CESTAT KOLKATA BENCH, while passing the final order no.A718 on 04.12.09 in re: IOCL HALDIA REFY vs CCEX HALDIA observed as follows: -
QUOTE: The Honble Supreme Court in the case of UOI vs RAJASTHAN SPINNING & WEAVING MILLS [2009-238-ELT-3 (SC) held that the application of Section 11AC would depend upon the existence or otherwise the conditions expressly stated in the Section, once the Section is applicable in a case the concerned authority would have no discretion in quantifying the amount of penalty. In the present case I find that even in the show cause notice there is no whisper of fraud, collusion or any willful misstatement or suppression of facts with intent to evade payment of duty. In order to attract the provisions of Section 11AC of the Act it must be alleged in the show cause notice that the duty had not been levied or paid by reason of fraud, collusion or willful misstatement or suppression of facts or by reason of contravention of any provision of Act or Rules with intent to evade payment of duty. In the present case the excess duty paid and adjustment of the same was reflected in the monthly returns. In these circumstances I find merit in the contention of Appellant and in view of the above decision of Honble Supreme Court the penalty imposed under Section 11AC is not sustainable hence set aside. Appeal is allowed. UNQUOTE
[for full text of the judgement please visit http://www.taxesinindia.com and click on the citation taxind_2009_ezb_A718]
CESTAT ORDER
VENKATRAMAN RAGGHUPATHY, Web admin.
CESTAT ORDERS
INTENT TO EVADE DUTY, PENALTY, SECTION 11AC OF C.EX. ACT
ON TUESDAY [21.12.09] the DELHI HIGH COURT asked the Mobile Phone opertors to ensure that unsolicited commercial calls made by the companies or banks are reduced and eventually ended. The Bench directed operators to follow guidelines laid down by the Telecom Regulatory Authoirty of India [TRAI] on the subject.
The High Court was hearing a petition filed by the Cellular operators Association, which challenged the State Consumer Commission’s order in favour of Nivedita Sharma, a lawyer who had received an unsolicited business call from a bank. The consumer Court had directed the ICICI Bank and AIRTEL to pay Rs. 50,000 compensation to Sharma. The Court is expeced to give its final verdict on JANUARY 8, 2010.
[source: THE EXPRESS NEWS SERVICE, N. DELHI]
OUR COMMENTS:-
1. LET THE ALMIGHTY GIVE THE JUDGES OF THE DELHI HIGH COURT THE COURAGE OF CONVICTION TO COME DOWN HEAVILY ON THE MISCHIEVOUS BANKS LIKE ICICI AND THE CELLULAR PHONE OPERATORS LIKE AIRTEL / AIRCEL WHO ARE BEHIND SUCH UNHEALTHY PRACTICES ADOPTED BY THEM IN THE GUISE OF COMPETITIVE MARKETING STRATEGIES.
2. LET OTHER BANKS LIKE HDFC, ABN AMRO, CITIBANK, AMERICAN EXPRESS etc AND LIKE WISE THE OTHER CELLULAR OPERATORS LIKE RELIANCE, VODAFONE etc. TAKE THIS MATTER SERIOUSLY AND END THEIR UNHEALTHY MARKETING STRATEGIES [Someone is loudly shouting from behind that it is the RELIANCE INFOCOM which cultivated such bad habit in the beginning - may be true]
3. LIKE THE ADVOCATE WHO RAISED THIS ISSUE BEFORE THE CONSUMER COURT, LET ALL CELL PHONE USERS GET UNITED AND FIGHT AGAINST THE UNHEALTHY MARKETING PRACTICES ADOPTED BY THE PRIVATE BANKS AND CELL PHONE OPERATORS.
4. LET THIS BE A GOOD LESSON FOR THOSE PRIVATE COMPANIES IN OTHER SECTORS WHO ARE ALSO ADOPTING SUCH UNHEALTHY MARKETING CAMPAIGNS, HARASSING THE CONSUMERS, DAY IN AND DAY OUT.
5. LET TRAI ALSO WAKE UP TO ACT TOUGH WITH THE CELL OPERATORS
VENKATRAMAN RAGGHUPATHY, Web admin.
HIGH COURT JUDGEMENTS
PRIVATE BANKS, PRIVATE CELL OPERATORS, UNHEALTHY MARKETING PRACTICES
IN THE HIGH COURT OF JUDICATURE AT BOMBAY, while deciding on 19.11.09 the writ petition no. 8185 of 2009 in re: TATA MOTORS LTD vs UNION OF INDIA, it was observed as follows:-
QUOTE: We are at pains to understand the approach of the learned Tribunal. Judgements of high Courts considering judicial discipline have to be followed by the Courts subordinate to the high Court. Failure to do so would result in JUDICIAL MAYHEM. Subordinate courts are bound to follow the judgements unless there be a subsequent judgement of a Higher Court which has taken a view different from the view earlier expressed. In this case, we find that the judgement in the case of AMRIT PAPER vs COMMR. OF C.EXCISE, LUDHIANA [2006-200-ELT-365-SC] cannot be said to have decided the controversy of availing Cenvat credit for jobwork. UNQUOTE
[for full text of the judgement please visit http://www.taxesinindia.com and click on the citation taxind_2009_hc_om_8185]
HIGH COURT ORDERS
VENKATRAMAN RAGGHUPATHY, Web admin.
HIGH COURT JUDGEMENTS
HIGHER COURTS, JUDICIAL DISCIPLINE, JUDICIAL MAYHEM, SUBORDINATE COURTS
Can a bank impose various conditions if an account holder does not operate his account for long and then wants to withdraw his money? NO, rules a City Court in N. Delhi. Additional District Judge made it clear that a customer’s money would remain his asset forever and a bank, supposed to be acting as its custodian cannot clamp limitations on the period within which he should withdraw it. Directing that a bank give back to an account holder his money on demand and without dictating arbitray terms, the Judge said banks could put forth no legal hurdles in disbursing it. ” If somebody deposits cash in his current or saving accout or by way of a fixed deposit receipt [FDR] with any bank, then the return of the same cannot be subjected to the laws of limitation. There is no limitation in law within which a person has to withdraw his money from his account.” said the Court. ” In case such an account is not actively operated, the maximum a bank can do is to freeze the account and levy some nominal mainenance. But by o stretch of interpretation, can the bank usurp such money, which does not belong to it,” held ADJ Rahi.
[WHAT A REASONABLE JUDGEMENT BY THE DELHI CITY COURT!!! IT IS VERY CLEAR FROM THIS JUDGEMENT THAT BANKS CANNOT ARBITRARILY APPROPRIATE (why not we call it as misappropritate?) A CUSTOMER’S HARD EARNED MONEY. THERE IS NO LAW IN OUR LAND WHICH EMPOWERS THEM TO TAKE SUCH DRASTIC ACTION. SUCH BEING THE LEGAL POSITION, WHY NOT ALL OTHER BANKS ALSO BE DIRECTED BY THE RESERVE BANK OF INDIA, WITH THE APPROVAL OF THE FINANCE MINISTRY IN THE CENTRE, TO REFUND TO ALL CUSTOMERS FROM WHOM THEY HAD APPROPRIATED SUCH SUMS IN THE PAST ALSO, AS SUCH MONEY DOES NOT BELONG TO THEM AS PER LAW IN OUR COUNTRY. IF SUCH A STEP IS TAKEN IMMEDIATELY BY THE RBI AND THE FINMIN, THEN THOUSANDS OF CUSTOMERS WOULD GET BACK THEIR HARD EARNED MONEY.
CITY COURT RULING
VENKATRAMAN RAGGHUPATHY, Web admin.
HIGH COURT JUDGEMENTS
LEGAL HURDLES, LIMITATIONS, USURP
CESTAT BANGALORE DECIDED AS FOLLOWS IN THE LATEST JUDGEMENTS:-
F.O. No.1389/09 dt 17.11.09 : KEDIA OVERSEAS LTD vs CC VISHAKAPATNAM — we find that the Bills of Entry involved have to finally assessed after hearing the submissions of the appellant also on the test report of the Chemical Examiner. In the circumstances, we remand the matter to the jurisdictional Assistant Commissioner / Dy. Commissioner for finalization of provisional assessment of the subject Bills of Entry in accordance with law after complying with principles of natural justice.
[for full text of the judgement please visit http://www.taxesinindia.com and click on the citation taxind_2009_szb_b_1389]
F.O. No. 1387/09 dt 13.11.09 in re: CC HYDERABAD vs. VANI GRAPHICS:- On perusal of the records, we find that the issue to be decided in this case is whether the ld. Commissioner [Appeals] order which has restricted the redemption fine and penalty to 10% and 5% respectively of the value as certified by the Chartered Engineer, is correct or not. We find that the issue is now no more RES INTEGRA as this Bench in the case of OFFICE DEVICES [2000-235-ELT-376] held that the redemption fine and penalty to the extent of 10% and 5% respectively of the value as has been certified by the Chartered Engineer is enough in cases where identical issue arose. This order of the Tribunal was not accepted by the Revenue, and they preferred an Customs appeal to Honble High Court of Kerala and Honble High Court in their judgement as reported at 2009(24)ELT 336(KER.) dismissed the appeal and upheld the order of the Tribunal.
[for full text of the judgement please visit http://www.taxesinindia.com and click on the citation taxind_2009_szb_b_1387]
CESTAT ORDERS
VENKATRAMAN RAGGHUPATHY, Web admin.
CESTAT ORDERS
provisional assessment, res integra, shipping bills
IN THE HIGH COURT OF DELHI, when the CWP No.19822 of 1983 was decided on 19.9.1983, in re: SUNDER GROVER vs UNION OF INDIA it was observed as follows:-
QUOTE: Now Fundamental Rule 56(j) porivdes that if the appropriate authority is of the opinion that it is in public interest so to do, have absolute right to retire any Government servant by giving him notice of not less than three months in writing or three months pay and allowance in lieu of that notice. This power thus permits the government to compulsorily retire an employee at the age of 50 years before reaching the normal age of superannuationat 58 yeas. One would, at first, blush think that this action of compulsory retirement which will affect an employee so seriously by throwing him out of employment somany years in advance with obvious loss in earning, status, material as well as financial should at least attract natural justice and require a hearing to be given to him before taking any action. And this is what a Division Bench of this Court as held in 1970 SLR 213. But this view was not approved by the Supreme Court in AIR 1971 SC 40. The Supreme Court though it recognised the essential sweep of the natural justice and also recognising that the compulsory retirementof an officer is bound to have some adverse effect on the employee compulsorily retired yet held that it involved no civil consequence nor is such a rule intended to take any penal action against the government servant. Reversing the reasoning for the applicability of principles of natural justice it said that in our opinion the High Court erred in thinking that the compulsory retirement involveds civil consequences. Such a retirement does not take away any of the rights that have accrued to the Government servant because of his past service. Thus the broad argument put forth by Mr. Sorabjee that in every case even in the case of temporary employee and in case of reversion without any stigma demand of principles of natural justice requires hearing to be given must be rejected. If the case of compulsory retirement of government servant who has the normal expectation of remaining in service upto 58 years principles of natural justice and hearing are not attracted, it is impossible to accept the argument that opportunity of being heard was necessary to be given to the petitioner, when he was only being reverted to his old post, and apparently in accordance with the conditions and terms of his appointment. No invalidity can therefore attach to the impugned order merely on the ground that no opportunity of being heard was given to the petitioner before making the order of reversion. UNQUOTE
[for full text of the judgement, please visit http://www.taxesinindia.com and click on the citation taxind_1983_hc_del_cwp_1922]
HIGH COURT ORDERS
VENKATRAMAN RAGGHUPATHY, Web admin.
HIGH COURT JUDGEMENTS
56 (j), being heard, compulsory retirement, FUNDAMENTAL RULE, natural justice, pubic interest
SOUTH ZONAL BENCH OF THE CESTAT AT BANGALORE, while disposing of the stay application filed by HINDUSTAN PETROLEUM CORPORATION LTD vs CST BANGALORE, vide stay order no. 1622 dt 9.11.09 observed as follows:-
QUOTE : On careful consideration of the submissions made by both sides and perusal of the records, we find that pieplines and tanks which are installed in the premises of M/s. Nagarjuna Fertilisers and Chemicals Ltd. are owned by the appellant. The sales of the goods has taken place from the tanks and the ownership of such goods in tanks and pipelines lies with the appellant. If that be so, we find that there is no service provided by the appellant to fall under the category of “transportation of goods through pipeline”. We find that the applicant has made out a prima-facie case for waiver of pre-deposit of amounts involved. Application for waiver of pre-deposit of amounts involved is allowed and recovery thereof stayed till disposal of the appeal. UNQUOTE
[for full text of the judgement please visit http://www.taxesinindia.com and click on the citation taxind_2009_szb_b_stay_1622]
TRIBUNAL ORDERS
VENKATRAMAN RAGGHUPATHY, Web admin.
CESTAT ORDERS
GOODS, PIPELINE, SERVICE TAX, TRANSPORTATION
SUPREME COURT OF INDIA while deciding the Civil Appeal No. 7129 of 2002 on 23/4/08 in re: MOTOR INDUSTRIES CO. LTD vs COMMR. OF CUSTOMS, observed as follows: -
QUOTE: No special or extraordinary reasons have been recorded for rejecting the transaction value. It is settled law that unless transaction value is rejected for extraordinary or special reasons, the same has to be accepted. We agree with the submission made by Mr. Vellapally appearing for the assessee that the Tribunal has fallen in error in taking a decision contrary to the principle laid down by this Court in case of EICHER TRACTORS [2000-122-ELT-321(SC) and other decisions mentioned above. Under the circumstances, the impugned order of the Tribunal and the adjudicating authority are set aside and that of the first appellate authority is restored. The appeal is allowed accordingly. UNQUOTE
[for full text of the judgement please visit http://www.taxesinindia.com and click on the citation taxind_2009_sc_ca_7179]
SUPREMR COURT ORDERS
VENKATRAMAN RAGGHUPATHY, Web admin.
SUPREME COURT JUDGEMENTS
REJECTION, SPECIAL OR EXTRAORDINARY REASONS, Transaction value
IN THE HIGH COURT OF JUDICATURE AT BOMBAY, while deciding the Writ petition no. 2686 of 1993, on 18.8.09, in re: RAMESH SAKALCHAND JAIN vs UNION OF INDIA, it was held as follows:-
QUOTE: The question before us for consideration is whether the Tribunal was right in arriving at a conclusion it has arrived at namely that it was not the forum to hear the appeal arising from an order passed by the Dy. Collector. The issue whether Dy. Collector rightly heard the matter has not been convassed before us. In our opinin, considering the provisions of Section 128(1) of the Customs Act, 1962 , the Tribunal was within the jurisdiction to arrive at a finding which it has arrived at. Apart from that, in the order dated 30th January, 1990 which was served on the petitioner along with the forwarding communication, it was clearly set out that the appeal against the order would lie with the Collector of Customs [Appeals]. It is therefore not a case where the petitioner was caught by surprise. It is not possible to accept that a failure by the consultant will give cause to the petitioner to approach this court in the exercise of its extraordinary jurisdiction. UNQUOTE
[for full text of the judgement, please visit http://www.taxesinindia.com and click on the citation taxind_2009_hc_bom_wp_2586]
HIGH COURT ORDER
VENKATRAMAN RAGGHUPATHY, Web admin.
HIGH COURT JUDGEMENTS
APPEAL TO APPELLATE TRIBUNAL, Customs Act, JURISDICTION
SUPREME COURT OF INDIA [bench of Justices Tarun Chatterjee and Surinder Singh Nijar] held on 03.12.09 as follows: -
Getting your job back after a long bitter legal battle with your employer hardly means he has to pay you the entire back wages FOR CONTRIBUTING LITTLE OR NOTHING to the establishment. Employers can decide on a case-to-case basis if they really have to pay full back wages to a staffer, who had been terminated from service but had gone to court and won his jpb back. The payment of back wages having a discretionary element involved in it, had to be dealt with in the circumstances of each case and no straight jacket formula can be evolved. The rationale for the pick and choose policy, the court said, is that an ousted employee ends up CONTRIBUTING LITTLE OR NOTHING to the employerduring the period of absence. Payment of full back wages upon an order of termination being declared illegal cannot be granted mechanically. It does not automatically follow that reinstatement must be accompanied by payment of full back wages even for the period when the workman remained out of service and contributed little or nothing to the industry. The court was deciding an appeal by a Kanpur based marble company against their oldf-time accountant.
[full text of the judgement will be placed in the website http://www.taxesinindia.com as soon as it is available for publication]
SUPREME COURT ORDER
VENKATRAMAN RAGGHUPATHY, Web admin.
SUPREME COURT JUDGEMENTS
DISCRETIONARY ELEMENT, FULL PAYMENT OF BACK WAGES, REINSTATEMENT
