2015 SCC Vol. 10 December 28, 2015 Part 5

Central Excise Rules, 1944 — Rr. 173-G, 9 and 49 — CENVAT Credit: Payment of duty through CENVAT Credit is as good as making payment through account current [prior to amendment of R. 8 of 2002 Rules inserting of sub-rule (3-A) vide Notification No. 17/05-C.E.(N.T.) dt. 31-3-2005 w.e.f. 1-4-2005]. Utilisation of CENVAT Credit, when facility for payment of duty fortnightly under R. 173-G is suspended, permissible. [Jayaswal Neco Ltd. v. CCE, (2015) 10 SCC 651]

Constitution of India — Art. 265 — Dead person’s estate — When may be taxed: To tax the dead is a contradiction in terms. Tax laws are made by the living to tax the living. What survives the dead person is what is left behind in the form of such person’s property. A dead person’s property, in the form of his or her estate, cannot be taxed without the necessary machinery provisions in tax statute concerned. Recovery of duty assessed against dead sole proprietor/manufacturer from legal representatives/estate of deceased assessee, not proper. Legal representatives are not liable to pay duty and other sums assessed against deceased assessee. [Shabina Abraham v. CCE & Customs, (2015) 10 SCC 770]

Contract and Specific Relief — Contractual Obligations and Rights — Privity and Third parties’ obligations and rights: As contract was entered into between company ONGC (awarder/employer) and company HSL (head contractor) regarding certain work to be carried out by HSL for ONGC and there was engagement of a sub-contractor (i.e. EOL), in terms of the above contract, by HSL to get the said work done, claim of payment by sub-contractor EOL for the work done, against ONGC, not sustainable. [Essar Oil Ltd. v. Hindustan Shipyard Ltd., (2015) 10 SCC 642]

Excise — Classification of goods — Medicament or cosmetic — Determination of: Essential character of the product in question is to be kept in mind for ascertaining whether it would be a cosmetic or a drug i.e. whether curative/prophylactic value is primary in nature or not. Vaseline Intensive Care Heel Guard (VHG), marketed as a solution for cracked heels, is not a skin care preparation classifiable under Chapter Heading 3304.00 but a patent/proprietary medicament classifiable under Chapter Heading 3003.10. [CCE v. Hindustan Lever Ltd., (2015) 10 SCC 742]

Excise — Concession/Exemption/Incentive/Rebate/Subsidy — Exemption Notification No. 22/94-CE dt. 1-3-1994: Paper manufactured out of pulp of jute bags/gunny bags is not paper manufactured from “rags”. Thus, eligible for availing the benefit of concessional duty under the impugned notification, when the notification specifically excluded benefit to paper manufactured from rags. [Coastal Paper Ltd. v. CCE, (2015) 10 SCC 664]

Excise — Concession/Exemption/Incentive/Rebate/Subsidy — Exemption — Power to grant exemption: Benefit of exemption is to be extended to all similarly situated persons and Government cannot create sub-classification excluding one sub-category, even when both sub-categories are of the same genus.  Judicial review of such notifications is permissible in order to undertake the scrutiny as to whether the notification results in invidious discrimination between two persons though they belong to the same class. Classification of assessees into two categories on the basis of method adopted by the assessees for payment of customs duty and grant of different exemption benefits on the basis of such classification, not permissible. [Union of India v. N.S. Rathnam & Sons, (2015) 10 SCC 681]

Excise — Valuation — Additional consideration: Duty drawback received from Government, arising out of transfer of advance import licence in favour of assessee seller by buyer can be treated as additional consideration for the purpose of arriving at “transaction value”. Implication of R. 6 of 2000 Rules is that any form of additional consideration which flows from the buyer to the assessee, monetary value thereof is to be included while arriving at the transaction value. Even indirect consideration is includible in transaction value. Additional monetary consideration, in addition to the price being paid for the goods i.e. transfer of advance import licence in favour of the assessee seller by the buyer enabling the assessee seller of the goods to effect duty-free import of the raw materials and bringing down the cost of production/procurement, is a consideration, the monetary value of which has to be added to valuation under R. 6 of 2000 Rules. [CCE v. Indorama Synthetics (I) Ltd., (2015) 10 SCC 793]

Excise — Valuation — Cash discounts offered to buyers of assessee: S. 4 of Central Excise Act, 1944 as amended in 2000 introduced the concept of “transaction value” so that on each removal of excisable goods, the “transaction value” of such goods becomes determinable. Value of the excisable goods even on the basis of “transaction value” has only to be at the time of removal, that is, the time of clearance of the goods. The expression “price actually paid or payable for the goods, when sold” in definition of “transaction value in S. 4(3)(d) as it stood after 2000 amendment only means that whatever is agreed to as the price for the goods forms the basis of value, whether such price has been paid, has been paid in part, or has not been paid at all. The expression “when sold” is not meant to indicate the time at which such goods are sold, but is meant to indicate that goods are the subject-matter of an agreement of sale. Cash discount is something which is “known” at or prior to the clearance of the goods, being contained in the agreement of sale between the assessee and its buyers, and must therefore be deducted from the sale price in order to arrive at the value of excisable goods “at the time of removal”. [Purolator India Ltd. v. CCE, (2015) 10 SCC 715]

Factories Act, 1948 — Ss. 46, 2(m) and 2(n) — Statutory canteen: Subject canteen located within precincts of Divisional Railway Manager Office (DRM Office), Moradabad Division since 1940, catering to more than 500 employees, and under direct control and supervision of DRM, is a statutory canteen. [Mohan Singh v. Railway Board, (2015) 10 SCC 759]

Gujarat Stamp Act, 1958 (60 of 1958) — Ss. 4, 5 and 6 — Instruments relating to several distinct matters or distinct transactions: Instrument containing or relating to several distinct matters is to be separately charged, as if it were a separate instrument. Indenture of mortgage entered into between borrower and lead trustee appointed by consortium of lending banks pertaining to separate loan agreements entered into with each bank, comprises several “distinct matters”/distinct transactions falling under S. 5 of the Act, when the mortgage deed was executed as a consequence of financial assistance secured from said consortium of lending banks. [Chief Controlling Revenue Authority v. Coastal Gujarat Power Ltd., (2015) 10 SCC 700]

Monopolies and Restrictive Trade Practices Act, 1969 — Ss. 36-A and 36-D — Unfair trade practice — What is: The definition of “unfair trade practice” in S. 36-A is not inclusive or flexible, but specific and limited in its contents. Conclusions based only upon subjective considerations of fairness do not pass the objective test of law in view of the precise definitions under S. 36-A. There is no scope to pass an order under S. 36-D(1) of the Act when no case of any unfair trade practice as defined under S. 36-A, is made out. [TELCO Ltd. v. MRTP Commission, (2015) 10 SCC 734]

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