the party aggrieved did not choose to exercise the statutory right of filing an appeal, it is not open to the party to question the correctness of the order of the adjudicating authority subsequently by filing a claim for refund on the ground that the adjudicating authority had committed an error in passing his order. If this posit .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Rule 11 wherein it is laid down that where as a result of any order passed in appeal or revision under the Act, refund of any duty becomes due to any person, the proper officer, may refund the amount to such person without his having to make any claim in that behalf. The provision indicates the importance attached to an order of the appellate or revisional authority under the Act. Therefore, an order which is appealable under the Act is not challenged then the order is not liable to be questione .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ai, has held at Paras 7, 8, 9 and 11 thus : "7. In the present case, admittedly, the appellant had cleared the imported goods on 30/1/2003 on payment of duty as assessed without any protest. Though the appellant by a letter dated 11/2/2003 requested the assessing officer to pass a reasoned order, it appears that a speaking order has not been passed in the matter. However, the fact that the assessing officer has failed to pass a speaking order would not invalidate the assessment order so as .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

se at all. 8. The argument of the appellant that unless an appealable speaking order is passed, the importer cannot file an appeal against the assessment order is without any merit. Assessment order passed on the bill of entry is an appealable order and the same can be challenged even in the absence of a speaking order. In other words, in the absence of a speaking order, it cannot be said that the assessment order is not appealable. Where an assessment order is passed without giving reasons and .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ounsel for the appellant on the decision of the Apex Court in the case of Karnataka Power Corporation Ltd. v. Commr. Of Cus. (Appeals), Chennai reported in MANU/SC/0633/2002: 2002 (143) ELT 482 (SC) followed by the Tribunal in the case of Telco Ltd. (supra). Both the aforesaid decisions have no relevance to the facts of the present case, because, in both the above cases, the Apex Court as well as Tribunal have remanded the matter back to the adjudicating authority to consider the application of .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 

what is new what is new
  ↓     Latest Happenings     ↓  

Forum: GST on RCM on rent in a unregistered state

Forum: COMPOSITION SCHEME

Forum: Input Tax Credit - Reg

Forum: GST Invoice

Article: Websites of Government Departments need lot of improvement. We are noticing detoriations in them for example, case of website of ITAT.

Highlight: Levy of additions tax u/s 115O on distribution of dividend - shares of its profits declared as distributable among the shareholders is not impressed with the character of the profit from which it reaches the hands of the shareholder - not to be bifurcated as agriculture and non-agriculture dividend - SC

Highlight: Rate of GST on old and scrap buses - 28% or 18% - at such initial tender process initiated by the Respondents-KSRTC, the present petitions filed by the petitioners are premature and misconceived and do not require any interference by this Court at this stage. - HC

Forum: Rent a cab operator

Highlight: In view of amendment made u/s 132A of the Income Tax Act, 1961 by Finance Act of 2017, the 'reason to believe' or 'reason to suspect', as the case may be, shall not be disclosed to any person or any authority or the Appellate Tribunal, SC dismissed the appeal of the assessee

Highlight: Validity of Assessment Order - period of limitation u/s 153 (2A) is applicable even if the entire order was not set aside but matter was remanded back for for limited aspects with directions - HC

News: Note ban was a shake-up, achieved its main objectives

Notification: Amendments in the notification No.5/2017- Integrated Tax (Rate) dated the 28th June, 2017.

Highlight: Levying interest u/s 234C - interest is to be charged on the returned income and not on assessed income.

Highlight: Accrual of income - sale of right to develop and sell incentive FSI under LOI - till the conditions of LOI are fulfilled transfer is not complete and income does not accrue to the assessee

Highlight: TPA - determination of ALP - TP adjustment by applying Bright Line Test (BLT) is not sustainable on protective basis having no statutory mandate.

Highlight: Safeguard Duty - Advance License Scheme - as there is no exemption from safeguard duty leviable under Section 8C, which is imposed on the goods imported from China, the importer has to pay safeguard duty

Highlight: Manufacture - process of cutting of waste plastic container - Such plastic containers before and after cutting are nothing but waste / scrap - Not a manufacturing activity as no new product emerges.

News: NITI Aayog and Govt. of Assam organizes workshop on health sector reforms in Guwahati; launches SATH- Sustainable Action for Transforming Human Capital

Notification: Seeks to amend notification no. 5/2017- central tax(rate) dated 28.06.2017 to give effect to gst council decisions regarding restriction of refund on corduroy fabrics

Notification: Seeks to amend notification no. 2/2017- central tax(rate) dated 28.06.2017 to give effect to gst council decisions regarding gst exemptions

Forum: GSTR 3B Rectification

Notification: seeks to exempt Skimmed milk powder, or concentrated milk

Notification: Seeks to amend notification no. 2/2017- integrated tax(rate) dated 28.06.2017 to give effect to GST council decisions regarding GST exemptions.

Notification: Seeks to amend notification no. 1/2017- central tax(rate) dated 28.06.2017 to give effect to gst council decisions regarding gst rates

Notification: Seeks to amend notification no. 1/2017- integrated tax(rate) dated 28.06.2017 to give effect to gst council decisions regarding gst rates.

News: Notification Issued For GST Actionable Claim On Branded Food Products

Highlight: Classification printed computer stationary/manifold Business Forms - to be classified under Chapter Heading 4820.00 or under Chapter Heading 4901.90 - items like A4 sheets, advertisement and job card to be classified under Chapter 49

Article: RCM Applicability to persons not liable to get registered us 23(1)

Article: Credit of unsold stock [Section 140(3)] - Actual Credit as well as Notional Credit - Part-I - GST Transitional provisions

News: GST Refund - Blockage of Working Capital of Exporters - earlier also there was a normal blockage of funds for a period of 5-6 months at least

News: Clarification about Transition Credit - ₹ 1.27 lakh crore of credit of Central Excise and Service Tax was lying as closing balance as on 30th June, 2017 - claim of credit of ₹ 65,000 crore is not unexpected

Article: 20 Things You must know about E Way Bills in GST Law

Article: MISTAKES IN DRAFTING

Highlight: The Customs and Central Excise Duties Drawback Rules, 2017 and All Industry Rates (AIRs) of Drawback related changes -reg. - Circular

Highlight: The definition of "subsidiary company" or "subsidiary" u/s 2(87) of the Companies Act, 2013 shall come into force w.e.f. 20-9-2017

Highlight: Central Government notified the All Industry Rates of Duty Drawback Schedule w.e.f. 1.10.2017 - Notification

Notification: All Industry Rates of Duty Drawback Schedule w.e.f. 1.10.2017

Circular: Investment by Foreign Portfolio Investors in Corporate Debt Securities Review

Notification: Exemptions on supply of services under UTGST Act

Notification: Rates for supply of services under UTGST Act

Notification: Exemptions on supply of services under IGST Act

Notification: Rates for supply of services under IGST Act

Notification: List of Exempted supply of services under the CGST Act

Notification: Rates for supply of services under CGST Act

Highlight: Acceptance of deposits by companies from its members - conditions relaxed in case of Specified IFSC Public company and a private company - Rule 3 amended

Notification: Rate of exchange of conversion of the foreign currency with effect from 8th September, 2017

News: Tax Payers Advised To Confirm Identities Of Income Tax Search Authorities

Notification: Amendment in Appendix 3 (SCOMET items) to Schedule- 2 of ITC (HS) Classification of Export and Import Items 2012

Notification: The Customs and Central Excise Duties Drawback Rules, 2017

Circular: The Customs and Central Excise Duties Drawback Rules, 2017 and All Industry Rates (AIRs) of Drawback related changes -reg.



|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version