Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  Service tax penalty can’t survive when assessee acted on dept.’s own view of non-taxability: Delhi High Court. *  GST section 74 extended limitation questionable when form 26AS mismatch was already known: Karnataka High Court grants interim relief. *  CGST demand prima facie impermissible after state GST settlement under section 128A: Bombay High Court. *  Supreme Court asks GSTAT to sympathetically consider delay as taxpayers pursued remedy before wrong forum. *  Supreme Court stays Tripura High Court ruling protecting genuine buyers from ITC denial over supplier’s GST default. *  Diary entries alone can’t prove clandestine removal of goods: CESTAT quashes excise penalty on steel trader. *  Customs could investigate preferential tariff claims even before sec. 28DA: Delhi High Court. *  Customs dept. relied on fake AI generated case laws: supreme court quashes Rs. 425.28 crore penalty. *  No GST exemption in affiliation and annual registration charges for admission or conduct Of examinations: GSTAT. *  Mere invoices, cheque payments insufficient to establish genuine movement of goods: GSTAT restores Rs. 43.44 lakh ITC demand. *  Consolidated GST show cause notice covering multiple financial years is not without jurisdiction: Delhi High Court. *  Construction of independent houses on separate plots not taxable as ‘Residential Complex’ without common facilities: CESTAT. *  GST penalty exceeding statutory maximum unsustainable; Allahabad High Court quashes ? 50,000/- penalty after taxpayer filed return and paid late fee. *  GST order against standard chartered bank passed without hearing set aside by Bombay High Court. *  Retracted statements can’t be relied upon without cross-examination: CESTAT quashes gold confiscation. *  Burden to prove misclassification lies on customs department: CESTAT. *  CESTAT quashes Rs. 98 lakh excise demand on clearance of used refractory brick scrap. *  Service tax demand on irrigation works quashed: Karnataka High Court rules sale of goods component not taxable as service. *  GSTAT restores tax and penalty for transporting iron scrap without E-way bill citing intent to evade tax. *  Madras High Court stays GST recovery from directors without opportunity to show cause under section 89. *  Madras high court stays GST recovery notice against directors; finds prima facie case on applicability of section 79(1)(c). *  Procedural lapses can’t justify harsh punishment without serious customs breach: CESTAT quashes customs broker licence revocation. *  Service tax payable on land leasing and sports complex charges: CESTAT. *  Settled customs dispute can’t be reopened through Article 226 challenge to interest liability: Delhi High Court. *  Mere facilitation of customs clearance can’t establish knowledge of smuggling: Madras High Court. *  GST registration cancellation stayed: Allahabad High Court questions 99% ITC utilisation cap under rule 86B. *  Composition scheme lapses automatically on crossing Rs. 1.5 crore turnover: GSTAT. *  Gujarat High Court quashes GST cancellation orders after officer relied on non-existent AI-generated case laws. *  Importers liable for customs duty benefits availed through manipulated scrips: Delhi High Court. *  Procedural E-way bill lapse alone can’t justify penalty where genuine transaction and absence of tax evasion are established: GSTAT.
Subject News *  Documentary evidence dominates probe, further custody unwarranted: mumbai court grants bail in Rs. 22.44 crore customs duty evasion case. *  Business premises can’t remain sealed for non-participation in GST search: Allahabad High Court. *  GST pre-deposit must be refunded proportionately when taxpayer partly succeeds in appeal: Bombay High Court. *  Supreme Court grants 30 days to file GST appeal; keeps pre-deposit issue open due to deposit in parallel CGST proceedings. *  GST demand can’t exceed amount proposed in SCN: Allahabad High Court quashes Rs. 20.47 Crore order. *  Hundreds-of-crores GST demand and heavy 10% pre-deposit no ground to bypass statutory appeal: Punjab & Haryana High Court. *  Delhi High Court refuses to entertain challenge to gold confiscation due to statutory appeal remedy and unexplained delay. *  Procedural error in customs broker licence inquiry can be rectified through remand: Delhi High Court. *  GSTR-2A mismatch alone can’t justify ITC denial without invoice-wise verification; personal hearing mandatory: GSTAT. *  GST order passed without uploading personal hearing notices violates sec. 75(4): Allahabad High Court. *  TAX EVASION - Sec. 74 GST SCN quashed for not spelling out fraud, wilful misstatement or suppression: Allahabad High Court. *  STPI’s SOFTEX certification and NoC charges taxable as business support services: CESTAT. *  Suspicion can’t replace proof: CESTAT quashes penalty in alleged gold-smuggling operation. *   Limitation runs from communication of order: Madras High Court upholds rejection of delayed GST Appeals. *  Rajasthan High Court quashes GST demand over unsigned show cause notice. *  ITC recovery upheld where supplier failed to deposit GST: Rajasthan High Court. *  Customs commissioner’s empowered to make port trust liable for duty on pilfered goods: Supreme Court. *  Rectification proceedings can’t be used to challenge an uncontested GST assessment through a writ petition: Andhra Pradesh HC. *  GST proceedings against deceased proprietor unsustainable without notice to legal heir: GSTAT. *  Mere availment of ineligible self-assessed ITC doesn’t amount to suppression without evidence of fraud or wilful misstatement: GSTAT. *  Disposal of mining overburden by entity authorised by mining lease holder constitutes taxable service: CESTAT. *  Toll plaza data not mandatory for ITC refund: GSTAT. *  Disputed GST fraud allegations require investigation: Punjab and Haryana High Court makes interim bail absolute in alleged fraud and GST fraud case. *  Non-manufacturer contractor liable to deposit excess excise duty collected from buyer: CESTAT. *  GST order can’t reject taxpayer’s reply as “not satisfactory” without reasons: Madhya Pradesh High Court. *  Uncorroborated statements can’t establish alleged diversion of duty-free goods: CESTAT. *  Erection services were not liable to service tax prior to 10th september 2004: CESTAT. *  Sec. 74 GST notice must spell out statutory ingredients for invoking extended tax demand proceedings: Allahabad High Court. *  No jurisdictional bar under section 6(2)(b) in parallel CGST SGST proceedings: Delhi High Court refuses to bypass GST appeal remedy. *  Madras High Court remits GST demand for fresh adjudication after taxpayer claims it was unaware of SCN following business closure.  

Comments

Print   |    |  Comment

PJ/Case Laws/ 2012-13/ 1189

Whether the loading of goods onto ship without issuance of let export order are liable of confiscation?
Case:-M/S SAURASHTRA CEMENT LTD, SHRI K J V SHARMA, SHRI GULAM MOHAMMED UMAR BHAYA, SHRI V R SHIAL, SHRI B H WAGH V/S CC, JAMNAGAR
 
Citation:-2012-TIOL-924-CESTAT-AHM
 

Issue:- Whether the loading of goods onto ship without issuance of let export order are liable of confiscation?

Brief Facts: - Appellant M/s. Saurashtra Cement Ltd. (SCL) is engaged in the manufacture of cement and cement clinker and filed a shipping bill on 21.9.10 for export of 600 MT of cement under DEPB for export to IRRA. The shipping bill was assessed on 22.9.10 and the loading was started under the supervisor of SCL and the other persons concerned. By the time 70 MT of cement had been loaded, the officers of Customs came and stopped the loading on the ground that let export order had not been given and therefore loading was improper. On this ground proceedings were proposed to be initiated. But the appellant company and others concerned waived issue of show cause notice and thereafter impugned order has been passed imposing penalty of Rs.35,000/- on SCL, Rs.20,000/- on Shri K.J.V. Sharma, General Manager of SCL, Rs.15,000/- on Shri B.H. Wagh, supervisor of SCL, penalty of Rs.20,000/- on Shri V.R. Shial, shipping agent of shipping line and Rs.10,000/- on the tindal of the vessel. Further the 70 MT of cement valued at Rs. 1, 64,500/- was confiscated and redemption fine of Rs.50,000/- has been imposed and the vessel has been confiscated and redemption fine of Rs.1,25,000/- has been imposed.

Reasoning of Judgment: - The CESTAT held that according to the definition of smuggling as per the provisions of Customs Act, once the goods are loaded without let export order in the ship or vessel, goods are considered as smuggled and are liable to confiscation. Once goods are held liable to confiscation, penalties on the persons concerned also become imposable and further the goods themselves also become liable to confiscation. As regards the vessel the provisions of Section 115(2) provide that vessel becomes liable to confiscation only if the vessel is used for smuggling of the goods with the knowledge of the owner and if the owner is able to show that he had no knowledge or intention to smuggle, a penalty on the owner and confiscation of the vessel is not called for. In this case no doubt around 10% of the goods was loaded in the vessel but even the Commissioner himself has accepted that what happened appears to be bonafide mistake and therefore he is taking a lenient view. Once it is accepted that what has happened is a bonafide mistake, it cannot be said that the vessel was used in smuggling with the knowledge of the owner. Under these circumstances, the vessel cannot be said to be liable to confiscation and therefore the confiscation of the vessel is not sustainable and accordingly set aside.

As regards the employees of the appellant it cannot be said that all of them were concerned with export of the goods excepting the supervisor who was in the port and who was an employee of the company representing the company. As an employee he was performing the duty and probably was extremely eager to ensure that the goods are loaded as early as possible and no mala fide intention has been attributed by the Commissioner. Therefore once the penalty is imposed on the company, it may not be appropriate to impose penalty on the employee also. Therefore the supervisor of the company Shri B.H. Wagh and the General Manager are not liable to penalty and accordingly the penalty imposed on them is set aside.

As regards the company, they have taken a view that no penalty is imposable on the supervisor and it was on behalf of the company that the goods were loaded on the vessel by following improper procedure and having rendered the goods liable to confiscation penalty is leviable.

As regards the tindal of the vessel, a tindal of the vessel is supposed to know the basic provisions of law and he cannot say he was ignorant and therefore allowed the loading of the goods without a let export order. This is a most important function of the master of the vessel and once he allows the goods to be loaded and renders them liable to confiscation he would also liable to penalty. Even though a view has been taken that the vessel is not liable to confiscation, the agent of the shipping line cannot be absolved of any omissions in this case. The agent of the shipping line is responsible for issue of bills of lading of the goods and it is his responsibility to ensure that the goods are loaded after proper procedures are followed. That being the position, the agent of the shipping line is liable to penalty.

They held that the Commissioner has been quite harsh in deciding the quantum of penalty. Once it is concluded that omission is procedural in nature, it should be nominal and only to ensure that such mistakes do not happen again. Therefore in this case penalty also has to be in nominal terms just to ensure that legal provisions are not ignored even by mistake. Accordingly the redemption fine on the cement is reduced from Rs.50,000/- to Rs.10,000/-. The penalty of Rs.35,000/- imposed on M/s SCL is reduced to Rs.10,000/-. Penalty on Shri V.R. Shial, the agent of the shipping line is reduced to Rs.5,000/-. Penalty on the tindal is reduced to Rs.5,000/-.

Decision: - Appeal disposed off.

 
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