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Guiding Principles for determination of Place of Effective Management (POEM) of a Company
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CASE LAWS
2017-TIOL-30-SC-CX
TEJO ENGINEERING SERVICES PVT LTD Vs CCE: SUPREME COURT OF INDIA (Dated: January 16, 2017)
CX - Captive consumption - CESTAT had held that CAS-4 is a Standard which has been developed in consultation with the professional body on the subject and being a Standard, it has application in all pending matters - Tribunal had while remanding matter also held that the authorities were not justified in adding cost of servicing and profit arising therefrom to the value of the goods because Assessment was of manufactured lagging sheets and not of service - special leave petition before Supreme Court. Held: SLP dismissed on ground of delay: Supreme Court [para 1]
Petition dismissed
2017-TIOL-29-SC-ST
CCE & ST Vs SOBHA DEVELOPERS LTD: SUPREME COURT OF INDIA (Dated: January 17, 2017)
ST - Decision of the Court in Larsen and Toubro Limited - 2015-TIOL-187-SC-ST does not require a reconsideration upon reading of the judgment and having regard to the provisions of FA, 1994 and FA, 2007 - Present Appeals squarely covered by the decision and consequentially are dismissed: Supreme Court [para 1]
Appeals dismissed
2017-TIOL-158-HC-AHM-CX
CCE & ST Vs PRAVINBHAI NARSHIBHAI PATEL: GUJARAT HIGH COURT (Dated: December 7, 2016)
Writ jurisdiction – Tax Appeal – Bar created under Section 35G – Appeal maintainability before High Court–One of the issue/question involved in the Tax Appeals is with respect to rate of duty/value of goods, among other things – Appeal before High Court under Section 35G of the Central Excise Act against impugned common judgment and order passed by the CESTAT held not maintainable.
On plain reading of Section 35G of the Act, if amongst other things, question with respect to determination of any question having a relation to the rate of duty of excise or to the value of goods for the purpose of assessment arise, an appeal shall not lie to the High Court. In such a situation, the appeal shall lie before the Hon'ble Supreme Court, in light of provision of Section 35L of the Central Excise Act. Therefore, submission made by advocate appearing on behalf of the Revenue that as other issues/questions arise in the present appeal [other than the issue/question with respect to rate of duty/value of goods also], the present Appeals before this Court under Section 35G of the Act be entertained, cannot be accepted. If such an interpretation is accepted, in that case, there shall be two appeals before two different forums against the very/one judgment and order passed by the Tribunal. Under the circumstances, considering Section 35G of the Central Excise Act when it is not in dispute that one of the issue/question involved in the present Tax Appeals is also with respect to rate of duty/value of goods, among other things, the present Appeals before this Court under Section 35G of the Central Excise Act against the impugned common judgment and order passed by the Tribunal shall not be maintainable.
Thus, the preliminary objection raised by the counsel for the respondent is accepted and it is held that the present appeals against the impugned common judgment and order passed in Appeal under Section 35G of the Central Excise Act shall not be maintainable. It will be open for the Department to adopt appropriate recourse to law and approach appropriate forum; as may be available under the provisions of the Central Excise Act. The Appeals are dismissed as not maintainable, however, without further entering into the merits of the case. (Para 5, 7, 8)
Appeal dismissed
2017-TIOL-219-CESTAT-DEL
SHREE CEMENT LTD Vs CCE: DELHI CESTAT (Dated: October 28, 2016)
Central Excise - Valuation - Determination - Sale of cement directly to the consumer without MRP/Retail Sale Price marking held does not qualify the criteria of “Retail Sale” - Packaged Commodity Rules inapplicable to such sale - Denial of concessional duty benefit in terms of Sl. No. 1C of Notification No. 4/2006-CE is unjustified - Impugned order set aside.
The facts show that sales were made directly to the consumers at the negotiated price and no RSP were marked on the packages. The bags used for such supply were also marked as "MRP not applicable for institutional / industrial / Government supplies not for re-sale". In terms of 3rd proviso to the Notification No. 4/2006-CE where the retail sale price of the goods is not required to be declared under PC Rules and thus the same was not declared, and assessee contends that the duty shall be determined as in the case of goods cleared in other than packaged form.
The Tribunal vide the final order No. 53855-53856/2016 dated 28.09.2016 held that the definition of retail sale as per Rule 2(q) of the PC Rules are to be examined before deciding the nature of sale. Admittedly, the cement without marking of RSP has been sold by the appellant directly to consumers and as such these transactions do not qualify as "retail sale" in view of the statutory definition which requires sale, distribution or delivery of such commodity through retail sale agency or other instrumentality for consumption by an individual. In the present case, the sales without RSP marking is direct to the consumer not through an intermediary as such the criteria for "retail sale" has not been fulfilled. As such, the Tribunal held that whenever such direct sale is affected application of PC Rules will not be governed by Rule 3. In view of the Tribunal order, the impugned order is set aside allowing the appeal. (Para 4-6)
Appeal allowed
2017-TIOL-218-CESTAT-MUM + Story
KONKAN SYNTHETICS FIBRES Vs CC: MUMBAI CESTAT (Dated: December 21, 2016)
Cus - Refund - section 27 of the Customs Act, 1962 - Once the appellant protested the matter, the assessing officer is duty bound to pass a speaking order on merits - before deciding the refund claim, the assessing officer was supposed to pass a speaking order on the assessment of bill of entry - Matter remanded: CESTAT [para 4]
Matter remanded
