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Selected case laws (Indirect Tax Laws) applicable for Nov 2

Request to readers : SHARE NOTES, BE A PART OF SUCCESS

1 BASIC CONCEPTS
S.NO Key Issue Detailes of Issue
Whether the addition and mixing of polymers and additives
1 Manufacture to base bitumen with a view to improve its quality, amounts
to manufacture?

Whether the process of generation of metal scrap or waste


2 Manufacture during the repair of worn out machineries/parts of cement
manufacturing plant amounts to manufacture?

Are the physician samples excisable goods in view of the fact


3 Excisable goods that they are statutorily prohibited from being sold?

Whether assembling of the testing equipments for testing


4 Manufacture the final product in the factory amounts to manufacture?

5 Marketability Can a product with short shelf-life be marketable?

Whether the machine which is not assimilated in permanent


6 Movability structure would be considered to be moveable so as to be
dutiable under the Central Excise Act?

Does the process of preparation of tarpaulin made-ups after


7 Manufacture cutting and stitching the tarpaulin fabric and fixing the eye-
lets amount to manufacture?

Does the process of cutting and embossing aluminium foil


8 Manufacture for packing the cigarettes amount to manufacture?

Does the activity of packing of imported compact discs in a


9 Manufacture jewel box along with inlay card amount to manufacture?

10 Dutiability Whether bagasse which is a marketable product but not a


manufactured product can be subjected to excise duty?

Whether contaminated, under or over filled bottles or badly


crowned bottles amount to manufactured finished goods
11 RG-1 Register which are required to be entered in R.G.-1 register[Daily
stock account], and which are exigible to payment of excise
duty?

2. Classification of Excisable Goods


How will a cream which is available across the counters as
also on prescription of dermatologists for treating dry skin
1 Classification conditions, be classified if it has subsidiary pharmaceutical
contents - as medicament or as cosmetics?

Whether a heading classifying goods according to their


2 Classification composition is preferred over a specific heading?

Whether antiseptic cleansing solution used for cleaning/


3 Classification degerming or scrubbing the skin of the patient before the
operation can be classified as a ‘medicament’?

Can the ‘soft serve’ served at McDonalds India be classified


4 Classification as “ice cream” for the purpose of levying excise duty?

3. Valuation of Excisable Goods


Is the amount of sales tax/VAT collected by the asssessee
Includible in the assessable value and retained with him in accordance with any State Sales Tax
1 Incentive Scheme, includible in the assessable value for
payment of excise duty?

Can the pre-delivery inspection (PDI) and free after sales


2 Includible in the assessable value services charges be included in the transaction value when
they are not charged by the assessee to the buyer?

4. Cenvat Credit(CC)
Whether CENVAT credit of the testing material can be
Cenvat credit of the testing
1 allowed when the testing is critical to ensure the
material marketability of the product?

Will rule 6 of the Cenvat Credit Rules, 2004 apply, if the


Applicability of Rule 6 of CC
2 assessee clears an exempted by-product and a dutiable final
Rules, 2004 product?

Can CENVAT credit of duties, other than National Calamity


3 Utilization CC Contingent Duty (NCCD), be used to pay NCCD?

The assessee claimed the CENVAT credit on the duty paid on


capital goods which were later destroyed by fire. The
4 Availment and reversal of CC Insurance Company reimbursed the amount inclusive of
excise duty. Is the CENVAT credit availed by the assessee
required to be reversed?
Whether penalty can be imposed on the directors of the
5 Wrong CC availment company for the wrong CENVAT credit availed by the
company?

6 Availment of CC Can CENVAT credit be taken on the basis of private challans?

Whether (i) technical testing and analysis services availed by


the assessee for testing of clinical samples prior to
7 Eligibility for CC commencement of commercial production and (ii) services
of commission agent are eligible input services for claiming
CENVAT?

Will two units of a manufacturer surrounded by a common


8 Identification of entity boundary wall be considered as one factory for the purpose
of CENVAT credit, if they have separate central excise
registrations?

Whether CC can be availed of Service tax paid on customs


house agent (CHA) services, shipping agents and container
9 Availement of Cenvat Credit (CC) services and services of overseas commission agents used by
the manufacturer of final product for the purpose of export,
when the export is on FOB basis?

Can Cenvat Credit availed on inputs (contained in the work-


10 CC on WIP destroyed in-progress destroyed on account of fire) be ordered to be
reversed under rule 3(5c) of the CC Rules, 2004?

11 CC to celluler mobile service Is celluler mobile service provider entitled to avail Cenvat
provider Credit on tower parts & pre-fabricated buildings (PFB)?

Whether sales commission services are eligible input


services for availment of CC? If there is any conflict between
the decision of the jurisdictional HC and the CBEC circular,
12 Decisions binding on department then which decision would be binding on the department?
Also, if there is a contradiction between the decision passed
by jurisdiction HC and another HC, which decision will
prevail?

5. General Procedures Under Central Excise


Is Interest payable under rule 7(4) of the Central Excise
1 Interest U/S 7(4) Rules, 2002, if amount of differentioal duty is paid in full
before final assessment order is passed?
6. Export Procedure
Can export rebate claim be denied merely for non-
1 Export rebate claim production of original and duplicate copies of ARE-1 when
evidence for export of goods is available?

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
2 Rule 18 excisable goods as well rebate of duty paid on materials used
in the manufacture or processing of such goods?

8. Demand, Adjudication and Offences


Whether time-limit under section 11A of the Central Excise
1 Sec 11A Act, 1944 is applicable to recovery of dues under
compounded levy scheme?

In case the revenue authorities themselves have doubt


aboubt the dutiability of a product, can extended period of
2 Extended period of limitation limitation be invoked alleging that assessee has suppressed
the facts?

In a case where the assessee has been issued a show cause


Issue of SCN reg recovery of dues notice regarding confiscation, is it necessary that only when
3 and penalty such SCN is adjudicated, can the SCN regarding recovery of
dues and penalty be issued?

In a case where the manufacturer clandestinely removes the


goods and stores them with a firm for further sales, can
4 Rule 25 penalty under rule 25 of the Central Excise Rules, 2002 be
imposed on such firm?

Can a decision pronounced in the open court in the


5 Service of Order presence of the advocate of the assessee, be deemed to be
the service of the order to the assessee?

Whether the amendment made by Finance Act, 2013 in Sec


37C(1)(a) of Central Excise Act, 1944 to include speed post as
6 Applicability of amendment an additional mode of delivery of notice is merely
clarificatory in nature having retrospective effect or does it
operate prospectively?

9. Refund
Whether filing of refund claim under section 11B of Central
Excise Act, 1944 is required in case of suo motu availment of
Filing refund claim incae of Suo
1 CENVAT credit which was reversed earlier (i.e., the debit in
moto availment of CC the CENVAT Account is not made towards any duty
payment)?

Does the principle of unjust enrichment apply to State


2 Principle of unjust enrichment Undertakings?
10. Appeals

If Revenue accepts judgment of the Commissioner (Appeals)


1 Appeals on an issue for one period, can it be precluded to make an
appeal on the same issue for another period?
Can re-appreciation of evidence by CESTAT be considered to
2 Rectification of mistake be rectification of mistake apparent on record under section
35C(2) of the Central Excise Act, 1944?

Can an appeal be filed before the Supreme court against an


3 Appeal before Supreme Court order of the CESTAT relating to clandestine removal of
manufactured goods and clandestine manufacture of goods?

In a case where an appeal against order-in-original of the


appeal dismissed by appellate adjudicating authority has been dismissed by the appellate
4 authority authorities as time-barred, can a writ petition be filed to
High Court against the order-in-original?

Can the High Court condone the delay - beyond the statutory
5 Condonation of delay U/S 35 by period of three months prescribed under section 35 of the
HC Central Excise Act, 1944 - in filing an appeal before the
Commissioner (Appeals)?

Can delay in filing appeal to CESTAT for the reason that the
Condonation of delay in filing
6 person dealing with the case went on a foreign trip and on
appeal to CESTAT his return his mother expired, be condoned?

Does the Commissioner (Appeals) have the power to review


7 Power to review his own order of pre-deposit?

13. Exemption Based on Value of Clearances (SSI)

Whether the manufacture and sale of specified goods, not


physically bearing a brand name, from branded sale outlets
1 Brand name would disentitle an assessee to avail the benefit of small
scale exemption?

Where clearances of a dubious company are clubbed with


clearances of the original company, whether penalty can be
2 Penalty imposed on such dubious company if all the clearances have
been made by the original company?

Can the brand name of another firm in which the assessee is


3 Brand name for SSI a partner, be considered as the brand name belonging to the
assessee for the purpose of claiming SSI exemption?

Whether the clearances of two firms having common brand


name, goods being manufactured in the same factory
4 Clubbing for SSI premises, having common management and accounts etc.
can be clubbed for the purposes of SSI exemption?
14. Notifications, Departmental Clarifications and Trade No

Where a circular issued under section 37B of the Central


Excise Act, 1944 clarifies a classification issue, can a demand
1 Misclassification alleging misclassification be raised under section 11A of the
Act for a period prior to the date of the said circular?

18. Settlement Commission

(i) Where a settlement application filed under section 32E(1)


of the Central Excise Act, 1944 (herein after referred to as
Rejection of settlement ‘Act’) is not accompanied with the additional amount of
1 application 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?
ax Laws) applicable for Nov 2016 exams
BE A PART OF SUCCESS (If possible)

SIC CONCEPTS
Case Law Decision

CCE v. Osnar Chemical Pvt. Ltd. (S.C.) Did not amount to manufacture.

Grasim Industries Ltd. v. UOI (S.C.) Not amount to manufacture.

Medley Pharmaceuticals Ltd. v. CCE & C., Daman Excisable goods ,liable to excise duty.
(S.C.)

Usha Rectifier Corpn. (I) Ltd. v. CCEx., New Delhi Yes


(S.C.)

Nicholas Piramal India Ltd. v. CCEx., Mumbai Yes


(S.C.)

CCE v. Solid & Correct Engineering Works and


Ors (SC)
Yes

CCE v. Tarpaulin International (S.C.) No

CCE v. GTC Industries Ltd. (Bom.) No

CCE v. Sony Music Entertainment (I) Pvt. Ltd. No


(Bom.)

Balrampur Chini Mills Ltd. v. Union of India (All.) No

No. (Reason: Only a finished product


Amrit Bottlers Private Limited v. CCE (All) (High can be entered in RG1 Register. A
finished product is a product which is
Court) manufactured as well as which is
marketable. )

tion of Excisable Goods


CCEx. v. Ciens Laboratories (SC) Medicament under Heading 30.03.

Commissioner of Central Excise, Bhopal v. Yes


Minwool Rock Fibres Ltd. (S.C.)

CCE v. Wockhardt Life Sciences Ltd. (S.C.) Yes

CCEx. v. Connaught Plaza Restaurant (Pvt) Ltd. Yes


(S.C.)

n of Excisable Goods

CCEx v. Super Synotex (India) Ltd. (S.C.) Yes

Tata Motors Ltd. v. UOI (Bom.) Yes

nvat Credit(CC)

Flex Engineering Ltd. v. Commissioner of Central Yes


Excise, U.P. (S.C.)

No. (Reason: In rule 6 term used is 'final


product' and not 'by-product'. Rule 6
would not apply when manufacture of
UOI v. Hindustan Zinc limited. (S.C) dutiable final product results in
emergence of exempted by-product on
account of technological necessity.

CCEx. v. Prag Bosimi Synthetics Ltd. (Gau.) Yes

CCE v. Tata Advanced Materials Ltd. (Kar.) No


Ashok Kumar H. Fulwadhya v. UOI (Bom.) No

CCEx. v. Stelko Strips Ltd. (P & H) No

CCEx v. Cadila Healthcare Ltd. 2013 (30) S.T.R. 3 (i) -Yes, (ii)-No
(Guj.)

Sintex Industries Ltd. vs. CCEx (Guj.) No

CC in respect of i) CHA services, (ii)


shipping agents and container services
Commissioner v. Dynamic Industries Limited and (iii) cargo handling services is
(Guj)(High Court) admissible, but the CC availed for the
services of overseas commission agent
is not allowed.

No. (Reason: CC would need to be


reversed only when the payment of
excise duty on final product was is
ordered to be remitted under rule 21 of
CCE v. Fenner India Limited (Mad)(HC) the Central Excise Rules, 2002, which
deals with the remission of duty. In the
present case, the assessee has not
claimed any remission and no final
product has been removed)

Bharti Airtel Ltd. V. CCEx. Pune III (Bom)(High No (Reason:Neither capital goods nor
Court) inputs)

No. i) Conflict between jurisdictional HC


v. Circular--> HC judgement will be
Astik Dyestuff private Limited v. CCEx. & Cus. binding on dept. ii) Jurisdictional HC V.
(Guj)(HC) other HC--> jurisdictional HC wull be
binding on dept.

dures Under Central Excise

Ceat Limited v. CCE & C(Bom) (HC) No. the interst would not be payable

port Procedure
UM Cables Limited v. Union of India (Bom.) No

Rajasthan Textile Mills v. UOI (Raj.) Only one, not on both.

djudication and Offences

Hans Steel Rolling Mill v. CCEx., Chandigarh 2011 No


(265) E.L.T. 321 (S.C.)

No, extended period of limitation could


Sanjay Industrial Corporation v. CCE (S.C) not be invoked and penalty was set
aside.

Jay Kumar Lohani v. CCEx (M.P.) No

Rule 25(1)(c) would have no application


CCEx. v. Balaji Trading Co. (Del.) in the present case.

Nanumal Glass Works v. CCEx. Kanpur, (All.) Yes

Jay Balaji Jyoti Steels Limited v. CESTAT Kolkata Clarificatory and a procedural
amendment and hence, would have
(Ori) (HC) retrospective effect.

9. Refund

ICMC Corporation Ltd.v CESTAT, CHENNAI 2014 No


(302) E.L.T. 45 (Mad.)

CCEx v. Superintending Engineer TNEB (Mad.) No

10. Appeals

Commissioner of C. Ex., Mumbai-III v. Tikitar It might not be


Industries, (S.C.)
CCE v. RDC Concrete (India) Pvt. Ltd. (S.C.) No

CCE v. Fact Paper Mills Private Limited (S.C) No

Khanapur Taluka Co-op. Shipping Mills Ltd. v. No


CCEx. (Bom.)

Texcellence Overseas v. Union of India 2013 Yes, In extraordinary circumstances.


(Guj.)

Habib Agro Industries v. CCEx. (Kar.) Yes

M/S Venus Rubbers v. The Additional


Commissioner of Central Excise, No.
Coimbatore(Mad) (HC)
d on Value of Clearances (SSI)

No, The Supreme Court held that it is


not necessary for goods to be stamped
CCEx vs. Australian Foods India (P) Ltd (SC) with a trade or brand name to be
considered as branded goods for the
purpose of SSI exemption.

Penalty could not be imposed upon the


CCEx v Xenon (Jhar.) company who did not undertake any
transaction.

Commissioner v. Elex Knitting Machinery Co. (P Yes


& H)

CCE v. Deora Engineering Works (P & H) Yes


ental Clarifications and Trade Notices

S & S Power Switch Gear Ltd. v. CCEx. Chennai-II No


(Mad.)

ement Commission

Yes

Vadilal Gases Limited v Union of India (Guj.)

Yes
Select case laws (Indirect Tax Laws) applicable for Nov 201
Request to readers : SHARE NOTES, BE A PART OF SUCCESS

CHAPTER:1 BASIC CONCEPTS OF SERVICE TAX


S.NO Key Issue Detailes of Issue
Can the service tax liability created under law be
Shifting of service tax shifted by virtue of a clause in the contract entered
1 liability into between the service provider and the service
recipient?

Whether taxable service Does preparation of ready mix concrete (RMC) along
2 with pouring, pumping and laying of concrete amount
or not? to provision of service?

In case where rooms have been rented out by


3 Burden of ST Municipality, can it pass the burden of service tax to
the service receivers i.e. tenants?

Whether the activity of running guest houses for the


4 Taxability pilgrims is liable to service tax?

Whether supply of food, edibles and beverages


Outdoor caterer service provided to the customers, employees and guests
5 using canteen or guesthouse of the person, result in
outdoor caterer service?

Whether the course completion certificate/training


offered by approved Flying Training Institute and
Aircraft Engineering Institutes is recognized by law (for
being eligible for exemption from service tax) if the
6 Coaching service cource completion certificate/training is only for the
purpose of eligibility for obtaining ultimate
licence/approval for certifying
repair/maintenance/airworthiness of aircrafts?

Whether deputation of some staff to


subsidiaries/group of companies for stipulated work or
Deputation of some staff for limited period results in supply of manpower
service liable to service tax, even though the
7 to subsidiaries/group of direction/control/supervision remained continuously
companies with the provider of the staff and the actual cost
incurred was reimbursed by the subsidiaries/group
companies?
Whether section 66E(i) of the Finance Act,1994 which
levies service tax on the service portion of activity
wherein goods being food or any other article for
8 Validity of Sec 66E(i) human consumption or any drink (whether or not
intoxicating) is supplied in any manner as a part of
activity, is ultra vires the Article 366(29A)(f) of the
constitution?

Can a software be treated as goods and if so, whether


its supply to a customer as per an "End User Licence
9 Sele and Service Agreement" (EULA) would be treated as sale or
service?

Whether service tax is chargeable on the buffer


10 Taxability subsidy provided by the Government for storage of
free sale sugar by the assessee?

A society, running renowned schools, allows other


schools to use a specific name, its logo and motto and
11 Taxability receives a non-refundable amount and annual fee as a
consideration. Whether this amounts to a taxable
service?

2. Place of Provision of Service

Whether filing of declaration of description, value etc.


of input services used in providing IT enabled services
Entitlement for rebate of (call centre/BPO services) exported outside India, after
1 ST the date of export of services will disentitle an
exporter from rebate of service tax paid on such input
services?

5. Exemptions And Abatements

Is exmption in relation to service provided to the


developer of SEZ or units in SEZ available for a period
Service provided to the prior to actual manufacture (which is the authorized
1 developer of SEZ or units operation) of final products considering thsese
in SEZ services as the services used in authorised operations
of SEZ?

Hiring of cab and renting Is 'hiring of cab' different from 'renting of cab' for
2 of cab service tax purposes?

6. Service Tax Procedures

Whether tax is to be deducted at source under section


194J of the Income-tax Act, 1961 on the amount of
1 TDS service tax if it is paid separately and is not included in
the fees for professional services/technical services?

7. Demand, Adjudication and Offences


Recovery of ST during Is it justified to recover service tax during search
1 Search without passing appropriate assessment order?

Can extended period of limitation be invoked for mere


2 Period of limitation contravention of statutory provisions without the
intent to evade service tax being proved?

Would service tax collected but not deposited prior to


10.05.2013 be taken into consideration while
3 Sec 89(1) calculating the amount of Rs.50 lakh as contemplated
by clause (ii) of section 89(1) of the Finance Act,
1994?

Whether best judgment assessment under section 72


Best Judgement
4 of the Finance Act, 1994 is an ex-parte assessment
assessment U/S 72 procedure?

Whether penalty is payable even if service tax and


5 Penalty interest has been paid before issue of the show cause
notice?

Can an amount paid under the mistaken belief that


ST paid by mistaken
6 the service is liable to service tax when the same is
belief actually exempt, be considered as service tax paid?

In a case where the assessee has acted bona fide, can


penalty be imposed for the delay in payment of
Penalty for delay in
7 service tax arising on account of confusion regarding
payment of ST tax liability and divergent views due to conflicting
court decisions?

Whether the receipient of taxable service having


borne the incidence of service tax is entitled to claim
Question of unjust refund of excess service tax paid consequent upon the
8 enrichment. downward revision of charges already paid, and
whether the question of unjust enrichment arises in
such sitiation?

Suppression of facts and Can the expression 'suppression of facts' be


mere failure to disclose interpreted to include in its ambit, mere failure to
9 certain facts disclose certain facts unintentionally?
unintentionally.

8. Other Provisions
Can the Committee of Commissioners review its
Review of decision taken decision taken earlier under section 86(2A) of the
1 earlier Finance Act, 1994, at the instance of Chief
Commissioner?
Can the Commissioner (Appeals) remand back a case
2 Remand back a case to the adjudicating authority U/S 85 of the Finance
Act, 1994?

Whether the period of limitation or the period within


which delay in filing an appeal can be condoned,
3 Period of limitation specified in terms of months in a statute, means a
calender month or number of days?

Can an appeal filed in time but to the wrong authority


4 Rejection of appeal filed be rejected by the appellate authority for being time
barred?
ndirect Tax Laws) applicable for Nov 2016 exams
ARE NOTES, BE A PART OF SUCCESS (If possible)

TER:1 BASIC CONCEPTS OF SERVICE TAX


Case Law Decision

Rashtriya Ispat Nigam Ltd. v. Dewan Chand Ram Yes


Saran (S.C.)

Commissioner v. GMK Concrete Mixing Pvt Ltd. No (Reason: The contract between the parties
was to supply RMC and not to provide any
(S.C) taxable service.)

The High Court held that Municipality can pass


Kishore K.S. v. Cherthala Municipality (Ker.) on the burden of service tax to the tenants.

Tirumala Tirupati Devasthanams, Tirupati v.


Superintendent of Customs, Central Excise, Yes
Service Tax (A.P.)

Indian Coffee Workers' Co-operative Society ltd. V. Yes. The assessee was liable for payment of
CCE & ST (All)(HC) service tax as an outdoor caterer.

CCE & ST v. Garg Aviations Limited (All)(HC) Yes.

No (Reason: Deputation of the employees by the


respondent to its group companies was only for
and in the interest of the assessee. There is no
relation of agency and client. The assessee
Commissioner of Service Tax v. Arvind Mills company was not engaged in providing any
Limited (Guj)(HC) services directly or indirectly in any manner for
recruitment or supply of manpower temporarily
or otherwise to a client. Therefore, they were not
liable to pay Service tax.)
Hotel East Park v. UOI (Chhatisgarh) No.

The High Court held that though software is


Infotech Software Dealers Association (ISODA) v. goods, the transaction may not amount to sale in
Union of India (Mad.) all cases and it may vary depending upon the
terms of EULA.

CCE v. Nahar Industrial Enterprises Ltd. (P & H) No

Mayo College General Council v. CCEx. (Appeals) Yes, ‘franchise service’


(Raj)

2. Place of Provision of Service

Wipro Ltd. v. Union of India (Del.) No

5. Exemptions And Abatements

Yes. The services rendered for a period prior to


Commissioner of Service Tax v. Zydus Technologies actual manufacture of final product is
Limited (Guj)(HC) commercial activity/Production and assessee is
entitled to exemption by way of refund claimed.

Though rent and hire may, in a different context,


CC us. & CE x. v. Sachin Malhotra (Uttarakhand) have the same connation; in the context of rent-
(HC) a-cab scheme and hiring, they signify 2 different
transactions

6. Service Tax Procedures

CIT v. Rajasthan Urban Infrastructure (Raj.) No

Demand, Adjudication and Offences


Chitra Builders Private Ltd. v. Addl. Commr. of No
CCEx. & ST (Mad.)

Infinity Infotech Parks Ltd. v. UOI (Cal.) No

Kandra Rameshbabu Naidu v. Superintendent Yes


(A.E.), S.T., Mumbai-II (Bom.)

N.B.C. Corporation Ltd. v. Commissioner of Service No


Tax (Del.)

CCE & ST v. Adecco Flexione Workforce Solutions Yes


Ltd. (Kar)

Refund of an amount mistakenly paid as service


tax could not be rejected on ground of limitation
CCE (A) v. KVR Construction (Kar.) under section 11B of the Central Excise Act,
1944.

Ankleshwar Taluka ONGC Land Loosers Travellers No


Co. OP. v. C.C.E., Surat-II (Guj.)

Since the burden of tax has been borne by the


CC us CE x & ST v. Indian Farmers Fertilizers Coop. respondent as a service reciepint, question of
Limited (All)(HC) unjust enrichment will not arise as per Sec 11B of
the Central Excise Act 1944)

The non-disclosure of the fact which, even if,


disclosed would not have attracted the charging
Naresh Kumar & Co. Pvt. Ltd v.UOI(Cal)(HC) section cannot be brought within the ambit of
suppression of fact for the purpose of extention
of limitation period.

8. Other Provisions

C.C.E. & S.T. (LTU), Bangalore v. Dell Intl. Services No


India P. Ltd. (Kar.)
Commissioner of Service Tax v.Associated Hotels Yes
Ltd. (Guj)(HC)

CC us & CE x. v. Ashok Kumar Tiwari Calender month

No. The HC directed the appellate authority to


entertain the appeal of the assessee and to pass
Chakiat Agencies v. UOI (Mad)(HC) appropriate orders on merits and in accordance
with law, after affording him an opportunity of
being heard.
Selected case laws (Indirect Tax Laws) applicable for No
Request to readers : SHARE NOTES, BE A PART OF SUCCESS

CHAPTER:1 BASIC CONCEPTS


S.NO Key Issue Detailes of Issue

Are the clearance of goods from DTA to Special


1 Chargeability Economic Zone chargeable to export duty under
the SEZ Act, 2005 or the Customs Act, 1962?

2. Levy Of And Exemptions From Customs Duty

Would countervailing duty (CVD) on an imported


product be exempted if the excise duty on a like
1 CVD exemption article produced or manufactured in India is
exempt?

Whether remission of duty is permissible under


section 23 of the Customs Act, 1962 when the
2 Remission U/s 23 remission application is filed after the expiry of the
warehousing period (including extended
warehousing period)?

4. Classification of Goods

Where a classification (under a Customs Tariff head)


is recognized by the Government in a notification at
1 Classification any point of time, can the same be made applicable
in a previous classification in the absence of any
conscious modification in the Tariff?

Whether the mobile battery charger is classifiable


2 Classification as an accessory of the cell phone or as an integral
part of the same?

(i) Will the 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
3 Recovery of excess drawback of any technical opinion or test? (ii) Whether a
separate notice is required to be issued for
payment of interest which is mandatory and
automatically applies for recovery of excess
drawback?
5. Valuation Under The Customs Act, 1962

Can the value of imported goods be increased if


department fails to provide to the importer,
1 Valuation evidence of import of identical goods at higher
prices?

7. Importation, Exportation and Transportation of Go

Can the time-limit prescribed under section 48 of


the Customs Act, 1962 for clearance of the goods
1 Timelimit U/S 48 and 46 within 30 days be read as time-limit for filing of bill
of entry under section 46 of the Act?

8. Warehousing

Whether the issue of the imported goods


Warehousing and issue at warehoused in the premises of 100% EOU for
1 100% EOU manufacture/production/processing in 100% EOU
would amount to clearance for home consumption?

9. Demand & Appeals

Is the adjudicating authority required to supply to


Adjudicating authority - the assessee copies of the documents on which it
1 Requantification proposes to place reliance for the purpose of
requantification of short-levy of customs duty?

Can Tribunal condone the delay in filing of an


Condonation of the delay in application consequent to review by the Committee
2 filing of an application of Chief Commissioners if it is satisfied that there
was sufficient cause for not presenting the
application within the prescribed period?

Whether extended period of limitation for demand


of customs duty can be invoked in a case where the
3 Period of limitation assessee had sought a clarification about
exemption from a wrong authority?

Can a writ petition be filed before a High Court


4 Writ petition which does not have territorial jurisdiction over the
matter?

Can delay in filing appeal to CESTAT due to the


Delay in filing appeal to
5 mistake of the counsel of the appellant, be
CESTAT condoned?

Can a writ petition be filed against an order passed


6 Writ petition by the CESTAT under section 9C of the Customs
Tariff Act, 1975?
Can customs duty be demanded under section 28
Customs duty on smuggled and/or section 125(2) of the Customs Act, 1962
7 goods from a person dealing in smuggled goods when no
such goods are seized from him?

10. Refund

Whether interest is liable to be paid on delayed


refund of special CVD arising in pursuance of the
1 Interest on delayed refund exemption granted vide Notification No. 102/2007
Cus dated 14.09.2007?

Is limitation period of one year applicable for


2 Limitation period claiming the refund of amount paid on account of
wrong classification of the imported goods?

12. Provisions relating to Illegal imort, Illegal Export, Confiscation, Pena

Benefit of exemption meant Whether the benefit of exemption meant for


1 imported goods can also be given to the smuggled
for imported goods goods?

Is it mandatory for the Revenue officers to make


Revenue officers available the copies of the seized documents to the
2 responsibility person from whose custody such documents were
seized?

Reexportation of smuggled Whether the smuggled goods can be re-exported


3 from the customs area without formally getting
goods them released from confiscation?

Can penalty for short-landing of goods be imposed


on the steamer agent of a vessel if he files the
Penalty for short-landing of Import General Manifest, deals with the goods at
4 goods different stages of shipment and conducts all affairs
in compliance with the provisions of the Customs
Act, 1962?

Where goods have been ordered to be released


Sec 110A and Sec 110(2) of provisionally under section 110A of the Customs
5 the Customs Act Act, 1962, can release of goods be claimed under
section 110(2) of the Customs Act, 1962?

Whether mere dispatch of a notice U/S 124(a)


Notice U/S 124(a) and U/S would imply that the notice was "given" within the
6 110(2) meaning of section 124(a) and section 110(2) of the
said customs Act, 1962?
13. Settlement Commission
In case of a Settlement Commission's order, can the
Applicability of
1 settlementcommission's order assessee be permitted to accept what is favourable
to them and reject what is not?

Judicial review of the order of Is judicial review of the order of the Settlement
Commission by the High Court or Supreme Court
2 the settlement commission by under writ petition/special leave petition,
the HC or SC permissible?

Does the Settlement Commission have jurisdiction


Settlement commission
3 to settle cases relating to the recovery of drawback
duration erroneously paid by the Revenue?

15. Miscellaneous Provisions

Whether any interest is payable on delayed refund


Interest on delayed refund of of sale proceeds of auction of seized goods after
1 sale proceeds of auction of adjustment of expenses and charges in terms of
seized goods section 150 of the Customs Act, 1962?

Can a former director of a company be held liable


2 Liability of former director for the recovery of the customs dues of such
company?
direct Tax Laws) applicable for Nov 2016 exams
E NOTES, BE A PART OF SUCCESS (If possible)

CHAPTER:1 BASIC CONCEPTS


Case Law Decision

Tirupati Udyog Ltd. v. UOI (A.P.) No

f And Exemptions From Customs Duty

Rate of additional duty leviable U/S 3(1) of the


Customs Tariff Act, 1975 would be only that which is
payable under the Central Excise Act, 1944 on a like
article. Therefore, the importer would be entitled to
Aidek Tourism Services Pvt. Ltd. V. CCus.(SC) payment of concessional/ reduced or nil rate of
countervailing duty if any notification is issued
providing exemption/remission of excise duty with
respect to a like article if produced/manufactured in
India.

CCE v. Decorative Laminates (I) Pvt. Ltd. (Kar.) No

4. Classification of Goods

Keihin Penalfa Ltd. v. Commissioner of Customs


(S.C.) Yes

Accessory. Battery charger cannot be held to be a


State of Panjab v. Nokia India Private Limited (SC) composit part of the cell phone, but is an
independent product which can be sold seperately
without selling the cell phone.

M/s CPS Textiles P Ltd. v. Joint Secretary (Mad.) (i) Yes , (ii) No
uation Under The Customs Act, 1962

No, The value of imported goods could not be


enhanced on the basis of value of identical goods as
Gira Enterprises v. CCus.(SC) department was not able to provide evidence of
import of identical goods higher prices

n, Exportation and Transportation of Goods

The High Court however held that the time-limit


prescribed under section 48 for clearance of the
CCus v. Shreeji Overseas (India) Pvt. Ltd. (Guj.) goods within 30 days cannot be read into section 46
and it cannot be inferred that section 46 prescribes
any time-limit for filing of bill of entry.

8. Warehousing

Paras Fab International v. CCE (Tri. – LB) No

9. Demand & Appeals

Kemtech International Pvt. Ltd. v. CCus. (S.C.) Yes

Thakker Shipping P. Ltd. v. Commissioner of


Customs (General) (S.C.) Yes

Uniworth Textiles Ltd. vs. CCEx. (SC) No

No,The filing of the writ petition before HC which


Neeraj Jhanji v. CCE & Cus.(SC) does not have territorial jurisdiction over the matter
was not at all bona fide.

Margara Industries Ltd. v. Commr. of C. Ex. & Cus. Yes


(Appeals) (All.)

Rishiroop Polymers Pvt. Ltd. v. Designated No


Authority (Bom.)
CCus. v Dinesh Chhajer (Kar.) No

10. Refund

KSJ Metal Impex (P) Ltd. v. Under Secretary (Cus.) Yes


M.F. (D.R.) (Mad.)

Parimal Ray v. CCus. (Cal.) (HC) No

imort, Illegal Export, Confiscation, Penalty & Allied Provisions

CCus. (Prev.), Mumbai v. M. Ambalal & Co. (SC) No

Manish Lalit Kumar Bavishi v. Addl. DIR. General, Yes


DRI (Bom.)

In Re: Hemal K. Shah 2012 (GOI) No

Caravel Logistics Pvt. Ltd. v. Joint Secretary (RA)


(Mad.) Yes

Akanksha Syntex (P) Ltd. v Union of India E.L.T. 49 No


(P & H)

Since the petitioners did not receive the notice U/S


124(a) within the time stipulated in section 110(2)
Purushottam Jajodia v. Director of Revenue of the Act, such notice will not considered to be
Intelligence (Del.)(HC) "given" by the Department within the stipulated
time, i.e. before the terminal date.
13. Settlement Commission

Sanghvi Reconditioners Pvt. Ltd. V. UOI (SC) No

Saurashtra Cement Ltd. v. CCus. (Guj.) No

Union of India v. Cus. & C. Ex. Settlement Yes


Commission (Bom.)

15. Miscellaneous Provisions

Vishnu M Harlalka v. Union of India (Bom) Yes

Anita Grover v. CCEx. (Del.) No