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