The High Court of Delhi, while deciding on 01/05/2009, the CEAC No. 10 of 2008 and CM Mos. 13457-58 and 14416 of 2008, in re: BRINDAVAN BEVERAGES PVT. LTD. Vs CCEX MEERUT, observed as follows : -

QUOTE : On a reading of Article 226 (1) of the Constitution, it will be palpably clear that without the next following provision, that is., sub-clause (2) a High Court may not have been empowered to issue a writ or order against a party which is not located within the ordinary territorial limits of that High Court. The power to issue writs against any person or Authority or Government even beyond the territorial jurisdiction of any High Court is no longer debatable. The rider or perquisite to the exercise of such power is that the cause of action must meaningfully arise within the territories of that particular High Court. It does not logically follow, however, that if a part of the cause of action arises within the territories over which the High Court holds sway, it must exercise that power rather than directing the petitioner to seek his remedy in any other High Court which is better suited to exercise jurisdiction for the reason that the predominant, substantial or significant part of the cause of action arises in that Court. In other words, any High Court is justified in exercising powers under Article 226 either if the person, Authority or Government is located within its territories or if the significant part of the cause of action has arisen within its territories. The rationale of Section 20 of the Code of Civil Procedure would, therefore, also apply to Article 226 (2) of the Constitution. These considerations are aptly encapsulated in the term forum conveniens which refers to the situs where the legal action be most appropriately brought, considering the best interests of the parties and the public (see BLACK’s LAW DICTIONARY). The writ Court should invariably satisfy itself that its choosing is not mala fide or an example of forum shopping. UNQUOTE

[for full text of the judgement, please visit http://www.taxesinindia.com  and click on the citation taxind_2009_hc_del_ceac_10]

HIGH COURT JUDGEMENT

 VENKATRAMAN RAGGHUPATHY, Web admin.

HIGH COURT JUDGEMENTS Article 226, BLACK’s LAW DICTIONARY, Code of Civil Procedure, Constitution, encapsulated, forum conveniens, mala fide, order, predominant, rationale, significant, situs, substantial, territorial limits, writ

The High Court of Judicature at Madras while deciding the W.P. Nos. 707-716, 336-350, 779-780, 884, 1772-1788 and 2085-2087 of 2009, on 15/04/2009, in re : ISAK EBINESAR vs CHAIRMAN, CBEC, N. DELHI observed as follows : -

QUOTE: One need not take recourse to Section 6 of the General Clauses Act, for solving the riddle on hand. By an amendment introduced under Section 113 of the Finance Act, 2001, Section 159-A was inserted into the Customs Act, 1962.

Section 159-A of the Customs Act, 1962 is actually in pari materia with Section 6 of the General Clauses Act. There are only two differences between the two provisions viz., ( i ) while the General Clauses Act, speaks only about Act or Regulation, Section 159 – A of the Customs Act, speaks about Rules, Regulations, Notifications and Orders and ( ii ) while the General Clauses Act, speaks only about repeal, Section 159-A takes into account any amendment, repeal, suppression or rescission of an existing Rule, Regulation, Notification or Order.

[for full text of the judgement, please visit http://www.taxesinindia.com  and click on the citation taxind_2009_hc_mad_wp_707_716]

HIGH COURT JUDGEMENT

 VENKATRAMAN RAGGHUPATHY, Web admin.

HIGH COURT JUDGEMENTS 1962, Customs Act, Finance Act, General Clauses Act, in pari materia, Notifications, Orders, Regulation, Rules

The Central Information Commission [CIC] while deciding on 27/01/2009 in re: VINAY KUMAR vs CPIO, TIS HAZARI COURT, DELHI observed as follows : -
QUOTE: We will first deal with the contentions of the PIO. He has invented a meaning of the word HOLD as meaning WITHHOLDING AND NOT GIVING. The word HOLD is usually understood to mean to be in possession of. HELD is a past participle of the word HOLD. Oxford Dictionary defines HOLD as GRASP, CARRY OR SUPPORT; have in one’s possession. Nobody would subscribe the meaning WITHHOLDING AND NOT GIVING UP as contended by the PIO. Since there is no specific order of Court expressly forbidding the information from being published the PIO’s plea that disclosing this information will constitute contempt of court is without any basis. UNQUOTE

[for full text of the judgement, please visit http://www.taxesinindia.com  and click on the citation taxind_2009_cic_43]

CENTRAL INFORMATION COMMISSION

VENKATRAMAN RAGGHUPATHY, Web admin.

Central Information Commission Central Information Commission, contempt of court, Oxford Dictionary

The High Court of Kerala at Ernakulam, while deciding the C.E. Appeal Nos. 21 and 23 of 2005, in re: COMMISSIONER OF C.EX. & CUS., COCHIN vs EXCEL CORRUGATED BOZES (P) LTD., observed as follows : -

QUOTE : The duty is claimed from the respondent for the reason that the declaration filed by the awardees were belated. The Tribunal noticed that for belated supply declaration, the respondent cannot be penalized through levy of duty. It is not in dispute that the awardees are liable for payment of duty for the goods cleared to them. We do not find any grievance at all because if duty is charged, they are entitled to get CENVAT credit and when duty is not charged credit is not taken by them. Consequently, the awardees will be paying full duty on the products sold by them. Therefore we find no grievance for the department against the order of the Tribunal. We therefore dismiss the appeals. UNQUOTE

[for full text of the judgement, please visit http://www.taxesinindia.com and click on the citation taxind_2008_hc_ker_cea_21_23]

HIGH COURT JUDGEMENT

VENKATRAMAN RAGGHUPATHY, Web admin.

HIGH COURT JUDGEMENTS CENVAT CREDIT

HIGH COURT OF CALCUTTA while deciding to allow the appeal CEXA No. 63 of 2008 and G.A. No. 2891 of 2008, on 4/11/2008 in re: CCEX BOLPUR vs FREYSSINET PREFABS observed as follow : -
QUOTE : Heard Learned Counsel for the parties in this matter. It appears that only on the ground that the miscellaneous application was dismissed that there was no authorization in the appeal filed is sufficient enough to hold that the document which was filed by the appellant was not taken any note of by the learned Tribunal. It is submitted that the authorization letter has also been produced before us for filing the appeal in question. Since it appears from the documents that the members of the Committee constituted by Notification dated 13th May, 2005 after examining the records and the order opined that an appeal should be filed under Section 35B (1) before the CESTAT Kolkata.

Therefore, in our considered opinion, to do complete justice to the parties, it would be proper for us to remit back the matter before the learned Tribunal to reconsider the same since we feel that the mistake committed by the said authority cannot be said to be not incurable. Therefore, we would request the learned Tribunal to consider the case afresh.

Hence this appeal is allowed to this extent. All parties concerned are to act on a signed copy of the minutes of this order on the usual undertakings.

Urgent xerox certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities. UNQUOTE

[for full text of the judgement, please visit http://www.taxesinindia.com and click on the citation taxind_2008_hc_cal_cexa_63]

HIGH COURT JUDGEMENT

VENKATRAMAN RAGGHUPATHY, Web admin.

HIGH COURT JUDGEMENTS

The Supreme Court of India, while deciding Civil Appeal No. 4491 of 2002 with C.A. Nos. 4492-4494 of 2002, decided on 12/03/2008 in re: ORIENT TRADERS vs C.T.O., TIRUPATI observed as follows : -

QUOTE : It is well established principle that the exemption notifications are to be construed strictly, reference may be made to STATE OF JHARKAND & Others vs TATA CUMMINS LTD and another, 2006 (4) SCC 57 and KARTAR ROLLING MILLS vs COMMISSIONER OF CENTRAL EXCISE, NEW DELHI – 2006 (4) SCC 772. If the intention of the legislature is clear and unambiguous, then it is not open to the courts to add words in the exemption notification to extend the benefit to other items which do not find mention in the notification. In the present case, there is no ambiguity in the expression used in the G.O. The intention of the State Government is clear that only gold bullion and specie is entitled to the concessional rate of tax. Under the circumstances, the same cannot be extended to the silver as claimed by the assessee.

[for full text of the judgement, please visit http://www.taxesinindia.com and click on the citation taxind_2008_sc_ca_4491]

SUPREME COURT JUDGEMENT

VENKATRAMAN RAGGHUPATHY, Web admin.

SUPREME COURT JUDGEMENTS intention of the legislature, intention of the State Government

SUPREME COURT OF INDIA while deciding the Criminal appeal No. 85, on 16/04/2009, in re: STATE OF RAJASTHAN vs MOHAN LAL, observed as follows : -

QUOTE : The concepts of probability, and the degree of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof.. Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately, on the trained intuitions of the judge. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed legitimization of trivialities would make a mockery of administration of criminal justice. This position was illuminatingly stated by Venkatachaliah, J (as His Lordship then was) in STATE OF U.P. vs KRISHAN GOPAL [1998 (4) SCC 302] UNQUOTE

[for full text of the judgement please visit http://www.taxesinindia.com and click on the citation taxind_2009_sc_cra_85]

SUPREME COURT JUDGEMENT

VENKATRAMAN RAGGHUPATHY, Web admin.

Tags : concepts of probability, reasonable doubt, robust common sense, administration of criminal justice

SUPREME COURT JUDGEMENTS administration of criminal justice, concepts of probability, reasonable doubt, robust common sense

SUPREME COURT OF INDIA while deciding the Criminal Appeal No. 85 of 2003, on 16/04/2009, in re: STATE OF RAJASTHAN vs MOHAN LAL made the following observations: -

QUOTE : Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an overemotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case.

[for full text of the judgement pl visit http://www.taxesinindia.com and click on the citation taxind_2009_sc_cra_85]

SUPREME COURT JUDGEMENT

VENKATRAMAN RAGGHUPATHY, Web admin.

TAGS : abstract speculation., reasonable doubt, vague apprehensions, reason and common sense

SUPREME COURT JUDGEMENTS abstract speculation., reason and common sense, reasonable doubt, vague apprehensions

The Supreme Court of India while deciding the Crimiinal Appeal No. 85 of 2003, on 16/04/2009, in re: STATE OF RAJASTHAN vs MOHAN LAL, held as follows:-

QUOTE: A person has, no doubt, a profound right not to be convicted of an offence whichis not establshed by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is hoever, no absolute standard. What degree of probability amounts to PROOF is an exercise particular to each case. Referring to the interdependence of evidence and the confirmation of one piece of evidence by another, a learned author says [see THE MATHENATICS OF PROOF II ; GLANVILLE WILLIAMS, CRIMINAL LAW REVIEW, 1979, BY SWEET AND MAXWELL, p.340(342)] :

The simple multiplication rule does not apply if the separate pieces of evidence are dependent. Two events are dependent when they tend to occur together, and the evidence of such events may also be said to be dependent. In a criminal case different pieces of evidence directed to establishing that the defendant did the prohibited act with the specified state of mind are generally dependent. A junior may feel doubt whether to credit an alleged confession, and doubt whether to infer guilt from the fact that the defendant fled from justice. But since it is generally guilty rather than innocent people who make confessions, and guilty rather than innocent people who run away, the two doubts are not to be multiplied together. The one piece of evidence may confirm the other.

[for full text of the judgement please visit http://www.taxesinindia.com  and click on the citation taxind_2009_sc_cra_85]

SUPREME COURT JUDGEMENT

VENKATRAMAN RAGGHUPATHY, Web admin.

SUPREME COURT JUDGEMENTS absolute standard, alleged confession, degree of probability, evidential standard of proof, interdependence of evidence, proof, reasonable doubt, state of mind

In re: COMMISSIONER OF CENTRAL EXCISE, NAGPUR vs SHREE BAIDYANATH AYURVED BHAVAN LTD., the Supreme Court of India, while deciding the Civil Appeal No. 4048 of 2001 with C.A. Nos. 2396-2397, 9739-9746 of 2003, 6691 of 2004 and 1521 of 2009 (D.No. 20489 / 2006) on 13/04/2009 made the following observations : -

Merely because there is some difference in the tariff entries, the product will not change its character. Something more is required for changing the classification especially when the product remains the same.[BPL Pharmaceuticals ltd.==1995 (77) ELT 485 (SC) == 1995 Supp. (3) SCC 1.]

As a matter of fact, this Court has consistently applied common parlance test as one of the well recognized tests to find out whether the product falls under Chapter 30 or 33. In a recent decision in PUMA AYURVEDIC HERBAL PRIVATE LTD. Vs COMMISSIONER OF CENTRAL EXCISE, NAGPUR [2006 (196) ELT 3 (S.C.) = 2006 (3) scc 266 ] this Court observed that in order to determine whether a product is a cosmetic or medicament, a twin test [common parlance test being one of them] has found favour with the Courts. This is what this Court observed.

The primary object of the Excise Act is to raise revenue for which various products are differently classified in New Tariff Act. Resort should, in the circumstances, be had to popular meaning and understanding attached to such products by those using the product and not to be had to the scientific and technical meaning of the terms and expressions used. The approach of the consumer or user towards the product, thus, assumes significance. What is important to be seen is how the consumer looks at a product and what is his perception in respect of such product. The user’s understanding is a strong factor in determination of classification of the products.

It is true that maxim NEMO DEBET BIS VEXARI PRO UNA ET EADEM CAUSA is founded on principle of private justice as it states that no man ought to be twice put to trouble if it appear to the Court that it is for one and the same cause. The maxim INTEREST REPUBLICAE SIT FINIS LITIUM concerns the State that Law suits be not protracted. This maxim is based on public policy. In our opinion, these maxims cannot be applied as a rule of thumb in the taxation matters. In the matters of classification of goods, the principles that have been followed by the Courts – which we endorse – are that there may not be justification for changing the classification without a change in the nature or a change in the use of the product; something more is required for changing the classification especially when the product remains the same. Earlier decision on an issue inter parties is a cogent factor in the determination of the same issue. The applicability of maxim RES JUDICATA PRO VERITATE OCCIPITUR in the matters of classification of goods has to be seen in that perspective.

[for full text of the judgement please visit http://www.taxesinindia.com and click on the citation taxind_2009_sc_ca_4048]

VENKATRAMAN RAGGHUPATHY, Web admin.

SUPREME COURT JUDGEMENTS