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Important Links SC HC CESTAT ITAT AAR

SUPREME COURT JUDGMENTS 2011

AIT-2011-289-SC
M/s Gammon India Ltd. Vs. CC, Mumbai

import of Concrete batching plant 56 cum/hr by Gammon cannot be considered as an import by M/s Gammon-Atlanta JV, a person who had been awarded contract for construction of the roads in India and therefore, neither Gammon Atlanta JV nor Gammon fulfill the requisite requirement stipulated in Condition No.38 of the Exemption Notification No. 17/2001/Cus.

AIT-2011-290-SC
Chandna Impex Pvt. Limited Vs. CC, New Delhi

jurisdiction of the DRI to issue a show cause notice under Section 28 of the Act as a proper officer has been specifically questioned, we are of the view that the said issue is a substantial question of law, and requires to be examined afresh particularly in light of the decision of this Court in Sayed Ali & Anr. (supra), where the question as to who is a proper officer in terms of Section 2(34) of the Act has been examined.

AIT-2011-291-SC
M/s Doaba Steel Rolling Mills Vs. CCE, Chandigarh

Rule 5 of the 1997 Rules will be attracted for determination of the annual capacity of production of the factory when any change in the installed machinery or any part thereof is intimated to the Commissioner of Central Excise in terms of Rule 4(2) of the said Rules.

AIT-2011-292-SC
M/s. Mangat Ram Norata Ram Narwana & Anr. Vs. ITO, Jind

There is no statutory requirement that signature on the return has to be made in presence of the Income-tax authority. Nothing has been brought in evidence by the accused Hem Raj that signature did not belong to him on the return and the penalty was paid mistakenly. We are of the opinion that the appellate court misdirected itself in not considering the evidence in right perspective and acquitting the accused, so also the High Court which failed to correct the apparent error. This render their judgments unsustainable. Any other view may induce the appellant to compel the assessee to file return in the presence of the authority so that the signature is proved by direct evidence by such authority in trial. This will lead to a difficult situation not contemplated under the Act.

AIT-2011-293-SC
Kesar Enterprises Ltd. Vs. State of U.P. & Ors.

in the present case, before imposing the impugned demand of penalty and interest, there was absolutely no adjudication by any authority as regards the breach committed by the appellant, except the allegation that the appellant had failed to furnish the PD-25 pass certified by the Collector. In our opinion, therefore, the action of the respondents for the recovery of penalty and interest, being violative of principles of natural justice, is null and void.

AIT-2011-294-SC
G.C. Jain & Anr. Vs. CC, Calcutta

When it is found that the licences produced entitle the Respondent to clear the ex-bond goods free of duty, there are no reasons for them to have mis-declared the values since the goods are duty free. There appears no incentive to do so. There is no allegation that the licences produced will not cover the quantity of values, even after the alleged loading of values as declared. Therefore, this court upholds the decision of the Tribunal.

AIT-2011-295-SC
M/s. Rajmal Lakhichand & Anr. Vs. CCE & C, Aurnagabad

High Court was justified in refusing to expand the scope of the reference so as to include the silver weighing 1713.807 kgs. which was confiscated under Section 111(d) while hearing the reference with regard to silver weighing 194.250 kgs. but confiscated under a different provision of law, namely, under Section 120(2) of the Customs Act.

AIT-2011-308-SC
M/s Gurukripa Resins Pvt. Ltd. Vs. CCE, Nagpur

whether or not the process of lifting of water with the use of power, to the extent and for the purpose mentioned above, constitutes a process in or in relation to manufacture of goods, viz. Rosin and Turpentine Oil, with the aid of power?

AIT-2011-331-SC
M/s Eureka Forbes Limited Vs. State of Bihar and Ors.

the assessee was levied tax on vacuum cleaner at the rate of 12% treating it as electrical goods as against the contention of the Appellant that vacuum cleaner, which is an article dealt with by the Appellant, is taxable at the rate of 8%.

AIT-2011-332-SC
M/s. Pals Microsystems Ltd. Vs. CCE, Mangalore

alleged suppression of payment of duty by the respondent-company was brought to the notice of the authority on 25th October, 1996, when the Superintendent of Central Excise had inspected the premises of the respondent-assessee, whereas the show cause notice was issued on 26th June, 2000. The department could not establish that there was any suppression of facts or a fraud on the part of the respondent-assessee. We find that the honest mistake committed in maintenance of stock register etc. was frankly admitted by the Managing Director of the respondent-assessee. There is no finding to the effect that there was a fraud or willful mis-statement or suppression of facts. Thus, it is very clear that the notice was issued after expiry of the period of limitation.

AIT-2011-338-SC
Idea Mobile Communication Ltd. Vs. CCE & C, Cochin

Service Tax: the amount received by the cellular telephone company from its subscribers towards SIM Card will form part of the taxable value for levy of service tax, for the SIM Cards are never sold as goods independent from services provided. They are considered part and parcel of the services provided and the dominant position of the transaction is to provide services and not to sell the material i.e. SIM Cards which on its own but without the service would hardly have any value at all. Thus, it is established from the records and facts of this case that the value of SIM cards forms part of the activation charges as no activation is possible without a valid functioning of SIM card and the value of the taxable service is calculated on the gross total amount received by the operator from the subscribers.

AIT-2011-339-SC
Saraswati Sugar Mills Vs. CCE, Delhi

Whether the Iron and Steel structures manufactured and used captively in the factory for installation of the Sugar manufacturing plant by the assessee can be classified as capital goods under Rule 57Q of the Central Excise Rules, 1944 - structures in question do not satisfy description of components.

AIT-2011-351-SC
M/s. Kalvert Foods India Pvt. Ltd. & Ors. CCE, Mumbai

what was being used by the respondent under the expression Kalvert was a Brand name and not a House mark as sought to be alleged by the respondent and has been wrongly accepted by the Tribunal. Therefore, the articles of assorted jams, pickles, squashes, cooking sauces, chutneys, syrups, synthetic vinegars etc. manufactured and sold by the respondent company under a brand name Kalvert were liable to be charged for excise duty at the rate prescribed in the Excise Law.

AIT-2011-352-SC
RDC Concrete (India) P. Ltd. CCE, Mumbai

CESTAT exceeded its powers and it tried to re-appreciate the evidence and it reconsidered its legal view taken earlier in pursuance of a rectification application. In our opinion, the CESTAT could not have done so while exercising its powers under Section 35C(2) of the Act

AIT-2011-353-SC
M/s. Royal Enfield (Unit of M/s. Eicher Ltd.) Vs. CCE, Chennai

the cost of packing charges expended/incurred by the appellant-company is liable to be included in the assessable value of the motorcycles manufactured by the appellant-company.

AIT-2011-354-SC
M/s. Agarwal Oil Refinery Corporation Vs. CTT, Lucknow

The case of the appellant, who was the dealer is that it purchased burnt mobil oil and refined the same mobil oil, but the assessing authority levied tax on the said burnt mobil oil under Section 3-AAAA of the Act treating the said oil as old discarded unserviceable store.

AIT-2011-364-SC
M/s. Living Media (India) Ltd. Vs. Commissioner of Customs Excise, New Delhi

when pre-recorded music cassette is imported as against the blank cassette, definitely its value goes up in the market which is in addition to its value and therefore duty shall have to be charged on the value of the final product. Therefore, there can be no dispute with regard to the fact that value of the royalty paid is to be included in the transaction value.

AIT-2011-371-SC
Uniflex Cables Ltd. Vs. CCE, Surat

insulated electrical cables designed for use in wind mills would not be eligible for exemption under notification no 205/88 - the Commissioner also found that except for the statement of the Excise Executive Director and Excise Clerk of the assessee company there was no other evidence pointing out any accusing finger at them in dealing with offending goods knowingly. A clear finding has been recorded by the Commissioner that it was difficult to hold that the appellant knowingly dealt with excisable goods which were cleared without payment of duty. Nor the department itself took it as a formal case of offence.

AIT-2011-374-SC
M/s. Air Liquide North India Pvt. Ltd. Vs. CCE, Jaipur

the Helium purchased by the appellant was in a marketable state but it is equally true that by giving different treatment and purifying the gas, the appellant was manufacturing a commercially different type of gas or a new type of commodity which would suit a particular purpose. Thus, the treatment given by the appellant to the gas sold by it would make a different commercial product and, therefore, it can surely be said that the appellant was engaged in a manufacturing activity

AIT-2011-375-SC
M/s. Sundstrand Forms P. Ltd. Vs. CCE, Meerut

Respondent is a firm engaged in the manufacture of computer stationery, business forms, etc., [carbonless or with carbon]. The respondent claims that the goods produced by them, namely, computer stationery, business forms and other allied products fall under sub-Heading Nos. 4901.90 and 4820.00 of the Schedule to the Central Excise Tariff Act, 1985 and, therefore, the said articles are chargeable to NIL rate of duty.

AIT-2011-383-SC
M/s. Kitply Industries Ltd. Vs. CCE, Noida

whether laminated panels of particle and medium density fiber board should be classified under sub- heading no. 4406.90 and 4407.90 or under subheading no. 4408.90. - the product is similar to plywood and veneered panels and hence tariff heading 44.08 is squarely applicable. Further, in the instant case, the core layer is made up of the particle board or MDF board (referred to as mother boards in the process mentioned above) and joined together with the help of resins and then laminated with plasticised paper (paper impregnated with melamine formaldehyde resin). Hence it is also clearly seen that the laminated panels manufactured by the respondent are covered under Chapter Note 5 to Chapter 44 of the schedule to the Act. The product need not be same as plywood or veneered panels but mere similarity with them is enough for chapter note 5 to apply.

AIT-2011-416-SC
M/s Retailers Association of India Vs. Union of India & Ors.

Service Tax: no coercive steps to be taken for recovery of arrears of service tax due up to 30th September on commercial renting service but there is no stay of imposition of service tax w.e.f.1st October 2011 in so far as future liability is concerned.

AIT-2011-418-SC
Om Prakash & Anr. Vs. Union of India & Anr.

Full Bench: since all offences under the Central Excise Act, 1944 and the Customs Act, 1962, are non-cognizable, re such offences bailable? - in view of the provisions of Sections 9 and 9A read with Section 20 of the 1944 Act, offences under the Central Excise Act, 1944, besides being on-cognizable, re also bailable, though not on the logic that all on-cognizable offences are bailable, but in view of the aforesaid provisions of the 944 Act, which indicate that offences under the said Act are bailable in nature.

AIT-2011-425-SC
M/s Mohan Meakin Breweries Ltd. & Anr. Vs. State of U.P. & Ors.

in the case of beer manufactured in a brewery, excise duty may be levied, by a rate charged upon the quantity produced or issued from the brewery or issued from a warehouse. This means that in respect of beer that undergoes the process of filtration, the exigibility to excise duty will occur either at the end of filtration process when it is received in storage/bottling tanks or when it is issued from the brewery. In regard to draught beer drawn directly from fermentation vessels, without further processing or filtration, the exigibility to excise duty will occur either at the end of fermentation process or when it is issued from the brewery

AIT-2011-436-SC
M/s. Grasim Industries Ltd. Vs. Union of India

Whether the metal scrap or waste generated whilst repairing of worn out machineries or parts of cement manufacturing plant amounts to manufacture, and thereby, is excisable to excise duty.

AIT-2011-441-SC
M/s Aggarwal Industries Ltd.
Vs. CC, Vishakhapatnam

There is no allegation of the supplier and importer being in collusion. It is also not the case of the revenue that the transaction entered into by the respondent was not genuine or under-valued. Nor was there a misdescription of the goods imported. It is also not the case of the revenue that the subject imports fell within any of the situations enumerated in Rule 4(2) of CVR 1988. It is manifest from the show cause notice, extracted in para 3 supra, that the contract value was not acceptable to the Adjudicating Authority in terms of Section 14(1) of the Act read with Rule 4 of CVR 1988 merely because by the time actual shipment took place in August 2001, international price of the oil had increased drastically.

AIT-2011-443-SC
Ranbaxy Laboratories Ltd. Vs. Union of India & Ors
.

the liability of the revenue to pay interest under Section 11BB of the Act commences from the date of expiry of three months from the date of receipt of application for refund under Section 11B(1) of the Act and not on the expiry of the said period from the date on which order of refund is made.

AIT-2011-453-SC
M/s Bhari Information Tech. Sys. P. Ltd. Vs. CIT, Chennai

deduction claimed by the assessee under Section 80HHE has to be worked out on the basis of adjusted book profit under Section 115JA and not on the basis of the profits computed under regular provisions of law applicable to computation of profits and gains of business.

AIT-2011-454-SC
M/s Nitdip Textile Processors Pvt. Ltd. and Another Vs. Union of India and Ors.

High Court, vide its impugned Judgment and Order dated 25.07.2005, has declared that Section 87(m)(ii) (b) of Finance (No.2) Act, 1998 is violative of Article 14 of the Constitution of India insofar as it seeks to deny the benefit of the Kar Vivad Samadhana Scheme, 1998 to those who were in arrears of duties etc., as on 31.03.1998 but to whom the notices were issued after 31.03.1998 and further, has struck down the expression on or before the 31st day of March 1998 under Section 87(m)(ii)(b) of the Finance (No. 2) Act, 1998 as ultra vires of the Constitution of India and in particular, Article 14 of the Constitution on the ground that the said expression prescribes a cut-off date which arbitrarily excludes certain category of persons from availing the benefits under the Scheme.

AIT-2011-467-SC
M/s Essel Propack Ltd. Vs. CCE, Mumbai

the caps are not manufactured in the factory of the appellant but are being supplied by the customers of the appellant, the value of the caps will not form part of the assessable value of the tubes manufactured by the appellant

AIT-2011-468-SC
Pradip Kumar Kedia Etc. Vs. Union of India & Anr.

the Madras High Court did not see any justification on the part of the Central Government in not giving effect to the select panel when there was a very large pendency of cases in the Income Tax Appellate Tribunal resulting in hardship to the litigant public as well as loss to the exchequer, but after the Appointments Committee approved appointments of 16 selected candidates found suitable for appointment as members of the Income Tax Appellate Tribunal, the immediate need for filling up the vacancies was met and if the Appointments Committee has taken a view that any further appointments will be considered only after the rules are amended, the Court should not compel the Central Government to make the appointments from the wait-listed candidates recommended by the Selection Board by a writ of mandamus.

AIT-2011-483-SC
Reliance Industries Ltd. Vs. CIT, Mumbai

High Court ought not to have dismissed the appeals without considering the following questions- (A) Whether on the facts and in the circumstances of the case and in law the Hon'ble Tribunal was right in holding that expenditure for earning dividend income cannot be estimated and therefore, cannot be allowed while computing book profits and also under the normal provisions of the Income tax Act?

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