2010-TIOL-NEWS-061, Dated: Monday, March 15, 2010

Consolidated list of default authorized operations which can be undertaken by the developer/approved co-developer by default from the date of notification – Reg.

Condonation of delay in filing appeal - No one shall prefer to prejudice himself when there was huge demand faced by him - Causes of justice cannot be overlooked by technicality of delay – delay within condonable period as available within the discretionary power conferred to Commissioner(A) - appeal of the appellant should not be thrown out from the process of justice at the thresholds – Matter remanded for examination in light of SC decision in Mst Katji and others (2002-TIOL-444-SC-LMT):DELHI CESTAT;

Once a service tax paid on input services has not been taken at all, the provisions of Rule 6(3)(c) of Cenvat Credit Rules would not be applicable - Commissioner's view that even if cenvat credit on common input services is not taken, appellant is required to maintain separate accounts not proper - unless the department shows that appellants have availed credit of input services which have also been used for providing any of the exempted services, the demand cannot be sustained – Matter remanded for verification of actual position:AHMEDABAD CESTAT;

CENTRAL EXCISE SECTION

2010-TIOL-169-HC-MAD-CX.pdf + hc story.pdf

M/s Australian Foods Ltd Vs CCE, Chennai (Dated : March 5, 2010)

Central Excise – Settlement Commission has no jurisdiction to decide questions of law and facts- Though the assessee has admitted the short levy on dough and paid the duty thereof, since he is raking up the plea that he is eligible to claim benefits under Section 4-A of the Central Excise Act instead of Section 4, that point goes out of the jurisdiction of the Settlement Commission, since it has not been vested with the power to decide such a question of direct assessment. By such an act, the Settlement Commission has usurped the jurisdiction of the adjudicating authorities and as has been rightly commented on the part of the Revenue, by the impugned order, the Settlement Commission has set a bad precedent: MADRAS HIGH COURT;

2010-TIOL-166-HC-AHM-CX.pdf

CCE & CC, Ahmedabad Vs M/s Fine Care Bio Systems (Dated : February 25, 2010)

Notification 5/2006-CE(N.T) dated 14.03.2006 - Refund of Cenvat credit - whether can be allowed only in respect of input or input service used in manufacture of final product cleared for export - LB decision in ABB Ltd & Ors [2009-TIOL-830-CESTAT-Bang-LB] stayed by Karnataka HC- Questions of law formulated - Revenue appeal admitted:GUJARAT HIGH COURT;

2010-TIOL-402-CESTAT-MUM.pdf + glaxo story.pdf

M/s Glaxo Smithkline Pharmaceuticals Ltd Vs CCE, Mumbai (Dated: December 12, 2009)

Spent Palladium Catalyst is not excisable – Prima facie case in favour of the appellant – Pre-deposit waived and stay granted in respect of duty and penalty:MUMBAI CESTAT;

2010-TIOL-399-CESTAT-DEL.pdf

CCE, Allahabad Vs M/s Bajaj Hindustan Sugar (Dated: December 29, 2009)

Rule 25(1) of Central Excise Rules,2002 prescribes an upper limit of penalty and within this upper limit, the adjudicating authority has discretion to impose any penalty; – Revenue appeal for enhancement of penalty rightly dismissed by Commissioner(A) – CESTAT - LB decision in CCE, Bhopal vs Rama Wood Craft(P) Ltd (2008-TIOL-615-CESTAT-DEL-LB) followed.

If the order is partly favourable to the assessee and partly favourable to the Department and the assessee does not file an appeal within the specified time but the department chooses to file the appeal against the findings adverse to it, the other side, as per the provisions of Section 35E(4) read with Section 35B(4) gets an opportunity to file a memorandum of cross objection in which they can reopen the issue decided against them – Commissioner(A) holding otherwise is improper in law – matter remanded to consider respondent's plea:DELHI CESTAT;

2010-TIOL-398-CESTAT-DEL.pdf

M/s Cimmco Ltd Vs CCE, Indore (Dated: October 6, 2009)

Central Excise – Eligibility of concessional rate of duty under Notification No. 223/88-CE for castings – Allegation that castings were subject to boring, welding, pencil grinding and gauging rendering them ineligible for concessional rate of duty – Statement given by witness in one context has to be understood only in that context – No material on record to establish as to whether cast articles were subjected to machining or not – Findings of Commissioner to justify denial of benefit under Notification No.223/88-CE not sustainable, liable to be set aside – However, pendency of provisional assessments not a bar to invoke provisions of s.11A – Duty demand and imposition of penalty set aside:DELHI CESTAT;

CUSTOMS SECTION

NOTIFICATION

ctariff10_033.pdf

Government exempts import of many dairy products from custom duty;

ctariff10_032.pdf

Customs exemption for certain types of defence goods extended upto 2019;

CASE LAWS

2010-TIOL-401-CESTAT-MAD.pdf

M/s Acer India Pvt Ltd Vs CC, Chennai (Dated: November 9, 2009)

Customs – classification – data projectors principally used for data projection by being connected to either a laptop or a desktop computer are classifiable under Tariff item 8528 6100 – merely because DVDs can also be played from computers and their video compatibility does not come in the way of the impugned goods being classified under SH 8528.61 so long as the principal use of all such projectors with laptop and desktop computer systems – benefit of exemption under Notification No 24/2005 is admissible :CHENNAI CESTAT;