TO-DAY’S HOT NEWS IS;-

Moving twards a market determined fuel price regime, the Empowered Group of Ministers [EGM] freed the Government from fixing price of petrol and Diesel with a leash on state-run oil marketing companies [OMCs] on future change in diesel prices. Finance Minister Pranab Mukherjee said price control had become unbearable for his Ministry to fund.

The Government would retain the right to SUITABLY INTERVENE in priicing of both fuels in case of a HIGH RISE and VOLATILITY IN INTERNATIONAL OIL PRICES (said a Petroleum Mnistry release)

Before more than eight years, a similar decision was taken by the then Central Government in power and a Gazette Notification was publshed based on a popularly known NIRMAL SINGH COMMITTEE report, according to which all price controlled petro-products were to be freed / decontrolled and the Administered Pricing Mechanism was to be withdrawn w.e.f. 01.04.2001. Even the then Finance Ministry, while issuing a clarificatory circular to the field formations, had re-iterated that the existing scheme of valuation for petro-products, in the context of change-over to transaction value system for Central Excise and Customs duty determination, would apply till 31.03.2001 and thereafter, the transaction value rules, as applicable to any central excise / Customs duty valuation, would apply for petro-products also.

However, what was proposed by the MAN [the then Government in power] got disposed of by GOD [the present Dr. M. Singh government, now in power].

OLD ORDER CHANGETH YIELDING PLACE TO NEW, GOD [DR. M. SINGH] FULFILLS HIMSELF IN MANY WAYS. [says OMAR KHAYYAM OF to-day]

THE PETRO-SECTOR HAS WON THE MAHABHARATH WAR,  ATLAST, TO SURVIVE.[thanks to petro Minister Murli Deora [LORD KRISHNA ]

[more to follow soon on the thinkings of the India Govt., over the decades, to introduce and enforce the famous Administered Pricing Mechanism [shortly known as APM]==editor]

VENKATRAMAN RAGGHUPATHY, Web admin.

PRICING MECHANISM IN INDIA DECONTROLLED, FREEDOM TO PRICE FUELS, OIL COMPANIES, PETRO PRICES

        

The latest ruling from the Apex Court on the need for deciding cases, which are otherwise to be dismissed for delay in filng, on merits reads as follows:-

Courts ought not to dismiss cases on mere technicalities like delay in filing an appeal or a petition unless a malafide intent is apparent on the side of the litigants, the Supreme Court has held.

A bench of Justices Deepak Verma and K S Radhakrishnan observed that courts have a duty to decide every case on merits. It is the duty of the court to see to it that justice should be done between the parties. It is pertinent to point out that unless malafide is writ large on the conduct of the party, generally as a normal rule, delay should be condoned. In the legal arena, an attempt should always be made to allow the matter to be contested on merits rather than to throw it out on technicalities.”

The apex court passed the order while upholding an appeal filed by the Improvement Trust, Ludhiana, challenging the concurrent orders passed by the district court and the Punjab and Haryana High Court on the auction of certain properties it owns.

Courts ought not to dismiss cases on mere technicalities like delay in filing an appeal or a petition unless a malafide intent is apparent on the side of the litigants, the Supreme Court has held.

 EDITOR’s comment:-

The present ruling of the Apex court would benefit the Governmental departments more than a private appellant, since the gvenmental procedures sometimes causes undue delay in the filing of the appeals by such departments and in most of the appeals involving merits, the dept. appeal get dismissed on grounds of delayed filing. If the Courts follow the present ruling of the Apex Court, then revenue appeals involving crores of taxes/duties could be decided on merit. If the Tax Tribunals also adopt the revised ruling of the Apex Court, the benefit to both the Govt. and the private parties can be substantial. It may result in clear delivery of justice in deserving appeals.

VENKATRAMAN RAGGHUPATHY, Web admin.

SUPREME COURT JUDGEMENTS

        

CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRBUNAL WEST ZONAL BENCH, MUMBAI

APPELLANT: BHARATH PETRLEUM CORPORATION LTD

RESPONDENT: CCEX, NASHIK

CORAM : HONBLE S/SHRI P.G. CHACKO, MEMBER [JUDICIAL] &
S.K. GAULE, MEMBER [TECH.] 

FINAL ORDER No. : A/177/2010/EB/C II DATED : 19.05.3020

PER SHRI P.G. CHACKO, MEMBER [J] :-

This appeal was filed by M/s. BHARAT PETROLEUM CORPORATION LTD., a Central PSU, which has obtained the requisite clearance from the ‘Committee on Disputes”.

Against order-in-original No. 43/2004 dated 19.08.2004 passed by the Dy. Commissioner of Central Excise, Nasik III Division, the appellant filed an appeal with the Commissiner of Central Excise (Appeals) on 02/02/2005. In that appeal, they also filed an application for condonation of delay. In that application, they submitted that they had not received the order in original on 23.08.2004 as claimed by the department. They submitted that they received the order for the first time on 20.122004 and, therefore, the appeal filed by them was within the period of limitation prescribed under Section 35 of the Central Excise Act. The appellate authority rejected the above plea and, after a perusal of the records, found that the order in original had been actually delivered to the party on 23/08/2004 itself. Learned Commissioner (Appeals) found that the delay of the appeal filed by the party was in excess of the period of delay (30 days) condonable by her under the proviso to Section 35 ibid. In the result, the appeal filed by BPCL came to be dismissed as time-barred. Hence the present appeal of BPCL.

The following records, some of them filed by the appellants counsel and others by the JCDR, are before us : -

Letter dated 22/12/2004 of BPCL addressed to the Sr. Superintendent of Post Offices, Nashik Division. By this letter the appellant requested for a confirmation as to delivery of the registered postal article No. 5090 dated 20.08.2004.

Lettter dated 23/12/2004 of the appellant addressed to the Post Master, Manmad. In this lette also, the appellant sought similar information.

Xerox copy of postal receipt of registered article no. 5090 dated 20/08/2004 issued by Manmad Post Office.

Reply given by the Sr. Superindent of Post Offices of Nashik Division to the appellants letter cited at serial no. (i) . This reply reads thus : -

” with reference to your application, inquiries made revealed that the regstered letter was delivered to the addressee on 20.08.2004.

Xerox copy of an excerpt from Manmad Post offices delivery regster. This document indcated that the registered postal article No. 5090 dated 20/08/2004 addressed to BPCL was delivered to them on 23/08/2004.

Xerox copy of page 1 of order in original no. 43/2004 dated 19/08/2004 ith BPCL dated seal indicating receipt of the order on 20/12/2004.

Copy of letter dated 20/12/2004 of the Superintendent of Central Excise to BPCL, which is the covering letter for a copy of the order in original supplied to the company.

On a perusl of the above records, it has become crustal clear that a copy of the order in original was duly delivered to BPCL, Manmad on 23/08/2004. The objections raised by the Counsel for the appellant with reference to the documents filed by the JCDR are not tenable. Delivery of the order in original to the appellant on 23/08/2004 is a proven fact. As rightly pointed out by the Commissioner (Appeals) the appeal filed by the Company against the order in original ws too belated for the appellate authoirty for cndnation of delay. The appellate authority was competent to condone delay of upto 30 days only under the proviso to Section 35 of the Act. It was not  competent to  condone any delay in excess of that, as held by the High Court in the case of DELTA IMPEX vs CMMISSIONER OF CUSTOMS
[2004-173-ELT-449-DEL].

In the result the appelate Commissioners order is sustained and this appeal is dismissed.
[DICTATED IN COURT]

[the full text of this judgement can be viewed in http://www.taesinindia.com  and the citation is taxind_2010_wzb_eb_A177]

EDITOR’s OBSERVATIONS: -

After reading this judgement of the CESTAT, Mumbai Bench, any reader is lkely to raise the following questions within hmself: -

whether all the records taken as evidences are not clear enough for the appellant company to conclude , even before deciding to file an appeal, that their appeal would be squarely hit by the time-bar factor?

whether all these records could not be brought on record by the adjudicating authority, while passing the order in original [the first quasi-judicial order] to squarely settle the issue, without any further grounds available for the appellant company to appeal to the next authority?

Whether the appellant company could produce any additional documentary evidences before the Committee of Disputes, the High powered committee appointed by the Cabinet Secretariat, to disprove that the Commissioner [Apeals] erred in dismissing their appeal as time-barred?

It is obvious from the Tribunal order that the appellant company could not produce such records, ecept protesting / raising objections with reference to the documents filed by the JCDR, which the Tribunal found as UNTENABLE.

Whether the appellant companywas justified to take away, in this manner, the valuable time of the Tribunal, especially when they had no solid grounds to appeal?

Perhaps the time is fast approachng for the Cabinet Secretariat to review the guidelines provided to the PSU companies earlier, with further directions that their appeals should be scrutinised at the highest level in their organisation, befoe deciding even to seek the valuable time of the High Powered Committee, in order to get the due clearance for an appeal before the Tribunal.

CESTAT ORDER

VENKATRAMAN RAGGHUPATHY, Web admin.

[SOURCE : PAGES BOOKSTORES.COM]

CESTAT ORDERS CONDONATION OF DELAY, SECTION 35F

        

SUPREME COURT OF INDIA while remanding the case n re: ASST. COMMR. OF COMMERCIAL TAX DEPT. vs. SHUKLA & BROTHERS in C.A.. No.   .3289 of 2010 on 15.4.2010, held as follows: -

QUOTE: The increasing institution of cases in all Courts in India and the resultant burden upon the Courts has invited attention of all concerned in the justice administratin system. Despite heavy quantum of cases in Courts, in our view, it would neither be permssible nor possble to state as a principle in law, that whle exercising power of judicial review on admnistrative action and more particularly judgement of courts in appeal before the higher Court, providing of reasons can never be dispensed with. The doctrne of audi alterampartem has three basic essentials. Firstly, a person against whom any order is required to be passedor whose rights are likely to be affected adverselymust be granted an opportunity of being heard. Secondly, the concerned authoirity should provide a fair and transparent procedure and lastly, the authority concerned must apply its mind and dispose of the matter by a reasoned or speaking order.This has been uniformly applied by Courts in India and abroad.

In exercise of the powe of judicial review, the concept of reasoned orders/actions has been enforced equally by the foreign courts as by the courts in India. The administrative authoirtyand tribunals are obliged to give reasons, absence whereof could render the order liable to judicial chastise. Thus, it will not be far from absolute priniple of law that the Courts should record reasonsfor its conclusions to enable the appellate or higher Courts to exercise their jurisdiction appropriately and in accordance with law. UNQUOTE

[for full text of the judgement, please visit http://taxesinindia.com  and click on the ctation taxind_2010_sc_ca_3289]

VENKATRAMAN RAGGHUPATHY, Web admin.

SUPREME COURT JUDGEMENTS administrative action, judicial review, proper reasning

        

SUPREME COURT OF INDIA while dismissing the appeals filed by MADRAS CEMENTS LTD vs. COMMR. OF C .EX. in Civil Appeal No. 2037 of 2006 with C.A. No.7443 of 2008 held as follows: -

QUOTE: -The short point involved is these appeals is whether the Appellant/Assessee is eligible for Modvat credit on certain goods for the period comprising November and December 1999.

The short point involved relates to the eligibility of the Assessee for Modvat credit on certain capital goods which were said to have been used as components, spares and accessories in the manufacturing process of the Appellant for the period in question.

In order to avail Modvat/Cenvat credit, an assessee has to satisfy the assessing Authorities that the capital goods in the form of components, spares and accessories had been utilised durng the process of manufacture of the finished product.

Accordingly, in this case the Appellant was not able to identify the machinery for whch the goods in question had been used. In the absence of such identification, it was not possible for the Assessing Authorities to come to a decision as to whether Modvat Credit would be given in respect of the goods in question. …………….

We are not, therefore, inclined to interfere with the orders of the Tribunal and the Appeals are accordingly, dismissed. UNQUOTE

[for full text of the judgement, please visit http://www.taxesinindia.com and click on the citation taxind_2010_sc_ca_2037/2006]

VENKATRAMAN RAGGHUPATHY, Web admin.

SUPREME COURT JUDGEMENTS

        

SUPREME COURT OF INDIA while dismissing the appeals filed by MADRAS CEMENTS LTD vs. COMMR. OF C .EX. in Civil Appeal No. 2037 of 2006 with C.A. No.7443 of 2008 held as follows: -

QUOTE: -The short point involved is these appeals is whether the Appellant/Assessee is eligible for Modvat credit on certain goods for the period comprising November and December 1999.

The short point involved relates to the eligibility of the Assessee for Modvat credit on certain capital goods which were said to have been used as components, spares and accessories in the manufacturing process of the Appellant for the period in question.

In order to avail Modvat/Cenvat credit, an assessee has to satisfy the assessing Authorities that the capital goods in the form of components, spares and accessories had been utilised durng the process of manufacture of the finished product.

Accordingly, in this case the Appellant was not able to identify the machinery for which the goods in question had been used. In the absence of such identification, it was not possible for the Assessing Authorities to come to a decision as to whether Modvat Credit would be given in respect of the goods in question. …………….

We are not, therefore, inclined to interfere with the orders of the Tribunal and the Appeals are accordingly, dismissed. UNQUOTE

[for full text of the judgement, please visit http://www.taxesinindia.com and click on the citation taxind_2010_sc_ca_2037]

VENKATRAMAN RAGGHUPATHY, Web admin.

SUPREME COURT JUDGEMENTS 1944, CEX. RULES, MODVAT CREDIT, RULE 57Q

        

IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH, while dismssing the appeal filed by the CCEX LUDHIANA vs SANGRUR AGRO LTD. in C.E.A. No.40 of 2007, on 9.2.2010, it was held as follows: -

QUOTE: The short question is whether the respndent is liable to pay penalty and interest on the excess amount claimed by it ? The Commissioner [Appeals] as well as the Tribunalhave held that provisions of Section 11AC of the Central Excise Act are inapplicable as they relate only t short payment of duty, whereas the present case relates to reversal of the excess amount claimed by the respondent in terms of Rule 6(3)(b)  of the Cenvat credit rules. Apart from the above, a perusal of the language of Section 11AC  of the Central Excise Act shows that the same would be applicable only if in  cases where there is an attempt to evade duty. The present case relates to reversal of  amount under Rule 6(3)(b)  of the Cenvat Credit Rules. We are of the considered opinion that Section 11AC of the Central Excise Act is not applicable in the present case. The findings of the Appellate Tribunal are upheld. UNQUOTE

[for full text of the judgement, please visit http://www.taesinindia.com  and click on the citation taxind_2010_hc_ph_cea_40]

VENKATRAMAN RAGGHUPATHY, Web admin.

HIGH COURT JUDGEMENTS CENVAT CREDIT rULE 6(3)(B), SEC 11 AC

        

DUE TO CERTAIN CALAMITIES IN MY FAMILY LIFE, I COULD NOT CONCENTRATE ON POSTING IMPORTANT LEGAL NEWS ITEMS FOR THE PAST THREE MONTHS. NOW THAT ALL SUCH WORRIS ARE OVER, I AM BAK WITH FULL ENERGY TO UPDATE THE LEGAL NEWS / JUDGEMENTS etc. THANK YOU FOR YOUR PATIENCE.

VENKATRAMAN RAGGHUPATHY, Web admin.

SUPREME COURT JUDGEMENTS

        

DELHI H.C. while deciding the writ petition no. 11435 of 2009 on 4.9.2009 in re: BRAHMAPUTRA INFRASTRUCTURE LTD. vs DELHI DEV. AUTHORITY observed as follows: -

QUOTE: This cannot be disputed that as to when a discretionary juridiction is to be exercised or refused to be exercised by the High Court, it is to be determined having regard to the facts and circumstances of the case. The Hig Court can entertain a writ petition if its is shown that there is something more which goes to the root of the jurrisdicionor something which would show that it would be a case of palpable injustice to the writ petitioner to forcehim to adopt the remedies provided unde the civil law. Admittedly in the present case the petitioner has not contended that, any provision of law is ULTRA VIRES and has not sought quashing of the same nor i can be infered that the denial of the alleged ppayment to petitioner of service taxand the interest thereon is in violation of any written agreement or is in violation of any principles of natural justice. In ABL INTERNATIONAL LTD vs EXPORT CREDIT GUARANTEE CORPN. OF INDIA LTD. [2004-3-SCC-553] it was held that the High Court having regard to the facts of he case, has a discretion to entertain or not to entertain the writ petition and it is the Court that has imposed upon itself certain restrictions in the exercis of this powr. UNQUOTE

[for full text of the judgement please visit http://www.taxesinindia.com   and click on the citation taxind_2010_hc_del_wp_11435]

HIGH COURT JUDGEMENT

VENKATRAMAN RAGGHUPATHY, Web admin.

HIGH COURT JUDGEMENTS isretionary jurisdiction, palpable injustice, root of the jurisdiction, ultra vires

        

DELHI HIGH COURT while deciding the W.P.(C) No.1210/2003 on 20.2.2010 in re: BRIG. V.K. ANAND vs UNION OF INDIA observed as follows:

QUOTE: When the two judges decided the writ petition under Article 226, which is in the nature of original proceedings, differed on a question of fact or law, reference to a third judge as contemplated is required to be made for disposal of the matter as per the majority opinion of the three judges/ [SEE RELIANCE INDUSTRIES LIMITED vs PRAVEENBHAI JASBHAI PATEL AIR 1997 SC 3892] . The issue referred to the third judge is whehe the petitioner’s trial by GCM was time-barred or not.  While deciding this issue the line of reasoning which may be adopted by the third judge may not be the same as adoped by either of the learned judges who made the reference. But that cannot be a reason for making a reference to a Full Bench. We are afraid such a course is not permissible under the Rules. We, therefore, remit the mater back to the learned single judge with a request to decide the refrence expeditiously. UNQIOTE

[for full text of the judgement, please visit http://www.taxesinindia.com  and click on the citation taxind_2009_hc_del_wpc_1210]

HIGH COURT JUDGEMENT

VENKATRAMAN RAGGHUPATHY, Web admin.

HIGH COURT JUDGEMENTS Article 226, REFERENCE TO THIRD MEMBER