THE HIGH COURT OF JUDICATURE AT MADRAS while deciding the writ appeal no.938 of 2008 on 12/01/2009 in re: COMMISSIONER OF CUSTOMS [SEA PORT IMPORT] vs UNISTAR WORLD TRADE observed as follows:-
QUOTE:
“Writ of Mandamus” lies on the principle “Request and Denial” which means, there should be a request by an individual and subsequent denial by the statutory authority. In the present case, only one element, namely, “request” exists and other, namely, “denial” absents. T put it differently, a request was made by the respondent and the same was under consideration by the appellant, butm there was no denial or rejection of the said request by the appellant. So, when the said request made by the respondent was under consideration by the authorities, it was unfair for the respondent to approach the Writ Court. At the same time, it was also not the case of the respondent that there was an inordinate delay in considering his request by the appellant. In such circumstances, the learned Single Judge ought to have primarily looked into the maintainability of the writ petition itself. Instead, he ordered release of the goods, which, in our view, is not justiciable.
UNQUOTE
[for full text of the judgement, please visit http://www.taxesinindia.com  and click on the citation taxind_2009_hc_mad_wa_938]

VENKATRAMAN RAGGHUPATHY, Web admin.

HIGH COURT JUDGEMENTS

SUPREME COURT OF INDIA while deciding on 25/02/09 the Civil appeal nos. 5064 of 2004 with C.A. Nos. 323, 1859, 3632,7608-7611 of 2005, 909 of 2006 and 1313 of 2009 in re: NESTLE INDIA LTD vs CCEX CHANDIGARH observed that as held in the judgement of this Court in the case of PADMINI PRODUCTS vs COLLECTOR OF C.EX. [reported in 1989--43--ELT--195], as well as in the case of COLLECTOR OF C.EX. vs CHEMPHAR DRUGS & LINIMENTS [reported in 1989--40--ELT--276], extended period of limitation is applicable only when there is some positive act other than mere inaction or failure on the part of of the manufacturer. There must be conscious or deliberate withholding of information by the manufacturer to invoke larger period of limitation, in view of the aforesaid two decisions, we seeno infirmity in the decision rendered by the Tribunal on the question of extended period of limitation.

[for full text of the judgement pl. visit http://www.taxesinindia.com and click on the citation taxind_2009_sc_ca_5064]

VENKATRAMAN RAGGHUPATHY, Web admin.

SUPREME COURT JUDGEMENTS

THE HIGH COURT OF KERALA AT ERNAKULAM while deciding the Central Excise Appeal No.17 of 2006, on 18/06/2008 in re: COMMR. OF C.EXCISE vs ELECTRONIC CONTROL CORPN. observed as follows:-

We have gone through the Tribunal’s order and the orders of the two lower authorities. We find that the Tribunal has considered only the grounds of appeal raised by the respondent and they have proceeded to assume that the department has not discharged their burden in proving clandestine removal of dutiable goods. Strangely the Tribunal has not considered any evidence relied on by the department like statements recorded from the employees, admission made by the proprietrix at the time of search and the evidence collected from the Bank pertaining to business transaction. Prima-facie evidence is established by the department particularly with reference to banking transactions it is for the respondent assessee to explain why the transaction should not be treated as pertaining to business. The Tribunal failed to note reasonable inferences can be drawn from evidence collected by the department more so when the respondent failed to explain the transaction brought on record. Strangely the employee’s statement which have evidentiary value has been ignored by the Tribunal. However, we do not want to enter any findings on facts based on evidence collected in the course of search and enquiry conducted by the department. Counsel for the appellant contended that adjudication given up for Calicut unit does not bar the department from pursuing against Quilon unit because contrary to what Tribunal has said facts relied on by the department are caused contrary to what Tribunal has said, facts relied on by the department are entirely different. Since we are thoroughly dissatisfied with the order of the Tribunal which was issued without reference to the materials gathered by the department and based on which adjudication was made, we set aside the order of the Tribunal with direction to the Tribunal to rehear the matter after calling for such records and after considering the evidence relied on by the adjudication officer. The Tribunal is directed to issue fresh orders within a period of four months from now. The parties will produce copies of this judgement for timely compliance of the judgement.

[for full text of the judgement please visit http://www.taxesinindia.com  and click on the citation taxind_2008_hc_ker_cea_17]

HIGH COURT JUDGEMENTS

VENKATRAMAN RAGGHUPATHY, Web admin.

HIGH COURT JUDGEMENTS

HIGH COURT OF PUNJAB & HARYANA AT CHANDRIGARH while deciding C.W.P. No.17287 of 2008, on 31.10.2008, in re: GREEN ALLOYS PVT. LTD. vs U.O.I. observed that:

We find that the stand of the respondent in not finalising the issue for a period of one and half months and in not specifying any period for completing the investigation when facts were already on record, does not rule out malafides on the part of the concerned officers. No doubt the excise authorities have jurisdiction to conduct serach, seizure or investigation, such power has to be exercised reasonably and for the purpose for which is conferred. When serious invasion on fundamental rights of citizens is involved the authorities are not expected to adopt unreasonable attitude. We direct Secretary, Ministry of Finance, Govt. Of India, N. Delhi to look into this aspect of the matter and file an affidavit in this Court within two months.
[for full text of the judgement, please visit http://www.taxesinindia.com  and click on the citation taxind_2008_hc_ph_cwp_17287]

VENKATRAMAN RAGGHUPATHY, Web admin.

HIGH COURT JUDGEMENTS

[for full text of the judgement please visit www.taxesinindia.com  and clikc on the citation taxind_2009_sc_ca_2999]

VENKATRAMAN RAGGHUPATHY, Web admin.

SUPREME COURT

SUPREME COURT JUDGEMENTS

The High Court of Kerala at Ernakulam while deciding C.E.Appeal No.21 of 2006, on 25/08/2008, in re: COMMR. OF C.EXCISE & CUSTOMS vs ZODIAC ADVERTISERS held as follows:-

 QUOTE:

The Tribunal has assuned that advertisement in all the cases is a creative workinvolving conceptualisation, visualisation, designing etc. According to the Tribunal, since respondent was not engaged in all these activities, their work does not involve making of advertising material and therefore respondent does not answer the description of advertising agency. Eventhough advertisement in many cases may involve what the Tribunal has stated, it is wrong to think that anything else is not advertisement. It is for the customer to decide what type of advertisement meets his requirement. It is very common that products are advertised just with the name or with the logo or with a design and in some cases, advertisement are given only in the name of the manufacturer or in the name of the product or both. We do not find any basis for the Tribunal’s assumption that advertising material is always a product of conceptualisation, visualisation or designing by the advertising agency concerned which makes it. Several persons may be involved in the making of an advertising material and each and every one may have role in it. The Tribunal has assumed that the advertisement in all cases involve entire comprehensive activities of making of the material and idsplay of the same. In fact, rpetitive use of the same advertising material is also advertisement. We have already noticed that advertisement by show-casing or pblication or display of product name, logo, manufacturer’s name etc. is very common. We find the definition is an inclusive one, wide enough to cover anything independently referred to therein. Therefore, we are of the view that making and sale of advertising materials for customers in the form of banner or hoarding or film slide, etc., is advertisement as defined under S.65 (2) of the Act.

UNQUOTE

 [for full text of the judgement, please visit http://www.taxesinindia.com and click on the citation taxind_2008_hc_ker_cea_21]

VENKATRAMAN RAGGHUPATHY, Web admin.

HIGH COURT JUDGEMENTS

SUPREME COURT OF INDIA while deciding the Civil Appeal Nos. 7076-7080 of 2008 on 12/02/2009 in re: COMMR. OF CUSTOMS [PREV.] AMRITSAR vs MALWA INDUSTRIES LTD. observed as follows:

QUOTE:

An exemption notification should be read literally. A person claiming benefit of an exemption notification must show that he satisfies the eligibility crieteria. Once, however, it is found that the exemption notification is applicable to the case of the assessee the same should be construed liberally. 

A notification like any other provision of a statute must be construed having regard to the purpose and object it seeks to achieve.

For the aforementioned purpose, the statutory scheme in terms thereof such a notification has been issued should also be taken into consideration.

 We, as noticed hereinbefore, have no quarrel with the proposition that exemption notification should be construed strictly which means that benefit thereof should not be granted to one, who is not entitled therefor. But it is also true that those who are entitled to the benefit cannot be deprived therefrom by taking recourse to the doctrine of narrow interpretation simplicitor although the purpose and object thereof would be defeated thereby.

UNQUOTE

[for full text of the judgement, please visit http://www.taxesinindia.com and click on the citation taxind_2009_sc_ca7076_7080]

VENKATRAMAN RAGGHUPATHY, Web admin.

SUPREME COURT JUDGEMENTS

THE SUPREME COURT OF INDIA while deciding the Civil Appeal Nos. 835-836 of 2002 on 05/02/2009 in re: VARSH PLASTICS PVT. LTD vs U.O.I. observed as follows:

QUOTE:

Section 14(1) of the [Customs] Act prescribes a method for determination of the value of the goods. It is a deeming provision. By legal fiction incorporated in this Section the value of the imported goods is deemed price at which such or like goods are ordinarily sold or offered for sale for delivery at the time and place of importation in the course of international trade. The word “ordinarily” in Sec.14(1) is a word of significance. The ordinary meaning of the word “ordinarily” in Sec.14(1) is “non-exceptional” or “usual. It does not mean “universally”. In the context of Sec.14(1) for the purpose of “valuation” of goods, however, by use of the word “ordinarily”, the indication is that the ordinary value of the goods is what it would have in the course of international trade at the time of import. Sec.14(1), thus, provides that the value has to be assessed on the basis of price attached to such or like goods ordinarily sold or offered for sale, in the ordinary course of events in international trade at the time and place of transportation.

UNQUOTE

[for full text of the judgement please visit http://www.taxesinindia.com and click on the citation taxind_2009_sc_ca_835_836]

VENKATRAMAN RAGGHUPATHY, Web admin.

SUPREME COURT JUDGEMENTS

THE HIGH COURT OF GUJARAT AT AHMEDABAD while deciding the Special Civil Application No. 7291 of 2007 on 09/07/2008 in re: COMMR. OF C.EX & CUS, VADODARA II vs JAYANT OIL MILLS observed as follow:

 QUOTE:

 In these circumstances, the ground on which the claim of rebate made by the assessee is denied by the adjudicating authority and upheld by the Commr. [Appeals] has rightly been found to be untenable by the Revisional authority. The entire controversy sought to be projected by petitioner Revenue of treating the duty paid as a deposit is not supported by any provision much less Rule 12 of the rules which relate to grant of rebate and therefore is a ground or a reason which is not germane to the basic issue that is entitlement of the assessee to the rebate. Once the assessee shows from the record that the condition stipulated by the notification under which rebate is available qua the duty paid on goods exported outside India stands fulfilled unless and until an overriding provision appears on Statute, the claim cannot be denied on a ground which is not consonance with the provisions of the Act or the Rules.

 It cannot be disputed that levy of duty is prescribed by provisions of the Central Excise Act, 1944 and the rate of duty is prescribed by the Tariff Act. Therefore, once the duty is validly levied in accordance with the provisions of the Statute, the said levy does not disappear or cannot get obliterated merely because by virtue of a notification, partially or full exemption is granted. Therefore, there is no question of an assessee exercising any option as such. There are two rates of duties prescribed by the Statute (1) as per the Tariff Act, and (2) as per the exemption notification. An assessee may pay duty, in such circumstances, either at the prescribed rate or at the rate specified in the exemption notification. Revenue cannot insist, unless the Statute provides for such a situation, that in such a factual matrix, an assessee is bound to claim exemption while manufacturing excisable goods. The fallacy in the stand of Revenue is exposed when one tests its proposition in a case where only partial exemption is granted under a notification.

 UNQUOTE

 [for full text of the judgement, please visit http://www.taxesinindia.com and click on the citation taxind_2008_hc_guj_sca_7291]

VENKATRAMAN RAGGHUPATHY, Web admin.

HIGH COURT JUDGEMENTS, SUPREME COURT JUDGEMENTS

THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA while deciding CWP No.589 of 2008 on 18/12/2008 in re: GILLETTE INDIA LTD. vs U.O.I. observed as follows:-

QUOTE:

It appears that the benefits offered by Annexure P-1 [Notification No.50 of 2003] have been withdrawn, on the basis of apprehension that the peripheral or incidental activities may not bring investment and employment coomensurate with the fiscal cost of granting the exemption. Admittedly, notification Annexure P-1 covered not only the production of goods by manufacturer but also activities like packing, repacking, labelling, relabelling etc. irrespective of the fact whether the goods were manufactured or not in the industrial unit or even in the State in some other unit. The public interest that was sought to be achieved by this notification Annexure P1 was to make use of local resources and to generate employment for local people. Petitioners have made huge investments and have also generated employment and therefore, it cannot be said that the public interest which existed at the time of issuance of notification Annexure P1 at least in the case of industrial unit iof the petitioner had ceased to exist when notification Annexure P 11 was issued and therefore, it cannot be said that notification Annexure P 11 is in the superior public interest and so it affects even the industrial unit of the petitioner, it had come into operation, before the issuance of notification Annexure P 11. In our considered view notification Annexure P 11 is prospective in the sense that the benefit of notification Annexure P 1 will not be available to those industrial unit, engaging only in so called peripheral or incidental activities, which come into operation and comply with the terms and conditions of notificationAnnexure P 1 after the issuance of notification Annexure P 11.

……..

On account of our having held herein above, that the right had accrued to the petitioner, under notification Annexure P 1 and that said right cannot be affected by amending notification Annexure P 11, because of the saving clause of Sec.38A  of the Central  Excise Act, 1944, and also that by virtue of Doctrine of Promissory Estoppel, the respondents are estopped to levy and charge duty upon the petitioner we are of the considered view that the action of the respondent in seeking to enforce notification Annexure P 11 against the petitioners is artificially unfair and unreasonable and in this view of the matter we find support from Hon’ble Supreme Court judgement in MRF LTD case [MRF Ltd. vs Asst. Commissioner & ors. 2006 (8) STC 702 particularly para 39 at page 723]

UNQUOTE

[for full text of the Supreme Court order please visit website www.taxesinindia.com and click on taxind_2008_hc_hp_cwp_589]

VENKATRAMAN RAGGHUPATHY, Web admin.
 

HIGH COURT JUDGEMENTS, SUPREME COURT JUDGEMENTS