CESTAT CUSTOMS APPEALS BRANCH AT N. DELHI vide Final Order No.ST/191/2009 CU (DB) dt 21/05/09 in re: AMITDEEP MOTORS vs CCE ALLAHABAD held as follows: -
QUOTE : We have gone through the clearing and forwarding agency definition appearing under Section 65 (25) of the Finance Act, 1994. The nature of transaction between Maruti Udyog and the buyer were sales of goods upon the order procured by the Maruti dealer which is the appellant. The invoices shown to us as appearing at page 114 to 122 of the appeal folder were subject matter of taxation under Cental Sales Tax Act, 1956. The invoices clearly reflect that the buyer was the Commandant Central Ordinance Depot and movement of goods were from Gurgaon by Maruti to the buyer and that was at the risk of the buyer on delivery at Gurgaon itself. There is nothing available on the record to appreciate that the appellant acted as a consignee of the goods by the consignor Maruti Udyog Ltd. We are, therefore, compelled to hold that a sale transaction cannot be converted into a service provided under the category of clearing and forwarding service. All the elements of sale of goods being present in these transactions, the appellant should certainly be stated to be noservice provider of taxable service in this appeal. Also the appellant’s case gets supports from the Larger Bench decision cited by the Ld. Consultant as aforesaid. [2006(3) STR 321 (Tri-LB)--Revenue lost its appeal before the Hon'ble High Court of Punjab & Haryana in the case of CCEX  JALANDHAR vs UNITED PLASTOMARS  [2008(10)str 229 (P&H)].

[for full text of the judgement please visit http://www.taxesinindia.com  and click on the citation taxind_2009_pb_st_191]

CESTAT JUDGEMENT

VENKATRAMAN RAGGHUPATHY, Web admin.

CESTAT ORDERS CLEARING AND FORWARDING AGENCY, ELEMENTS OF SALE OF GOODS, FINANCE ACT 1994

CONSIDERATION FOR PROVIDING TECHNICAL KNOW-HOW

CESTAT AHMEDABAD BENCH vide Final order No. A1192/WZB/AHD/09 decided on 21/04/09 in re : INDO NIPPON CHEMICALS CO. LTD vs CCEX VADODARA held as follows :-

QUOTE : The lower authorities have taken a stand that assessee did not produce any evidence to show that what was sold was techmical know how. However, there is no indication to show whether the officers of the department conducted proper investigation to bring out the truth. The department has not collected evidence to show that appellants are covered by the definition nor they have made efforts to show that the service provided was that of consulting engineer by conducting proper investigation. The law gives sufficient powers to officers to conduct enquiries and investigations to bring out the truth and without making any efforts, on the basis of non-production of documents, on the basis of assumptions and presumptions, a case cannot be made out against the appellants which the case here. In the absence of any evidence to show that either the appellants are covered by the definition or the service provided by them is that of consulting engineering, we do not find any reason to uphold the orders of the lower authorities and accordingly allow the appeal with consequential relief to the appellants. UNQUOTE

[for full text of the judgement, please visit http://www.taxesinindia.com and click on the citation taxind_2009_wzb_ahd_A1192]

TRIBUNAL JUDGEMENT

VENKATRAMAN RAGGHUPATHY, Web admin.

CESTAT ORDERS CONSIDERATION, KNOW-HOWCONSULTING ENGINEER, TECHNICAL

The High Court of Kerala at Ernakulam while deciding the C.E.A. Nos. 10 and 12 of 2008, on 06/04/2009, in re : TRANSFORMERS & ELECTRICALS KERALA vs COMMISSIONER OF CENTRAL EXCISE held that the appeals are against the orders of the Tribunal upholding levy of Service Tax on Engineering and other services rendered by the respondent under the charging entry CONSULTING ENGINEERS SERVICE. Respondent is engaged in manufacture and installation and commissioning of transformers. The contract is obviously a divisiable one, one for manufacture of the product and the other for rendering services in the form of installation and commissioning. We are of the view that Tribunal rightly came to the conclusion that the design and engineering services received answer the description of fee for rendering services as Consultng Engineers. We therefore dismiss the appeals.

[for full text of the judgement, please visit http://www.taxesinindia.com and click on the citation taxind_2009_hc_ker_cea_10_12]

HIGH COURT JUDGEMENT

VENKATRAMAN RAGGHUPATHY, Web admin.

HIGH COURT JUDGEMENTS CONSULTING, CONTRACT DIVISIBLE, ENGINEER, SERVICE, SERVICE TAX

CENVAT / MODVAT CREDIT – SHORTAGE OF INPUTS

The High Court of Judicature at Madras, while deciding R.C.F. No. 11 of 2004 on 28/02/2008, in re : ASCO (INDIA) LTD. Vs CEGAT CHENNAI observed as follows : -

QUOTE : The officer of the Excise Department conducted a verification of records and found that the petitioner has not reversed the credit availed on the inputs which were declared to be shortages and which were written off in their books for the years 1994-95 to 1998-99 and the value of which was Rs. 13, 36,134.33. According to the Department, if there is any shortfall, the petitioner ought to have intimated to the Department which has not been done and the availed credit should have been reversed which the petitioner failed to do. The petitioner provisionally debited an amount of Rs. 1.50 lakhs on 22/05/1999 towards the short fall of Modvat inputs and undertaken to pay the balance, if any. The petitioner declared the inputs as shortage and written off in the balance sheet. So, that shows that the goods are not available and it has not been used for in or in relation to manufacture of any excisable goods. Rule 57 I provides for recovery of credit wrongly availed or utilized in irregular manner. Hence, in respect of the goods which are found shortage and written off in the books of account on which credit has been taken, is sought to be reversed and in default of the same, penal consequences are taken against the petitioner. In the above said factual circumstances of the case, we do not find any question of law so as to direct the Tribunal to draw a statement of facts and refer the question to the High Court for resolution. UNQUOTE.

[for full text of the judgement, please visit http://www.taxesinindia.com and click on the citation taxind_2008_hc_mad_rcp_11]

HIGH COURT JUDGEMENT

VENKATRAMAN RAGGHUPATHY, Web admin.

HIGH COURT JUDGEMENTS CENVAT, MODVAT, SHORTAGE OF INPUTS

CENTRAL GOVERNMENT ADOPTING SCHIZOPHRENIC APPROACH

The HIGH COURT OF DELHI, while deciding W.P. (C ) No. 10982 of 2006 on 20.03.2009 in re : VIJAY GULATI vs U.O.I. observed as follows : -

QUOTE : Now, the jurisdiction of the Customs authorities vis-à-vis the two sets of foreign exchange – one seized near the Airport and the other seized subsequently was on the basis that they formed part of the same transactions or arose out of the statement recorded in the first seizure. Such being the case and the notices, having been issued as a part of the same investigation process, the Central Government could not have adopted a schizophrenic approach ; on the one hand holding that the confiscation was unauthorized, and on other, upholding the confiscation in the absence of such order in the petitioner’s case. The order no where discloses that insofar as the petitioner is concerned, there was any such determination by the authorities under FEMA or the RBI, as the case may be. Therefore, Central Government has, in the impugned order disclosed an inconsistent and wholly illogical approach in law which can hardly commended by this Court. Having held that Customs authorities lacked jurisdiction to deal with the matter in the absence of a proper determination under the relevant law, the Central Government committed a fatal error of law in not applying the same reasoning to the latter part as far as it concerned the petitioner. The latter part of the order is at odds with the earlier reasoning, and without any rationale. UNQUOTE.

[for full text of the judgement, please visit http://www.taxesinindia.com and click on the citation taxind_2009_hc_del_wpc_10982]

HIGH COURT JUDGEMENT

VENKATRAMAN RAGGHUPATHY, Web admin.

SUPREME COURT JUDGEMENTS confiscation, SCHIZOPHRENIC APPROACH, seizure

The HIGH COURT OF JUDICATURE at BOMBAY, while deciding on 29/04/2009, the writ petition no. 2700 of 2009, in re : A.S. VASAN & SONS vs U.O.I. held as follows : -

QUOTE : We have heard the learned counsel for the parties. In the first instance, there can be no dispute that, the order rejecting application has visited the petitioner with civil consequences. In a case where an order whether it be administrative or quasi judicial, visits the party with civil consequences in absence of any statutory exclusion under the Regulations, there would be a right to a hearing. The right to hearing would include right to a person being heard in person if such a request is made. In the instant case, we may point out that the petitioner in representation dated 28/12/2007 had sought for hearing in the circumstances set out therein. Merely because the regulation expressly does not provide for a hearing, would not mean that the petitioner should not be given a hearing. This is all more so considering that the respondent no.3 has relied on the original order in the case of Unnikrishnan, thus, denying the petitioner a fair opportunity of explaining why the order in Unnikrishnan ought not to be considered. In our opinion, therefore, as no notice of hearing was given to the petitioners by the respondent no.3, the impugned order is liable to be set aside on that count alone. UNQUOTE.

[for full text of the judgement, please visit http://www.taxesinindia.com  and click on the citation taxind_2009_hc_bom_wp_2700]

HIGH COURT JUDGEMENT

VENKATRAMAN RAGGHUPATHY, Web admin.

HIGH COURT JUDGEMENTS ADMINISTRATIVE OR QUASI JUDICIAL, CIVIL CONSEQUENCES, FAIR OPPORTUNITY, RIGHT TO A HEARING

The High Court of Punjab & Haryana at Chandigarh, while deciding on 30/4/2009 the CEA No.5 of 2009, in re: COMMR. OF C.EX, ROHTAK vs J.R. FABRICS (P) LTD observed that it is necessary to observe that the Tribunal is required to take into account the correct rationale of law as per statutory provisions rather than following the judicially condemned approach.

[for full text of the judgement, please visit http://www.taxesinindia.com  and click on citation taxind_2009_hc_ph_cea_5]

HIGH COURT JUDGEMENT

VENKATRAMAN RAGGHUPATHY, Web admin.

HIGH COURT JUDGEMENTS correct rationale of law, judicially condemned approach, statutory provisions

The SUPREME COURT OF INDIA while deciding the Civil Appeal No. 3239 of 2009, on 05/05/09, in re : U.O.I. vs MARTIN LOTTERY AGENCIES LTD held as follows: -

QUOTE : It is therefore, evident that by reason of an explanation, a substantive law may also be introduced. If a substantive law is introduced, it will have no retrospective effect.

The notice issued to the assessee by the appellant has, thus, rightly been held to be liable to be set aside. Subject to the constitutionality of the Act, in view of the explanation appended to this, we are of the opinion that the service tax, if any, would be payable only with effect from May 2008 and not with retrospective effect. UNQUOTE

[for full text of the judgement, please click on http://www.taxesinindia.com and click on the citation taxind_2009_sc_ca_3239]

SUPREME COURT JUDGEMENT

 VENKATRAMAN RAGGHUPATHY, Web admin.

SUPREME COURT JUDGEMENTS constitutionality, substantive law

The High Court of Delhi, while deciding the W.P. © No. 14869 of 2004, on 13/02/2009, in re : UAE EXCHANGE CENTRE LTD vs U.O.I. observed as follows : -

QUOTE : We would like to touch upon the well engrafted principles, with respect to, the exercise of writ jurisdiction by Courts, in such like matters. Essentially, when superior courts exercise the power of judicial review in respect of orders, deisions or, as in the instant case, a ruling of administrative quasi-judicial authority or a judicial authority, it looks at the decision making process and not at the decision itself. A superior court is not expected to substitute its view with that of the authority whose decision is impugned before it as long as the view taken by the authority, is a plausible view which is free from errors of jurisdiction or errors apparent on the face of the record. The statement of law on this aspect of the matter, in respect of a quasi-judicial authority, has been very aptly enunciated in the judgement of seven Judges of the Supreme Court in the case of UJJAN BAI vs. STATE OF U.P. [AIR 1962 SC 1621 at page 1629 (para 15) reads as follows : -

“where a quasi judicial authority has jurisdiction to decide a matter, it does not lose its jurisdiction by coming to a wrong conclusion, whether it is wrong in law or in fact.”

It is now fairly well settled that superior courts can issue a WRIT OF CERTIORARI where there is an error of law which is apparent on the face of record as these are akin to errors of jurisdiction as against mere errors of law. The statement of law in HALSBURYS LAWS OF ENGLAND (4th Edition. Vol.1 ( 1) Para 73 Page 127) best captures the accepted position in law. UNQUOTE

[for full text of the judgement please visit http://www.taxesinindia.com and click on the citation taxind_2009_hc_del_wpc_14869]

HIGH COURT JUDGEMENT

 VENKATRAMAN RAGGHUPATHY, Web admin.

HIGH COURT JUDGEMENTS errors apparent, judicial review, writ, writ jurisdiction, WRIT OF CERTIORARI