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MANOJ BATRA
IMP. CASE LAWS -CA FINAL IDT NOV 14
1
SUMMARY OF CASE LAWS AS PROMISED IN THE CLASS….
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SAIL and USHA ने OSNAR
से
Boardlam के
DARSHAN की इच्छा प्रकट की
STEEL AUTHORITY OF
INDIA LTD. 2012 (S.C.)
M.IMP
OSNAR CHEMICAL PVT.
LTD. 2012 (276) E.L.T.
162 (S.C.)
Process of removal of foreign
materials from iron ore for
concentration of such ore THROUGH
activities of crushing, grinding,
screening and washing DO NOT
amount TO MANUFACTURE
Mixing polymers and additives to
Bitumen results in emergence of
Polymer Modified Bitumen DOESN’T
AMT TO manufacture
M.IMP
Darshan Boardlam Ltd. v.
UOI 2013 (Guj.)
M.IMP
TATA MOTORS & SUPER SYNOTEX
ने CONNAUGHT PLACE के
RESTAURANT में
Tata Motors Ltd. v.
UOI 2012 (286) E.L.T.
161 (Bom.)
IMP
Super Synotex (India)
Ltd. 2014 (SC)
M & M IMP
it is NOT necessary that the
circular must be issued under
section 37B in order to be binding
on the Department.
ANY CIRCULAR issued BY CBEC
BINDING on CEO.
Pre-delivery inspection (PDI) and free
after sales services charges BE NOT
INCLUDED IN THE TRANSACTION
VALUE when they are not charged by
the assessee to the buyer
Is the amount of sales tax/VAT
collected by the asssessee and
retained with him in accordance with
any State Sales Tax Incentive
MANOJ BATRA
IMP. CASE LAWS -CA FINAL IDT NOV 14
2
Scheme, includible in the assessable
value for payment of excise duty?
Note- Assessee collected sales tax
but deposited 25%
As per sec 4(3)(d) – TV does not
include – excise duty, sales tax, other
tax ACTUALLY PAID OR PAYABLE
AV = TV LESS 25%
MINWOOL ROCK को WOCKHARDT
की LIFESCIENCE में बाांहों में बााँहे डालें
दे खा
Connaught Plaza
‘SOFT SERVE’ served at McDonalds
Restaurant (Pvt) Ltd. 2012 India be CLASSIFIED AS “ICE
(286) E.L.T. 321 (S.C.)
CREAM” under Heading 21.05
M.IMP
(1) definition of “ice cream” under Prevention of Food Adulteration
Act, 1955 CAN’T BE applied under CEA 1944.
(2) THE MANNER IN WHICH a product might be MARKETED BY A
MANUFACTURER, DID NOT NECESSARILY PLAY A DECISIVE
ROLE in commercial understanding of such a product. WHAT
MATTERS WAS THE WAY IN WHICH THE CONSUMER PERCEIVED
THE PRODUCT
(3) NO TECHNICAL OR SCIENTIFIC MEANINGS GIVEN IN THE
CHAPTER NOTES. in the absence of a statutory definition or
technical description, INTERPRETATION OUGHT TO BE IN
ACCORDANCE WITH COMMON PARLANCE PRINCIPLE
(4) AS PER rule 3(a) of the General Rules of Interpretation - a
specific entry IS ICE CREAM
In case of specific viz a viz classification
MINWOOL ROCK FIBRE
based on material used/composition
LTD.2012 (S.C.)
goods, classification according to
composition should be Prefereed
Assessee manufacturing Rockwool & Slagwool
Tarriff heading 6803.00-18% (i.e. Slagwool, Rockwool and
similar mineral wools)
6807.10- 8%, Goods having more than 25% by weight blast
furnace slag
In a classification dispute,
1) an ENTRY which was BENEFICIAL TO THE ASSESSEE
required TO BE APPLIED.
2) Further, TARIFF HEADING SPECIFYING GOODS
ACCORDING TO ITS COMPOSITION SHOULD BE
PREFERRED over the specific heading- HENCE 6807.10
Wockhardt Life Sciences Specific viz a via residuary entry –
specific should be preferred.
Ltd. 2012 (S.C.)
Products in issue were antiseptic and used by surgeons for cleaning or
de-Germing their hands and scrubbing surface of skin of patient before
operation.
It was held that the product in question can be classified as a
MANOJ BATRA
IMP. CASE LAWS -CA FINAL IDT NOV 14
3
“medicament” under chapter sub-heading 3003 and not under
subheading 3402.90
इसकी शिकायत उसकी WIFE KEIHIN
PENALFA को कर दी, उसने मार – मार
Keihin Penalfa Ltd. 2012
(S.C.)
के थोबड़ा बबगाड़ ददया
An exemption notification dated 1-3-2002 exempted the
disputed goods classifying them under chapter sub-heading
9032.89. it was held that Electronic Automatic Regulators
classifiable under 9032.89
Ciens laboratories जो dermatologists
CCEx. v. Ciens Laboratories 2013 (295) ELT 3 (SC) M.M IMP
How will a cream which is available across the counters as also on
prescription of dermatologists for treating dry skin conditions, be
classified if it has subsidiary pharmaceutical contents - as
medicament or as cosmetics?
If a product's primary function is "care” and not "cure”, it is not a
medicament.
cream was not primarily intended to protect the skin but was meant for
treating or curing dry skin conditions of the human skin. SC HELD that
CREAM contains pharmaceutical ingredients that have therapeutic or
prophylactic or curative properties MEANS the product a medicament
and not a cosmetic- classifiable as a medicament under Heading 30.03.
CADILA HEALTHCARE
LTD. 2013 (30) S.T.R. 3
M.IMP
(Guj.)
है ,उसको अपना (थोबड़ा) ददखाने गया
,उसने उसे medicament दी
उसने
CADILA HEALTHCARE में
REFER कर ददया, जहा उसकी testing
की गयी,जजस पर उसे
commission नही शमली
i) TECHNICAL TESTING AND ANALYSIS SERVICES
availed by the assessee for testing of clinical samples cleared
in small trial batches prior to commencement of commercial
production – CCR Allowed because after testing comm. Prod.
Made. Hence related to manufacture of production
(ii) services of commission agent are NOT eligible input
services for claiming CENVAT because
1. Not related to manufacture of FP
2. CCR allowed on sale promotion and a commission
agent is directly concerned with sales rather than
sales promotion
वाँहा उसे SINTEX का पानी पपलाया गया
Sintex Industries Ltd. vs.
CCEx 2013 (287) ELT 261
(Guj.)
or
वाँहा उसे SINTEX INDUSTRIES की दो
factory का पानी पपलाया गया
M.IMP
Credit On Inputs utilized to produce electricity which was supplied
to a factory registered as a different unit (plastic division) would
not be allowed.
REASONASSESSEE HAS 2 units (Textile & plastic Division)
surrounded by a common boundary wall NOT be considered
as one factory for the purpose of CENVAT credit if they
have separate central excise registration
MANOJ BATRA
IMP. CASE LAWS -CA FINAL IDT NOV 14
तबबयत ख़राब होने पर उसे PRIME
HEALTH CARE में भती ककया गया
जहा DR.PARAG BOSIMI और KCP ने
sugar plant की Machine पर उसका
इलाज ककया
वहाां उसके जानी दश्ु मन Satish Industries
ने उसे उठा के BALRAMPUR CHINNI
MILLS की BAGGASSE में डाल ददया
Prime Health Care
Products 2011(Guj)
CCEx. v. Prag Bosimi
Synthetics Ltd. 2013 (295)
ELT 682 (Gau.) -
4
In case of combo-pack of bought out
tooth brush sold alongwith tooth
paste manufactured by assessee; is
tooth brush eligible as input under
the CENVAT Credit Rules, 2004? –
YES
Can CENVAT credit of duties, other
than National Calamity Contingent
Duty (NCCD), be used to pay NCCD?
 yes
KCP Ltd. v. CCEx. 2013
(295) ELT 353 (SC)
M& M IMP
Can CENVAT credit be availed on
machineries purchased for being
used in setting up a sugar plant in
foreign country when (i) the same are
not used in the factory premises and
(ii) no duty is paid on final product
viz., the sugar plant?
it can be concluded that CENVAT credit
could not be allowed to the assessee as
no dutywas paid on sugar plant set up in
a foreign country. Further, since the
bought-out machinery was not used in
the assessee’s factory premises, the
necessary condition for availing
CENVAT credit on capital goods could
not be fulfilled.
Satish Industries 2013
(Bom.)
Whether wrongful availment of 100%
CENVAT credit on capital goods in
the year of purchase be upheld if
wrongly availed credit of 50% is not
utilized in the said year?
It was held that if 50% CENVAT credit
on CG pertaining to subsequent F.Y
which had been wrongly availed in the
first year
BUT not utilized till the commencement
of the subsequent F.Y, no prejudice was
caused to the Revenue
M.IMP
Balrampur Chini
Mills Ltd. v. Union
of India 2014 (300)
ELT 372 (All.)
Whether bagasse which is a
marketable product but not a
manufactured product can be
subjected to excise duty?
M& M IMP
It was held1) reversal of 6% is not applicable
in case of bagasse as the same
is not a final product, but a
waste. Bagasse is never
manufactured.
MANOJ BATRA
IMP. CASE LAWS -CA FINAL IDT NOV 14
ये उसके भाई ELEX KNITTING को पता
लगा तो
उसके
co-owners ने satish
Elex Knitting Machinery
Co. 2012 (S.C.)
के गले में UM की CABLE डाल के उसे
मारने की कोशिि की, जजसकी ARE-1
गम
ु हो गयी है जजसका Rajasthan
EXPORT R-18 मे होता है
से
5
2) Explanation added to section
2(d) deems the goods, which
are capable of being bought
and sold, to be marketable.
3) it was marketable earlier also
and no difference has been
made about the marketability of
bagasse on account of addition
of explanation to section 2(d) of
CEA, 1944 BUT it does not
become a manufactured final
product for the purposes of rule
6 of CENVAT Credit Rules
Assessee can claim the benefit of SSI
exemption on the brand name of
another firm (ELEX) if its proprietor is
also a partner in such other firm.
Exemption allowed, being the co-owner
of the brand name of Elex
Can export rebate claim
be denied merely for nonproduction of original and
duplicate copies of ARE-1
when evidence for export
of goods is available?
UM Cables Limited v.
Union of India 2013 (293)
ELT 641 (Bom.)
the rebate sanctioning authority shall not
upon remand reject the claim on the
ground of the non-production of the
original and the duplicate copies of the
ARE-1 forms, if it is otherwise satisfied
that the conditions for the grant of rebate
have been fulfilled.
Rajasthan Textile
Mills v. UOI 2013
(298) E.L.T. 183
(Raj.)
In case of export of goods under
rule 18 of the Central Excise
Rules, 2002, is it possible to claim
rebate of duty paid on excisable
goods as well rebate of duty paid
on materials used in the
manufacture or processing of
such goods?
Ans
It was held that
M IMP
Under rule 18 of the Central Excise
Rules, 2002, grant of rebate of duty
paid is available EITHER on
excisable goods OR on materials
used
Reasons-
MANOJ BATRA
IMP. CASE LAWS -CA FINAL IDT NOV 14
6
1. word “or” is taken to be
disjunctive
2. Notification No. 19/2004provides rebate of duty paid on
all “excisable goods”
Notification No. 21/2004
provides the rebate of duty paid
on ‘materials’
3. Issuance of 2 different
notifications further makes it
clear that both the benefits
cannot be claimed
simultaneously
4. Merely by preparation of any
combined form for both the
benefits, the word “or” cannot
be construed as “and” to be
used conjunctively.
दोनों BALAJI का दिशन करने गए
जजस
पर R-25 की PENALTY नही लगी
CCEx. v. Balaji Trading
Co. 2013 (290) E.L.T. 200
(Del.)
If manufacturer clandestinely
removes the goods and stores them
with a firm for further sales,
Penalty can’t be levied under rule
25 of CER 2002 be imposed on
such firm BECAUSE Penalty
under rule 25 can be imposed only
on 4 categories of persons:(a) producer; (b) manufacturer;
(c) registered person of a
warehouse; or (d) a registered
dealer.
STORY – PART-2
JAY KUMAR LOHANI को
NOTICE SERVE कर – कर के
लहूलह
ु ान
ददया
where the assessee has been issued a
SCN regarding confiscation, it IS NOT
necessary that another SCN regarding
recovery of dues and penalty on the
same allegations can be issued only
AFTER first SCN is adjudicated.
Gujarat Narmada
Fertilizers Co. Ltd. 2012
(Guj.)
Assessee IS NOT required to pay
interest in case of voluntary payment of
time-barred duty before issuance of the
show cause notice
)LAHU LOHAN(कर
वो GUJRAT की
NARMADA
नदीां में RAGHUNATH के दिशन
करने
Jay Kumar Lohani v.
CCEx 2012 (28) S.T.R.
350 (M.P.)
CEOके साथ गया
MANOJ BATRA
IMP. CASE LAWS -CA FINAL IDT NOV 14
Raghunath
International Ltd. v.
Union of India, 2012
(280) E.L.T. 321 (All.)
वहा उसे DINESH CHAJJAR
SMUGGLER से PURCHASE
करने वाला INFINITY
Dinesh Chajjer 2014
(Kar.)
M & M IMP
INFOTECH AND DELPHI
AUTOMOTIVE
के साथ शमला
DELPHI AUTOMOTIVE कहती , CCEx. v. Delphi
मेरे को
Automotive Systems Ltd.
DIRERGENT RIEIS 2013 (292) E.L.T. 189
(All.)
दे -दे के इसने फांसा शलया
7
Additional Director General, Directorate
General of Central Excise Intelligence can
be considered as CEO for purpose of
issuing SCN. it has been specified as
commissioner of central excise (vide NN38/2001) and fully authorized to Issue
SCN.
Can customs duty be demanded under
section 28 and/or section 125(2) of the
Customs Act, 1962 from a person dealing in
smuggled goods when no such goods are
seized from him?
1. DUTY CAN BE DEMANDED UNDER
SECTION 28 ONLY FROM THE
PERSON CHARGEABLE WITH
DUTY, WHO IS THE IMPORTER
2. In case of notice demanding duty
under section 125(2), firstly the
goods should have been
confiscated and the duty
demandable is in addition to the
fine payable under section 125(1)
He was not the owner of the goods but only
a dealer of the smuggled goods- notice
issued under section 28 of the Act to the
assessee is unsustainable
Since no goods were seized, there could not
be any confiscation and in the absence of a
confiscation, question of payment of duty
does not arise.
Can penalty under section 11AC of the
Central Excise Act, 1944 be imposed in a
case where there are divergent judicial
pronouncements on an issue and the
assessee chooses to follow one of those
pronouncements?
The High Court elucidated that mens rea
(guilty mind) is an essential part for levy of
penalty under section 11AC of the Central
Excise Act, 1944. Where a provision of statute
is not clear and there are divergent judicial
pronouncements, it cannot be said that there is
mens rea on the part of the assessee if he
chooses to follow his course of action in the
light of one of the judicial pronouncements.
MANOJ BATRA
IMP. CASE LAWS -CA FINAL IDT NOV 14
INFINITY INFOTECH कहती ,
मेरे को IITHOUT
8
S & S Power Switch Gear
Ltd. v. CCEx. Chennai-II
2013 (294) ELT 18 (Mad.)
Where a circular issued under
section 37B of the Central Excise
Act, 1944 clarifies a classification issue,
can a demand alleging misclassification be
raised under section 11A of the Act for a
period prior to the date of the said circular?
it was held that once reclassification
Notification/ circular is issued, the
Revenue cannot invoke Section 11A of the
Act to make demand for a period prior to
the date of said classification notification
also.
Infinity Infotech
Parks Ltd. 2013
(Cal.)
Can extended period of limitation be
invoked for mere contravention of
statutory provisions without the
intent to evade service tax being
proved?
held that mere contravention of provision of
Chapter V or rules framed thereunder does not
enable the service tax authorities to invoke the
extended period of limitation
INTENTION इसके साथ रहना
पड़ रहा है
JAY KUMAR LOHANI कहता है तू 2-2 को कैसे MANAGE कर लेता है , हम से तो 1 MANAGE
नहीां होती , क्या business कर रहा है आजकल तू
DBOI Global Service Pvt.
DBOI GLOBAL SERVICE,
KEMTECH INTERNATIONAL Ltd. 2013 (Bom.)
के साथ शमल कर खोली है
,
M.IMP
INTERNATIONAL TOURपर
भेजा करते है
तू वहाां पे भी जरुर गड़बड़ कर
रहा होगा
,YESDBOI GLOBAL
SERVICE में झठ
ू बोल -बोल के
REFUNDले लेते है
KEMTECH INTERNATIONAL
में
DEMAND ORDERआया
था ,मैंने कहा जजन
Kemtech International
Pvt. Ltd. v. CCus. 2013
(292) E.L.T. 321 (S.C.)
For Earlier Period refund was allowed
without additional documents, But this
time refund not allowed because
additional documents not furnished.
Non-filing of additional documents
despite several opportunities to the
assessee to produce the same,
COULDN’T be a sufficient ground for
passing a non-speaking order.
Department has to prove why
documents furnished was not sufficient
and why additional documents are
necessary.
Is the adjudicating authority required to
supply to the assessee copies of the
documents on which it proposes to place
reliance for the purpose of requantification
of short-levy of customs duty?
Hence for the purpose of re-quantification of
short-levy of customs duty, the adjudicating
MANOJ BATRA
IMP. CASE LAWS -CA FINAL IDT NOV 14
DOCUMENTS के BASEपर
DEMAND ORDERभेजा है
authority should supply to the assessee all the
documents on which it proposed to place
reliance. Thereafter the assessee might
furnish their explanation thereon and might
provide additional evidence, in support of their
claim.
,
वो ददखाओ ,वो भी CANCEL
करा शलया
और बता ,अरे FOREIGN
COUNTRY में भी ANITA
GROVER AND VANDANA
BIDYUT CHATTERJEE के साथ
चक्कर चल रहा है
अरे तू तो उनको PRIRATE
Anita Grover v. CCEx.
2013 (288) E.L.T. 63 (Del.)
M.IMP
It was held that u/s 142, it is only
defaulter ( i.e Company) against whom
recovery can be made. Recovery can’t
be made from Director
Vandana Bidyut
Chatterjee v. UOI 2013
(292) E.L.T. 6 (Bom.).
M.IMP
Can a former director of a company be held
liable for the recovery of the excise dues of
such company?
there was no provision in the Customs Act as
was found under section 179 of the Income Tax
Act, 1961 or under section 18 of the Central
Sales Tax Act, 1956 where the dues of a
private limited company could be recovered
from its directors when the private limited
company was under liquidation. Hence, the
Court held that in the instant case, the
attachment notices issued on the former late
director and his daughter were without
jurisdiction.
Copy of order to be served via Registered Post.
If sent through Speed post, then it is not a valid
mode.
PROPERTY को ATTACH
करने के चक्कर में होगा ,वो to
तेरी
AMI or
NANI के
उम्र की है ,अरे प्यार अाँधा होता
है
अरे
COURTसे ऐसा
NOTICE RECOVERY
का
SERRE करा दे गी ,कही का
नहीां रहे गा
तेरा तेल ख़तम हो गया ,
CASTROL INDIAसे अपने में
OIL
डलवा /
9
Amidev Agro Care Pvt.
Ltd.2012 (Bom.)
(OVERRULED BY
F.ACT 2013)
Nanumal Glass Works v.
CCEx. Kanpur, 2012 (284)
E.L.T. 15 (All.)
CCEx. v. Castrol India
Ltd. 2012 (Bom.)
तेरे ददमाग में GAS बन गयी है ,
CCEx v Xenon 2013
(Jhar.)
एक काम कर ENON पी तू,
(XENON )
M & M IMP
Decision pronounced in the open court
in the presence of the advocate of the
assesse, (Tendering by Court to pay
within 30 days- penalty reduced to 25%
to ADVOCATE ) be deemed to be the
service of the order to the assesse
Appellate Authorities or Courts CAN’T
permit assessee to pay reduced penalty
of 25% beyond the time prescribed
under section 11AC
Where clearances of a dubious
company are clubbed with
clearances of the
original company, whether penalty
can be imposed on such dubious
company if all the clearances have
been made by the original
company?
It was established that the dubious company
did not manufacture and clear any goods and
that all the transactions shown by it were, in
fact, the transactions undertaken by the original
MANOJ BATRA
IMP. CASE LAWS -CA FINAL IDT NOV 14
और बता
में तो अभी RATANMANI
CCEx. V. Ratnamani
Metals and Tubes Ltd.
2013 (Guj.)
METAL के चक्कर में हु ,अरे
वो जो KSJ METAL IMPEX की
बेटी है ,जजसका भाई
SUPERINTENDING
ENGINEER ( TAMIL NADU
ELECTRICITY BOARD) में
लगा है
ऐसी मार मारें गे तेरी
सब उड़ जायेगी
ICMC
KSJ Metal Impex (P)
Ltd. v. Under
Secretary (Cus.) M.F.
(D.R.) 2013 (294) ELT
211 (Mad.)
M & M IMP
Superintending
Engineer TNEB
2014 (300) E.L.T. 45
(Mad.)
M & M IMP
10
company. Hence, penalty can’t be imposed on
the dubious company.
Can Appellate Authorities or Courts permit
the assessee to pay reduced penalty of 25%
beyond 30 days of the communication of
the order of the adjudicating authority as
prescribed under section 11AC?
It was held that an option can also be granted
to the assessee to deposit the entire dues
along with 25% interest and penalty within a
period of 30 days of communication of the
order of Tribunal. ( Appellate authority)
Whether interest is liable to be paid
on delayed refund of special CVD
arising in pursuance of the
exemption granted vide Notification
No. 102/2007 Cus dated 14.09.2007?
(i) It would be a misconception of
the provisions of the Customs Act,
1962 to state that notification issued
under section 25 of the Customs
Act, 1962 does not have any
specific provision for interest on
delayed payment of refund.
(ii) When section 27 of the Customs
Act, 1962 provides for refund of
duty and section 27A of the
Customs Act, 1962 provides for
interest on delayed refunds, the
Department cannot override the
said provisions by a Circular and
deny the right
which is granted by the provisions
of the Customs Act, 1962 and CETA.
(iii) Paragraph 4.3 of the Circular
No. 6/2008 Cus. dated 28.04.2008
being contrary to the statute has to
be struck down as bad.
Does the principle of unjust
enrichment apply to State
Undertakings?
Department rejected refund claim on
the ground of unjust enreichment and
electricity rate remained same
BEFORE and AFTER claiming
exemption notification
It was held that, The doctrine of
unjust enrichment is, however,
inapplicable to the State. State
MANOJ BATRA
IMP. CASE LAWS -CA FINAL IDT NOV 14
11
represents the people of the country.
No one can speak of the people being
unjustly enriched
ICMC Corporation
Ltd.v CESTAT,
CHENNAI 2014
(302) E.L.T. 45
(Mad.)
M & M IMP
मार -मार के तझ
ु े
RAPHSMERAP
के पास पहुांचा दें गे ro मार के तेरा
GEM बना दें गे
Kanyaka
Parameshwari
Engineering Ltd. v.
Comm of Cus & Cx
2012 (26) STR 380
(A.P)
Gem Properties (P)
Ltd. 2010 (Kar)
Whether filing of refund claim under
section 11B of Central Excise Act,
1944 is required in case of suo motu
availment of CENVAT credit which
was reversed earlier (i.e., the debit
in the CENVAT Account is not made
towards any duty payment)?
that this process involves only an account
entry reversal and there is no outflow of funds
from the assessee by way of payment of duty.
Thus, filing of refund claim under section 11B
of the Central Excise Act, 1944 is not required
Whether the interest on delayed refund
under section 11BB would be payable
from the date of deposit of tax or from
the date of receipt of application for
refund?
It was held that as per sec 11BB of the
Central Excise Act, 1944, if any duty is
not refunded within 3 months from
the date of receipt of application,
interest shall be paid on such duty
from the date immediately after expiry
of three months from the date of
receipt of such application till the date
of refund of such duty.
MERELY BECAUSE ASSESSEE HAS
SUSTAINED LOSS MORE THAN THE
REFUND CLAIM, IS IT JUSTIFIABLE TO
HOLD THAT IT IS NOT A CASE OF
UNJUST ENRICHMENT EVEN THOUGH
THE ASSESSEE FAILED TO ESTABLISH
NON-INCLUSION OF DUTY IN THE
COST OF PRODUCTION
HELD, IT cannot be a ground to hold
THAT it is not a case of any unjust
enrichment as long as the assessee
proves before the authorities that
assessee has sustained loss on account
of non-inclusive of the duty. Hence
assessee will not be entitled to refund.
MANOJ BATRA
IMP. CASE LAWS -CA FINAL IDT NOV 14
12
STORY – PART-3
THAKKAR की LATE APPEAL
ने IRIT लगाने के शलए DELL
Thakker Shipping P. Ltd.
v. Commissioner of
Customs (General) 2012
(285) E.L.T. 321 (S.C.)
Intl and E & Y की SERRICES
M.IMP
ACCEPT हो गयी, METAL WELD
ली,जहा DISPUTE न होने पर भी
CHIEF COMM RERIEI के
शलए APPEAL लगा रहा है
Metal Weld
Electrodes v.
CESTAT 2014 (299)
ELT 3 (Mad.)
M. IMP
Dell Intl. Services
India P. Ltd. 2014
(Kar.)
M & M IMP
Tribunal CAN condone the delay in
filing application consequent to review
by the Committee of Chief
Commissioners if it is satisfied that
there was sufficient cause for not
presenting it within the prescribed
period.
Which remedy is available against a
pre-deposit order passed by CESTAT
under section 35F of Central Excise Act,
1944/section 129E of Customs Act, 1962;
is it an appeal to High Court under
section 35G of Central Excise Act,
1944/section 130 of Customs Act, 1962
or a writ petition before High Court?
Held – 35G(1)- every order passed in
appeal by the Appellate Tribunal.
The words “in appeal” cannot be
confined to mean only final orders
passed in appeal. INTERIM ORDERS
ARE ALSO ORDERS PASSED IN
APPEAL
35G(2)- CCE or other party aggreived
from any order passed by the Appellate
Tribunal“ may file appeal to HC. The
words "in appeal" is conspicuously
absent under sub-section (2).
unless there is a specific bar in the
statute itself against filing appeal
against interlocutory orders or there is
an express provision saying only a final
order of the Tribunal is appealable, the
scope of filing appeal contemplated
under Sections 35G cannot be
narrowed down or restricted
Can the Committee of Commissioners
review its decision taken earlier under
section 86(2A) of the Finance Act, 1994, at
the instance of Chief Commissioner?
ANSonce the Committee of Commissioners, on
a careful examination of the order of the
Commissioner (Appeals), did not differ in
their opinion against the said order of the
Commissioner (Appeals) and decide to
accept the said order, the matter ends there.
The said decision is final and binding on the
MANOJ BATRA
IMP. CASE LAWS -CA FINAL IDT NOV 14
13
Chief Commissioner also
The Chief Commissioner is not vested with
any power to call upon the Committee of
Commissioners to review its order so that
he could take decision to prefer an appeal
Ernst & Young Pvt.
Ltd. 2014 (34)
S.T.R. 3 (Del.)
Whether the question of chargeability
or levy of service tax on a particular
activity would be covered within the
term “determination of any question
having relation to rate of service tax
or value of a service for the purpose
of assessment” as contemplated
under sections 35G and 35L of the
Central Excise Act, 1944?
It was held that determination of any
question relating to rate of tax would
necessarily directly and proximately involve
the question, whether activity falls within
the charging section and service tax is
leviable on the said activity. The reason for
the same is that in case service tax is not to
be leviable under the charging section, rate
of tax will be nil
The words ‘rate of tax’ would include the
question whether or not the activity is
exigible to tax under a particular or specific
provision
Raja Mechanical Co. (P)
Ltd. 2012 (SC)
RAJA MECHANICAL AND
MIHANI NETWORKS ने
KHANAPUR AND ORERSEAS
में EXCELLENT (Texcellence)
SHOOTING की, वह HABIB and
MARGARA ने AGRO PRODUCT
सें उसका MAKEUP
ककया
Mihani Network v. CCus.
& CEx. 2012 (285) ELT
182 (MP)
Khanapur Taluka Co-op.
Shipping Mills Ltd. v.
CCEx. 2013 (292) E.L.T.
16 (Bom.)
doctrine of merger is NOT applicable when
appeal dismissed on the grounds of
limitation and not on merits.
deposit of 50% of tax CAN’T BE A
condition for condoning the delay in
filing of an appeal WITH CESTAT
In a case where an appeal against order-inoriginal of the adjudicating authority has
been dismissed by the appellate authorities
as time-barred, can a writ petition be filed to
High Court against the order-in-original?
held that where the appeal filed against the
order-in-original is dismissed as time-barred,
this court in exercise of writ jurisdiction can
neither direct the Appellate Authority to
condone the delay nor interfere with the order
passed by the Adjudicating Authority.
MANOJ BATRA
IMP. CASE LAWS -CA FINAL IDT NOV 14
14
Consequently, it refused to entertain the writ
petition in present case.
Texcellence Overseas v.
Union of India 2013
(Guj.)
Can the High Court condone the delay beyond the statutory period of 3 months
prescribed under section 35 of the Central
Excise Act, 1944 - in filing an appeal before
the Commissioner (Appeals)?
The High Court opined that since the total
length of delay was very small and the case
had extremely good ground on merits to
sustain, its non interference at that stage would
cause gross injustice to the petitioner. Thus,
the High Court, by invoking its extraordinary
jurisdiction, quashed the order which held that
refund was erroneously granted. The High
Court held that such powers are required to be
exercised very sparingly and in extraordinary
circumstances in appropriate cases, where
otherwise the Court would fail in its duty if such
powers are not invoked.
Habib Agro Industries v.
CCEx. 2013 (Kar.)
Can delay in filing appeal to CESTAT for the
reason that the person dealing with the case
went on a foreign trip and on his return his
mother expired, be condoned?
The reason shown cannot be considered as
unreasonable. There does not appear to be
any deliberate latches or neglect on the part of
the authorised representative to file the
appeals. In that view, the order of the Tribunal
is set aside the matter is remanded back to the
Tribunal.
Can delay in filing appeal to CESTAT due to
the mistake of the counsel of the appellant,
be condoned?
It was held that appellant’s counsel had
admitted his mistake by filing personal affidavit
and the Tribunal ought to have taken a lenient
view in the matter, more so, when the appellant
can not be said to have acted malafidely and
would not have gained anything from not filing
the appeal within limitation.
Margara Industries Ltd.
2013 (All.)
MANOJ BATRA
IMP. CASE LAWS -CA FINAL IDT NOV 14
15
Vadilal gases Maruthi में बैठकर Ashok kumar jain के घर Saurashtra का Cement लेने पहुं चा
Vadilal Gases
Limited v Union of
India 2014 (301)
E.L.T. 321 (Guj.)
Where a settlement application filed
under section 32E(1( of the Central
Excise Act, is not accompanied with the
additional amount of excise duty along
with interest due, can Settlement
Commission pass a final order under
section 32F(1( rejecting the application
and abating the proceedings before it ?
)ii) In the above case, whether a second
application filed under section 32E(1(,
after payment of additional excise duty
along with interest, would be
maintainable?
It was held that since the earlier
application was dismissed on
technical defect and the same was
not considered and decided on
merits, the second application filed
after depositing the additional excise
duty and interest would be
maintainable.
Maruthi Tex Print & Pr Can the Settlement Commission
decline to grant immunity from
ocessors P. Ltd.2012
prosecution after confirming the
(Mad.)
demand and imposing the penalty
Ans- in the present case, without
placing the burden on the
department to prove their case, the
Settlement Commission confirmed
the demand on the assessee.
Settlement Commission should not
have refused the benefit of
immunity from prosecution
MANOJ BATRA
IMP. CASE LAWS -CA FINAL IDT NOV 14
16
Ashok Kumar Jain 2013 Does Settlement Commission have
(292) ELT 32 (Del.)
jurisdiction over baggage cases?
A plain reading of the provisions of
sections 127A and 127B reveals that
there is no bar/express or implied on the
Settlement Commission - in respect of
entertaining applications by the
passengers which brought in goods
through their baggage
Saurashtra Cement Ltd. v. Is judicial review of the order of the
CCus. 2013 (292) E.L.T.
Settlement Commission by the High
486 (Guj.)
Court or Supreme Court under writ
petition/special leave petition,
permissible?
yes, The Court, however, pronounced
that the scope of court’s inquiry
against the decision of the Settlement
Commission is very narrow, i.e.
judicial review is concerned with the
decision-making process and not with
the decision of the Settlement
Commission
STORY – PART- 3
Paras, Akanksha Syntex & Wringley India में VISHNU की पज
ू ा कर-कर Rishiroop हो गए , वो Caravel Logistic
के Ship में बैठ कर Hemal K. shah Smuggler को समझाने गए
Paras Fab International v. Whether the entire premises of
CCE 2010 (256) E.L.T.
100% EOU should be treated as a
556 (Tri. – LB)
warehouse?
It was held that, The entire
premises of a 100% EOU has to
be treated as a (a) warehouse if
the licence granted under
Section 58 to the unit is in
respect of the entire premises.
( Imported goods warehoused in
the premises of a 100% EOU and
used for the purpose of
manufacturing in bond as
authorized under Section 65 of
MANOJ BATRA
IMP. CASE LAWS -CA FINAL IDT NOV 14
17
the Customs Act, 1962, cannot
be treated to have been
removed for home consumption
Akanksha Syntex
(P) Ltd. 2014 (P &
H)
M.IMP
Where goods have been ordered
to be released provisionally
under section 110A of the
Customs Act, 1962, can release
of goods be claimed under
section 110(2) of the Customs
Act, 1962?
IT WAS HELD
Where no action is initiated by
way of issuance of show cause
notice under section 124(a) of
the Act within six months or
extended period stipulated
under section 110(2) of the Act,
the person from whose
possession the goods were
seized becomes entitled to their
return.
Wringley India Pvt.Ltd.
v. Commr.of
Cus.(Imports), Chennai
2011 (274) E.L.T. 172
(Mad.)
Invoice indicate that chartered
engineer of Spain m/s S.G.S
certified value- euro 35876-49,
but certificate not presented
AND later on when referred to
local valuer it was found Value
was much Higher.
Discharge of liability on
HIGHER value would still make
the assesse
liable for confiscation of goods
if he has initially made a misdeclaration of the value
thereof.
Whether any interest is
payable
on
delayed
refund of sale proceeds of
auction of seized goods
after
adjustment
of
expenses and charges in
The High Court held that Department
cannot plead that the Customs Act,
1962 provides for the payment of
interest only in respect of refund of
duty and interest and hence, the
assessee would not be entitled to
MANOJ BATRA
IMP. CASE LAWS -CA FINAL IDT NOV 14
terms of section 150 of
the Customs Act, 1962?
Vishnu M Harlalka v.
Union of India 2013 (294)
ELT 5 (Bom)
M.IMP
Rishiroop Polymers Pvt.
Ltd. v. Designated
Authority 2013 (294)
E.L.T. 547 (Bom.)
Caravel
Logistics
Pvt. Ltd. v. Joint
Secretary (RA) 2013
(293) ELT 342 (Mad.)
M& M.IMP
18
interest on the balance of the sale
proceeds which were directed to be
paid by the Settlement Commission.
The High Court clarified that
acceptance of such a submission
would mean that despite an order of
the competent authority directing the
Department to grant a refund, the
Department can wait for an
inordinately long period to grant the
refund. The High Court directed the
Department to pay interest from the
date of approval of proposal for
sanctioning the refund.
Can a writ petition be filed against an
order passed by the CESTAT under
section 9C of the Customs Tariff Act,
1975?
The plain effect of Section 9A(8) of
the Customs Tariff Act, 1975 is that
the provisions of the Customs Act,
1962 relating to appeal have been
made applicable, as far as may be, in
their application to the anti-dumping
duty chargeable under sec 9A. The
order of the Tribunal passed in
appeal would, therefore, clearly be
subject to appeal, either to this Court
under Section 130 or to the Supreme
Court under Section 130E where the
appeal relates to the rate of duty or
to a valuation of the goods for the
purposes of assessment
For these reasons, we are of the view
that it would not be appropriate for this
Court to exercise the jurisdiction under
Article 226 of the Constitution, since an
alternate remedy by way of an appeal
which is available in accordance with law
Can penalty for short-landing of
goods be imposed on the steamer
agent of a vessel if he files the Import
General Manifest, deals with the
goods at different stages of shipment
and conducts all affairs in compliance
with the provisions of the Customs
Act, 1962?
A conjoint reading of Sections 116,
MANOJ BATRA
IMP. CASE LAWS -CA FINAL IDT NOV 14
19
2(31) and 148 of the Act makes it
clear that in a case of short landing
of goods, if penalty is to be imposed
on the person-in-charge of the
conveyance, it can also be imposed
on the agent so appointed by the
person-in-charge of the vessel. There
is no dispute that the steamer agent
in this case is an agent duly
appointed.
Hemal K. Shah 2011
M.IMP
Smuggled goods CAN’T BE
RE-EXPORTED under sec 80
from the customs area without
formally getting them release
from confiscation
STORY – PART-4
Wipro का office Delhi and Rajasthan में है , जहााँ chitra काम करती है , जजसके यहााँ से 2 crore
रुपये ममले थे , swastik को लगा मालदार पार्टी है , इससे आाँखे ममलानी चाहएुं , वो साथ की
Building में A.C Lagane पहुं चा ,chitra की शादी हो रखी है , इसका पता उसके पतत
RameshBabu को लगा,
1 चर्टकी मसुंदरू की कीमत तम क्या जानो, RameshBabu
RameshBabu को जब arrest करने पहुं चे, तो वो kandra में छूप गया, उसने
intercontinental consultant को hire ककया .
court ने decide ककया, No Best Judgement Case (N.B.C CORPORATION)
Wipro Ltd. v. Union of
India 2013 (29) S.T.R.
545 (Del.)- M.IMP
Whether filing of declaration of
description, value etc. of input
services used in providing IT enabled
services (call centre/BPO services)
exported outside India, after the date
of export of services will disentitle an
exporter from rebate of service tax
paid on such input services?
it was impossible for the appellant to
not only determine the date of export
but also anticipate the call so that the
declaration could be filed “prior” to
the date of export.
HENCE EVEN IF
DECLARATION FILED ,
AFTER THE DATE OF EXPORT
OF SERVICES EXPORTER
MANOJ BATRA
IMP. CASE LAWS -CA FINAL IDT NOV 14
Can service tax be
levied on the
services rendered in
connection with a
chit fund business?
Delhi Chit Fund
Association v. UOI
2013 (30) S.T.R. 347
(Del.)
M.IMP
Rajasthan Urban
Infrastructure 2013
(Raj.)
20
CAN CLAIM REBATE OF
SERVICE TAX paid on such
input services
only service in relation to a
transaction in money which is
taxable,
 is the activity relating to
 the use of money or
its conversion from one form,
currency or denomination to
another for which a separate
consideration is charged.
Resultantly, all other services
rendered in connection with a
transaction in money ,
including the services
rendered by the foreman of a
chit business, stand excluded
from the definition. It further
submitted that since chit fund
business is not a service, NN.
26/2012 dated 30.06.2012
granting an abatement of 30%
to services provided in relation
to chit should be quashed as
question of exempting a part of
the consideration received for
the services in chit fund
business could not arise when
the law provided that such
services were not taxable at
all.
Whether tax is to be deducted at
source under section 194J of the
Income-tax Act, 1961 on the amount
of service tax if it is paid separately
and is not included in the fees for
professional services/technical
services?अगर terms of the agreement
between the payer and the payee,
के हहसाब से - service tax is to be
paid separately - service tax
would not be subject to TDS
Chitra Builders
Private Ltd. v. 2013
(Mad.)
Is it justified to recover service
tax during search without
passing appropriate
MANOJ BATRA
IMP. CASE LAWS -CA FINAL IDT NOV 14
Swastik Sanitarywares
Ltd. 2013 (296) (Guj.).
A.C.L. Education Centre
(P) Ltd. v. UOI 2014 (33)
S.T.R. 609 (All.)
M & M.IMP
21
assessment order?
no tax can be collected from the
assessee, without an appropriate
assessment order being passed by the
authority concerned and by following the
procedures established by law.
However, in the present case, no such
procedures had been followed
Can refund of an amount mistakenly
paid as excise duty be rejected on the
ground of limitation under section
11B of the Central Excise Act, 1944?
Hence, repayment of such amount could
not be seen as a refund claim made
under section 11B. Consequently, such
amount is refundable to the assessee by
the Department.
Is rule 5A(2) of the Service Tax
Rules, 1994 ultra vires the
Finance Act, 1994?
the High Court held that section 5A(2)
is not ultra vires. It is in
consonance with section 72A of the
Finance Act, 1994
the officer will demand the
documents just to facilitate the
correctness of books of accounts and
ultimately, the audit will be conducted
by the Audit Party headed by the
Chartered Accountant/Cost
Accountant, as the case may be,
deputed by the Commissioner
It is Commissioner on whose behalf,
the officer will collect the material and
the Auditor will perform the audit. In
any case, the final report duly signed
by the Chartered Accountant will be
submitted to the Commissioner.
(i)
it is crystal clear that in case
of private assessee, the
Commissioner will refer the
matter to an officer to collect
the material or Chartered
Accountant for the purpose
of audit.
(ii)
Thus, we find that there is no
inconsistency in Rule 5A and
Section 72A of the Finance
Act, 1994
MANOJ BATRA
IMP. CASE LAWS -CA FINAL IDT NOV 14
Kandra Rameshbabu
Naidu v. Superintendent
(A.E.), S.T., Mumbai-II
2014 (34)
S.T.R. 16 (Bom.)
M & M.IMP
22
Would service tax collected but
not deposited prior to 10.05.2013
be taken into consideration while
calculating the amount of `50 lakh
as contemplated by clause (ii) of
section 89(1) of the Finance Act,
1994?
It was held that it is a
continuing offence and as on 105-2013 there were huge
outstandings definitely beyond
the amount of Rs. 50 Lakhs.
entire amount of service tax
outstanding [which is required to be
deposited with the Central
Government] as on 10.05.2013,
would be taken into consideration
while calculating the amount of ` 50
lakh
Intercontinental
Consultants &
Technocrats Pvt. Ltd. v.
Union of India 2013 (29)
S.T.R. 9 (Del.)
N.B.C. Corporation Ltd. v.
Commissioner of Service
Tax 2014 (33) S.T.R. 113
(Del.)
M & M.IMP
Shreeji Overseas (India)
Pvt. Ltd. 2013 (Guj.)
Expenditure like travel, hotel stay,
transportation and the like
incurred by service provider in
course of providing taxable service
should NOT be treated as
consideration for taxable service
and NOT included in value for
charging service tax
Whether best judgment assessment
under section 72 of the Finance Act,
1994 is an ex-parte* assessment
procedure?
Section 72 mandates that the
assessee must appear and must
furnish books of account,
documents and material to the
Central Excise Officer before he
passes the best judgment
assessment order. Thus, said order
is not akin to an ex parte order.
Time-limit prescribed under
section 48 of the Customs Act,
1962 for clearance of the goods
within 30 days CAN’T be read as
time-limit for filing of bill of entry
under section 46 of the Act
MANOJ BATRA
IMP. CASE LAWS -CA FINAL IDT NOV 14
23
STORY OF CASE LAWS- AT ONE PLACE
(1) BASIC CONCEPT
SAIL and USHA ने OSNAR
से Boardlam के
DARSHAN की इच्छा प्रकट की
(2) VALUATION & CLASSIFICATION
TATA MOTORS & SUPER SYNOTEX ने CONNAUGHT PLACE के RESTAURANT में
MINWOOL ROCK को WOCKHARDT की LIFESCIENCE में बाांहों में बााँहे डालें दे खा
इसकी शिकायत उसकी WIFE KEIHIN PENALFA को कर दी, उसने मार – मार के थोबड़ा बबगाड़ ददया
(3) CENVAT CREDIT
(i)
Ciens laboratories जो dermatologists है ,उसको अपना (थोबड़ा) ददखाने गया ,उसने उसे
medicament दी
(ii)
उसने
CADILA HEALTHCARE में REFER कर ददया, जहा उसकी testing की गयी,जजस पर
उसे
(iii)
commission नही शमली
(iv)
वाँहा उसे SINTEX का पानी पपलाया गया or वाँहा उसे SINTEX INDUSTRIES की दो factory
का पानी पपलाया गया
(v)
तबबयत ख़राब होने पर उसे PRIME HEALTH CARE में भती ककया गया
(vi)
जहा DR.PARAG BOSIMI और KCP ने sugar plant की Machine पर उसका इलाज ककया
(vii)
वहाां उसके जानी दश्ु मन Satish Industries ने उसे उठा के BALRAMPUR CHINNI MILLS की
BAGGASSE में डाल ददया
(4) SMALL SCALE INDUSTRIES AND EXPORT PROCEDURE
ये उसके भाई ELEX KNITTING को पता लगा तो
उसके co-owners ने satish के गले में
UM की CABLE डाल के उसे मारने की कोशिि की, जजसकी ARE-1 गुम हो गयी है जजसका
Rajasthan
से EXPORT R-18 मे होता है
(5) CER 2002
दोनों BALAJI का दिशन करने गए
जजस पर R-25 की PENALTY नही लगी
STORY – PART-2
(6) DEMAND AND REFUND
(i) JAY KUMAR LOHANI NOTICE को SERVE कर – कर के लहूलह
ु ान )LAHU
LOHAN( कर ददया
MANOJ BATRA
(ii) वो GUJRAT की
IMP. CASE LAWS -CA FINAL IDT NOV 14
24
NARMADA नदीां में RAGHUNATH के दिशन करने CEO के साथ
गया
(iii)वहा उसे DINESH CHAJJAR SMUGGLER से PURCHASE करने वाला
INFINITY INFOTECH AND DELPHI AUTOMOTIVE के साथ शमला
(iv) INFINITY INFOTECH कहती, मेरे को IITHOUT INTENTION इसके साथ रहना पड़
रहा है
(v) DELPHI AUTOMOTIVE कहती, मेरे को DIRERGENT RIEIS दे -दे के इसने फांसा
शलया
(vi) JAY KUMAR LOHANI
कहता है तू 2-2 को कैसे MANAGE कर लेता है , हम से तो
1 MANAGE नहीां होती , क्या business कर रहा है आजकल तू
(vii)
DBOI GLOBAL SERVICE, KEMTECH INTERNATIONAL के साथ शमल कर
खोली है , INTERNATIONAL TOUR पर भेजा करते है
(viii)
तू वहाां पे भी जरुर गड़बड़ कर रहा होगा
(ix) YES, DBOI GLOBAL SERVICE में झठ
ू बोल- बोल के REFUND ले लेते है
(x) KEMTECH INTERNATIONAL में DEMAND ORDER आया था , मैंने कहा जजन
DOCUMENTS के BASE पर DEMAND ORDER भेजा है , वो ददखाओ , वो भी
CANCEL करा शलया
(xi) और बता, अरे FOREIGN COUNTRY में भी ANITA GROVER AND VANDANA
BIDYUT CHATTERJEE के साथ चक्कर चल रहा है
(xii)
अरे तू तो उनको PRIRATE PROPERTY को ATTACH करने के चक्कर में
होगा, वो to तेरी AMI or NANI के उम्र की है , अरे प्यार अाँधा होता है
(xiii)
अरे COURT से ऐसा NOTICE SERRE करा दे गी , कही का नहीां रहे गा
(xiv)
तेरे ददमाग में GAS बन गयी है , एक काम कर ENON पी तू, )XENON (
(xv)
तेरा तेल ख़तम हो गया, CASTROL INDIA से अपने में
OIL डलवा /
में to अभी RATANMANI METAL के चक्कर में हु , अरे वो जो KSJ METAL
IMPEX की बेटी है , जजसका भाई SUPERINTENDING ENGINEER ( TAMIL NADU
(xvi)
ELECTRICITY BOARD) में लगा है , ( TAMIL NADU ELECTRICITY BOARD) से
STATE UNDERTAKING याद आना चादहये
(xvii)
ऐसी मार मारें गे तेरी ICMC सब उड़ जायेगी, C- FOR CRDIT REVERSED AND
C - FOR CRDIT REAVAILED
(xviii)
मार- मार के तुझे PAREMSHIAR के पास पहुांचा दें गे or मार के तेरा GEM
बना दें गे
MANOJ BATRA
IMP. CASE LAWS -CA FINAL IDT NOV 14
25
STORY – PART-3
APPEAL
THAKKAR की LATE APPEAL ACCEPT हो गयी, METAL WELD ने IRIT लगाने के शलए DELL
Intl and E & Y की SERRICES ली,जहा DISPUTE न होने पर भी CHIEF COMM RERIEI के
शलए APPEAL लगा रहा है
RAJA MECHANICAL AND MIHANI NETWORKS ने KHANAPUR AND ORERSEAS में
EXCELLENT (Texcellence) SHOOTING की, वह HABIB and MARGARA ने AGRO PRODUCT सें
उसका MAKEUP
ककया
STORY – PART-4
SETTLEMENT COMMISION
Vadilal gases Maruthi में बैठकर Ashok kumar jain के घर Saurashtra का Cement लेने पहुं चा
STORY – PART-5
CUSTOM AND MISCELLANEOUS
Paras, Akanksha Syntex & Wringley India में VISHNU की पज
ू ा कर-कर Rishiroop हो गए , वो Caravel
Logistic के Ship में बैठ कर Hemal K. shah Smuggler को समझाने गए
STORY – PART-6
SERVICE TAX
Wipro का office Delhi and Rajasthan में है , जहााँ chitra काम करती है , जजसके यहााँ से 2
crore रुपये ममले थे , swastik को लगा मालदार पार्टी है , इससे आाँखे ममलानी चाहएुं , वो
साथ की Building में A.C Lagane पहुं चा ,chitra की शादी हो रखी है , इसका पता उसके पतत
RameshBabu को लगा,
1 चर्टकी मसुंदरू की कीमत तम क्या जानो, RameshBabu
RameshBabu को जब arrest करने पहुं चे, तो वो kandra में छूप गया, उसने
intercontinental consultant को hire ककया .
court ने decide ककया, No Best Judgement Case (N.B.C CORPORATION)
MANOJ BATRA
IMP. CASE LAWS -CA FINAL IDT NOV 14
26
CASE LAW NAMES NOT TO BE REMEMBERED
[Nicholas Piramal India
Ltd 2010 (SC)]
CRUDE vitamin A has a life of 2 to 3 days, though having short shelf life but 2-3 days are
sufficient to market the product. Hence the same shall be considered as marketable.
MEDLEY
PHARMACEUTICALS
LTD.(SC)(2011)
Bata India Ltd
distributed free samples of medicines AND On Physician Samples Printed- Not for sale
because of Drug & cosmetic Act 1940. Assessee is of the view that samples can’t be
sold hence not marketable. IT was held medicines are marketable.
Theoretical possibility of product being sold is not sufficient to establish marketability of product.
The fact that product is sent outside for job work doesn’t establish its marketability.
Testing Equipment manufactured and not imported to save Foreign exchange
Are marketable.
USHA RECTIFIER
CORPN. (I)
LTD.(2011)(SC)
GTC Industries Ltd.
the roll of aluminum foil was cut horizontally to make separate pieces of the foil and
2011 (Bom.)
word ‘PULL’ was embossed on it Doesn’t amount to manufacture.
Note- however now it is now considered as deemed manufacture.
Solid & Correct
Affixation of Asphalt Drum/ Hot-mix Plant by nuts and bolts on foundation on earth to ensure
engineering Works
wobble- free operation of the plant – Movable
(2010)(sc)
Orissa Bridge &
Fabrication of cutting edge, plain shuttering plates, well steening shuttering plate, vertical
construction corpn.
props from steel angle, MS plates, MS Sheets, HR sheets and pipes amount to
Ltd (2011)(SC)
manufacture.
Sony Music
Importing recorded audio and video discs in boxes each containing 50 discs. Each
Entertainment (I) Pvt
individual disc then packed in jewel boxes not amounting to manufacture.
Ltd.
Cir 904/24/09
Baggase. Aluminium/zinc dross and other product termed as waste are capable of being sold for
a consideration. Hence marketable and liable to excise duty.
Larsen &Tourbo
Fabrication, assembly, erection of waste water treatment is immovable. Merely bringing of duty
Limited (2009)(Bom)
paid parts at site doesn’t amount to manufacture.
Virgo industries
Signage Erected at Various petrol bunks of IOC are movable because capable of being shifted
(Engineers) Pvt. Ltd.
from one place to another without dismantling them.
MEHTA & CO.
chairs, beds, tables, desks, etc., affixed to the ground ARE movable
AIR LIQUIDE NORTH
Testing and grading the procured Gas, packing in different cylinders alongwith test
INDIA
certificate amounts to deemed manufacture u/s 2(f)(ii)
Jai Bhagwan oil and
Production of mustard oil and oil cake from mustard seeds amount to manufacture
Flour Mills
TARPAULIN
tarpaulin made-ups which are prepared after cutting and stitching the tarpaulin fabric
INTERNATIONAL
and fixing the eye-lets would NOT manufacture
Valuation
Fiat India Pvt.Ltd. 2012 (SC) If goods sold below the cost price for penetration of market , then price
will not be treated as sole consideration.
Ford India Pvt. Ltd.
Extended warranty charges were not includible in the assessable value of cars.
Maruti Suzuki India Ltd.
cost of pre-delivery inspection and after sale services would form part of the assessable
value
CPS Textiles P Ltd
Classification
1. description of the goods as per the documents submitted along with the
Shipping Bill be a relevant criterion for the purpose of classification, if not
otherwise disputed on the basis of any technical opinion or test
2. separate notice is not required to be issued for payment of interest which is
MANOJ BATRA
IMP. CASE LAWS -CA FINAL IDT NOV 14
27
mandatory and automatically applies for recovery of excess drawback
Cenvat credit
FLEX
FLEXIBLE PLASTIC FILM USED FOR TESTING THE F & S MACHINE ARE INPUTS USED IN
ENGEENERING LTD RELATION TO MANUFACTURE OF FP AND ELIGIBLE FOR CCR .
Madras cement Ltd
Capital goods used in mines - Mines if captive mines so as to constitute one integrated unit with
concerned cement factory, Cenvat credit available - Mines if not captive mines but supply to various
other cement companies of different assessees and goods used in mines outside factory of
assessee, credit not available
ECOF INDUSTRIES
Service tax distributed by head office u/r 7 of CCR 2004 TO KOLAR UNIT IN RESPECT OF
PVT. LTD. (2011)(Kar ADVERTISING SERVICE WHICH IS RECD BY CUTTACK UNIT.- CAN BE DISTRIBUTED
NOTE- NOW THIS CASE HAS BEEN OVERRULED BY AMENDMENT IN R-7 OF CCR 2004. Meaning thereby now service
tax can be distributed to the unit using service.
Ind–Swift
Interest on Wrong Availment of CENVAT Credit – Interest has to be charged from the date of
Laboratories Ltd
availing credit and not from the date of utilization. Hence, interest has to be charged even in a case
2011 (SC)]
where CENVAT is wrongly availed and is reversed before utilization of such credit.
NOTE- NOW THIS CASE HAS BEEN OVERRULED BY AMENDMENT IN RULE 14 OF CCR 2004, meaning thereby that if
the wrongly availed credit is reversed before utilization, then no interest will be recovered.
TATA ADVANCE
CCR NOT TO BE REVERSED IN CASE OF CG IF DESTROYED BY FIRE IN SUBSEQUENT
MATERIALS
YEARS AFTER CLAIMING CCR, EVEN IF INSURANCE CLAIMED FROM INS COMPANY
NoteIf capital goods destroyed after 5 years, no CCR Reversal. But if cleared as waste then as per rule 3 (5A) pay amount equal
to [ duty leviable on transaction value. Or reduced amt ] whichever is higher
Rule 3 (7)
100% EOU can take CCR of CVD, Special CVD, (EC, SHEC of excise)
Rajasthan spinning &
steel plates and M.S. channel was accessory to diesel generating set and hence capital
Weaving Mills Ltd
goods and credit thereon admissible
Bhuwalka Steel Industries
Transit loss- normal- CCR allowed as per industry norms for volatile and hygroscopics
nature. Minor variation due to weighment difference by different machine ignored
No reversal of Credit on input service in respect of Goods Transportation Agency service
BANSAL ALLOYS &
METALS LTD.
Stelko Strips Ltd.
CENVAT credit be taken on the basis of private challans
Maruti suzuki
CCR not allowed on naptha used for generation of electricity cleared to joint venture.
Jaya mills
If depreciation and CCR both claimed, subsequently if income tax return revised by
withdrawing depreciation. CCR not required to be reversed.
Ashok kumar h Fulwadhya Penalty can’t be imposed on directors of company for wrong availment of CCR.
SMALL SCALE INDUSTRY
Deora Engineering Works
the clearances of two firms having common brand name, goods being manufactured
in the same factory premises, having common management and accounts etc. can be
clubbed for the purposes of SSI exemption
Demand, Refund & Appeal
BPL Ltd. 2010
Chartered Accountant’s certificate alone is NOT sufficient evidence to rule out the unjust
(Mad.)
enrichment
Kanyaka Parameshwari Engineering Ltd. 2012 (A.P)- if duty paid under Protest, then interest u/s 11BB after 3 months
from the date of application and not from the date of payment of duty till the date of refund.
Ranbaxy Laboratories Ltd.2011 (SC)
liability to pay interest u/s 11BB commences from the date of expiry of 3
months from the date of receipt of application for refund u/s 11B(1) & not on the expiry of the said period from the
date on which order of refund is made by Appellate authority.
Accrapac (India) Pvt. Ltd.
that non-disclosure as regards manufacture of Denatured Ethly Alcohol will not amounts to
suppression of material facts and hence it will not attract the larger period of limitation under
section 11A.because Dept. was aware of Facts.
HANS STEEL ROLLING
SEC 11A is not applicable to recovery under dues under compounded levy scheme.
MANOJ BATRA
IMP. CASE LAWS -CA FINAL IDT NOV 14
28
MILL
Note- however sec 3A amended w,e.f F.ACT 2008- sec 11 A made applicable in case of duty based on production capacity.
Gem Properties (P) Ltd
Merely because assessee has sustained loss more than the refund claim, it is not a
case of unjust enrichment sincethe assessee failed to prove that duty in the cost of
production is not included
SKF India Ltd
Differential duty is paid immediately upon the recovery of price difference through
issuance of supplementary invoice, interest shall still be payable on such differential
duty.
Duty will be payable in case of retrospective recovery of increased value. Interest will
INTERNATIONAL AUTO
also be payable. MRF case not applicable.
LTD.
Aman Medical products
Ltd.
Narayan Nambiar Meloths
AP SPINTEX LTD
Trilux Electronics
Techno Rubber
Industries Pvt Ltd.
2011 (Kar.)
Raja Mechanical Co.
(P) Ltd. 2012 (S.C.)
Tikitar Industries,
2012 (S.C.)
refund claim of the appellant was maintainable under section 27 and the non-filing of the
appeal against the assessed bill of entry did not deprive the appellant to file its claim for
refund under section 27 of the Customs Act, 1962.
refund claim can’t be denied only on the basis of contention that he had produced the
attested copy of TR-6 challan and not the original of the TR-6 challan?
ED recovered from buyer – credit notes issued subsequently – Doctrine of Unjust Enrichment
not applicable
an appeal against the consent order cannot be filed by the Revenue.
excess duty paid by the seller be refunded on the basis of the debit note issued by the buyer
Appeals
doctrine of merger is NOT applicable when appeal dismissed on the grounds of limitation and
not on merits.
If Revenue accepts judgment of the Commissioner (Appeals) on an issue for one period, can it be
precluded to make an appeal on the same issue for another period?- YES
RDC CONCRETE
Re-appreciation of evidence by CESTAT CAN’T BE CONSIDERED AS RECTIFICATION OF
(INDIA) P. LTD.
MISTAKE.
(SC)(2011)
VOLVO INDIA LTD. Royalty charges for transfer of know-how - Whether Service tax is leviable on it as
(2011)(kar)
Consulting Engineer service. The question relates to payment of rate of duty/tax.
Whether Against CESTAT order appeal can be made to High court.
NO, BECAUSE RATE OF DUTY/TAX MATTER CAN’T BE APPEALED TO HIGH COURT.
Gujchem distillers
CESTAT Orded disposing appeal on totally new ground not sustainable.
Advance Ruling
UAE Exchange Centre Ltd.
a writ petition can be invoked against advance rulings.
Settlement commission
MARUTHI TEX PRINT &
Settlement commission can’t decline to grant immunity from prosecution while confirming
PROCESSORS P. LTD.
the demand and imposing the penalty without placing the burden on the department to
prove the clandestine removal of goods.
Icon Industries
consolidated return filed by the assessee after obtaining registration, but for the period
prior to obtaining registration, Can’t be treated as a return for filing application to settl.
Comm.
Vishwa Traders Pvt ltd
If case referred back to Department then Revenue shall continue the adjudication
proceedings from the stage at which the proceedings before Settlement Commission
commenced
Ashwani Tobacco Co. Pvt.
Benefit under the proviso to section 11AC (i.e Penalty- 25% of duty, if paid within 30 days
MANOJ BATRA
IMP. CASE LAWS -CA FINAL IDT NOV 14
29
Ltd.
of Demand order) could not be granted by the Settlement Commission in cases of
settlement.
East and West Shipping
Agency
Sanghvi Reconditioners Pvt.
Ltd.
Cus. & C. Ex. Settlement
Commission
order of the Settlement Commission be considered to be a judicial proceeding
Essar steel ltd
Decorative Laminates
(I) Pvt. Ltd.
Paras Fab International
Living Media India ltd
Sayed ALI (2011)(SC)
[ M.Ambalal & Co. 2010
(SC)]
Textoplast Industries
2011 (Bom.)
S.J. Fabrics Pvt. Ltd.
2011 (Cal.)
o.t enasu
Alfred Menezes
Poona Health Services
Gawar Construction
Ltd.
Jaya Singh
VijayaJhaveri
Finesse Creation Inc.
Manish Lalit Kumar
Bavishi (Bom.)
the appellant could not be permitted to dissect the Settlement Commission's order with a
view to accept what is favourable to them and reject what is not.
Settlement Commission have jurisdiction to settle cases relating to the recovery of
drawback erroneously paid by the Revenue
custom
Export duty can’t be levied on goods supllied from DTA to SEZ
If imported goods warehoused and then extension taken and goods not cleared even after
expiry of extended period. Application for remission of duty under section 23 of the
Customs Act, 1962 not allowed on the ground that the said goods had become unfit for use
on account of non-availability of orders for clearance.
issue for use by 100% EOU would not amount to clearance for home consumption.
Royalty payable shall be added to the Cost of Imported audio CD because royalty becomes
due as soon as CD distributed & sold (hence royalty was a condition of sale.)
SCN issued by commissioner of custom Preventive in not valid.
Note- however this case has been overruled – REFER SEC 28(11).
Miscellaneous - custom
Imported Rough Diamond THROUGH smuggling
But if diamond imported on import licencse- import duty exempt
Dept levied duties and penalties. Assessee contending that import duty exempt
Smuggled goods not eligible for exemption.
Can separate penalty under section 112 of the Customs Act be imposed on the partners
when the same has already been imposed on partnership firm?
YES, In an appropriate case, impose a penalty both upon a partnership firm as well as on its
partners.
Can goods be detained indefinitiely- NO
SCN imposing penalty u/s 112 of CA 1962, is not sustainable because deciding factor for
penalty u/s 112 is “ duty was sought to be evaded”
in case of prohibited goods, there is discretion in the officer to release the confiscated goods
In case the imported goods are confiscated, and goods are not redeemed by paying fine,
the importer is bound to pay the customs duty
the notice for confiscation is required to be issued to owner when owner is in possession of
goods and goods are seized from his custody. In case of seizure of goods from the custody of
person other than importer, notice must also be given to person from whose custody goods were
seized
Is the want of evidence from foreign supplier enough to cancel the confiscation order of
goods undervalued?- No
improperly imported goods are liable for confiscation under sec 111 of the Customs Act,
1962, if the same are cleared and not available for seizure. Redemption fine cannot be
imposed with regard to such goods.
Is it mandatory for the Revenue officers to make available the copies of the seized
documents to the person from whose custody such documents were seized?
YES, AS PER SEC s 110(4)- the person from whose custody any documents were seized
u/s 110 shall be entitled to makes copies therefrom or take extracts in presence of
MANOJ BATRA
IMP. CASE LAWS -CA FINAL IDT NOV 14
30
custom officer
Infotech Software
Dealers Association
(ISODA)
Karamchand Thapar&
Bros. (Coal Sales) Ltd.
Kishore. K. s.
Nahar Industrial
Enterprises Ltd.
Idea Mobile
Communications Ltd.
SERVICE TAX
in the transactions taking place between the members of ISODA with its customers, the software
is not sold as such, but only the contents of the data stored in the software are sold which would
only amount to service and not sale.
a) The deeming provision under Rule 4(5) of Service Tax Rules, 1994 providing that registration
certificate deemed to have been granted if not granted within 7 days from the date of receipt
of application is applicable only to registration granted by Superintendent of Central Excise
and not to centralized registration granted under Rule 4(2).
b) Though no time limit is specified for grant of centralized registration, however the same
cannot be indefinitely delayed and be granted within reasonable time and seven days can be
considered as reasonable time.
Municipality can pass the burden of service tax to assessee. There is no violation of Article 289.
service tax is not chargeable on the buffer subsidy provided by the Government for
storage of free sale sugar, under the category of `storage and warehousing services
the value of SIM card supplied by the assessee would form part of the value taxable service on
which service tax was payable by the assessee.

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