when Notice served at old address of assessee was void

Notice served at old address of assessee was void when assessee had already informed new address to department

HIGH COURT OF BOMBAY

Balaji Marbles

v.

Union of India

S.C. DHARMADHIKARI AND SUNIL P. DESHMUKH, JJ.

WRIT PETITION NO. 1805 OF 2015

MARCH  2, 2015 

Section 153 of the Customs Act, 1962, read with section 83 of the Finance Act, 1994 and section 37C of the Central Excise Act, 1944 - Service of decisions, orders, summons, etc. - Section 153(a) provides for 'service' of orders, notices, etc. by tendering it personally or sending it by registered post/approved courier - When assessee has informed of his changed address to department, service under section 153(a) ought to be effected at changed address - It is only when service is not possible as per section 153(a) that affixation of order, decision, summons or notice on notice board of customs house is permitted under section 153(b) [Para 5] [In favour of assessee]

Section 129A of the Customs Act, 1962, read with section 35B of the Central Excise Act, 1944 and section 86 of the Finance Act, 1994 - Appeals - Condonation of delay - Appellate Tribunal - Assessee explained that it had informed department of its new address on 12-5-1999 but despite that adjudication order dated 10-3-2008 was served at old address and returned with postal remark 'left' - Assessee claimed that it came to know of adjudication order only when recovery was initiated and said order was received on 20-6-2013 and, therefore, appeal filed on 23-6-2013 was valid - Tribunal held that since order was affixed in customs house, hence, service was complete under section 153(b) - HELD : Since adjudication order was not served at new address, there was no complete service under section 153(a) and hence, service under section 153(b) cannot be resorted to - Time-limit for filing appeal would run only from date of service/knowledge of adjudication order, which, in this case, is 20-6-2013 - Hence, appeal was within time and was restored before Tribunal [Para 5] [In favour of assessee]

Online Payment of EPF Mandatory

Employees’ Provident Fund Organisation
(Ministry of Labour & Employment, Govt. Of India)
Head Office
Bhavishya Nidhi Bhawan, 14- Bhikaji Cama Place, New Delhi — 110066
Fax: 011-26173022, Telephone: 26172685
No. Bkg.1(4)2010/Online Remittance /12871 , Date: 24th June 2015

To
 
All Regional P.F. Commissioner-I/In charge Regional & Sub-Regional Offices
 
Subject:  Mandatory Deposit of Contributions through Internet Banking.
 
Reference:      
i) MoL&E Notification No. G.S.R. 360(E) dated 05.05.2015.
ii) HO Circular of even No. dated 22.06.2015
 
Sir/Madam,
 
Please refer to the above said subject.
 

2.  The Central Government in exercise of the powers conferred by section 5 read with sub-section (1) of section 7 of the EPF&MP Act 1952 has notified amendments in Paras 38(1) and 48 of EPF Scheme, 1952 making it mandatory for employers to pay the statutory contributions through Internet Banking.

3.  In exercise of powers conferred to the Central Provident Fund Commissioner under amended para 38(1) of EPF Scheme, 1952, it has been allowed vide order of even No. dated 24.06.2015 that an employer who makes payment of less than Rupees one lakh in a particular month as contributions under Employees’ Provident Funds and Miscellaneous Funds Act, 1952 and Schemes framed thereunder, shall have the option to make such payments through bank drafts or banker’s cheques or cheques drawn only on the local bank as was being done earlier. A copy of the said order is enclosed for information. This order shall be valid upto the month of September, 2015. Thereafter, it shall be mandatory for all employers to make payments electronically through internet banking. The employers remitting contribution below Rs. 1 lakh per month shall, however, have the option to remit such dues through the internet banking even during the interim period upto September, 2015.

4.  The employers may be advised through e-mail/SMS/press release for depositing contributions through Internet Banking as specified above.

Yours faithfully
(Sanjay Kumar)
RCFA

Employees’ Provident Fund Organisation
(Ministry of Labour & Employment, Govt. Of India)
Head Office
Bhavishya Nidhi Bhawan, 14- Bhikaji Cama Place, New Delhi — 110066
Fax: 011-26173022, Telephone: 26172685
No. Bkg.1(4)2010/Online Remittance /12870 , Date: 24th June 2015

ORDER

Ministry of Labour & Employment vide notification no. G.S.R. 360(E) dated 5th May, 2015 has amended Para 38(1) of the EPF Scheme, 1952. The Central Government has made it mandatory for employers to pay statutory contributions electronically through Internet Banking only.

2. In exercise of powers conferred to the Central Provident Fund Commissioner under amended para 38(1) of EPF Scheme, 1952, it is hereby ordered that an employer who makes payment of less than Rupees one lakh in a particular month as contributions under Employees’ Provident Funds and Miscellaneous Funds Act, 1952 and Schemes framed thereunder, shall have the option to make such payments through bank drafts or banker’s cheques or cheques drawn only on the local bank as was being done earlier. This order is being issued considering the fact that many of the participating employers having smaller work force may not readily have facility of internet banking.

3. This order shall be valid upto the month of September, 2015. Thereafter, it shall be mandatory for all employers to make payments electronically through internet banking.

(K.K. Jalan)
Central Provident Fund Commissioner

Delay in filing refund claim due to terrorist attack is condonable

CESTAT, MUMBAI BENCH

Newstech (India) (P.) Ltd.

v.

Commissioner of Customs, Mumbai*

ANIL CHOUDHARY, JUDICIAL MEMBER

FINAL ORDER NO. A/397/2014-WZB/C-IV(SMB)
APPEAL NO. C/783/2010-MUM

DECEMBER  23, 2013 

Section 27, read with section 25, of the Customs Act, 1962 , section 83 of the Finance Act, 1994 and section 11B of the Central Excise Act, 1944 - Refund - Period of limitation - Department rejected refund claim filed on 1-12-2008 as barred by limitation on ground that it was not filed within 1 year from date of payment of duty on 26-11-2007 - Assessee argued that due to terror attack in Mumbai on 26-11-2008 and consequent disturbance of normal life, claim could be filed on 1-12-2008 (29-11-2008 and 30-11-2008 being Saturday and Sunday) - Commissioner (Appeals) held that delay in filing refund claim cannot be condoned, even if same is due to reasons beyond control of assessee - HELD : There is reasonable cause for filing refund claim on 1-12-2008 and delay is properly explained, which is only of 3 days beyond control - Hence, said delay was condoned and refund was ordered to be granted with interest, if otherwise eligible on merits [Para 4] [In favour of assessee]

Circulars and Notifications : Notification No. 102/2007-Cus., dated 14-9-2007

smuggling :Person aware are also liable for penalty

Person who was aware of smuggling but didn't intimate it to customs authorities was liable to penalty

HIGH COURT OF MADRAS

Commissioner of Customs, Trichy

v.

S. Janarthanan

R. SUDHAKAR AND R. KARUPPIAH, JJ.

C.M.A. NO. 93 OF 2009
M.P. NO. 1 OF 2009

FEBRUARY  27, 2015 

Section 114, read with sections 113 and 124 of the Customs Act, 1962 - Penalty - Smuggling/Illegal Export - In matter of attempted export of 'prohibited sandalwood' in guise of 'roofing tiles', department found that : (a) respondent was informed by exporting parties about said smuggling; (b) in spite of having knowledge, respondent did not inform same to Customs and was induced for monetary consideration to keep quiet; (c) his omitting to do action required by him under Customs Act, showed that he was involved in smuggling of sandal wood; and hence, department levied penalty on him - Tribunal held that respondent's omission was 'non-disclosure of attempted smuggling by others' and since such omission had not rendered goods liable for confiscation under section 113, penalty could not be levied on him - HELD : Respondent was complicit in act of smuggling, which render goods liable for confiscation under section 113 - He also abetted in doing such acts - Respondent is one among culprits, who attempted to smuggle sandalwood - Since respondent had knowledge about sandalwood being part of roofing tiles and he did not intimate same to customs authorities, he is liable for penalty [Paras 13 to 16] [In favour of revenue]

AIDS Control Program: Govt. exempts excise duty on medicines

Govt. exempts excise duty on medicines required for National AIDS Control Program

SECTION 5A OF THE CENTRAL EXCISE ACT, 1944 - POWER TO GRANT EXEMPTION FROM DUTY OF EXCISE - EXEMPTION TO ANTI-RETROVIRAL DRUGS (ARV DRGUS) AND DIAGNOSTICS AND EQUIPMENTS

NOTIFICATION NO.33/2015-CE, DATED 10-6-2015

In exercise of the powers conferred by sub-section (1) of section 5A of the Central Excise Act, 1944 (1 of 1944), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts the goods mentioned in column (1) of the Table below of the description specified in column (2) of the said Table from the whole of the duty of excise leviable thereon which is specified in the Schedule to the Central Excise Tariff Act, 1985 (5 of 1986), subject to the condition that the manufacturer produces at the time of clearance of the said goods, before the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise having jurisdiction, a certificate from an officer not below the rank of Deputy Secretary to the Government of India in the Ministry of Health and Family Welfare to the effect that the said goods are required for the National AIDS Control Programme funded by Global Fund to fight AIDS, TB and Malaria(GFATM):—

TABLE

(1)	(2)
Goods	Description
Anti-Retroviral Drugs (ARV Drugs)	Adult First Line - Zidovudine 300 mg + Lamivudine 150 mg + Nevirapine 200 mg, Zidovudine 300 mg + Lamivudine 150 mg, Tenofivir 300 mg + Lamivudine 150 mg, Tenofivir 300 mg + Lamivudine 300 mg, Nevirapine 200 mg, Efavirenz 600 mg, Stavudine 30 mg + Lamivudine 150 mg + Nevirapine 200 mg, Stavudine 30 mg + Lamivudine 150 mg, Abacavir 600 mg + Lamivudine 300 mg and Tenofivir 300 mg + Lamivudine 300 mg + Efavirenz 600 mg
	Adult Second Line - Atazanavir 300 mg Capsules, Ritonavir 100 mg tablets, Lopinavir 200 mg + Ritonavir 50 mg tablets
	Paediatric Drugs - Zidovudine 60 mg + Lamivudine 30 mg + Nevirapine 50 mg tablets, Stavudine 6 mg + Lamivudine 30 mg + Nevirapine 50 mg tablets, Abacavir 60 mg + Lamivudine 30 mg, Zidovudine 60 mg + Lamivudine 30 mg tablets, Stavudine 6 mg + Lamivudine 30 mg tablets, Nevirapine 50 mg tablets, Efavirenz 200 mg tablets, Lopinavir 100 mg + Ritonavir 25 mg tablets
Diagnostics and Equipments	Cluster of Differentiation (CD) 4 Kits / Reagents, HIV-DNA-PCR Kits for DNA Testing of Early Infant Diagnostics, Viral Load Kits, CD4 Machines, Viral Load Machines

2. Nothing contained in this notification shall have effect on or after the first day of April, 2016.

Transporting goods via route which didn't have check post : No Penalty

No penalty even when assessee was transporting goods via route which didn't have check post as he had genuine docs

[2015] 57 taxmann.com 425 (Rajasthan)

HIGH COURT OF RAJASTHAN

Assistant Commissioner of Commercial Tax, Bharatpur

v.

Mukesh Singh

Section 78 of the Rajasthan Sales Tax Act, 1994 - Penalty - For violation of provisions of Act - Competent Authority checked a vehicle transporting refined lude oil from Jaipur to Agra and having found that vehicle was moving on road which did not have check-post imposed penalty under section 78(10A) upon driver of vehicle - First Appellate Authority set aside penalty imposed upon driver - Tax Board upheld impugned order - Record showed that documents produced by driver were neither found to be incomplete nor forged one and only contention raised by revenue was that said documents did not bear stamp of any check-post - Whether imposition of penalty was not justified - Held, yes [Paras 3 and 4] [In favour of assessee]

Purchased Assets of Company in Liquidation inclusive of Taxes : Buyer isn't liable to sales tax

Buyer isn't liable to sales tax when he offered an amount inclusive of all taxes to purchase assets of company in liquidation

[2015] 58 taxmann.com 27 (SC)

SUPREME COURT OF INDIA

Hindustan Urban Infrastructure Ltd.

v.

Assistant Commissioner, Ernakulam

Section 5 of the Kerala General Sales Tax Act, 1963 - Levy of tax - On sale or purchase of goods- Official Liquidator, in order to settle liabilities of a company in liquidation, issued a notice inviting tenders in respect of sale of assets of said company - Appellant had offered its highest bid, which was inclusive of all statutory levies such as sales tax, etc. - Offer so made was accepted by Official Liquidator - Appellant, in order to move aforesaid assets beyond boundaries of State of Kerala, had requested Official Liquidator to indicate his sales tax registration number in sales tax certificate, which request was rejected - Whether there was a concluded contract between Official Liquidator and appellant - Held, yes - Whether since appellant had specifically indicated to Official Liquidator that offer made by it was inclusive of all statutory levies, liability to pay taxes could not be imposed on appellant - Held, yes [Para 10] [In favour of appellant]

Dont Approach Supreme Court if Tribunal proceeded on wrong facts

If Tribunal proceeded on wrong facts assessee had to file rectification application instead of approaching SC

[2015] 57 taxmann.com 269 (SC)

SUPREME COURT OF INDIA

Plasopan Engineers (I) (P.) Ltd.

v.

Commissioner of Central Excise

Section 35C, read with section 35L, of the Central Excise Act, 1944, sections 83, and 86 of the Finance Act, 1994 and section 129B of the Customs Act, 1962 - Appeals - Rectification of mistakes/review - Appellate Tribunal - Assessee claimed that 'doors and windows' manufactured by it are complete in all respects and are cleared in unassembled or disassembled form and, therefore, classifiable under Heading 3925.20 - Department claimed classification under sub-heading 3925.99 - Tribunal held in favour of revenue observing that 'doors and windows are removed by assessee in running length and are fabricated at side' - Assessee argued that aforesaid observations of Tribunal are factually incorrect and not arising from record - HELD : Since assessee's contention is factual in nature, remedy is to approach Tribunal by moving an appropriate application for rectification - Hence, present appeals were dismissed as withdrawn with liberty to file rectification application before Tribunal within 30 days from present judgment [Para 3] [In favour of assessee/Matter remanded]

Cenvat Credit on Capital Goods when They are not Owned

Credit on capital goods allowable even if they are not owned by assessee

[2015] 57 taxmann.com 404 (Bombay)

HIGH COURT OF BOMBAY

Commissioner of Central Excise

v.

Modernova Plastyles (P.) Ltd.

Rule 57Q, read with rule 57R, of the Central Excise Rules, 1944, rule 4, read with Rules 2(a) and 3, of the Cenvat Credit Rules, 2004 - Cenvat Credit - Conditions for allowing of - Capital Goods - Period 1997-98 and 1998-99 - Assessee was engaged in manufacture of plastic articles using injection moulding machines - Moulds, used in manufacture, were supplied to assessee by Original Equipment Manufacturers - Assessee took credit of said moulds as 'capital goods' - Department denied credit on ground that capital goods were neither owned, nor taken on lease/finance/hire-purchase; hence, credit could not be allowed to assessee - HELD : For taking credit of duty paid on said goods, it would not be necessary that capital goods shall either be owned by assessee or those shall be acquired by finance from financing agency - Denial of credit based on such ground is unsustainable - Having regard to prevailing legal position applicable to case of assessee, credit cannot be disallowed to assessee and it would be entitled to same [Paras 5 to 16] [In favour of assessee]

Cenvat Credit: Housekeeping and gardening services

Housekeeping and gardening services availed to maintain factory in eco-friendly manner are eligible for credit

[2015] 57 taxmann.com 131 (Madras)

HIGH COURT OF MADRAS

Commissioner of Central Excise and Service Tax

v.

Rane TRW Steering Systems Ltd.

Rule 2(l) of the Cenvat Credit Rules, 2004 - Cenvat Credit - Input service - Housekeeping Services - Assessee, manufacturer of parts of power steering systems, etc. took credit of 'housekeeping, landscaping and gardening' services - Department denied credit on ground that same has no nexus with manufacture and clearance upto place of removal - HELD : Where an assessee spends money to maintain their factory premises in an eco-friendly manner, tax paid on such services would form part of cost of final products and same would fall within ambit of 'input services' and, therefore, assessee is entitled to claim benefit - Hence, credit of services in question was allowed [Paras 7 to 9] [In favour of assessee]

Section 27,:No refund without challenging assessment order

Assessee can't claim exemption by way of refund without challenging assessment order

[2015] 57 taxmann.com 403 (Madras)

HIGH COURT OF MADRAS

Commissioner of Customs (Appeals)

v.

Ace Designers

Section 27, read with sections 46, 50 and 149, of the Customs Act, 1962, section 11B of the Central Excise Act, 1944 and section 83 of the Finance Act, 1994 - Refund - General - Assessee exported a machine but on non-receipt of payment therefor, re-imported same on 13-8-2001 - Re-import was assessed to 4 per cent Special CVD/SAD duty - Assessee claimed that it was eligible for exemption, but, in order to avoid demurrage, it had paid 4 per cent SAD and, therefore, it was entitled to refund of SAD duty paid - Assessee filed refund claim on 11-10-2001 - Department denied refund claim on ground that SAD was payable on re-imports also and in any case, no refund claim could be entertained so long as assessment order stood unchallenged and non-modified - HELD : Assessee had taken a new plea at time of refund claim by placing reliance on notification no.18/2000-Cus., which was not claimed in bill of entry, as assessed - Having not challenged order of assessment, assessee cannot, at a belated stage, claim refund by pressing into service another notification - Hence, refund claim was rejected as non-maintainable [Paras 12 to 15] [In favour of revenue]

Circulars and Notifications : Notification No.94/96-Cus dated 16-12-1996, Notification No.18/2000-Cus.N

Section 4 :Cost of packing for safe transport isn't includible in value of goods

Cost of packing/safety material meant for safe transport isn't includible in value of goods

[2015] 57 taxmann.com 296 (SC)

SUPREME COURT OF INDIA

Commissioner of Central Excise, Chennai

v.

Addisons Paints & Chemicals Ltd.

Section 4 of the Central Excise Act, 1944 - Valuation under Central Excise - Transaction value - Packing - Period prior to 1-7-2000 - Assessee, a manufacturer of paints and varnishes, used to pack them in tins and plastic containers, which were then put in carton boxes for purpose of transportation - Similarly, in another case, a manufacturer of parts of sheet glass used wooden packing for safety during transport - Assessees claimed that cost of cartons/wooden packing was not includible in value - HELD : Packing is includible in value only if it is done in order to put goods in marketable condition and not when goods are capable of reaching market without said packing - If goods are generally sold in wholesale market at "factory gate", use of cartons for transportation "from factory gate" for sale to individual customers or as stock transfers cannot be included in value - Similarly, since wooden packing is not a requirement for sale at "factory gate", same cannot be included in value [Paras 6 to 8] [In favour of assessee]