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Litigation

Litigation means ultimate legal method for settling controversies or disputes between and among persons, organizations, and the State. In litigation process, a case is brought before a court of law/ Tribunal/ Adjudicating Authorities suitably empowered (having the jurisdiction) to hear the case, by the parties involved for resolution (the judgment/Order).

KPS Legal provides litigation service in the areas of Customs, Excise, Service Tax, VAT/CST, GST(when introduced), FTP & DGFT matters, other state taxes, International Trade and Direct Tax. KPS Legal has in-house expert team of professionals who have handled a number of cases and industry matters and therefore now indirect tax litigation service of KPS Legal has become a very well known brand among the industry. The unique mix of the peoples’ background at KPS Legal makes the firm distinct where our cross functional experience helps us to approach the problems in innovative ways and put forth exemplary arguments consulting and execution.

1) Supreme Court Of India :-
came into existence on 26th January, 1950 and is located on Tilak Marg, New Delhi. On the 28th of January, 1950, two days after India became a Sovereign Democratic Republic, the Supreme Court came into being. The inauguration took place in the Chamber of Princes in the Parliament building which also housed India's Parliament, consisting of the Council of States and the House of the People. It was here, in this Chamber of Princes, which the Federal Court of India had sat for 12 years between 1937 and 1950. This was to be the home of the Supreme Court for years that were to follow until the Supreme Court acquired its own present premises.
The Supreme Court of India is the highest judicial forum and final court of appeal under the Constitution of India, the highest constitutional court, with the power of constitutional review. It comprises the Chief Justice of India and 30 other judges. It has original, appellate and advisory jurisdictions. As the final court of appeal of the country, it takes up appeals primarily against verdicts of the High Courts of various States of the Union and other courts and tribunals.
The Supreme Court has extensive original jurisdiction for the protection of fundamental rights of citizens. It also acts as the court to settle disputes between various governments in the country. As an advisory court, it hears matters which may specifically be referred to it under the Constitution by the President of India. It also may take cognizance of matters on its own (or 'suo moto'), without anyone drawing its attention. It was first set up in Calcutta for administration of justice. The law declared by the Supreme Court becomes binding on all courts within India.
The Constitution of India under Article 145 empowers the Supreme Court to frame its own rules for regulating the practice and procedure of the Court as and when required (with the approval of the President of India). Accordingly, "Supreme Court Rules, 1950" were framed. The 1950 Rules were replaced by the Supreme Court Rules, 1966. In 2014, Supreme Court notified the Supreme Court Rules, 2013 replacing the 1966 Rules effective from 19 August 2014.


2) High Court:-
There are 24 High Courts at the state and union territory level of India which, together with the Supreme Court of India at the national level, comprise the country's judicial system. Each High Court has jurisdiction over a state, a union territory or a group of states and union territories. Below the High Courts is a hierarchy of subordinate courts such as the civil courts, family courts, criminal courts and various other district courts. High Courts are instituted as constitutional courts under Part VI, Chapter V, Article 214 of the Indian Constitution.
The High Courts are the principal civil courts of original jurisdiction in each state and union territory. However, a High Court exercises its original civil and criminal jurisdiction only if the subordinate courts are not authorized by law to try such matters for lack of pecuniary, territorial jurisdiction. High courts may also enjoy original jurisdiction in certain matters if so designated specifically in a state or federal law.
However, the work of most High Courts primarily consists of appeals from lower courts and writ petitions in terms of Article 226 of the constitution. Writ jurisdiction is also original jurisdiction of High Court. Under Article 141 of the Constitution, all courts in India (which includes High Courts) are bound by the judgments and orders of the Supreme Court of India by precedence.
Judges in a High Court are appointed by the President of India in consultation with the Chief Justice of India and the governor of the state. High Courts are headed by a Chief Justice. The number of judges in a court is decided by dividing the average institution of main cases during the last five years by the national average, or the average rate of disposal of main cases per judge per year in that High Court, whichever is higher.
The Kolkata High Court is the oldest High Court in the country, established on 2 July 1862. High Courts that handle a large number of cases of a particular region have permanent benches established there. Benches are also present in states which come under the jurisdiction of a court outside its territorial limits.


3) CMM Court:-
Courts of Metropolitan Magistrate are at the second lowest level of the Criminal Court structure in India. According to the Section 16 of the Criminal Procedure Code, 1973 (CrPc), a Court of Magistrate may be established by the State Government in consultation with the High Court of the respective state at such places in every metropolitan area and in any number by a notification. It has jurisdiction throughout such metropolitan area.
A Metropolitan Magistrate is a first class magistrate under the general control of the Sessions Judge and is subordinate to the Chief Metropolitan Magistrate.
According to Section 29 of the CrPc., a Metropolitan Magistrate may pass a sentence of imprisonment for a term not exceeding three years, or of fine not exceeding ten thousand rupees.


4) Customs, Excise and Service Tax Appellate Tribunal* (CESTAT):-
was formerly known as Customs, Excise & Gold (Control) Appellate Tribunal (in short CEGAT), was constituted on the 11th October 1982. Wherever there are no specific orders.CESTAT was created to provide an independent forum to hear the appeals against orders and decisions passed by the Commissioners of Customs and Excise under the Customs Act, 1962, Central Excise Act, 1944, Finance Act 94 relating to Service Tax. The Tribunal is also empowered to hear the appeals against orders passed by the designated authority with regard to Anti Dumping Duties under the Customs Tariff Act, 1975. The sanctioned strength of the Members (including President and two Vice Presidents) is 21. It has 3 benches in Delhi and 4 benches in Mumbai and one each at Kolkata, Chennai and Bangalore. Each Bench consists of a Judicial Member and a Technical Member. With a view to have expeditious disposal of small cases, a Bench of Single Member deals with the matters not exceeding Rs.10 Lakhs is also constituted. Except in the matters relating to classification and valuation of goods, the Tribunal is the final Appellate Authority though a reference to the High Court can be made on a question of Law. In classification and valuation matters, the appeal against the order of the Tribunal lies only to the Hon’ble Supreme Court.
The Central Government shall constitute an Appellate Tribunal to be called the Customs, Excise and *Service Tax Appellate Tribunal consisting of as many judicial and technical members as it thinks fit to exercise the powers and discharge the functions conferred on the Appellate Tribunal by Section 129 of the Customs Act read with 35B of the Central Excise Act, 1944 and as made applicable to the Service Tax matters


5) Settlement Commission:-
The object behind the setting up the Settlement Commission (hereinafter referred as the Commission) is to create a channel whereby tax disputes can be settled expeditiously and in a spirit of conciliation rather than prolonging them through adversarial attitude. The Commission is not designed to provide an escape route for tax evaders. It is, infact, designed to provide a balanced resolution of tax disputes with a view to avoid lengthy litigation which helps neither the department nor the member of the Trade and Industry. In the proceedings before the Commission, there are no adversaries but only parties to the Settlement. Any assessee can make an application in such form and in such manner as may be prescribed by the Commission and containing “Full & True” disclosure of his duty liability which has not been disclosed before the proper officer having jurisdiction, the manner in which such liability has been derived, the additional amount of Customs or Excise Duty or Service Tax accepted to be payable by him as also the particulars of excisable goods or import or export goods or taxable services in respect of which he admits short levy.

The Settlement Commission has powers to grant immunity from prosecution for any offence under the Central Excise Act, the Customs Act or under the Indian Penal Code or under any other Central Act for the time being in force in respect of the case covered by the Settlement Commission.

The Commission also has powers to grant immunity either wholly or in part from the imposition of any penalty and fine under the Central Excise Act or the Customs Act, as the case may be in respect of the case covered by the Settlement Commission.

The proceedings before the Settlement Commission shall be deemed to be a judicial proceeding within the meaning of Section 193 and 228, and for the purposes of Section 196 of the Indian Penal Code.

The following category of cases are excluded from the purview of the Settlement Commission
-Cases relating to Customs duty where no Bill of Entry or Shipping Bill, as the case may be, has been filed.
-Cases relating to Central Excise duty where no monthly returns showing production, clearances and Central Excise Duty paid in the prescribed manner has been filed.
-Cases relating to Service Tax where no return has been filed. -Cases where no Show Cause Notice has been issued to the applicant. -Cases where the additional amount of Central Excise Duty/Customs Duty/Service Tax accepted by the applicant in his application does not exceed `3 lakh. -Cases involving interpretation of the classification of goods under the Central Excise Tariff Act, 1985 or the Customs Tariff Act, 1975. -Customs, Central Excise and Service Tax cases which are pending with the Appellate Tribunal or with any court at the time of making the application. -Cases involving seizure of goods or documents under the Customs Act or the Central Excises Act, as the case may be before the expiry of 180 days from the date of the seizure. -Customs cases to which section 123 of the Customs Act applies or cases under the NDPS Act.


6) Commissioner (Appeals):-
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 to the Commissioner (Appeals) within sixty days from the date of the communication to him of such decision or order.
Provided that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days.
The Provision of Appeals before the Commissioner (Appeals) are covered by the Section 128 of the Customs Act, 1962 and Section 35A of the Central Excise Act, 1944 and Section 85 of the Central Excise Act, 1944 for the Service Tax matters.


6) Adjudicating Authorities:-
means any authority competent to pass any order or decision under this Act, but does not include the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963), Commissioner of Central Excise (Appeals) or Appellate Tribunal;
Section 122 of the Customs Act, 1962 (‘Act’ for short) provides for adjudication of confiscation and penalties imposed under Chapter XIV of the Act. The following Officers are empowered to adjudicate confiscation or penalty-

• Principal Commissioner of Customs/Commissioner of Customs/Joint Commissioner of Customs – Without limit;
• Assistant Commissioner of Customs/Deputy Commissioner of Customs – If the value of the goods liable for confiscation does not exceed ? 5 lakhs (with effect from 01.04.2012) ;
• Gazetted Officer of Customs lower in rank than the Assistant Commissioner of Customs/Deputy Commissioner of Customs – If the value of the goods liable for confiscation does not exceed ? 50,000/- (with effect from 01.04.2012).
Adjudication of the case where anything is liable to confiscation or any person is liable to penalty has to be done by Officers specified in section 33 of the Central Excise Act, 1944.
Adjudication in Service Tax cases : Section 83A of Central Excise Act, 1944. • Recovery of Service tax not levied or paid or short levied or short paid or erroneously refunded: Section 73 of Central Excise Act, 1944.


7) CAT (Central Administrative Tribunal ):-
With a view to easing the congestion of pending cases in various High Courts and other Courts in the country, Parliament had enacted the Adminisitrative Tribunals Act, 1985 which came into force in July, 1985 and the Administrative Tribunals were established in November, 1985 at Delhi, Mumbai, Calcutta and Allahabad. Today, there are 17 Benches of the Tribunal located throughout the country wherever the seat of a High Court is located, with 33 Division Benches. In addition, circuit sittings are held at Nagpur, Goa, Aurangabad, Jammu, Shimla, Indore, Gwalior, Bilaspur, Ranchi, Pondicherry, Gangtok, Port Blair, Shillong, Agartala, Kohima, Imphal, Itanagar, Aizwal and Nainital.
The Central Administrative Tribunal has been established for adjudication of disputes with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or other local authorities within the territory of India or under the control of Government of India and for matters connected therewith or incidental thereto. This was done in pursuance of the amendment of Constitution of India by Articles 323A. In the statement of objects and reasons on the introduction of the Administrative Tribunals Act, 1985, it was mentioned that the setting up of such Administrative Tribunals exclusively would go a long way in reducing the burden on the various courts and reduce pendency and would also provide to the persons covered by the Administrative Tribunals a speedy and relatively cheap and effective remedy. In addition to Central Government employees, the Government of India has notified 45 other organizations to bring them within the jurisdiction of the Central Administrative Tribunal. The provisions of the Administrative Tribunals Act, 1985 do not, however, apply to members of paramilitary forces, armed forces of the Union, officers or employees of the Supreme Court, or to persons appointed to the Secretariat Staff of either House of Parliament or the Secretariat staff of State/Union Territory Legislatures.

Advance Ruling

Advance Ruling enable foreign investors to know in advance into certainty their Customs duty liability on them proposed imports into India and proposed exports from India.

The scheme of Advance Rulings allows a non-resident investor setting up a joint venture in India in collaboration with a non-resident or a resident; or a resident setting up a joint venture in India in collaboration with a non-resident; or a wholly owned subsidiary Indian company, of which the holding company is a foreign company; or a joint venture in India; or a resident falling within any such class or category of persons as notified by the Government of India in this behalf , to seek in advance, a ruling from the Authority for Advance Rulings. Advance Rulings are not appealable by the department or the applicant, under the Central Excise, Customs or Service tax law.

The scheme of Advance Rulings allows the following categories of applicants to seek an advance ruling :

1) Any person who is a non-resident setting up a joint venture in India in collaboration with a non-resident or a resident;

2) Any person who is a resident setting up a joint venture in India in collaboration with a non-resident;

3) A wholly owned subsidiary Indian company of which the holding company is a foreign company;

4) A joint venture in India, that is to say a contractual arrangement whereby two or more persons undertake an economic activity which is subject to joint control and one or more of the participants or partners or equity holders is non-resident having substantial interest in such arrangement;

5) A resident falling within any such class or category of persons as the Central Government may by notification in the official gazette specify in this behalf. The Central Government has specified the following categories of persons as being eligible to seek advance rulings:-
(a) Any Public Sector Company;
(b) Residents proposing to import goods under the project import facility (heading 9801 of the Customs Tariff) for seeking rulings under the Customs Act,1962;
(c) Residents proposing to import goods from Singapore under the Comprehensive Economic Co-operation Agreement for seeking rulings on origin of goods under the Customs Act, 1962;
(d) Resident Public Limited Company.
(e) Resident Private Limited Company.
(f) Resident firm.

Advisory

To be aware of law which govern a client, his business and allied activities, is the basic step to compliance and availing benefits or tax incentive. In a complex indirect tax environment, our clients require legal advice on the tax decisions to be taken in the organization. KPS Legal provides legal opinions in entire range of Indirect Tax practice areas to assist its clients in their decision making with most appropriate legal backup. Issues like applicability of Excise duty on goods, chargeability of service tax/VAT, classification of products under excise/customs/ VAT, tax implications during restructuring of business, availment of CENVAT credit are the areas where our clients routinely seek advisory from us.

Consulting

Consulting services provided by KPS Legal also assist our clients and provide them guidance in decision making. Consulting service is provided on retainership agreements for providing comprehensive services on tax issues. The teams providing such service are headed by specialist consultants in each area of practice, who also visit the client place when necessary to fully comprehend peculiar facts obtaining in a case. The system adopted by the Firm for consulting on a retainership basis is managed with much systemized approach. There is one Spoke person dedicated to each client who benefits from oral guidance provided over phone or during meeting, replies to the queries through e-mail, comprehensive written opinion wherever required. The Firm also provides regular updates on latest amendments in the relevant practice area. With an added advantage of having in-depth knowledge of client’s business domain, the team provides optimum, efficient and feasible solutions on the key issues.

Departmental Audit Support

Departmental Audit Support Major control in the matter of indirect taxation, particularly Central Excise duties and Service Tax, is record based. Therefore, the department has given maximum importance to Audit namely EA2000 for Central Excise and Service Tax. This calls for proper maintenance of all the records / returns relating to Central Excise and Service Tax levy. Audit pertaining to Customs is Post Clearance Audit(PCA). KPS Legal has dedicated team which has thorough expertise in the area of maintenance of all relevant records which is provided on retainership basis.

Settlement Commission

The object behind the setting up the Settlement Commission (hereinafter referred as the Commission) is to create a channel whereby tax disputes can be settled expeditiously and in a spirit of conciliation rather than prolonging them through adversarial attitude. The Commission is not designed to provide an escape route for tax evaders. It is, infact, designed to provide a balanced resolution of tax disputes with a view to avoid lengthy litigation which helps neither the department nor the member of the Trade and Industry. In the proceedings before the Commission, there are no adversaries but only parties to the Settlement. Any assessee can make an application in such form and in such manner as may be prescribed by the Commission and containing “Full & True” disclosure of his duty liability which has not been disclosed before the proper officer having jurisdiction, the manner in which such liability has been derived, the additional amount of Customs or Excise Duty or Service Tax accepted to be payable by him as also the particulars of excisable goods or import or export goods or taxable services in respect of which he admits short levy.

The Settlement Commission has powers to grant immunity from prosecution for any offence under the Central Excise Act, the Customs Act or under the Indian Penal Code or under any other Central Act for the time being in force in respect of the case covered by the Settlement Commission.

The Commission also has powers to grant immunity either wholly or in part from the imposition of any penalty and fine under the Central Excise Act or the Customs Act, as the case may be in respect of the case covered by the Settlement Commission.

The proceedings before the Settlement Commission shall be deemed to be a judicial proceeding within the meaning of Section 193 and 228, and for the purposes of Section 196 of the Indian Penal Code.

The following category of cases are excluded from the purview of the Settlement Commission
-Cases relating to Customs duty where no Bill of Entry or Shipping Bill, as the case may be, has been filed.
-Cases relating to Central Excise duty where no monthly returns showing production, clearances and Central Excise Duty paid in the prescribed manner has been filed.
-Cases relating to Service Tax where no return has been filed. -Cases where no Show Cause Notice has been issued to the applicant. -Cases where the additional amount of Central Excise Duty/Customs Duty/Service Tax accepted by the applicant in his application does not exceed `3 lakh. -Cases involving interpretation of the classification of goods under the Central Excise Tariff Act, 1985 or the Customs Tariff Act, 1975. -Customs, Central Excise and Service Tax cases which are pending with the Appellate Tribunal or with any court at the time of making the application. -Cases involving seizure of goods or documents under the Customs Act or the Central Excises Act, as the case may be before the expiry of 180 days from the date of the seizure. -Customs cases to which section 123 of the Customs Act applies or cases under the NDPS Act.

Tax Reviews

Tax Reviews

Training

KPS Legal also provides in-house training to the corporate sector and its clients to assist in understand the accurate way of duty cum tax compliance through knowledge share of existing Rules & Regulation / law requirement for a particular organization. KPS Legal people also participate as Guest Speaker in workshops and seminars on taxation organized by various professional institutes, industry forums and Government educational institute (National Academy of Customs Excise and Narcotics).

 
     
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