IN THE HIGH COURT OF JUDICATURE AT BOMBAY, while disposing of the Writ petition no. 2838 of 2009 on 16/06/09 in re: HERO CYCLES LTD vs U.O.I., the Court observed as follows:-

QUOTE: In the instant case, the Petitioners admittedly, based on the said notification were being granted benefit of the notification previous to the imports in issue and also subsequent to the imports in question. In other wrods, both the parties were aware of the said notifications. If the petitioner on account of an inadvertent error chose not to apply for the benefit, would that result in denial of the benefit. In our opinion that by itself would not be answer as a duty is cast on the authority to assess the goods and impose duty according to law which includes a statutory notification, if duty cannot be demanded if otherwise not payable. Once there be a power to assess there is a corresponding duty to assess according to law. The fact that the Petitioner has paid the duty under mistake of law and or in the instant case by oversight, cannot result in being assessed to duty which was otherwise not payable. In our opinion, this will be a case of manifest injustice and on the face of it erroneous. The facts of this case being so obvious, this would be a fit case for us to exercise our extra ordinary jurisdiction.UNQUOTE

[for full text of the judgement please visit http://www.taxesinindia.com and click on the citation taxind_2009_hc_bom_wp_2838]

HIGH COURT ORDER

VENKATRAMAN RAGGHUPATHY, Web admin.

HIGH COURT JUDGEMENTS according to law, inadvertent error, manifest injustice, statutory notification

In the HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH, in the CUSAP No.14 of 2009 (O&M) which was decided on 0/7/09 in re: BANSAL ALLOPYS & METALS PVT. LTD vs CC, AMRITSAR it was observed as follows:-

QUOTE: In our humble opinion, keeping in view the provisions of Section 17 which does not involve the process of adjudication as envisaged under the Excise Act read with rules under consideration in FLOCK (INDIA) case [2000 (120) ELT 285 (SC)], the ratio the cited cases is not applicable to the facts of the present case as herein there is no dispute regarding the duty leviable. It is a case of improper exercise without the authority of law by the assessing officer / Assistant Commissioner. In the fact of the instant case, there being no dispute regarding duty leviable on examination of goods, iit was the responsibility of the assessing / proper officer to re-assess (in view of provisions of sub-section (4) of Section 17) and correctly determine the duty leviable in accordance with law before clearing the goods for home consumption. He having failed to do so, had caused great injustice to the appellant / importer and it was open for the importer / assessee to file an application for refund under Section 27 of the Act without takling recourse to filing of an appeal. The comptent authority under Section 27 of the Act, subject to fulfilment of the condition laid therein, was fully competent to exercise its discretion and in view of provisions of Section 149 of the Act permit the amendment of Bill of Entry, on the basis of documentary evidence (examination report, Ex.A(1),which was in evidence at the time the goods were cleared, and order refund of excess duty paid and collected. It is apparent from the record that in the present case the proper officer / assessing officer who assessed the duty and was competent under Section 149 to permit the amendment in the Bill of Entry was the Assistant Commissioner of Customs, who is also the competent authority before whom the refund application is maintainable.UNQUOTE

[for full text of the judgement please visit http://www.taxesinindia.com and click on the citation taxind_2009_hc_ph_cusap_14]

HIGH COURT ORDER

VENKATRAMAN RAGGHUPATHY, Web admin.

HIGH COURT JUDGEMENTS comptent authority, process of adjudication, Section 27

SUPREME COURT OF INDIA while deciding on 29/07/09 the Civil appeal no. 5840 of 2004 in re: QAZI NOORUL H.H.H. PETROL PUMP vs DY. DIRECTOR, ESI CORPORATION held as follows:-

QUOTE: It may be stated that the words “manufacturing process” in different statutes have different meanings. For instance, in the Central Excise Act, 1944, the word “manufacture” means bringing into existence a different commodity, though this not the definition of “manufacturing process” in the Factories Act, 1948. We cannot apply the definition of “manufacturing process” in one statute to another statute. Section 2(k), sub-clause (i) of the Factories Act, 1948 states that pumping oil is a manufacturing process. Admittedly, the appellant does the work of pumping oil. When we to a Petrol pmp for getting petrol or diesel, the petrol or diesel is in a tank and it does not on its own flow from the tank to the pipe and thereafter into the vehicle, but only by means of a pump by using power.

In our opinion, the only rule of interpretation which applies to the facts of the present case is the Literal Rule of Interpretation, which means that we should go simply by the wording of the Statute and nothing else and there is no scope for applying any other Rule of Interpretation. In our opinion, the language used in Section 2(k)(ii) of the Factories Act, 1948 is clear. Hence, the Act applies to the appellant and the respondent was right in issuing notice to the appellant for making contribution and interest thereon for the period in question. UNQUOTE

[for full text of the judgement, please visit http://www.taxesinindia.com and click on the citation taxind_2009_sc_ca_5840]

SUPREME COURT ORDER

VENKATRAMAN RAGGHUPATHY, Web admin.

SUPREME COURT JUDGEMENTS Literal Rule of Interpretation, manufacture, manufacturing process

CESTAT CHENNAI BENCH vide final order no. 949/09 dt 11/08/09 in re: RAJSHREE SUGARS & CHEMICALS LTD. vs CCE (ST) PONDICHERRY held as follows: -

QUOTE: The issue in dispute in the present appeal is as to whethr utilisation of CENVAT credit account for discharging service tax liability on goods transport agency service by the appellants herein who is a manufacturer of sugar and molasses is legally permissible.

On hearing both sides I find that the issue stands settled in favour of the assessee by the Tribunal’s decision in INDIA CEMENTS vs CCE – 2007-7-STR- 569 and R.R.D. TEX PVT. LTD. vs CCE – 2007-8-STR-186 wherein the Tribunal held that GTA service for which the assessee paid service tax was output service and accordingly CENVAT credit could be used for discharging GTA service availed by them. The period in dispute in the present case is January 2005 to September 2005 which is prior to the amendment by which the Explanation to Rule 2(p) of the CENVAT Credit Rules was deleted. Therefore, during the relevant period the assessee was entitled to utilize CENVAT credit paying duty on final productsor output service. Following the ratio of the above orders, I set aside the impugned order holding to the contrary and allow the appeal. UNQUOTE

[for full text of the judgement please visit http://www.taxesinindia.com and click on citation taxind_2009_szb_c_949]

CESTAT ORDERS

VENKATRAMAN RAGGHUPATHY, Web admin.

CESTAT ORDERS CENVAT, credit, GTA service, LIABILITY, SERVICE TAX

CESTAT CHENNAI BENCH vide Final order No. 951/09 dt 11/08/09 in re: VISHNU PAPER PRODUCTS PVT. LTD vs CCE, PONDICHERRY held that on a careful reading of the relevant rule, Rule 4(2)(a) of the CENVAT Credit Rules, 2002, there is no bar for availment of 100% credit of duty paid on capital goods in the following financial year i.e. in the financial year following the year of the receipt of the capital goods. This view finds support from the Tribunal’s decision in M/s. KEIHIN FIE PVT LTD. vs CCE, PUNE.

[for full text of the judgement please visit http://www.taxesinindia.com and click on the citation taxind_2009_szb_c_951]

CESTAT JUDGEMENTS

VENKATRAMAN RAGGHUPATHY, Web admin.

CESTAT ORDERS capital goods, CENVAT, credit, financial year

CESTAT CHENNAI BENCH in the final order no.952 to 955/2009 dt 11/08/09 in re: AXLES INDIA LTD & TAFE LTD vs CCE, CHENNAI I & II held that the issue in dispute in the present appeals namely as to whethr interest is payable on differential duty arising as a result of issue of supplementary invoices stands settled against the assessees by a recent decision of the Apex Court in CCE, PUNE vs SKF INDIA LTD [2009-TIOL-82-SC]. On hearing both sides and perusing the records and the judgement of the Apex Court cited supra, the demand of interest was held as sustainable.

[for full text of the judgement please visit http://www.taxesinindia.com and click on the citation taxind_2009_szb_c_052_955]

CESTAT JUDGEMENTS

VENKATRAMAN RAGGHUPATHY, Web admin.

CESTAT ORDERS differential duty, interest, supplimentary invoices

In the High Court of Judicature at Madras, in the decision taken on 23/07/2008, while dismissing the appeal no. C.M.A. 2116 of 2008 in re: COMMR. OF C.EXCISE, PONDICHERRY vs CESTAT, it was observed as follows:

QUOTE : An identical issue has been considered by this Court in C.M.A. No.1808 of 2008 [2008-230-ELT-209 (Mad.)], wherein by judgement dt. 10/7/2008 held that the requirement of the provision is that if the stock of the inputs as such or in process or the inputs or the capital goods is also transferred along with the factory or business premises to the new site or ownership and the inputs, or capital goods, on which credit has been availed of are duly accounted for to the satisfaction of the Deputy Commissioner of Central Excise. Thus, in this case, the input as such or in progress, has not available as the input has already has already been put to use, the same has been verified and the Deputy Commissioner of Central Excise satisfied about the genuineness of the same, in those circumstances of the case, we are of the view that the finding arrived at by the Tribunal is in accordance with the requirement of the statute and the interpretation of the provision by the Department that there must be a transfer of input even if it is not available is extraneous to the statutory provision. Hence the appeal is dismissed. No cost. UNQUOTE

[for full text of the judgement, please visit http://www.taxesinindia.com and click on the citation taxind_2008_hc_mad_cma_2116]

HIGH COURT JUDGEMENT

VENKATRAMAN RAGGHUPATHY, Web admin.

HIGH COURT JUDGEMENTS CENVAT, CENVAT CREDIT, RULE 10, TRANSFER OF INPUTS

SUPREME COURT OF INDIA while deciding on 20/11/2008 the Civil Appeal No. 6731 of 2008 in re: SAMBHAJI vs GANGABAI held as follows:-

QUOTE : It is also to be noted that though the power of the Court under the proviso appended to Rule 1 of Order 8 is circumscribed by the words SHALL NOT BE LATER THAN NINETY DAYS but the consequences flowing from non-extension of time are not specifically provided for though they may be read by necessary implication. Merely, because a provision of law is couched in a negative language implying mandatory character, the same is not without exceptions. The Courts, when called upon to interpret the nature of the provision, may, keeping in view the entire context in which the provision came to be enacted, hold the same to be directory though worded in the negative form.UNQUOTE.

[for full text of the judgement please visit http://www.taxesinindia.com and click on the citation taxind_2008_sc_ca_6731]

SUPREME COURT JUDGEMENT]

VENKATRAMAN RAGGHUPATHY, Web admin.

SUPREME COURT JUDGEMENTS couched, mandatiry character, negative language, provision of law

SUPREME COURT OF INDIA while deciding on 20/11/2008 the Civil Appeal No.6731 of 2008 in re: SAMBHAJI vs GANGABAI observed as follows:

QUOTE : All the rules of procedure are the handmade of justice. The language employed by the draftsman of professional (sic) law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the statute, the provisions of CPC or any other procedural enactment ought not to be construed in a manner which would leave the Court helpless to meet extraordinary situations in the ends of justice.

The mortality of justice at the hands of law troubles a Judge’s conscience and points an angry interrogation at the law reformer.

The procedural law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be handmaid, not the mistress, of legal justice compels consideration of versting a residuary power in Judges to act EX DEBITO JUSTIAE where the tragic sequel otherwise would be wholly inequitable. Justice is the goal of jurisprudence, processual, as much as substantive. No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner for the time being by or for the Court in which the case is pending and if, by an Act of Parliament the mode of procedure is altered, he has no other right than to proceed according to the altered mode. A procedural law should not ordinarily be construed as mandatory, the procedural law is always subservient to and is in aid to justice. Any interpretation which eludes or frustrates the receipient of justice is not to be followed. UNQUOTE.

[for full text of the jusgement, please visit http: www.taxesinindia. com  and click on the citation taxind_2008_sc_ca_6731]

SUPREME COURT JUDGEMENTS

VENKATRAMAN RAGGHUPATHY, Web admin.

SUPREME COURT JUDGEMENTS aid to justice, Interpretation, law, mandatory, procedural, statutes, subservient

In the HIGH COURT OF DELHI, while allowing the appeal under C.E.A.C. No.18 of 2008 decided on 26/05/09 in re: UNITECH LTD vs COMMR. OF SERVICE TAX, DELHI observed as follows : -

In the present appeal, the assessee is aggrieved only with respect to the liability for the period 1-1-2005 to 15-6-2005.

In view of the above the following substantial question of law has arised for our consideration : -

WHETHER THE TRIBUNAL MSDIRECTED ITSELF IN LAW IN COMING TO THE CONCLUSION THAT THE ASSESSEE WILL BE LIABLE TO PAY SERVICE TAX FOR THE PERIOD 1-1-2005 TO 15-6-2005 ?

The answer to the question is squarely covered by the judgement of the Bombay High Court in the case of INDIAN NATIONAL SHIPOWNERS ASSOCIATION vs U.O.I [2009-13-STR-235-BOM] with which we are in respectful agreement. Accordingly, the question of law is answered in favour of the assessee. The appeal is allowed and the impugned judgement passed by the Tribunal is set aside. No costs.

[for full text of the judgement please visit http://www.taxesinindia.com  and click on the citation taxind_2009_hc_del_ceac_18]

HIGH COURT JUDGEMENT

VENKATRAMAN RAGGHUPATHY, Web admin.

HIGH COURT JUDGEMENTS ARCHITECT SERVICE, IMPORT OF, LIABILITY, SERVICE TAX, SERVICES