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Central Excise/Customs/IT/ any law
Once an issue is decided by the Supreme Court, the department is bound to suo moto apply the ratio in every case that comes before it: Bombay HC
THE Customs Department got it again from the High Court. The litigation loving department, which clogs our courts, for the simple reason that it has no respect for the judiciary, is once again at the receiving end of the Court's wrath. But the Department is lucky that most often, the courts are very kind to this irresponsible department.
The issue in this case before the High Court is really not that important, but the observations of the High Court are.
“Once the law was declared and the judgment of this Court was upheld by the Supreme Court, it is the duty of the respondents in every matter which came up before them and to which the judgment applied to have suo-moto applied the same without driving the party to move this Court.”
Central Excise:
Contractors, switches and control box used for defence vehicles are not parts of vehicles but fall under chapter 85 : Supreme Court
THE appellant, engaged in the manufacture of excisable goods filed classification list of their products with effect from 20.12.1996 claiming classification under Chapter Heading 8710 of the Schedule to the Central Excise Tariff Act, 1985. The goods in the classification list were described as parts of tanks and other armoured and motorized fighting vehicles under Chapter Sub- Heading 8710.00 of the Tariff Act. It is the contention of the appellants that the said goods are manufactured for Government of India, Ministry of Defence and are used in the tanks and armoured fighting vehicles. These goods are strictly manufactured as per drawing and design supplied by the customer i.e. Ministry of Defence. Since the goods are manufactured for use solely and principally for fitting into the tanks in armoured fighting vehicles of the Defence Department, the correct classification would be under Chapter sub-heading 8710.00.
On the other hand, the adjudicating authority relied upon Note 2(f) to Section XVII which excludes the goods i.e. electrical machinery and equipment falling under Chapter 85 and since the appellants' manufacture goods such as contractors, switches, control box etc. and are used for switching/protecting electrical circuits or for making connections to or in electric circuits, these are parts of electrical equipments falling under chapter sub- heading 8536.90.
Income Tax
Settlement Commission – Chairman has power to constitute Special Benches – ‘invalid' means ‘ non est ' : Bombay High Court
THE petitioners are husband and wife. The petitions have been filed pursuant to the rejection of their Applications by the Settlement Commission.
The power to constitute a Special Bench is conferred on the Chairman of the Commission under Section 245BA ( 5A ). It is, therefore, not a case of non-existence of power. The question is whether the petitioners can contend that because of the constitution of a Special Bench any prejudice has been occasioned to them. The only contention as urged is that the reasons for constitution of the Bench and the material relied upon for that purpose has not been disclosed. On a consideration of Section 245BA ( 5A ) of the Income Tax Act it is clear that power is conferred on the Chairman for disposal of a particular case to constitute a Special Bench.
Service Tax
Service Tax paid on outward transportation - Liquid Oxygen, Nitrogen and Medicinal gas delivered to customers in transport vehicles maintained at sub-zero temperatures – Cenvat Credit – As matter referred to Larger Bench, pre-deposit totally waived on Modification application : Tribunal
In the earlier version of this case, we had mentioned,
“Incidentally, none of the aforesaid Tribunal decisions found any mention in this order & probably this was the reason that although the matter has been referred to the Larger Bench, pre-deposit was ordered contrary to the Tribunal decision in Capital Paper Mills (P) Ltd, [] .”
Not that we would not like to take any credit but the fact is that the company filed a Miscellaneous Application seeking a modification of the Tribunal's order ordering a pre-deposit and argued on the above lines & guess what – they succeeded!
The Tribunal after hearing the appellant has held thus –
“Since there are conflicting decisions of the Co-ordinate Benches of the Tribunal on the subject matter and the issue has been referred to the Hon'ble President for constituting the Larger Bench for resolving it, it is appropriate that pre deposit of the Service Tax demanded in the instant case, where the issue involved is identical, is totally waived pending the outcome of the decision by the Larger Bench of the Tribunal. Therefore, the pre-deposit of the Service Tax demanded is totally waived of in modification of the Stay Order dated 25.10.2007 passed by this Tribunal, by which the applicants were directed to pre deposit Rs.1.25 lakhs within eight weeks. Ordered accordingly.”
Okay, so we would like to blow our trumpets – what's wrong – after all it makes sound sense to be a member of the TIOL family!
Until tomorrow with more DDT
Have a nice day.
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