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SUPREME COURT JUDGMENTS 2010

AIT-2010-447-SC
Kanwar Jagat Singh Vs. Director of Enforcement & Anr.

whether a noticee served with show cause notice under Rule 4(1) of the Foreign Exchange Management (Adjudication Proceedings and Appeal) Rules, 2000 is entitled to demand to furnish all the documents in possession of the Adjudicating Authority including those documents upon which no reliance has been placed to issue a notice requiring him to show cause why an inquiry should not be held against him?

AIT-2010-473-SC
Brij Lal & Ors. Vs. CIT, Jalandhar

Five Member: (1) Sections 234A, 234B and 234C are applicable to the proceedings of the Settlement Commission under Chapter XIX-A of the Act to the extent indicated hereinabove. - (2) Consequent upon conclusion (1), the terminal point for the levy of interest under section 234B would be up to the date of the order under section 245D(1) and not up to the date of the Order of Settlement under section 245D(4).

AIT-2010-474-SC
M/s Indian Oil Corporation Ltd. Vs. CCE, Vadodara

the word “ordinarily” implies that the kerosene must be ordinarily used for illumination purposes, and it would be immaterial if the kerosene is also used for other domestic purposes. - From a bare perusal of the two notifications it is plain that the benefit of concessional rate of duty extends only to that variety of kerosene that: (i) has a smoke point of 18mm or more, and (ii) is ordinarily used as an illuminant in oil burning lamps. It is manifest that these two conditions are conjunctive, and therefore, the twin conditions need to be satisfied in order to avail of the concessional rate of duty. In the instant case, the fact that the assessee cleared kerosene manufactured by it to industrial consumers would entail that the assessee cannot claim the benefit of Notifications No. 5/98-CE and 5/99-CE.

AIT-2010-475-SC
M/s Chaudhary Ship Breakers Vs. Commissioner of Customs, Ahmedabad

whether the transaction value of the vessel is to be price mentioned in the original MOA or the reduced price indicated in the addendum. We are of the opinion that in light of the statutory provisions, the factum of actual payment of the price in terms of the addendum cannot be ignored while determining the value of the vessel under Section 14 of the Act.

AIT-2010-476-SC
M/s. Shital International Vs. CCE, Chandigarh

operations of shearing, cropping and back coating of the fabric undertaken by the assessee did not amount to processing of the fabric -the said processes do not amount to “manufacture” in terms of Note 4 of Chapter 60 of the Tariff Act, and hence the fabric in question is “unprocessed knitted fabric” falling under Sr. No.165 of the exemption notification No. 06/2000 dated 1st March 2000, attracting Nil rate of duty as also under notification Nos. 5/99, 9/96 and 18/96

AIT-2010-477-SC
Bhai Jaspal Singh and Anr. Vs. ACCT and Ors.

the meaning of the expression ‘Investment’ for the purpose of notification issued by the State of West Bengal under West Bengal Sales Tax Act and the corresponding Rules; the construction and interpretation of an exemption notification; and whether the interest is payable on tax only on quantification of tax by way of assessment under the Act or for any period prior to that.

AIT-2010-485-SC
Association of Leasing & Financial Service Companies Vs. Union of India and others

Full Bench-Service Tax: The service tax in the present case is neither on the material nor on sale.   It is on the activity of financing/funding of equipment/asset within the meaning of the words "financial leasing services" in Section 65(12)(a)(i). - the appellant(s) had moved the High Court in the writ petition challenging the validity of Section 66 of the Finance Act, 1994 on the value of taxable services referred to in Section 65(105)(zm) read with Section 65(12)(a)(i) without exhausting the statutory remedy. The contracts entered into by the appellant(s) with its customers were not vetted.  There has been no adjudication under the Act in most of these cases and, therefore, we hereby direct the competent authority under the Finance Act, 1994 to decide the matter in accordance with the law laid down. Subject to above, for the afore-stated reasons, we hold that the service tax imposed by Section 66 of the Finance Act, 1994 (as amended) on the value of taxable services referred to in Section 65(105)(zm) read with Section 65(12) of the said Act, insofar as it relates to financial leasing services including equipment leasing and hire-purchase is within the legislative competence of the Parliament under Entry 97, List I of the Seventh Schedule to the Constitution.

AIT-2010-488-SC
Abdulla Koyloth Vs. CC, Mumbai

the Tribunal has failed to apply the procedure envisaged in Section 14(1) of the Act read with 1988 Rules for determining the value of the imported goods. Having carefully perused the Tribunal’s order, in particular the above-extracted paragraph, we are convinced that the finding of the Tribunal in para 6 (supra) of the impugned order is clearly perverse and cannot be sustained, particularly in light of the fact that the information collected by the revenue from the market, veracity whereof was not questioned by the respondent, has also not been examined by the Tribunal.

AIT-2010-498-SC
M/s Glaxo Smithkline Asia (P) Ltd. Vs. CIT & Anr., Delhi

Full Bench: whether the assessee-Company and it's service provider [GSKCH] are related Companies in terms of Section 40A(2) of the Income - Tax Act, 1961? If the answer to the said question was to be in the affirmative, then the next question on merits which arose for determination was, whether allocation of cross charges by the assessee was the correct test applied by the assessee? In other words, whether allocation of cross-charges should be allowed or disallowed by the Department?

AIT-2010-507-SC
Aurangabad Electricals (P) Ltd. Vs. CCE and C, Aurangabad

we allow these appeals and set aside the order passed by the Tribunal and remand the matter back to the Tribunal to look into the certificate issued by Mukund Mankar and Co., Chartered Accountant and to determine if M/s. Aurangabad EL had actually incurred the freight charges, loading and unloading charges, consumable overheads profit etc. and whether in the light of this, any of the orders made by the Adjudicating Authority would stand.

AIT-2010-508-SC
M/s Bajaj Auto Ltd. Vs. CCE, Aurangabad

the extended period of limitation as provided by the proviso to Section 11A(1) of the Act, can only be invoked when there is a conscious act of either fraud, collusion, wilful mis-statement, suppression of fact, or contravention of the provisions of the  Act or any of the rules made thereunder on the part of the person chargeable with duty or his agent, with the intent to evade payment of duty. In the present case, the Tribunal while considering this issue has not stated whether or not there were any such circumstances which would not allow the revenue to invoke extended period of limitation. It only observes in its order since both the assessees are situated under the jurisdiction of the same division and as such it cannot be reasonable to conclude that the revenue was not aware of the transactions. Since this is not what is envisaged under the proviso to Section 11A(1) of the Act, we cannot agree with the reasoning and the conclusion reached by the Tribunal.

AIT-2010-520-SC
M/s Hari Chand Shri Gopal & Others etc. Vs. CCE, New Delhi

Five Member: whether a manufacturer of a specified final product falling under the schedule of the Central Excise Tariff Act, 1985 is eligible to get the benefit of exemption from remission of excise duty on specified intermediate goods as per Notification no. 121/94-CE dated 11.8.1994, if captively consumed for the manufacture of final products on the ground that the records kept by it at the recipient end would indicate its “intended use” and “substantial compliance” of the procedure set out in Chapter X of the Central Excise Rules, 1944.

AIT-2010-523-SC
M/s Coca Cola India Inc. Vs. Additional Commr. of Income Tax & Ors.

application of the principle of Transfer Pricing. Notice was issued under Section 148 of the Income Tax Act, 1961. On the question of jurisdiction, a writ petition was filed by the assessee.

AIT-2010-528-SC
M/s. Xerox India Ltd. Vs. Commissioner of Customs, Mumbai

the correct classification for the imported Multi-Functional Machines involved in this case, namely models Xerox Regal 5799, Xerox Workcentre XD 100 and Xerox Workcentre XD 155df should be under Customs Tariff Chapter heading 84.71.60.

AIT-2010-538-SC
M/s. Kwality Ice Cream Co. Vs. CCE, Chandigarh

whether M/s. Kwality Ice Cream Company on the one hand and Brooke Bond Lipton India Limited – (BBLIL) on the other (which later merged with HLL) are treated to be related persons in the matter of computing assessable value of ice cream manufactured by M/s. Kwality Ice Cream and as to whether duty should be demanded from M/s. Kwality Ice Cream on the basis of the price at which BBLIL sold the said product from its depot.

AIT-2010-540-SC
M/s. Nicholas Piramal India Ltd
. Vs. CCE, Mumbai

whether “Vitamin A Acetate Crude” and “Vitamin A Palmitate” or “Crude Vitamin A” is excisable to duty.

AIT-2010-546-SC
Ramala Sahkari Chini Mills Ltd. Vs. CCE, Meerut

Whether welding electrodes used in the maintenance of machines were not eligible for credit as “inputs” under the CENVAT Credit Rules, 2002 - We are constrained to observe that while the subject goods must qualify the first and third parts of the definition, viz. the specific part and location of use, as enumerated in the said judgment, but to confine the goods only to the inclusive part of the definition that is to the six categories of goods mentioned therein may fall foul of the definition of the word “inputs” in Rule 2(g) of the said Rules. Prima facie, we are of the view that the legislature did not intend to restrict the definition of “inputs” to only those six categories.

AIT-2010-559-SC
Vijay Kumar Talwar Vs. CIT, Delhi

the conclusion of the Tribunal to the effect that the assessee has failed to prove the source of the cash credits cannot be said to be perverse, giving rise to a substantial question of law. The Tribunal being a final fact finding authority, in the absence of demonstrated perversity in its finding, interference therewith by this Court is not warranted.

AIT-2010-562-SC
M/s. Govind Impex (P) Ltd. & Ors. Vs. Appropriate Authority, Income Tax Departmen

Appellants are the owners of property bearing No.B-68, Greater Kailash, Part-I, New Delhi and they let out the same at a monthly rental of Rs.2,50,000/- with effect from Ist June, 1991 for a period of nine years renewable for a further period of nine years. The appropriate authority of the Income-tax Department, issued show cause notice alleging that since the lease is for a period of nine years extendable for a further period of nine years, it was a lease for a period of more than 12 years and hence the provision of Chapter XXC of the Income-tax Act would be attracted and the lessor and the lessee were obliged to submit Form 37-1 within 15 days of the draft agreement.

AIT-2010-563-SC
Mewar Polytex Ltd. Vs.
Union of India & Ors.

the goods exported by the assessee were manufactured out of indigenous goods, and hence Modvat credit could be claimed. At the same time, however, credit for the CVD was availed of by the assessee in respect   of the goods imported to be used in manufacture. Therefore,  the crux of the entire case at hand is whether the assessee  has been at the receiving end of a double benefit, having claimed credit twice for the raw materials used.

AIT-2010-564-SC
M/s. Pepsi Foods Ltd. Vs. CCE,
Chandigarh

Full Bench: in order to attract the penalty provision under Section 11 AC, criminal intent or `mens  rea' is a necessary constituent. In the reply to the show cause notice the stand which has  been taken by the respondent is that it has been paying the duty and there is no malafide intention on its part to evade the payment of  duty. The further stand is that the goods were cleared from the factory only on payment of duty. This stand which has been taken in the reply to the show cause notices was not found to be incorrect in the order-in-original. As such the imposition of penalty of the equal  amount  of duty  under  the  order-in-original  cannot be sustained.

AIT-2010-565-SC
M/s M. Ambalal & Co. Vs. Commissioner of Customs (Preventive), Mumbai

‘smuggled goods’ will not come within the definition of ‘imported goods’ for the purpose of the exemption notification, for the reason, the Act defines both the expressions looking at the different definitions given to the two classes of goods: imported and smuggled, and we are of the view that if the two were to be treated as the same, then there would be no need to have two different definitions.

AIT-2010-568-SC
Jocil Ltd. Vs.
CCEC & ST, Vishakhapatnam

whether cargo imported is classifiable as non-edible Industrial Grade Crude Palm Stearin falling under Ch. Sub Heading No. 15 11 90 90 or as "RBD Palm Stearin" falling under Tariff Item No. 38 23 11 12 of the Customs Tariff Act, 1975.

AIT-2010-569-SC
Parle Bisleri Pvt. Ltd. Vs. CC & CX, Ahmedabad

the value of production/clearances of the three Companies, namely the appellant, M/s PEL Ltd. and M/s PIL Ltd. can be clubbed for the purposes of ascertaining the eligibility to exemption under Notification No. 1/93 CE dated 28.02.93.

AIT-2010-571-SC
Tulsyan NEC Ltd.  Vs. CIT, Chennai

Full Bench: whether MAT credit admissible in terms of Section 115JAA has to be set off against the tax payable (assessed tax) before calculating interest under Sections 234A, B and C of the Income Tax Act, 1961.

AIT-2010-572-SC
M/s. ACE Auto Comp. Ltd.  Vs. CCE, Delhi

benefit of Notifications Nos. 1/93-CE and 16/97-CE. - the brand name “TATA” did not belong to the assessee. It is also evident that by using the said brand name, the assessee had not only intended to indicate a connection between the goods manufactured by them and a Tata Company; but also the quality of their product as that of a product of Tata Company, as they were supplying their goods to the said company. Thus, the bar created in Clause 4 read with Explanation IX of the Notification is clearly attracted in the present case, disentitling the assessee from the benefit of the exemption notifications

AIT-2010-577-SC
West Bengal Infrastructure Development Finance Corporation Limited  Vs. CIT, Kolkata

In all such cases where there is delay on the part of the Department, we request the High Court to consider imposing costs but certainly it should examine the cases on merits and should not dispose of cases merely on the ground of delay, particularly when huge stakes are involved.

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