IN THE HIGH COURT OF JUDICATURE AT BOMBAY while deciding the Customs Appeal No.53 of 2009 on 25.6.09 in re: POONA HEALTH SERVICES vs C.C.[AIRPORT] ACC MUMBAI, it was observed as follows:-

QUOTE: ADMIT on the following questions: (1) whether in the facts and circumstances of the case, it was open to CESTAT to hold that whether or not the confiscated Hospital equipments are redeemed by the Appellant, they would be required to pay the Customs duty payable on confiscated Hospital equipments? (2) Whether in the facts and circumstances of the case while passing a common ordr, it was open to CESTAT to hold that one of the parties viz. HARKRISHNADAS HOSPITAL before it is not required to pay the duty on the confiscated goods if not redeemed but the present appellant would be liable to pay the duty on the confiscated goods whether or not the same are redeemed?

In these circumstances, in our opinion, considering the language of sections earlier considered, we are of the considered view that there is no ambiguity in the language of the sections. No interpretation is possible, different from the view which we have taken, which is that even in a case where the goods are confiscated and fine is not paid, the duty is payable as assessed.

Considering the above, the following order:
Question (1) is answered in the affirmative against the assessee and in favour of the Revehue. In so far as Question (2) is concerned, in the absence of HARKISHANDAS HOSPITAL being a party to this proceedings, the said question is left unanswered. Appeal disposed off accordingly. UNQUOTE

[for full text of the judgement please visit http://www.taxesinindia.com and click on the citation taxind_2009_hc_bom_cusa_53]

HIGH COURT ORDERS

VENKATRAMAN RAGGHUPATHY, Web admin.

HIGH COURT JUDGEMENTS ambiguity, confiscated, language of the sections, redeemed

IN THE H.C. OF PUNJAB & HARYANA AT CHANDIGARH, while deciding the CEA No.48 of 2006, decided on 3.8.09 in re: CCEX PANCHKULA vs SPECIAL MACHINE, it was observed as follows:-

QUOTE: the substantial question of law raised in these appeals, which are stated to have been arising from the Tribunal, relates to determination of a question having relation to the rate of duty of excise, therefore, we are of the considered view that for determination of such question, remedy of appeal lies to Honble the Supreme Court under Section 35L of the Act. As a sequel to the above discussion, we are of the view that the present appeals are not maintainable and the only remedy which is available to the revenue is to file an appeal before Honble the Supreme Court under clause (b) of Section 35L of the Act, if so advised. Hence, the Registry is directed to return these appeals to be presented before the appropriate Court of competent jurisdiction. UNQUOTE.

[for full text of the judgement please visit http://www.taxesinindia.com and click on the citation taxind_2009_hc_ph_cea_48]

HIGH COURT ORDERS

VENKATRAMAN RAGGHUPATHY, Web admin.

HIGH COURT JUDGEMENTS COURT OF COMPETENT JURISDICTION, RATE OF DUTY OF EXCISE, SEC 35G, SEC 35L

IN THE HIGH COURT OF JUDICATURE AT BOMBAY, while deciding the Writ Petition No. 3296 of 2009, on 07/09/09, in re: SAMRUDDHI INDUSTRIES vs CESTAT, MUMBAI, it was observed as follows:

QUOTE: Making any observation on these issues in the present writ petition arising out of an order refusing complete waiver would amount to pre-empting the discussion and decision which may be appropriately required to be taken by the appellate Tribunal. Should this Court express a view which Tribunal may eventually find untenable, it would have to virtually overrule a judgement of a constitutional Court, which may be embarassing. Hence, apart from the fact that the Tribunal is not shown to have passed a perverse or untenable order, it is not shown that the Tribunal exceeded its jurisdiction or failed to exercise the jurisdiction vested in it, in order to justify invocation of superintendence jurisdiction or power to issue a Writ of Certiorari. The petition is therefore dismissed. UNQUOTE.

[for full text of the judgement please visit http://www.taxesinindia.com and click on the citation taxind_2009_hc_bom_wp_3296]

HIGH COURT ORDERS

VENKATRAMAN RAGGHUPATHY, Web admin.

HIGH COURT JUDGEMENTS CONSTITUTIONAL COURT, PERVERSE OR UNTENABLE ORDER, SUPERINTENDENCE JURISDICTION, WRIT OF CERTIORARI

IN THE HIGH COURT OF JUDICATURE AT BOMBAY, while deciding on 30.6.09 the C.EX. APPEAL No. 199 of 2006 in re: CCEX & CUS vs SHRI RAM ALUMINIUM PVT. LTD it was held as follows:-

QUOTE: In so far as mandatory penalty is concerned, the law stands now concluded in DHARMENDRA TEXTILE PROCESSORS [2008-331-ELT-3 (S.C.)]. The law as now settled is that there is no jurisdiction in the authority to impose penalty lesser than the mandatory penalty which has to be co-extensive with the duty which is payable. The Supreme Court has further held that there is no requirement of existence of mens rea. Mens rea as understood in criminal law is not an essential ingredient for holding a delinquent liable to pay penalty for a tax delinquency which is a Civil obligation, remedial and coercise in its nature, and is far different from the penalty for a crime or a fine or forfeiture provided as punsihment for the violation of criminal or penal laws.

UNQUOTE

[for full text of the judgement please visit http://www.taxesinindia.com and click on the citation taxind_2009_hc_bom_cea_199]

HIGH COURT ORDERS

VENKATRAMAN RAGGHUPATHY, Web admin.

HIGH COURT JUDGEMENTS civil obligation, co-extensive, criminal law, mandatory penalty, mens rea

IN THE HIGH COURT OF DELHI, while deciding on 28.8.09 the W.P.(C) Nos.1854 and 1895-1898/1992 in re: J&K CIGARETTES LTD vs CCEX the conclusions were summarised as follows:-

QUOTE: Thus, we summarize our conclusions as under:-

(i) We are of the opinion that the provisions of Section 9D(2) of the Act are not unconstitutional or ultra vires
(ii) while invoking Section 9D of the Act, the concerned authority is to form an opinion on the basis of material on record that a particular ground, as stipulated in the said Section, exists and is established.
(iii) such an opinion has to be supported with reasons
(iv) before arriving at this opinion, the authority would give opportunity to the affected party to make submissions on the available material on the basis of which the authority intends to arrive at the said opinion; and
(v) it is always open to the affected party to challenge the invocation of provisions of Section 9D of the Act in a particular case by filing statutory appeal, which provides for judicial review.

UNQUOTE

[for full text of the judgement please visit http://www.taxesinindia.com and click on the citation taxind_2009_hc_del_wpc_1854]

HIGH COURT ORDERS

VENKATRAMAN RAGGHUPATHY, Web admin.

SUPREME COURT JUDGEMENTS challenge the invocation of provisions, opportunity to make submissions, ultra vires, unconstitutional

IN THE HIGH COURT OF DELHI, while deciding on 28.8.09 the W.P.(C) Nos.1854 and 1895-1898/1992 in re: J&K CIGARETTES LTD vs CCEX the conclusions were summarised as follows:-

QUOTE: Thus, we summarize our conclusions as under:-

(i) We are of the opinion that the provisions of Section 9D(2) of the Act are not unconstitutional or ULTRA VIRES.
(ii) while invoking Section 9D of the Act, the concerned authority is to form an opinion on the basis of material on record that a particular ground, as stipulated in the said Section, exists and is established.
(iii) such an opinion has to be supported with reasons
(iv) before arriving at this opinion, the authority would give opportunity to the affected party to make submissions on the available material on the basis of which the authority intends to arrive at the said opinion; and
(v) it is always open to the affected party to challenge the invocation of provisions of Section 9D of the Act in a particular case by filing statutory appeal, which provides for judicial review.

UNQUOTE

[for full text of the judgement please visit http://www.taxesinindia.com and click on the citation taxind_2009_hc_del_wpc_1854]

HIGH COURT ORDERS

SUPREME COURT JUDGEMENTS challenge the invocation of provisions, opportunity to make submissions, ultra vires, unconstitutional

IN THE HIGH COURT OF JUDICATURE AT BOMBAY, while deciding on 26.8.09 the C.Excise appeal no. 118 of 2007 in re: COCA COLA INDIA PVT. LTD vs CCEX PUNE-III it was observed as follows : -

QUOTE: The principle that a specific provision will override a general provision is not applicable to provisions whihc are in the nature of concessions or exemptions.

The Supreme Court in an appeal filed by the assessee in H.C.L. Limited vs CC N.DELHI [2001-130-ELT-405 (SC)] reversed the decision of CESTAT and held as under:-

“The question in these appeals is covered in favour of the appellant by the order of this Court in COLLECTOR OF C.EXCISE, BARODA  vs IPCL [1997-92-elt 13]. Where there are two exemption notificaions that cover the goods in question, the assessee is entitled to the benefit of that exemption notfication which gives him greater relief, regadless of the fact that the latter notification is general in its terms and the other notification is more specific to the goods.”

UNQUOTE
[for full text of the judgement please visit http://www.taxesinindia.com  and click on the citation taxind_2009_hc_bom_cea_118]

HIGH COURT ORDERS

VENKATRAMAN RAGGHUPATHY, Web admin.

HIGH COURT JUDGEMENTS CONCESSIONS, EXEMPTIONS, GENERAL PROVISION, SPECIFIC PROVISION

SUPREME COURT OF INDIA while deciding on 11/09/09 the Criminal appeal No.1758 of 2009 in re: STATE vs PARMESHWARAN SUBRAMANI observed as follows:-

QUOTE: In a plethora of cases, it has been stated that where, the language is clear, the intention os the legislature is to be gathered from the language used. It is not the duty of the court either to enlarge the scope of legislation or the intention of the legislature, when the language of the provision is plain. The court cannot rewrite the legislation for the reason that it had no power to legislate. The court cannot add words to a statute or read words into it which are not there. The court cannot, on an assumption that there is a defect or an omission in the words used by the legislature, correct or make up assued deficiency, when the words are clear and unambiguous. Courts have to decide what the law is and not what it should be, The courts adopt a construction which will carry out the obvious intention of the legislature but cannot set at naught legislative judgement because such course would be subversive of constitutional harmony. [See : U.O.I. & anr. vs DEOKINANDAN AGGARWAL -- 1992 SUPP (1) SCC 323.]

[For full text of the judgement, please visit http://www.taxesinindia.com and click on the citation taxind_2009_sc_cra_1758]

SUPREME COURT ORDERS

VENKATRAMAN RAGGHUPATHY, Web admin.

SUPREME COURT JUDGEMENTS

IN THE HIGH COURT OF JUDICATURE AT BOMBAY while deciding on 8.7.09 the Writ Petition No.2356 of 2009 in re: ALLUMINIUM PROFILES LIMITED vs U.O.I it was observed as follows:-

QUOTE: It is clear that as the order of settlement commission is final and mode of recovery is also set out therein, it will not be open to the Collector of Central Excise assuming that the circular of 5th August 1985 and 11.4.1994 to interfere with the order passed by the Settlement Commission, which is exercising quasi judicial powers. In the circumstances, can a writ court exercising extra ordinary jurisdiction, when the settlement commission has thought it fit not to grant any instalment, grant instalments assuming that under Section 32F(8) there is an imploed power to grant instalments. This Court ordinarily, ought not to interfere in the exercise of its extra ordinary jurisdiction with the order passed by the Settlement Commission.UNQUOTE

[for full text of the judgement please visit http://www.taxesinindia.com and click on the citation taxind_2009_hc_bom_wp_2356]

HIGH COURT ORDERS

VENKATRAMAN RAGGHUPATHY, Web admin.

HIGH COURT JUDGEMENTS extra ordinary jurisdiction, quasi judicial powers, Settlement Commission

IN THE HIGH COURT OF JUDICATURE AT MADRAS, while deciding the Writ Appeal No. 4119 of 2003 and W.P. Nos. 14905, 15327-15328 & 15559-15560 of 2001 and W.A.M.P. No. 6814 of 2003, on 9.6.2009 in re: MADRAS HIRE PURCHASE ASSN. vs U.O.I, it was held as follows:-

QUOTE: It is well settled that though taxing laws are not outside Article 14, however, having regrd to the wide variety of diverse economic criteria, that go into the formulation of a fiscal policy, legislature enjoys wide lattitude in the matter of selection of persons, subject matter, events etc., for taxation, if there is equality and uniformity within each group, the law would not be discriminatory. The learned Additional Solicitor General for the respondents submitted that all the banking companies which are carrying on similar hire purchase/leasing transactions are paying service tax without any protest as service element is involved.
A taxing statute is not per se, a restriction of the freedom under Article 19(1)(g).  The policy of a tax, in its effectuation, might, of course, bring in some hardship in some individual cases. But that is inevitable, so long as law represents a process of absorption from the generality of cases and reflects the highest common factor. Every cause, it is said, has its martyrs. Then again, the mere excessiveness of a tax, or even the circumstance that its imposition might tend towards the diminution of the earnings or profits of the persons of incidence does not, per se, and without more, constitute violation of the rights under Article 19(1)(g). In SONIA BHATIA v. STATE OF UTTAR PRADESH – 1981-2-SCC-585, it was held that “the Act seems to implement one of the most important constitutional directives contained in Part IV of the Constitution of India. If, in this process a few individuals suffer servere hardship that cannot be helped, for individual interests must yield to the larger interests of the community or the country as indeed every noble cause claims its martyr.”
For the said reasons, the averments that levying of service tax on hire purchase/leasing transaction is violative of Articles 14 and 19(1)(g) of the Constitution is also rejected. UNQUOTE

[for full text of the judgement please visit http://www.taxesinindia.com and click on the citation taxind_2009_hc_mad_wa_4119]

HIGH COURT ORDERS

VENKATRAMAN RAGGHUPATHY, Web admin.

HIGH COURT JUDGEMENTS Article 14, economic crieteria, fiscal policy