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

SUPREME COURT OF INDIA referred the following to a Largers Bench, while deciding the Civil Appeal No. 3159 of 2004 in re: CCEX INDORE vs GRASIM INDUSTRIES LTD : -

QUOTE: Since the issues arising in these appeals are of seminal importance and are likely to have serious ramifications on the question of determination of assessable value of the excisable goods for the purpose of levy of duty of excise, we are of the view that the following issues require consideration by a larger Bench:-
1. whether Section 4 of the Central Excise Act, 1944 (as substituted with effect fom 1/7/2000) and the definition of ‘TRANSACTION VALUE” in Clause (d) of sub-Section (3) of Section 4 are subject to Section 3 of the Act?
2. Whether Sections 3 and 4 of the Central Excise Act, despite being interlinked, operate in different fields and what is their real scope and ambit?
3. Whether the concept of ‘TRANSACTION VALUE” makes any material departure from the deemed normal price concept of the erstwhile Section 4(1)(a) of the Act?
UNQUOTE

[for full text of the judgement please visit http://www.taxesinindia.com and click on the citation taxind_2009_sc_ca_3159]

SUPREME COURT ORDERS

VENKATRAMAN RAGGHUPATHY, Web admin.

SUPREME COURT JUDGEMENTS CENTRAL EXCISE ACT, Section 3, Section 4, Transaction value

SUPREME COURT OF INDIA while dismissing the Civil Appeal No. 6389 of 2007 on 8/5/09 in re: CHAUDHARANA STEELS (P) LTD vs CCEX ALLAHABAD held that in this appeal the only question that arises for consideration is whether there is power for condonation of delay in filing an appeal under Section 35 G of the Central Excise Act, 1944 [in short the Act]. By judgement delivered in COMMISSIONER OF CUSTOMS CENTRAL EXCISE NOIDA vs PUNJAB FIBRES LTD NOIDA [2008--3--SCC--73] it was held that the High Court has no power to condine delay in seeking reference under Sec 35 H of the Act. Doubting correctness of the view reference was made to larger Bench. By judgement dt. 27/03/09 a three-judge Bench in COMMISSIONER OF CUSTOMS & CENTRAL EXCISE vs HONGO INDIA (P) LTD & anr. [2009--4--SCALE--374] concurred with the view taken by the two-judge Bench in PUNJAB FIBRES CASE [supra]. The decision has full application to the present case also.

With the above decision of the Supreme Court of India, the decision on the power of the High Courts to condone delay is now settled once and for all.
[for full text of the judgement please visit http://www.taxesinindia.com and click on the citation taxind_2009_sc_ca_5389]

SUPREME COURT JUDGEMENT

VENKATRAMAN RAGGHUPATHY, Web admin.

SUPREME COURT JUDGEMENTS CENTRAL EXCISE ACT, CONDONATION OF DELAY, HIGH COURT, SEC 35G SEC 35H

SUPREME COURT OF INDIA vide Civil Appeal No.1939 of 2009 with C.A.Nos. 1840-1941 of 2009, which was decided on 27/03/2009 in re: CCEX vs HONGO INDIA (P) LTD. held that we have to see the scheme of the special law here in this case is Central Excise Act. The nature of the remedy provided therein are such that the legislature intended it to be a complete Code by itself which alone should govern the several matters provided by it. If, on an examination of the relevant provisions, it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. In our considered view, that even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the Court to examine whether and to what extent, the nature of those provisions or the nature of the subject matter and scheme of the special law exclude their operation. In other words, the applicability of the provisions of the Limitation Act, therefore, to be judged not from the terms of the Limitation Act but by the provisions of the Central Excise Act relating to filing of reference application to the High Court. The scheme of the Central Excise Act, 1944 support the conclusion that the time limit prescribed under Section 35H (1) to make a reference to High Court is absolute and unextendable  by Court under Section 5 of the Limitation Act. It is well settled law that it is the duty of the Court to respect the legislative intent and by giving liberal interpretation, limitation cannot be extended by invoking the provisions of Section 5 of the Act.

In the light of the above discussion, we hold that the High Court has no power to condone the delay in filing the reference application filed by the Commissioner under unamended Section 35H(1) of the Central Excise Act, 1944 beyond the prescribed period of 180 days and rightly dismissed the reference on the ground of limitation.

[for full text of the judgement pl. visit http://www.taxesinindia.com and click on the citation taxind_2009_sc_ca_1939]

VENKATRAMAN RAGGHUPATHY, Web admin.

SUPREME COURT JUDGEMENTS CENTRAL EXCISE ACT, DELAY IN FILING, POWER TO CONDONE