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 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

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

IN THE HIGH COURT OF DELHI, while deciding on 1/7/09 the W.P (C) NO.2500 of 1982 in re: GUJARAT STATE FERTILISERS PVT. LTD vs U.O.I the Court observed as follows:-

QUOTE: The crucial terms here are sulphuric acid INTENDED FOR USE IN THE MANUFACTURE OF FERTILISERS. There are no restrictive terms cutting down the width of the phrase INTENDED FOR USE. Applying the CANON OF CONSTRUCTION mentioned earlier, i.e. that such exemption notifications are to be considered in their own terms, the Court holds that the express terms here do not make a distinction between PRIMARY and SECONDARY product or MAIN PRODUCT and BY-PRODUCT. As far back as in HANSRAJ’s case, it was ruled that:
IT IS WELL-ESTABLISHED THAT IN A TAXING STATUTE THERE IS NO ROOM FOR ANY INTENDMENT BUT REGARD MUST BE HAD TO THE CLEAR MEANING OF THE WORDS. THE ENTIRE MATTER IS GOVERNED WHOLLY BY THE LANGUAGE OF THE NOTIFICATION. IF THE TAX-PAYER IS WITHIN THE PLAIN TERMS OF THE EXEMPTION IT CANNOT BE DENIED ITS BENEFIT BY CALLING IN AID ANY SUPPOSED INTENTION OF THE EXEMPTING AUTHORITY.

The Court cannot be unmindful, here of the object of the notification which was to make fertilizers less expensive, and more widely accessible. UNQUOTE

[for full text of the judgement please visit http://www.taxesinindia.com and click on the citation taxind_2009_hc_del_wpc_2500]

HIGH COURT ORDERS

VENKATRAMAN RAGGHUPATHY, Web admin.

HIGH COURT JUDGEMENTS CANON OF CONSTRUCTION, CLEAR MEANING OF THE WORDS, INTENDMENT, TAXING STATUTE

IN THE HIGH COURT OF H.P. AT SHIMLA, while deciding on 10.4.09 the EX. REF. NO.10 of 2001 in re: SOOD STEEL INDUSTRIAL (P) LTD. vs COMMR. OF C.EX., it was observed as follows:-

QUOTE: The Larger Bench held that any manufacturer whose clearances are over Rs. 75 lacs cannot be said to avail of the benefit of the Notification No. 1/93-CE  and therefore, could not get benefit of the deemed credit order. following this order of the CESTAT, the appeal filed by the department was allowed. Hence the present petition.

In our view, the order of the Larger Bench [DAGAMBER FOUNDRY vs COMMISSIONER - 2000(118)ELT85] is not correct. The benefit of the Notification No. 1/93-CE is available to any manufacturer whose total clearances in the preceding financial year did not exceed Rs. 2 crores. The deemed credit  order clearly states that all concerns availing of exemption under notification No.1/93-CE dt 28/2/93 will be deemed to have paid duty under Rule 57-I of the Rules and the credit may be allowed to them at the rate fixed without production of any documents evidencing the payment of duty. Any manufacturer whose total clearances did not exceed Rs. 2 crores was entitled to the benefit of exemption under the Notification No. 1/93-CE. No doubt the benefits under this notification were limited to clearances of Rs. 75 lacs but this does not mean that manufacturers whose clearances exceeded Rs. 75 lacs were not availing the exemption under the notification. In our considered view, the only interpretation which can be given is that the wording used in the notification identifies the category of manufacturers who are satisfying the criteria as set out in Notification No.1/93-CE and are availing of the benefit of the said notification. The trade note limiting this benefit to those manufacturers whose clearances do not exceed Rs. 75 lacs is totally illegal and against the deemed credit order issued by the Ministry. We may also point out that though the department may be bound by its trade note, the industry is not bound by the same and has a right to challenge the same. UNQUOTE

[for full text of the judgement, please visit http://www.taxesinindia.com and click on the citation taxind_2009_hc_hp_exref_10]

HIGH COURT ORDER

VENKATRAMAN RAGGHUPATHY, Web admin.

HIGH COURT JUDGEMENTS

IN THE HIGH COURT OF CALCUTTA, while deciding on 4.3.09 the CUSTA No. 20 of 2008 and C.A. No.316 of 2008 in re: COMMR. OF CU. [PREVENTIVE], W. BENGAL vs INDIA SALES INTERNATIONAL it was observed that:

QUOTE: In our considered opinion the Court cannot insert any word in the statute since it is within the domain of legislators. Whatever the legislators think fit and proper can be legislated. The Court cannot insert any word in the legislation but Court has power to interpret the same without inserting anything.

On the contrary we feel that the power has been given by the legislators to a particular authority to act in a particular manner and the said particular authority must act accordingly and not otherwise at all.

Therefore, in our considered opinion that the Tribunal has the right to pass such order by giving an option to pay fine in lieu of confiscation of goods as has been directed to be done by them.
UNQUOTE

[for full text of the judgement please visit http://www.taxesinindia.com and click on the citation taxind_2009_hc_cal_custa_20]

HIGH COURT ORDER

VENKATRAMAN RAGGHUPATHY, Web admin.

HIGH COURT JUDGEMENTS DOMAIN OF LEGISLATORS, INSERT ANY WORD, STATUTE

The HIGH COURT OF JUDICATURE AT BOMBAY while allowing the petition W.P. No.3288 of 2008 in re: HAMID FAHIM ANSARI vs COMMR. OF CUSTOMS [IMPORT] NHAVA SHEVA on 6.5.09 held as follows: -

QUOTE: Imports have been done in the name of the petitioner but for some other person. In so far as respondents / Customs authorities is concerned, they have not pointed out to us any provision under the Customs Act or any Rules or Regulation framed thereunder by which the person having valid IEC Number and having paid the custom duty is prevented from importing goods. At the highest, if the petitioner has obtaimed iec number by misrepresenting the Ministry of Commerce and Industry and Director General of Foreign Trade, it is for that body to take action.

In these circumstances, in our opinion, petitioner having paid the custom duty is entitled to release of the goods. We, therefore, direct respondents to release the goods within 48 hours from today. UNQUOTE

for full text of the judgement please visit http://www.taxesinindia.com  and click on the citation taxind_2009_hc_bom_wp_3288]

HIGH COURT ORDER

VENKATRAMAN RAGGHUPATHY, Web admin.

HIGH COURT JUDGEMENTS misrepresenting, VALID IEC No.

IN THE HIGH COURT OF GUJARAT AT AHEMEDABAD, while deciding the Special Criminal application No. 1442 of 2009 on 29/07/09 in re: ESSAR OIL LIMITED vs C.B.I, it was observed as follows:

QUOTE: As regards the contention that the accused cannot be subjected to face investigation in connection with the same offense, twice over, the learned Counsel for the CBI has rightly contended that the principle of double jeopardy would not be applicable at the stage of investigation. If the said contention were to be accepted, the provision of Section 173(8) would become redundant in as much as in all cases where further investigation is carried out, the accused would plead that they cannot be subjected to investigation twice over on the principle of double jeopardy. Merely because the investigating agency carries out further investigation it cannot be said that the accused are subjected to face investigation twice over, because it is merely a continuation of the earlier investigation. Moreover investigation cannot be put at par with prosecution and punishment so as to fall within the ambit of clause (2) of Article 20 of the Constitution. UNQUOTE

[for full text of the judgement, please visit http://www.taxesinindia.com and click on the citation taxind_2009_hc_guj_scra_7442]

HIGH COURT ORDERS

VENKATRAMAN RAGGHUPATHY, Web admin.

HIGH COURT JUDGEMENTS CBI, DOUBLE JEOPARDY, DUTY FRAUD, INVESTIGATION, OFFENCE

THE HIGH COURT OF JUDICATURE AT BOMBAY while deciding on 2/5/09 the writ petition no. 4317 of 2009 in re: SUZLON INFRASTRUCTURE LTD vs U.O.I. observed as follows:-

QUOTE: The points of difference arise on the members constituting the Bench disposing of the appeal by separate orders from which orders, the points of difference are disclosed. Under Section 35 (2) of the Excise Act, there is power in the tribunal to rectify any mistake apparent on the record and amend any order passed by it under sub-section (1) within the time frame. It is thus, clear that the order passed is different from the points for determination. Points for determination thus arise from orders passed by the appellate tribunal which orders are not enforceable because of difference of opinion on points arising from the orders. These points finally shall be decided according to the opinion of the majority of the members of the tribunal who have heard the case including those who have first heard it. The final order would be based on the opinion of the third member who answers the point of difference referred to him as that would constitute the majority opinion. The third member does not pass any order. Such member only answers the points referred. The power to rectify under Section 35C (2) is the order. UNQUOTE

[for full text of the judgement please visit http://www.taxesinindia.com  and click on the citation taxind_2009_hc_bom_wp_4317]

HIGH COURT JUDGEMENTS

VENKATRAMAN RAGGHUPATHY, Web admin.

HIGH COURT JUDGEMENTS Excise Act, points for determination, points of difference, Section 35(2), Section 35C(2)