IndLaw - Latest judgments on Indirect Tax from the Supreme Court of India, High Courts and tax tribunals

Judgments

Sophisticated Marbles And Granite Industries vs (1) Union of India And Another; (2) Margret Jos [DELHI HIGH COURT, 04 Mar 2010]
Customs - Indirect Tax - Exemption - Circular dt. 23-10-2009 and Notification dt. 15-10-209 - Grant of import licences for rough marble blocks - Director General of Foreign Trade (DGFT) vide circular dt. 23-10-2009 as well as notification dt. 15-10-2009 imposed a condition that for the purposes of securing an import licence for rough marble blocks the importer would have to install a gang saw machine in its unit - Petitioner filed writ petition against said circular and notification submitting that it was severely prejudiced by the introduction of the above conditions since the last date for receipt of the application for renewal of licence after fulfilling the conditions of the above policy circular dt. 23-10-2009 was to 2-11-2009 i.e. barely 7 days before the closing date - Whether the condition requiring the ownership and installation of a gang saw machine by an importer of rough marble blocks/slabs, who does not further process such marble prior to sale in the domestic market, is unreasonable? - Held, no - No doubt the criterion of ownership of a gang saw machine was introduced at a late stage thus rendering it impossible for the petitioner to get licences for the last two quarters of 2009-2010 - However, that by itself cannot render the requirement arbitrary when viewed in the overall context of a unified policy requiring the fulfilment of uniform criteria by all applicants - Any policy change is bound to adversely affect some marble trader or the other and perhaps some more than the others - If one were to go only by that yardstick, then every imperfect policy that does not cater to every description of a marble trader will fall foul of art. 14 of Constitution of India - SC has time and again emphasised that ‘imperfect’ policies are not necessarily arbitrary or unreasonable policies - What has to be seen is whether the object of encouraging domestic industry, while not discouraging imports, is advanced by the impugned measure - Moreover, court cannot be expected to sit in appeal over the decision of the government to introduce a requirement for eligibility for grant of an import licence and opine that one criterion is more appropriate than the other - Hence, condition requiring the ownership and installation of a gang saw machine by an importer of rough marble blocks/slabs is not unreasonable - Petition dismissed.

Customs - Indirect Tax - Practice & Procedure - Exemption - Circular dt. 23-10-2009 and Notification dt. 15-10-209 - Contempt petition - Grant of import licences for rough marble blocks - Whether respondents have wilfully disobeyed the order dt. 11-11-2009 passed by HC whereby they were directed not to reject the petitioner’s application? - Held, no - Decision to reject the petitioner’s application was taken on 10-11-2009, prior to HC’s order dt. 11-11-2009 - Although this decision was communicated to the petitioner in writing later, there is nothing to doubt that the decision was itself taken on 10-11-2009 - Hence, it is not possible to hold that the respondents were in contempt of HC’s order dt. 11-11-2009 when they communicated the decision of rejection to the petitioner by the letter dt. 16-11-2009 - No merit in the contempt petition - Petition dismissed.

Shree Rajasthan Texchem Limited, Udaipur vs (1) Union of India; (2) Customs, Excise And Service Tax Appellate Tribunal; (3) Assistant Commissioner Of Customs [BOMBAY HIGH COURT, 02 Mar 2010]
Customs - Indirect Tax - Textile Committee Act, 1963, s. 5A - Customs Act, 1962, s. 28 - Exemption from cess - Appellant imported capital goods being Textile Machinery and declared the same under Customs notification No.110/95-Cus dated 5-06-1995 and claimed exemption from payment of customs duty in excess of 15% and whole of additional duties of excise - Demand notice was issued to appellant alleging that cess was not exempted in terms of the notification and appellant was liable to make payment of cess payable under Textile Committee Act, 1963 - Appellant contended that element of cess was part of additional duty of excise and the same was exempted, hence, appellant was not liable to pay cess - Whether cess levied u/s. 5A of Textile Committees Act is includable as a component of CVD? - Held, by notification Central Government granted exemption from payment of customs duty in excess of 15% and whole of additional duty of excise - Notification nowhere refers to the grant of exemption from the payment of cess payable u/s. 5A of the Textile Committees Act - Further, notification nowhere in the preamble refers to the grant of exemption from payment of cess under the Act under which the cess is being levied - No material placed to infer that the cess leviable under the Textile Committees Act was component of CVD - Exemption from payment of cess was not available to the appellant for want of specific notification in that behalf - Relied on SC in the case of Union of India v. Modi Rubber Limited, 1986 INDLAW SC 186 - Question raised answered in favour of the Revenue and against the Assessee - Appeal dismissed.

(1) Commissioner of Central Excise, Chandigarh; (2) Unique Investment Centre; (3) Commissioner of Central Excise, Commissionerate, Chandigarh vs (1) N. K. Chugh and Company; (2) Commissioner of Central Excise, Chandigarh; (3) Vijay Sharma and Company, Chandigarh [PUNJAB AND HARYANA HIGH COURT, 22 Feb 2010]
Service Tax – Indirect Tax – Sub-brokers - Whether the service provided by sub-brokers are covered under the ambit of service tax and are taxable or not? – Held, as there are conflicting decisions of the same Tribunal on the point in issue, therefore, impugned order set aside – Matter remanded to tribunal decide the matter afresh in view of the amendment – Matter referred to Larger Bench

Telecommunication Consultants India Limited vs Commissioner of Commercial Taxes [UTTARAKHAND HIGH COURT, 19 Feb 2010]

Sanghvi Reconditioners Private Limited vs Union of India And Others [SUPREME COURT OF INDIA, 05 Feb 2010]
Customs - Indirect Tax - Customs Act, 1962, ss. 28, 28AB, 127B and 127C - Clandestine removal - Demand - Interest - Penalty - Investigations revealed that appellant had clandestinely availed of benefit of import duty exemption Notification No.211/83-Cus dt. 23-7-1983, on the import of multiple consignments of engineering cargo as ‘Ship Spares’ - Show cause notices issued to appellant demanding customs duty - Commissioner confirmed the demand of customs duty besides interest and penalty u/s. 28AB of Act - Appellant filed an application u/s. 127B of Act with the Settlement Commission, disclosing and admitting a duty liability - Settlement Commission allowed said application and amount of additional duty determined to be payable was duly paid by the appellant - In respect of 8 consignments, settlement commission confirmed the additional customs duty demanded from the appellant under the order of adjudication by the Commissioner - Appellant filed appeal against said order and sought to urge an additional ground to the effect which was declined by HC - Hence, present appeal - Whether order of settlement commission and HC could be upheld? - Held, yes - There was a shift in the stand of the appellant before the HC when sale of the imported components by them to a third party stood proved on the basis of overwhelming documentary evidence on record, disentitling them to the benefit of the exemption notification - Additional ground sought to be raised before HC was not only an afterthought, adjudication thereon did involve investigation into facts and, therefore, the decision of the HC in not entertaining the additional ground did not suffer from any infirmity - Order of the Settlement Commission did not suffer from any error, legal or factual, and, therefore, the HC was fully justified in dismissing the writ petition - Appeal dismissed.

Commissioner of Central Excise Commissionerate, Panchkula vs Indian Sugar and General Engineering Corporation, Yamuna Nagar [PUNJAB AND HARYANA HIGH COURT, 04 Feb 2010]
Excise - Indirect Tax - Respondent undertakes the job work and repair on free issue materials received from customers - Respondent submitted that they were not liable to pay the duty for the job work, yet they have paid the duty to the tune of Rs.6,95,158/- on the value of the forgings (Rollar) supplied by sister concern - Revenue issued show cause notice wherein penalty and interest were demanded - Adjudicating Authority confirmed the penalty and duty of the amount as incorporated in the show cause notice - Commissioner dismissed appeal filed against said order - Tribunal filed appeal against said order and held that as the respondent was only doing the job work in the nature of repair work of shelling and grooving of discharges roller, therefore, they were not liable to pay any duty - Tribunal further held that as the duty imposed on the respondent was not challenged, therefore, only the penalty and interest portion were set aside - Hence, present appeal - Whether Tribunal’s order could be upheld? - Held, since the respondent-firm was undertaking only job work in the nature of repair work, no penalty or interest is leviable - Tribunal’s order upheld - Revenue’s appeal dismissed.

ADH Agencies, Chandigarh vs Commissioner of Central Excise, Chandigarh [PUNJAB AND HARYANA HIGH COURT, 04 Feb 2010]
Service Tax - Indirect Tax - Finance Act, 1994, ss. 65(105)(j), 70, 77- Consignment Agents - Appellant submitted that they are consignment agents of two manufacturers and are not liable to pay service tax as they are neither clearing agents nor forwarding agents - Demand of service tax raised - Adjudicating Authority confirmed said demand raised against appellant - Commissioner allowed appeal filed against said order - Tribunal allowed appeal against said order and held that even the consignment agents would be liable to pay service tax - Hence, present appeal - Whether consignment agents are liable to pay service tax under the category of Clearing and Forwarding agents? - Held, Punjab and Haryana HC in Commissioner of Central Excise, Panchkula vs. Kulcip Medicines Private Ltd. 2009 INDLAW PNH 687, held that consignment agent, is not liable to pay service tax under the category of Clearing and forwarding agents - Tribunal’s order set aside - Appeal allowed.

Commissioner of Central Excise vs (1) Vahoo Colour Lab; (2) Sood Studio Private Limited; (3) Sood Photographers [PUNJAB AND HARYANA HIGH COURT, 03 Feb 2010]
Service Tax - Indirect Tax - Central Excise Act, 1944 - Revenue alleged that assessee has not sold material/goods to recipient of service and availed benefit of Notification dt. 20-6-2003 and willfully suppressed taxable value of material/goods consumed, during process of providing service - Show cause notice was issued to assessee - Assessee submitted that photography films, printing papers, chemical and envelopes are integral and essential ingredients of their developing/printing job and without use of same, photography service cannot be provided - Adjudicating Authority dropped proceedings initiated in pursuance of show cause notice to assessee - On appeal, revisional authority confirmed demand of service tax alongwith interest and also impose a penalty - Hence, present appeal - Whether assessee is liable to pay service tax on value of goods/material consumed, during course of processing of photography or not? - Held, processing of photography cannot be completed without developing and printing process, to provide service to recipient - Photography films, printing papers, chemicals and envelopes are integral and essential ingredients to complete process of photography - Components of sale of photography, developing and printing etc. are clearly distinct and discernible than that of photography service - Therefore, photography is in nature of works contract and it involves elements of both sale and service, therefore, service tax is not leviable on sale portion, in obtaining circumstances of case - Appeals dismissed.

Commissioner of Central Excise vs M. B. Dyers [DELHI HIGH COURT, 01 Feb 2010]
Excise - Indirect Tax - CENVAT Credit Rules, 2002, r. 11 - Exemption - Notification No. 06/2002-CE (NT) dt. 1-03-2002 - Fibre/yarn - Whether tribunal was right in allowing deemed credit in respect of the fibre/yarn used in the grey fabric which was an indirect input in the assessee’s final product-processed fabric, in view of the Notification No. 06/2002-CE(NT)? - Held, grey fabrics in the present case, though not mentioned in the table of inputs referred to in the notification, comprised of yarn/fibre which are the inputs in respect of grey fabrics - Grey fabrics are also not processed fabrics and, therefore, are not covered by Explanation 3 to Clause (6) of the said notification - Processed fabrics are the final products containing the yarn/fibre which is the requirement u/r. 11 of Rules - Thus, although the yarn/fibre is contained in the final product, they are not directly used by the respondent-manufacturer in its manufacturing process - It comes in indirectly being a constituent of grey fabric - Requirement of r. 11 of 2002 Rules stands satisfied - Tribunal right is allowing deemed credit in respect of fibre/yarn used in grey fabric which was an indirect input in assessee’s final product – Revenue’s appeal dismissed.

Cantonment Board, Meerut and Another vs K. P. Singh and Others [SUPREME COURT OF INDIA, 01 Feb 2010]
Contract & Commercial - Carriers & Transportation - Indirect Tax - Cantonments Act, 2006, s. 60 - Maxim actus curiae neminem gravabit - Refund - Collection of toll tax - As per notification dt. 8-01-2005 bids were invited for levying toll tax upon entry of commercial motor vehicles within territorial limits of Meerut Cantonment - Tender submitted by respondent Nos.1 and 2 jointly came to be accepted - After the finalization of the tender, respondent No.5 submitted an application offering to pay 1,05,000/- per day - Respondent No. 5 also filed writ petition praying that till the finalization of fresh auction, respondent No.5 should be allowed to pay at the rate of 1,25,000/- per day for the collection of toll tax - HC at the time of passing the orders on the application for stay found that though respondent No.5 was willing to pay Rs.1,25,000/- per day for the right to collect toll tax, yet respondent Nos.1 and 2 had suo motu made an offer to pay Rs.1,31,000/- per day for the right to collect toll tax - HC as an interim order directed respondent Nos.1 and 2 to deposit Rs.1,31,000/- per day to levy and collect the toll tax during the interregnum - Later at the time of final order HC held that since petition of respondent no. 5 was dismissed as not pressed, interim order accepting the bid of respondent nos. 1 and 2 of Rs.1,31,000/- would merge with the final order and respondent No.1 and 2 would be entitled to get refund of the excess amount of Rs. 29,000/- per day since their final offer which was accepted by the petitioner was only of Rs.1,02,000/- - Hence, present appeal - Whether refund could be granted to respondent nos. 1 and 2? - Held, no - In view of the maxim actus curiae neminem gravabit, no party could be allowed to take benefit of its own wrongs by getting the interim orders and thereafter blaming the Court - Respondent Nos. 1 and 2 cannot take advantage and claim refund because of the fact that this was their voluntary offer and they were not directed to pay the amount that they did - HC's order is unsustainable, hence set aside - Petitioner not liable to refund anything in favour of respondent Nos.1 and 2 - Appeal allowed.

Ashwani Tobacco Company Private Limited vs Union of India and Others [DELHI HIGH COURT, 29 Jan 2010]
Excise – Indirect Tax - Central Excise Act, 1944 ss. 2(b), 11AC, 32A, 32E, 32F - Immunity from prosecution - Excise duty - Petitioner involved in clandestine clearance of goods without payment of central excise duty - Premises of petitioner, as well as that of petitioner’s dealers searched by Directorate General Central Excise Intelligence - Subject of to deposit of duty, fine, interest and penalty, Bench grants immunity from prosecution to applicant/co-applicants under 1944 Act and Rules framed there under - Immunity from prosecution further subject to condition that it shall further stand withdrawn if applicant No.1 & 2 charged with similar offence within period of two years from date of order - Miscellaneous application was filed by petitioner before Settlement Commission on the ground that penalty order contained some inadvertent errors relating to calculation of remaining amount of duty to be paid, and also additionally praying for seeking immunity from penalty and interest - Whether benefit of proviso to s. 11AC of 1944 Act was admissible in case of Petitioner? -– Held, no - No provision u/s 11AC of 1944 Act provides for waiver of total penalty - As regards reduced payment of penalty @ 25% under provision of s. 11AC of 1944 Act is concerned, Petitioner filed application for settlement before Settlement Commission under provisions of Chapter-V of 1944, Act - Expression ‘settlement’ before Settlement Commission is in contradistinction to ‘adjudication’ before Central Excise Officer - Scheme of provisions of Chapter-V is settlement and not adjudication - Expression empowers Settlement Commission to look at evidence and call for such evidence in order to determine whether Settlement Commission should or should not accept application for settlement made by applicant - Settlement Commission cannot be said to be Central Excise Officer only by virtue of powers provided in s. 32-I of 1944 Act - While settling case Settlement Commission has been empowered to grant immunity from interest and penalty - Once Petitioner has adopted course of settlement he has to be governed by provisions - Benefit under proviso to s. 11AC of 19 Act which could have been availed when matter of determination of duty was before Central Excise Officer is not attracted to cases of settlement undertaken under provisions of Chapter-V of 1944 Act - No infirmity in impugned order - Petition dismissed.

Commissioner of Central Excise, Chandigarh vs Sadashiv Ispat Limited Mubarakpur, Derabassi, Distt. Patiala (Punjab) [PUNJAB AND HARYANA HIGH COURT, 28 Jan 2010]

Commissioner of Central Excise Commissionerate, SCF No. 6, 8 & 10, Sector 1, Rohtak, Haryana vs Nikhil Footwears and Others [PUNJAB AND HARYANA HIGH COURT, 28 Jan 2010]
Excise - Indirect Tax - CENVAT Credit Rules, 2002, rr. 11 and 25 - Central Excise Act, 1944, s. 11AC - Penalty - Clandestine removal - Respondents engaged in manufacture of footwear - On investigation shortage of inputs found in respondent - Show notice was served upon the respondents to which they replied - Asst. Commissioner confirmed demand and also imposed penalty equivalent to the amount of duty - Commissioner maintained penalty as imposed by Asst. Commissioner, however, he also imposed a penalty for violation of r. 13 of Rules - On appeal, tribunal set aside the penalty - Hence, present appeal - Whether tribunal is correct in law for setting aside the imposition of penalty equivalent to the amount of duty imposed u/r. 25 of the CENVAT Credit Rules, 2002 r/w. r. 11AC? - Held, as per HC in CCE, Ludhiana vs. FAS Kusum Ispat (P) Ltd 2009(240) ELT 13 (P&H), where there is a shortage of inputs, however, there is no mens rea or intention to evade duty and further no clandestine removal of inputs, then there is no question of imposition of any penalty - In present case on of the inputs being used by the respondents was subject to evaporation process and hence there could have been a shortfall of this input on account of evaporation and therefore, the respondents cannot be held liable for any imposition of penalty, specially, when they have already paid the duty even prior to the issuance of show cause notice - Tribunal’s order upheld - Revenue’s appeal dismissed.

Soorya Enterprises, Represented By Authorised Signatory, A. Razack vs (1) Commissioner of Customs(Imports), Customs House; (2) Additional Commissioner of Customs; (3) Director General of Foreign Trade And Ex-Officio, Additional Secretary, Ministry of Commerce, New Delhi [MADRAS HIGH COURT, 27 Jan 2010]

Abhas Spinners Private Limited vs Union of India and Others [PUNJAB AND HARYANA HIGH COURT, 25 Jan 2010]
Customs - Practice & Procedure - Customs Act, 1962 - Release of cash, bank balance, shares/mutual fund - Petitioner imported certain goods but the same were seized alleging mis-declaration of value of goods - Petitioner filed writ petition which was allowed - Consequent to said order petition wrote letters claiming return of seized articles, to which no response has been received - Hence, present petition - Whether said petition could be allowed? - Held, respondent no. 2 directed to take a decision on claim of petitioner in accordance with law, for complying with the order - Petition disposed of.

Leader Engineering Works Etc. Etc. vs Commissioner of Central Excise, Jalandhar [SUPREME COURT OF INDIA, 25 Jan 2010]

Vinay Wires and Poly Products Private Limited, Through Its Authorised Signatory H. P. Kanodia vs Member(Central Excise) Central Board of Excise And Customs New Delhi and Another [DELHI HIGH COURT, 22 Jan 2010]

K. R. Gowri Sedhuraman vs Kumbakonam Municipality, Represented by Executive Authority [MADRAS HIGH COURT, 22 Jan 2010]
Land & Property – Indirect Tax – Tamil Nadu District Municipalities Act, 1920 - Tamil Nadu District Municipalities (Amendment) Act, 1997 - Property tax – Demand notice – Validity of – Plaintiff sought permission to put up a construction – Defendant/Municipality gave permission – Defendant revised property tax as per the provisions of amending Act and send a demand notice to plaintiff – Plaintiff filed a suit for declaration and for perpetual injunction restraining defendant from collecting revised tax – Trial Court dismissed suit – First Appellate Court also dismissed plaintiff’s appeal – (A) Whether revised tax fixed by the defendant is within the law – Held, since amending Act has not been notified by the Government and subsequently, the same has been repealed, erstwhile provisions of 1920 Act ought to have been followed by defendant for assessing tax – Therefore, assessment of tax based on the provisions of amending Act is illegal - (B) Whether civil suit is maintainable when an alternative remedy of appeal is available – Held, since assessment was not in compliance with provisions of law, present civil suit is legally maintainable though plaintiff has not filed any appeal against dismissal order passed by the defendant – Therefore, concurrent judgments of courts below are erroneous and hence the same set aside – Appeal allowed.

Joginder Gulati vs IO DRI New Delhi [DELHI HIGH COURT, 20 Jan 2010]
Criminal – Customs - Code of Criminal Procedure, 1973 s. 482 - Customs Act, 1962 ss. 112, 124 and 135(1)(a) - Smuggling of contraband goods - Quashing of complaint - Show cause notice served on petitioner for smuggling contraband goods and penalty of Rs. 1 lakh imposed – On appeal, Tribunal set aside penalty imposed on petitioner – Petitioner filed appeal for quashing of criminal proceedings on the basis of tribunal order - Whether the criminal proceedings initiated against the petitioner are liable to be quashed merely on account of the order passed by tribunal? – Held, no - Adjudicating Officer as also tribunal perform quasi-judicial functions and department can only place its case before them - Adjudicating Authority or Tribunal cannot be identified with department - It cannot be said that view taken by adjudicating authority or tribunal represents view of department – Petitioner was not exonerated by the Adjudicating Officer and it was only the tribunal which has decided in his favour - View taken by the tribunal cannot be said to be the view of the department and, therefore, does not bind it – SC in Standard Chartered Bank vs. Directorate of Enforcement 2006 INDLAW SC 252 held that two proceedings are independent and launching of one or other or both is controlled by respective provisions themselves - No provision of law is violated on account of continuance of criminal proceedings despite department having failed to succeed in proceedings initiated for imposition of penalty - If there is no violation of any statutory provision on account of continuance of criminal proceedings, Court cannot quash proceedings merely on account of view taken in adjudication proceedings - No valid ground warranting quashing of criminal complaint filed by respondent against petitioner - Petition dismissed

Commissioner, Central Excise Delhi III, Gurgaon vs Relaxo International, 87, Phase-I Udyog Vihar, Gurgaon (Haryana) [PUNJAB AND HARYANA HIGH COURT, 18 Jan 2010]

Commissioner, Central Excise P-17, Sector 1, Rohtak (Haryana) vs Nestle (India) Limited, Pati Kalyana Road, Samalkha, Distt. Panipat (Haryana) [PUNJAB AND HARYANA HIGH COURT, 18 Jan 2010]

Commissioner, Central Excise Commissionerate, Delhi-IV, Faridabad vs Food and Health Care Specialties and Another [PUNJAB AND HARYANA HIGH COURT, 18 Jan 2010]

Assistant Commissioner, Commercial Tax vs Shyam Trading Corporation [SUPREME COURT OF INDIA, 15 Jan 2010]

Commissioner of Central Excise vs Polyplastic [SUPREME COURT OF INDIA, 15 Jan 2010]

Nawn Estates Private Limited and Another vs Kolkata Municipal Corporation and Others [CALCUTTA HIGH COURT, 14 Jan 2010]
Indirect Tax – Demand – Penalty – Petitioners seeks cancellation of the demand on account of penalty and interest from 3rd quarter 1999 to 4th quarter 2008 on the ground that under the waiver scheme of 2001 and 2004 payments aggregating to approximately Rs.16 lakhs have been paid – Held, as the said amounts have been paid pursuant to the said orders and the same have been accepted and no appeals filed therefrom, no amount on account of penalty or interest is outstanding to the account of the petitioners - Therefore, the demand, unjustified and liable to be set aside – Application disposed of.

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