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STO 1999 Cal 31
[Date of Order: 1999-06-23]

Customs : Meaning and purport of the expressing 'given' as used in Section 110(2) : Section 153 of the Act controls Section 10(2) of the Act and a Notice which is required to be given under Section 110(2) should be given in the manner provided in Section 153 and by no other means.

The word 'serve' in legal connotation means to make legal delivery (a process or writ) on or upon (a person) or to present (a person) with a writ (See the Shorter Oxford English Dictionary re-print of 1988 at page 1949). Therefore, in legal parlance service is giving. Under Section 153 of the Act, service is either by personal delivery (tender) or by putting in into transmission by registered post in case both are possible.Thus, the legal conclusion would be that service of a notice will be complete either by tendering or by sending the same by registered post, since the legislature has equated both the situations by using the word 'or'.In the event of the notice is tendered, the date on-which the same was tendered should be taken as the date of giving of notice, but if the other option is exercised and the notice is sent by registered post the date of sending the notice should be the date of giving of notice as contemplated by Section 110(2) of the Act. Any other construction will render the legislative intent of equating tender with sending by registered post office."(Para 5).

Meaning of the expression 'given' as used in Section 124 and combined reading of Sections 110(2), Section 124(a) and Section 153: "In terms of the aforementioned provisions it is the duty of the Customs authorities to show that notice under Clause (a) of sub-section (1) of Section 124 was issued to the owners and failure to issue such notice within six months of seizure of the goods would entitle the owner the return of the goods from whose possession they were seized.

Six months times under Section 110 starts from the date of despatch of notice by post. Reference in this connection may be made to Ambali Karthikeyan v. The Collector of Customs & Central Excise & Ors. reported in 1971 Taxation Law Reports, page 699 at page 700. Section 110(2) in my opinion, has to be read with Section 153 of the Act, in terms whereof a mandate has been given as to how a notice under the Act should be served. In other words Section 153 of the Act provides for the manner as regards service of notice issued under the Act.Section 153 provides not only for service of notice but also of orders or decisions. Clause (a) of Section 153 in no uncertain terms prescribes that any order or decision passed or any summons or notice issued under the Act shall be served, inter alia, by tendering the same or sending it by registered post to the person for; whom it is intended or to his agent. The Parliament in its wisdom while prescribing the manner of service of notice has used a terminology of sending and not serving. In this situation there cannot be any doubt that a notice can be served either by tendering the same to the owner or sending it by registered post or to his agent."(Para 6).

 

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CEO 1999 Mad 47
[Date of Order: 1999-04-11]
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STO 1999 Kar 24
[Date of Order: 1999-03-15]

Central Excise: Condonation of delay: Right of appeal is a statutory right and therefore the Parliament has the power to put restriction on the exercise of such power. Simply because, the right of appeal cannot be exercised after the expiry of six months, the proviso cannot be considered as unreasonable.

In Gokak Mills v. Commissioner of Workmen's Compensation [ILR 1994 Kar. 1982] pre-deposit of award amount was not considered to be making the appeal as illusory or arbitrary. This decision was given following the judgment in Anant Mill Co. v. State of Gujarat [AIR 1975 S.C. 1234]. The only point which has to be seen is whether the restriction imposed in restricting the delay of filing of appeal is violative of any provisions of the Constitution. Even the right to carry on the business could be with a reasonable restriction. It is not that the demand created by an authority under the Act is made absolute without any right of appeal. The provisions of Section 35 therefore cannot be considered to be violative of any provision of the Constitution of India.(Para 5).
Petition dismissed.

 

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STO 1998 AP 40
[Date of Order: 1998-12-20]

Central Excise: Condonation of delay: In view of the specific provision contained in the proviso to Section 35(1) of the Central Excise Act, the condonation of delay beyond the period of 90 days does not arise.

Appeal dismissed.

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STO 1998 Raj 5
[Date of Order: 1998-11-24]

Service Tax: Stay: Operation and implementation of the Notification No. 53/98-Service Tax, dated 7-10-1998, shall remain stayed(Para 4).

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CEO 1998 Cal 14
[Date of Order: 1998-09-22]
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CIO 1998 Del 7
[Date of Order: 1998-07-29]
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STO 1998 Cal 37
[Date of Order: 1998-07-02]

Central Excise: Stay application and waiver of pre-deposit: While considering the question of dispensions of provisions of pre-deposit under Section 35F of the Central Excise Act, 1944, and whether such deposit would cause undue hardship to the appellant, whether the appellant has got a prima facie case is a relevant factor to be taken into consideration for deciding the question of undue hardship.(Para 18). Tribunal did not take into consideration unsecured loans, although other factors were taken into consideration while considering the current liabilities. The question which is relevant for consideration is not whether the tax will have priority over unsecured loans. Question is as provided under Section 35F itself, whether the pre-deposit will cause undue hardship and in determining question. Consideration of the amount of unsecured loan cannot be ruled out and is a relevant consideration.(Para 20,21). Proper application of mind has not been made on such questions by the Tribunal.(Para 26). The Tribunal shall now consider the question of stay and waiver of pre-deposit as prayed for by the petitioner afresh in accordance with law(Para 28).

Appeal disposed.

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STO 1998 Guj 21
[Date of Order: 1998-04-28]

Central Excise: Rule 20 of CEGAT (Procedure) Rules, 1982: The provisions contained in Section 35C(1) of the Excise Act, as well as Section 129B(1) of the Customs Act, to the effect that "the Appellate Tribunal may pass such orders thereon" means that the Appellate Tribunal must pass the order on merits of the appeal as well as on the issue in controversy and, therefore, that part of Rule 20 which enables the Appellate Tribunal to dismiss the appeal for default of appearance of the party, is ultra vires those provisions.(Para 3). It is declared that the Appellate Tribunal has no power to dismiss an appeal for non-appearance of the appellant and the appeal should be decided on merits.(Para 11).

Petitions succeed.

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CEO 1998 All 15
[Date of Order: 1998-03-31]
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STO 1998 Guj 52
[Date of Order: 1998-03-16]

Customs: Rectification application by the respondent: As a general rule, a judgment, decree or final order once drawn up and signed, cannot subsequently be altered, varied or amended in any manner by the Court or Tribunal which pronounced it. However, there is well recognised exception to the said general rule. It is a maxim of law that an act of a Court shall prejudice no man actus curiae neminem gravabit. Every Tribunal has an inherent jurisdiction, apart from statutory jurisdiction to correct any error committed by itself. It can invoke such jurisdiction and can exercise it in an appropriate case when its conscience is aroused and if it considers that without the exercise of such powers, the ends of the justice would be frustrated. The whole jurisdiction of the Tribunal is to pass a just order in the larger interest so that justice is done both to the assessee and the revenue. The law on the subject has been reviewed and stated by the Supreme Court in its judgment rendered in the case of S. Nagaraj and Others v. State of Karnataka and Another, JT 1993 (5) S.C. 27. What is stressed by the Apex Court is that quite apart from the inherent power that every Tribunal or court to do justice has, if it is established to the satisfaction of the Tribunal that there was sufficient cause, the Tribunal must set aside the ex parte order, restore the appeal to its file and hear it fresh on merits. In view of the principle laid down by the Supreme Court in the above-noted decision, there is no manner of doubt that power to recall or review its earlier order is available to the Tribunal for doing complete justice between the parties and the impugned order cannot be regarded as rendered without jurisdiction. (Para 6).

Petition dismissed.

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CIO 1998 Bom 8
[Date of Order: 1998-02-05]
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CEO 1997 Bom 33
[Date of Order: 1997-11-03]
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STO 1997 Mad 2
[Date of Order: 1997-10-22]

Advertising Agency Services: Board Circular M.F. (D.R.) Letter F. No. 341/43/96-TRU, dated 31-10-1996 does not ultra vires the top quality fake watches online provisions of the Constitution of India, nor is it against Section 95 of the Finance Act.

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STO 1997 Mad 13
[Date of Order: 1997-09-18]

Customs: Restoration of appeal: Principals of natural justice: At the time when the appeal was taken up for hearing by the Tribunal, admittedly the Benches were constituted, and a right was given to the importer and exporter to have the pending appeal transferred to the Bench, where they are doing business. If such a request is made, the rules provided that the Tribunal is bound to transfer the same to the Bench. In this case, admittedly a request was made on 15-11-1996. Even an oral request is sufficient and no written application is necessary. In this case, the petitioner has sent a written request for transferring the case to Madras Bench, and the 1st respondent has also received the same. He was justified in absenting himself, when the matter was being heard by the Tribunal in New Delhi. When there is statutory duty on the part of the Tribunal to transfer the case, disposing of the same on merits, without hearing the petitioner is not proper. It violated the principles of Natural Justice.(Para 9). Appeal be restored and transferred to the Madras Bench.(Para 10).

Writ petition allowed.

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STO 1997 All 23
[Date of Order: 1997-07-31]

Central Excise: Penalty: As per decision of Supreme Court reported in STO 1995 SC 21 Collector of Central Excise v. H.M.M. Limited the question of penalty would arise only if the department is able to sustain its demand under the first notice.(Para 4,5)

Petition allowed.

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STO 1997 Bom 5
[Date of Order: 1997-07-29]

Service Tax: Validity of service Tax on courier agencies: Imposing the service tax was well within the legislative competence of the Parliament under Article 248 r.w. entry 97 of list 1 of the 7th Schedule to the Constitution of India viz.; the residuary entry. As far as granting stay or injunction in the matter of imposition and or collection of taxes is concerned, the Supreme Court has clearly indicated in the case of Siliguri Municipality and Others v. Amalendu Das and Others - AIR 1984 SC 653 the precaution to be exercised by the courts. The grant of stay in tax matters should be an exception and not the rule. No exceptional circumstances have been pointed out and hence we must go by the rule. (Para 2,3).

Prayer for stay and/or injunction is rejected.

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STO 1997 Guj 1
[Date of Order: 1997-07-22]

Advertising Services: There is a clear distinction best fake watches online store between the advertisement and the advertising services. The Court has very little scope to interfere on the rate of tax. This is not a tax on any profession, trade, calling or employment, but is in respect of the service rendered.

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CEO 1997 Cal 32
[Date of Order: 1997-06-19]
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CIO 1997 Mad 11
[Date of Order: 1997-06-14]
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