CESTAT WEST ZONAL BENCH [SINGLE MEMBER] while deciding on 27.10.09 under Final order No. A642-644/09 in re: RAJARANI STEEL CASTING P. LTD vs CCEX NASIK, observed as follows:-

QUOTE: any person who aquires possession of or is in any way concerned in physically dealing with any excisable goods which, he knows of has reason to believe, are liable to confiscation under the Act or the Rules shall be liable to a penalty. For application of this rule, there must be a finding that certain excisable goods are liable to confiscation under the Central Excise Act or the Central Excise Rules and there must be a further finding that the person who is sought to be penalised has acquired possession of such goods or has otherwise physically dealt with the goods, knowing or believing that the goods are liable to confiscation. No finding of this sort is forthcoming in this case against the appellant. Even the show-cause notice did not allege that Shri Agarwal had removed the goods with the knowledge or belief that such goods were liable to confiscation under the Central Excise Act or the Central Excise Rules. In this scenario, the penalty imposed on the appellant under Rule 26 cannot be sustained. UNQUOTE

[for full text of the judgement please visit http://www.taxesinindia.com and click on the citation: taxind_2009_wzb_sm_A642_644]

CESTAT ORDERS

VENKATRAMAN RAGGHUPATHY, Web admin.

CESTAT ORDERS CENTRAL EXCISE ACT, CENTRAL EXCISE RULES, RULE 26

IN THE HIGH COURT OF JUDICATURE AT BOMBAY, while deciding the Writ Petition No. 7577 of 2009 on 29.9.09 in re: GAWAR CONSTN. LTD vs U.O.I., it was observed as follows:-

QUOTE: It is axiomatic to say that where civil rights of a person are likely to be affected by an administrative or quasi-judicial order, rules of natural justice require that the person affected be given a reasonable opportunity of being heard before the order is passed unless the statute under which the order is passed specifically excludes such opportunity. Even when the statute specifically excludes the opportunity of being heard, Courts would be entitled to consider the legality and constitutional validity of such a provision but, in any event, when the statute does not exclude their observance, the auhtoirty passing the order affecting civil rights of a person must follow the principles of natural justice which includegiving of a reasonable opportunity of being heard to the person affected. UNQUOTE

[for full text of the judgement please visit http://www.taxesinindia.com and click on the citation: taxind_2009_hc_bom_wp_7577]

HIGH COURT ORDERS

VENKATRAMAN RAGGHUPATHY, Web admin.

HIGH COURT JUDGEMENTS axiomatic to say, civil rights, REASONABLE OPPORTUNITY, rules of natural justice

CESTAT BANGALORE BENCH reiterated the following, while passing the final order no. 1324 to 1328/09 dt 30.10.09 in re: SAINT GOBAIN VETROTEX INDIA LTD and ors. vs. COMMR. OF SERVICE TAX, BBANGALORE and ors.:-

QUOTE: Heard both sides and perused the records. The issue involved in all these appeals are regarding denial of CENVAT credit on Service Tax paid on GOODS TRANSPORT AGENCY. We find that the issue is no more res integra as the issue came up before the Larger Bench of the Tribunal in the case of ABB Ltd. & ors vs. CCE&ST, Bangalore & ors. [2009-92-RLT-665.

Accordingly, we find that the issue is now settled in favour of the assessee.UNQUOTE

[for full text of the judgement please visit http://www.taxesinindia.com  and click on the citation taxind_2009_szb_b_1324_1328]

CESTAT ORDERS

VENKATRAMAN RAGGHUPATHY, Web admin.

CESTAT ORDERS CENVAT CREDIT, Goods Transport Agency, SERVICE TAX

CESTAT BANGALORE BENCH while pronouncing the final order no. 1289/09 dt 28.10.09 in re: INDIAN OIL CORPORATION LTD vs CCE HYDERABAD observed as follows: -

QUOTE: We have carefully considered the submissions made by both sides and perused the records. We find that the issue involved is regarding discharge of duty liability as per valuation adopted by the appellant on the goods cleared at COCO. We find that an identical issue has been decided by this Bench in the case of BHARAT PETROLEUM CORPORATION LTD.[2007-218-ELT-585]

Following ratio of the above decision, we set aside the impugned order and the appeal is allowed with consequential relief if any. UNQUOTE

[for full text of the final order please visit http://www.taxesinindia.com and click on the citation taxind_2009_szb_b_1289]

CESTAT ORDERS

VENKATRAMAN RAGGHUPATHY, Web admin.

CESTAT ORDERS ADMINISTERED PRICING MECHANISM], PETROLEUM, PRICING

CESTAT BANGALORE BENCH while pronouncing the final order no. 1330/09 dt 3.11.09 in re: CC&CE VISHAKAPATNAM vs NIIT HYDERABAD observed as follows: -

QUOTE: On a careful consideration of the case records and the submissions by both sides, we find that contrary to the argument of the Revenue in the appeal, the Trade Notices relied on by the lower appellate authority had clarified that notices for demand of service tax on specified services including consulting engineer services invoking Section 73(a) of the Act could be issued only by the Commissioner. The point of limitation being a question of law, the respondents had validly raised this issue for the first time before the Commissioner [Appeals]. As the issue involved is interpretation of statutory provisions, the Commissioner held that no penalty was imposable on the respondents. We find no infirmity in the impugned order. As the original authority had not considered the point of limitation, as well as the Trade Notices on the subject issue of notices invoking Section 73(a) of the Act., the Commissioner had rightly remanded the matter to the original authoirty for a fresh adjudication. In the circumstances, we do not find any merit in the appeal filed by the Revenue. Revenue’s appeal is dismissed. UNQUOTE.

[for full text of the judgement please visit http://www.taxesinindia.com and click on the citation taxind_2009_szb_b_1330]

CESTAT ORDERS

VENKATRAMAN RAGGHUPATHY, Web admin.

CESTAT ORDERS FINANCE ACT 1994, SEC 76

IN THE HIGH COURT OF KARNATAKA AT BANGALORE, while deciding the C.R.P. Nos. 126/2005, C/W/CRP/294/2005, 587-589, 591, 592-697, 609, 614-621, 623-637/2007 and CRP/586/2007 in re: MYSORE SALES INTERNATIONAL LTD vs UNITED INDIA INSURANCE CO. LTD., it was observed as follows:-

QUOTE: There is no difficulty in holding that having regard to the scheme of the Act and the manner in which the imported goods landing in Customs Area are handled, the Customs authorities are liable to account for the loss of such imported goods. The Court below in SC No. 1087 of 2003 has rightly held that the Customs authrorities are answerable to the claim of the plaintiff. However, the learned Judge, in other cases, has over-looked the purpose and the Scheme of the Act as contained in the aforesaid provisions and purpose and the scheme of the Act as contained in the aforesaid provisions and has gone to an extent of holding that the Customs authorities do not exercise any control over the imported goods handed over to the possession of the custodian and therefore, they are not liable to account for the loss of goods. In my considred opinion, the said finding is erroneous having regard to the scheme of the Act. Any arrangement made by the Customs department for proper storage of such imported goods, by appointing the custodian, would not absolve its liability to account for the loss, if any, of such imported goods even if such goods were in posession of the custodians. UNQUOTE

[for full text of the judgement please visit http://www.taxesinindia.com and click on the citation taxind_2009_hc_kar_crp_126]

HIGH COURT ORDERS

VENKATRAMAN RAGGHUPATHY, Web admin.

HIGH COURT JUDGEMENTS custodian, loss of goods, scheme of the Act

IN THE HIGH COURT AT CALCUTTA, while deciding the Writ Petition No.261 of 2008 with W.P. Nos. 1161, 230, 1016, 2428 (W) and 4006(W) OF 2008, ON 23.6.09 in re: PROMISING EXPORTS LTD vs U.O.I. it was observed as follows: -

QUOTE: It has been noted that Section 35C(2A) directs that the “Appellate Tribunal” to “hear and decide every appeal” and significantly its first proviso speaks of “an order of stay made in any proceeding relating to an appeal”. Now what is the ambit of the words “an order of stay in any proceeding relating to an appeal”. Does it include an order passed under Section 35F? Since the proviso to Section 35F speaks of, in case of “undue hardship”, dispensing with the deposit of duty demanded or penalty levied on certain conditions “pending appeal”, it is certainly a proceeding relating to an appeal filed under sub-section (1) of Section 35B as contemplated in 35C(2A). Moreover, that an order passed under 35F is a part of the proceedings in appeal is evident from the words at the outset of the said section which relates to “any appeal under this Chapter”. Further, though the words “an order of stay” or “stay order” appearing in 35C(2A) do not appear in Section 35F, it cannot but mean an order of stay passed by the Appellate Tribunal made on an application of waiver of predeposit while dispensing with the predeposit of duty demanded or penalty levied under Sec 35F which otherwise should have been deposited. Looking at the provisions, in my view, Section 35C(2A) has to be interpreted in a manner so as to bring it in harmony with the other provisions particularly Section 35F. Intention must not be inferred solely from Section 35F if it militates against the expressed and unambiguous provisions in 35C(2a).

[for full text please visit http://www.taxesinindia.com and click on the citation taxind_2009_hc_cal_wp_261]

HIGH COURT ORDERS

VENKATRAMAN RAGGHUPATHY, Web admin.

HIGH COURT JUDGEMENTS HARMONY, ORDER OF STAY, PENDING APPEAL, RELATING TO AN APPEAL, UNDUE HARDSHIP