Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  Missing seized records must be considered while testing ITC claim; duplicate GST demands ordered corrected: Delhi High Court. *  GST appeal can’t be rejected without addressing taxpayer’s grounds: Allahabad High Court. *  Surplus IGST credit can offset CGST, SGST shortfall: GSTAT. *  GST refund can’t be denied when cancelled airfares are returned with tax: GSTAT. *  3 Hearing notices issued within 2 minutes: Gujarat High Court flags portal flaw, seeks report. *  GSTR-9, GSTR-9C filing for FY 2025-26 enabled; pending GSTR-1 and GSTR-3B must be filed first. *  Dupattas are exempt fabrics, can’t be taxed as fibres at 4%: Madras High Court. *  Full transitional credit allowed on capital goods received after GST rollout: GSTAT denies Rs. 6.99 lakh export duty credit. *  GST return mismatch alone can’t justify fraud proceedings: GSTAT orders fresh adjudication under section 73. *  Supplier found non-existent later can’t alone justify input tax credit denial: GSTAT. *  GST interest stops once tax reaches government account, can’t run until return filing: GSTAT. *  Cancelled flat booking- GST refund can’t be denied without excluding COVID period from limitation: GSTAT. *  India notifies rules of origin for India–New Zealand FTA. *  Incomplete E-bike kits classifiable as complete vehicles, but not eligible for CKD duty concession: CESTAT. *  Same GST rate on main input and output can’t by itself bar inverted duty refund: GSTAT. *  Unjust enrichment doesn’t apply to customs refunds from assessments finalised before July 13, 2006: Gujarat High Court. *  CENVAT credit can’t be denied solely because plant And machinery are embedded in earth: Karnataka High Court. *  DFIA exports ineligible for RoDTEP benefits; customs directs repayment with applicable interest. *  Second E-Way bill alone doesn’t prove another supply: GSTAT. *  Bail denied in Rs. 1.19 crore fake GST refund case over risk of accused absconding again: Punjab and Haryana High Court. *  GST registration can be restored after revocation deadline if outstanding dues are paid: Gauhati High Court. *  Multiple GST proceedings over same suppliers: Calcutta High Court directs dept. to share findings for adjudication. *  E-Governance portal services not OIDAR, fixed deposit interest not taxable: CESTAT. *  Rs. 500 Stamp duty required on authority letters for CAs, CMA and GST practitioners in Pune GST division.  *  Rs. 1.10 crore GST refund must be paid in cash after business closure: Allahabad High Court. *  Godown rent attracts 18% GST even when used exclusively for exempt agricultural warehousing: AAR. *  GST portal launches "Multi-State Registration" facility: one master TRN for registration applications across multiple States/UTs. *  RoDTEP scheme extended till 31st December, 2026.  *  Mere disagreement with order can’t override Rs. 20 lakh appeal limit: GSTAT. *  Customs interest can’t be backdated before confiscation liability is determined; nearly 8 year period excluded: Delhi High Court.
Subject News *  GST summons: anticipatory bail maintainable without arrest order, but relief denied in evasion case: Allahabad High Court. *  GST Appeal can’t be decided without hearing taxpayer’s objections to fresh evidence: Allahabad High Court. *  GST ITC can’t be reversed merely because supplier grants discount without reducing tax liability: GSTAT. *  Mere quoting of GST provision is not a valid charge: GSTAT quashes ITC denial. *  Personal hearing mandatory before adverse GST order, even without taxpayer’s request: Rajasthan High Court. *  Parallel bail pleas without full disclosure amount to abuse of process Rs. 43.08 crore GST case sent for fresh hearing: Supreme Court. *  GST refund based on unchallenged advance ruling can’t be recovered using later circular: GSTAT. *  Payment of GST alone doesn’t end interest and penalty liability when tax and interest remain unpaid beyond 30 days of notice: GSTAT. *  GST demand over builders’ 80% procurement rule requires reasoned adjudication: GSTAT. *  Eligible ITC doesn’t automatically entitle taxpayers to compensation cess refund on domestic sales: GSTAT. *  GST confiscation order passed before reply deadline invalid: GSTAT. *  GST interest can’t be retained after tax refund on delayed export receipts: Punjab & Haryana High Court. *  GST appeal can’t be dismissed over pre-deposit shortfall without opportunity To respond: Bombay High Court. *  DGGI SCN can’t be challenged before reply and adjudication:Chhattisgarh High Court. *  GST input tax credit can’t be denied solely due to supplier’s retrospective registration cancellation: GSTAT. *  GST notice must explain fraud allegations; merely repeating section 74 Is not enough:  Himachal Pradesh High Court. *  Audit detection alone can’t justify GST fraud penalty; specific suppression must be proved: GSTAT. *  GST order uploaded only under ‘Additional Notices’ tab without separate intimation set aside: Calcutta High Court. *  Service Tax appeal can’t be rejected for missing pre-deposit proof when payment is already recorded: CESTAT. *  SGST dept. can’t hear appeal against CGST order: Calcutta High Court. *  Mere dispatch of tax order can’t prove service or make appeal time-barred: CESTAT. *  Dealer incentives can’t be taxed merely on ledger entries: CESTAT. *  DGFT orders quashed for failure to supply DRI letter relied upon in SCN: Bombay High Court. *  GST penalty u/s 122(1A) can’t apply to Pre-2021 transactions; unregistered beneficiaries also covered: Delhi High Court. *  Expired E-way bill caused by wrong PIN code can’t justify GST penalty without intent to evade tax: GSTAT. *  Used railway rails can’t be taxed as track material without proof they are fit for reuse: CESTAT. *  Earlier DGGI notice doesn’t bar separate GST demand on different issue: Delhi High Court. *  ITC dispute involves no question of law: GSTAT directs appeal to Vice-President. *  Earlier DGGI notice doesn’t bar separate GST demand On different issue: Delhi High Court. *  No E-way bill required for interstate goods movement in november 2017: GSTAT quashes detention and penalty.  

Comments

Print   |    |  Comment

PJ/Case Law/2013-14/1941

Whether penalties imposable if the vessel sailed before the grant of ‘Let Export Order’?

Case:- DELTA LOGISTICS Vs COMMISSIONER OF CUSTOMS (EXPORT), NHAVA SHEVA
 

Citation:- 2013 (296) E.L.T. 120 (Tri. - Mumbai)

Brief facts:- By the impugned order, a redemption fine of Rs. 7 lakhs under Section 113(g) of the Customs Act, 1962 has been imposed on the appellant, namely, U M Cables Ltd. (exporter) and penalties of Rs. 7 lakhs on the exporter, Rs. 1.75 lakhs on M/s. Delta Logistics (CHA) and Rs. 14 lakhs on M/s. Novel Line & Logistics Pvt. Ltd. (shipping line) has been imposed under Section 114(iii) of the Act.
The facts of the case were that the exporter filed one shipping bill on 15-4-2008 for export to Karachi and final destination Afghanistan. ‘Let Export Order’ for the above shipping bill was granted on 19-4-2008 by the proper officer of the Customs whereas the vessel sailed on 18-4-2008. Therefore, the penalties and redemption fine had been imposed as per the impugned order.

Appellant’s contentions:- The learned counsel for the exporter submitted that the goods were stuffed in the containers on 15-4-2008 under the supervision of Central Excise officer who recorded the same under his seal for export and the shipping bills, factory invoice and other documents were filed through their CHA before the Customs authorities on the same date. Due to technical reasons, the shipping bill was not processed and 18-4-2008 being Mahaveer Jayanthi (holiday), therefore, the ‘Let Export Order’ could not be issued on the said date. The shipping line without the knowledge of the exporter and the CHA loaded the containers into the vessels, which sailed on 18-4-2008, but on 19-4-2008 the ‘Let Export Order’ was obtained. As it was out of the control of the exporter, therefore, penalty could not be imposed. He further submitted that neither the goods were available nor they were exported under any bond, therefore redemption fine was also not leviable.
The learned counsel for the CHA submitted that the goods were factory stuffed and sealed by the Central Excise officer. Sealed containers reached the port where the CHA had no control. The CHA had processed the shipping bill and on 18-4-2008 being a holiday the CHA was not aware of the loading of the goods into the vessel which was sailed on 18-4-2008 itself. As the loading of containers into the vessel was out of the control of the CHA, as CHA was not permitted to visit the site, therefore, no penalty was leviable on the CHA. In support of his contention, he relied on the decisions in the cases of Commissioner of Customs (Export) v. Kusters Calico Machinery Ltd. reported in 2010 (257)E.L.T.368 (Bom.); N. Karim & Sons v. Commissioner of Customs (Export), Nhava Shevareported in 2010 (251)E.L.T.444 (Tri.-Mumbai) and Perma Container Line (I) Pvt. Ltd. v. Commissioner of Customs (Export) reported in 2009 (243)E.L.T.301 (Tri.-Mumbai)and, therefore, he prayed  that stay be granted.
 
Respondent’s contentions:- The learned AR reiterated that  the exporter filed one shipping bill on 15-4-2008 for export to Karachi and final destination Afghanistan. ‘Let Export Order’ for the above shipping bill was granted on 19-4-2008 by the proper officer of the Customs whereas the vessel sailed on 18-4-2008.

Reasons of judgment:- As contended by the learned counsel for the exporter that neither the goods were exported under any bond nor the goods were available for confiscation, redemption was not leviable. In the case of Shiv Kripa Ispat Pvt. Ltd. v. Commissioner of Central Excise & Customs, Nasik reported in 2009 (235)E.L.T.623 (Tri.-LB)the Larger Bench of this Tribunal had held that in case where the goods were neither exported under bond nor were physically available for confiscation, redemption fine was not imposable. Therefore, redemption fine was not imposable in this case. Further, as held by the Hon’ble High Court of Bombay in the case of Kusters Calico Machinery Ltd.(supra), in such situations penalty was not leviable on the exporter. Therefore, prima facie, the applicant-exporter had made out a case for complete waiver of pre-deposit. Accordingly, the Bench waived the requirement of pre-deposit of the redemption fine and penalty and stay demand thereof during the pendency of the appeal.
Further, as held by the Hon’ble High Court in the case of Kusters Calico Machinery Ltd. (supra) where the factual matrix was that the containers were loaded on the vessel which sailed on 30-1-2007 and the same being Moharram holiday for Customs, CHA or the exporter were not authorised to go to Customs area, the ‘Let Export Order’ was taken only on 31-1-2007; in that case the Hon’ble High Court held that in these circumstances, the exporter and CHA could hardly be said to have committed breach of Section 50(1) of the Customs Act, 1962, since it was beyond their control. Therefore, relying on the said decision, the Bench found that the applicant-CHA had made out a prima facie case for waiver of pre-deposit. Accordingly they did so and stay the demand of penalty on CHA during the pendency of the appeal.
As the shipping line had loaded the containers into the vessel without the ‘Let Export Order’ therefore, they had violated the provisions of Section 50(1) of the Customs Act, 1962. Accordingly, the Bench directed the shipping line, M/s. Novel Lines & Logistics Pvt. Ltd., to make a pre-deposit of 50% of the penalty imposed on them within eight weeks and report compliance on 22-2-2012. On such compliance, the pre-deposit of the balance amount of penalty shall stand stayed during the pendency of the appeal.
 
Decision:- Stay was partly granted.

Comment:- The analogy drawn from the case is that in case where the goods were neither exported under bond nor were physically available for confiscation, redemption fine was not imposable. Further, if due to technical reasons, the shipping bill was not processed and the date on which the vessel sailed was a holiday, therefore, the ‘Let Export Order’ could not be issued on the said date, then no penalty could be imposed on exporter and CHA since the goods were out of control for both of them.

Department News


Query

 
PRADEEP JAIN, F.C.A.

Head Office : -

Address :
"SUGYAN", H - 29, SHASTRI NAGAR, JODHPUR (RAJ.) - 342003

Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
09314722236

Fax No. :0291 - 2439496


Branch Office : -

Address:
1008, 10th FLOOR, SUKH SAGAR COMPLEX,
NEAR FORTUNE LANDMARK HOTEL, USMANPURA,
ASHRAM ROAD, AHMEDABAD-380013

Phone No. :
079-32999496, 27560043

Mobile No. :
093777659496, 09377649496

E-mail :pradeep@capradeepjain.com