RECENT AMENDMENTS AND CASE LAWS OF IDT FOR CA FINAL NOV 2011.

Recent Amendments

1.      Definition of Capital Goods [rule 2(a)(B)]for service provider amended to insert following 2 items-

(C)dumpers or tippers, falling under chapter 87 of the First Schedule to the Central Excise Tariff Act 1985, registered in the name of provider of output service for providing taxable services as specified in sub-clauses (zzza) and (zzzy)  of clause (105) of section 65 of the said Finance Act.

(D)Components, spares and accessories of motor vehicles, dumpers or tippers, as the case may be, used to provide taxable services as specified in sub-clauses (B) and (C).

2.      A proviso inserted after Rule 3(4) ‘Provided also that the CENVAT credit of any duty specified in sub-rule (1) shall not be utilized for payment of the Clean Energy Cess leviable under section 86 of the Finance Act 2010.’

3.      A proviso inserted after Rule 3(5) ‘Provided further that if the capital goods, on which CENVAT  Credit has been taken, are removed after  being used the manufacturer or provider of output services shall pay an amount equal to the CENVAT  Credit taken on the said capital goods reduced by the percentage points calculated by straight line method as specified below for each quarter of a year or part thereof form the date of taking the CENVAT Credit namely                     

      (a) for computer and computer peripherals:                                                               

For each quarter in the first year @ 10%

For each quarter in the second year @ 8%

For each quarter in the third year @ 5%

For each quarter in the forth and fifth year @1%

(b) for capital goods, other than computers and computer peripherals @ 2.5% for each quarter

4.      A proviso inserted at rule 4(2)(a) ‘Provided also that where an assessee is eligible to avail of the exemption under a notification based on the value of clearances in a financial year, the CENVAT credit in respect of capital goods received by such assessee shall be allowed for the whole amount of the duty paid on such capital goods in the same financial year.

Explanation.- For the removal of doubts, it is hereby clarified that an assessee shall be “eligible” if his aggregate value of clearances of all excisable goods for home consumption in the preceding financial year computed in the manner specified in the said notification did not exceed rupees four hundred lakhs.’

 5. Rule 4(5)(b) substituted as follows ‘The CENVAT credit shall also be allowed in respect of jigs, fixtures, moulds and dies sent by a manufacturer of final products to,-     

(i)	another manufacturer for the production of goods; or
(ii)	a job worker for the production of goods on his behalf, according to his specifications.’

6.      A clause (iva and (vii)) inserted at rule 6(6) ‘(iva)supplied for the use of foreign diplomatic missions or consular missions or career consular offices of diplomatic agents in terms of the provisions of notification No 6/2006- Central Excise dated the 1^st March 2006, number G.S.R. 96 (E), dated the 1^st March, 2006’.

(viii) all goods which are exempt from the duties of customs leviable under the First Schedule to the Customs Tariff Act, 1975 (51 of 1975) and the additional duty leviable under sub-section (1) of section 3 of the said Customs Tariff Act when imported into India and are supplied,— 

(a)                against International Competitive Bidding; or

(b)               to a power project from which power supply has been tied up through tariff based competitive bidding; or

(c)        to a power project awarded to a developer through tariff based competitive bidding,

in terms of notification No. 6/2006-Central Excise, dated the 1st March, 2006. 

7.      A proviso inserted after rule 9(8) ‘Provided that the first and second stage dealer, as the case may be, shall submit the said return electronically.

8.      A proviso inserted at Rule 9A(1), (3) of Cenvat rules and rule 12 and 17 of Central Excise Rules ‘Provided further that where a manufacturer of final products has paid total duty of rupees ten lakh of more including the amount of duty paid by utilization of CENVAT  credit in the preceding financial year, he shall file such declaration ie ER5, ER6, ER2 and ER4 electronically’.

9.      A proviso inserted at Rule 12(1) of Central Excise Rules ‘Provided also that where an assessee is eligible to avail of the exemption under a notification based on the value of clearances in a financial year, he shall file a quarterly return in the form specified, by notification, by the Board, of production and removal of goods and other relevant particulars within ten days after the close of the quarter to which the return relates.
Explanation 1. - For the purposes of this proviso, it is hereby clarified that an assessee shall be eligible, if his aggregate value of clearances of all excisable goods for home consumption in the preceding financial year computed in the manner specified in the said notification did not exceed rupees four hundred lakhs.

      Explanation 2. - The filing of returns as specified in this proviso shall be available to the assessee for the whole of the financial year.

      Provided also that where an assessee has paid total duty of rupees ten lakh or more including the amount of duty paid by utilization of CENVAT credit in the preceding financial year, he shall file the monthly or quarterly return, as the case may be, electronically.

10. A proviso inserted in rule 6(2) of Service tax Rules 1994,’ Provided that where an assessee has paid a total service tax of rupees ten lakh or more including the amount paid by utilization of CENVAT credit, in the preceding financial year, he shall deposit the service tax liable to be paid by him electronically, through internet banking.

11.A proviso inserted in rule 7(2) of Service tax Rules 1994,’ Provided that where an assessee has paid a total service tax of rupees ten lakh or more including the amount paid by utilization of CENVAT credit, in the preceding financial year, he shall file the return electronically.

12. An explanation inserted in sec 11A(2B) of Central Excise Act and sec 73((3) of Finance Act 1994 wef 8.5.2010. ‘For the removal of doubts it is herby declared that no penalty any of the provisions of this Act or the rules made thereunder shall be imposed in respect of payment of duty under this sub-section and interest thereon’.

13. A sub-rule (7C) inserted wef 8-10-2010 in rule 6 of Service tax Rules 1994,

      “The distributor or selling agent, liable to pay service tax for the taxable service of promotion, marketing, organising or in any other manner assisting in organising lottery, referred to in sub-clause (zzzzn) of clause (105) of section 65 of the said Act (hereinafter referred to as the said sub-clause), shall have the option to pay an amount at the rate specified in column (2) of the Table given below, subject to the conditions specified in the corresponding entry in column (3) of the said Table, instead of paying service tax at the rate specified in section 66 of Chapter V of the said Act:

Table

Sl. No.	Rate	Condition
(1)	(2)	(3)
1.	Rs 6000/- on every Rs 10 Lakh (or part of Rs 10 Lakh) of aggregate face value of lottery tickets printed by the organising State for a draw	If the lottery or lottery scheme is one where the guaranteed prize payout is more than 80%
2.	Rs 9000/- on every Rs 10 Lakh (or part of Rs 10 Lakh) of aggregate face value of lottery tickets printed by the organising State for a draw	If the lottery or lottery scheme is one where the guaranteed prize payout is less than 80%

           

            Provided that in case of online lottery, the aggregate face value of lottery tickets for the purpose of this sub-rule shall be taken as the aggregate value of tickets sold, and service tax shall be calculated in the manner specified in the said Table.

           

            Provided further that the distributor or selling agent shall exercise such option within a period of one month of the beginning of each financial year and such option shall not be withdrawn during the remaining part of the financial year.

            Provided also that the distributor or selling agent shall exercise such option for financial year 2010-11, within a period of one month of the publication of this sub-rule in the Official Gazette or, in the case of new service provider, within one month of providing of service under the said sub-clause and such option shall not be withdrawn during the remaining part of that financial year.

Explanation.- For the purpose of this sub-rule-

(i)   “distributor or selling agent” shall have the meaning assigned to them in clause (c) of the rule 2 of the Lottery (Regulation) Rules, 2010 notified by the Government of India in the Ministry of Home Affairs published in the Gazette of India, Part-II, Section 3, Sub-section (i) vide number G.S.R. 278(E) dated 1st April, 2010 and shall include distributor or selling agent authorised by the lottery organising State.

(ii)  “draw” shall have the meaning assigned to it in clause (d) of the rule 2 of the Lottery (Regulation) Rules, 2010 notified by the Government of India in the Ministry of Home Affairs published in the Gazette of India, Part-II, Section 3, Sub-section (i) vide number G.S.R. 278(E) dated 1st April, 2010.

(iii) “online lottery” shall have the meaning assigned to it in clause (e) of the rule 2 of the Lottery (Regulation) Rules, 2010 notified by the Government of India in the Ministry of Home Affairs published in the Gazette of India, Part-II, Section 3, Sub-section (i) vide number G.S.R. 278(E) dated 1st April, 2010.

(iv) “organising state” shall have the meaning assigned to it in clause (f) of the rule 2 of the Lottery (Regulation) Rules, 2010 notified by the Government of India in the Ministry of Home Affairs published in the Gazette of India, Part-II, Section 3, Sub-section (i) vide number G.S.R. 278(E) dated 1st April, 2010.

14. An explanation inserted in rule 2 of Export of Service Rules, 2005 wef 27.02.2010 Explanation.- For the purposes of this rule “India” includes the installation structures and vessels located in the continental shelf of India and the exclusive economic zone of India, for the purposes of prospecting or extraction or production of mineral oil and natural gas and supply thereof.

15. Definition of term ‘India’ inserted in rule 2 of Taxation of Services(Provided from Outside India and received in India) Rules, 2006 wef 27.02.2010.

“India” includes the installation structures and vessels located in the continental shelf of India and the exclusive economic zone of India, for the purposes of prospecting or extraction or production of mineral oil and natural gas and supply thereof.

16.  Sec 32E (Application for Settlement) amended to delete a prohibition that settlement application can not be made in respect of goods for which proper records has not been maintained by the assessee in his daily stock account.

17.  Sec 32F amended to insert a provision that time limit for passing settlement order within 9 months, may for reason to be recorded in writing be extended by the Settlement Commission for a further period not exceeding 3 months.

18.  Sec 32O (Bar on subsequent application for settlement in certain cases) amended wef 08/05/2010 to delete sub sec (2) to remove the restriction that an assessee may seek only one time settlement.

19.  Sub rule 4A(1A) inserted to provide that every person who gets the goods (falling under chapter 61, 62 or 63 of the first schedule of CETA) manufactured on his own account on job work shall pay the duty  leviable on such goods as if such goods have been manufactured by himself.

20.  Rule 12D inserted to provide that the provisions of CE Rules, 2002 shall apply to a merchant manufacturer (person on whose behalf the goods are manufactured by the job worker) of goods covered under chapter 61, 62, & 63 of CETA as if such goods have been manufactured by him.

21.  Quarterly return required be filed by an assessee availing exemption under Notification no 1/2011 by the 10th of next month.

22.  Definition of Capital goods [Rule 2(a)] amended to insert Capital goods used outside the factory for electricity generation for captive use eligible under rule 2(a).

23.  Definition of exempted goods [Rule 2(d)] amended wef 01.03.2011 to include goods in respect of which the benefit of exemption under Notification No. 1/2011 dated 01-03-2011 is availed (i.e. rate of excise duty 1%)

24.  Definition of exempted service [Rule 2(e)] has been amended wef 01-04-2011 to include taxable service whose part of value is exempted on the condition that no credit of inputs and input service, used for providing such taxable service shall be taken. Exempted service’s also include ‘trading’.

25.  Definition of “Input” [Rule 2(k)] substituted wef 01-04-2011. New definition as under-

(k) “input” means–

(i)  all goods used in the factory by the manufacturer of the final product; or

(ii)  any goods including accessories, cleared along with the final product, the value of which is included in the value of the final product and goods used for providing free warranty for final products; or

(iii) all goods used for generation of electricity or steam for captive use; or

(iv) all goods used for providing any output service;

but excludes–

(A)  light diesel oil, high speed diesel oil or motor spirit, commonly known as petrol;

(B)  any goods used for–

(a) construction of a building or a civil structure or a part thereof; or

(b) laying of foundation or making of structures for support of capital goods, except for the provision of any taxable service specified in sub-clauses (zn), (zzl), (zzm), (zzq), (zzzh) and (zzzza) of clause (105) of section 65 of the Finance Act;

(C) capital goods except when used as parts or components in the manufacture of a final product;

(D) motor vehicles;

(E) any goods, such as food items, goods used in a guesthouse, residential colony, club or a recreation facility and clinical establishment, when such goods are used primarily for personal use or consumption of any employee; and

(F) any goods which have no relationship whatsoever with the manufacture of a final product.

Explanation. – For the purpose of this clause, “free warranty” means a warranty provided by the manufacturer, the value of which is included in the price of the final product and is not charged separately from the customer;

26.  Definition of input service [(Rule 2(l)] substituted wef 01-04-2011. New definition as under-

(l) “input service” means any service, –

(i)  used by a provider of taxable service for providing an output service; or

(ii)  used by a manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products and clearance of final products upto the place of removal,

and includes services used in relation to modernisation, renovation or repairs of a factory, premises of provider of output service or an office relating to such factory or premises, advertisement or sales promotion, market research, storage upto the place of removal, procurement of inputs, accounting, auditing, financing, recruitment and quality control, coaching and training, computer networking, credit rating, share registry, security, business exhibition, legal services, inward transportation of inputs or capital goods and outward transportation upto the place of removal;

but excludes services, –

(A) specified in sub-clauses (p), (zn), (zzl), (zzm), (zzq), (zzzh) and (zzzza) of clause (105) of section 65 of the Finance Act (hereinafter referred as specified services), insofar as they are used for–

(a)    construction of a building or a civil structure or a part thereof; or

(b)    laying of foundation or making of structures for support of capital goods, except for the provision of one or more of the specified services; or

(B) specified in sub-clauses (d), (o), (zo) and (zzzzj) of clause (105) of section 65 of the Finance Act, insofar as they relate to a motor vehicle except when used for the provision of taxable services for which the credit on motor vehicle is available as capital goods; or

(C) such as those provided in relation to outdoor catering, beauty treatment, health services, cosmetic and plastic surgery, membership of a club, health and fitness centre, life insurance, health insurance and travel benefits extended to employees on vacation such as Leave or Home Travel Concession, when such services are used primarily for personal use or consumption of any employee;’;

27.  definition of “Manufacture or produce” has been substituted wef 01-03-2011 New definition as under-

(naa) “manufacturer” or “producer”, –

(i)  in relation to articles of jewellery falling under heading 7113 of the First Schedule to the Excise Tariff Act, includes a person who is liable to pay duty of excise leviable on such goods under sub-rule (1) of rule 12AA of the Central Excise Rules, 2002;

(ii)  in relation to goods falling under Chapter 61, 62 or 63 of the First Schedule to the Excise Tariff Act, includes a person who is liable to pay duty of excise leviable on such goods under sub-rule (1A) of rule 4 of the Central Excise Rules, 2002;

28.  Cenvat Credit not available of Excise duty paid on the goods on which exemption under Notification no 1/2011 has been availed.

29.  Cenvat Credit can not be utilized towards payment of excise duty on the goods on which exemption under Nt. No 1/.2011 has been availed.

30.  A provision inserted to rule 3(1)(vii) wef 01-03-2011 to provide that
Cenvat Credit shall not be allowed in excess of 85% of the ACD u/s 3(1) of CTA on ships, boats and other floating structures for breaking up.

31.  Wef  01-04-2011, rule 3(5) amended to provide that where any inputs are removed as such outside the factory for providing free warranty for final products, Cenvat Credit availed need not reversed.

32.  Wef 01-03-2011 rule 3(5B)  amended to provide that in case inputs/ capital goods written off partially (earlier it was only fully) before being put to use, amount equivalent to the Cenvat credit taken on such inputs/ Capital goods required to be paid.

33.  Rule 4(1) amended to extend special provision relating to job work in case of articles of jewellery to articles of gold smith’s or silver smith’s wares.

34.  Following amendment made in Rule 6- Obligation of manufacturer or producer of final product and a provider of taxable service.

A.                Rule 6(3B)- Banking Company and financial institution( including NBFC) required to pay 50% of Credit availed.

B.                 Rule 6(3c)- Providers of service of life insurance or management of ULIP required to pay 20% of Credit availed.

35.  Rule 9(7) amended. Now SSI required to give the quarterly return within 10 days of close of quarter.

36.  As per Circular dated 14-03-2011, interest liability arises where Cenvat credit wrongly taken but reversed before utilisation.

37.  Vide Notification No 1/2011 dated 01-03-2011 exemption on about 130 items withdraw and excise duty @ 1% has been imposed on these items with the condition that no credit of the duty paid on inputs and input service is taken.

38.  wef 01-04-2011 rate of interest for delayed payment of duty u/s 11AB increased to 18% pa. (earlier it was13% pa)

39.  Clean Energy Cess levied from 01-07-2010 on coal.

40.  Goods supplied  to UN  or an international organisation exempted from ACD u/s 3(1) or 3(5) of CTA.

41.  Relaxation from brand name restriction under SSI exemption scheme extended to all packing material.

42.  Vide Circular dated 19-05-2010 it has been clarified that cost of return fare of vehicle not to be added for determining assessable value.

43.  Vide circular dated 27-10-2010 pre delivery charges and after sale service charges collected by the dealers to be included in the assessable value.

44.  Vide circular dated 18/05/2010 Superintendent empowered to adjudicate cases involving duty and / or Cenvat credit upto Rs 1.00 Lac in individual show cause notice.

45.  Vide Notification No. 53/2010 dated 21/12/2010 services of providing the right to use the packaged or canned software (not tailor made software) under ‘information technology software services’ ore completely exempted, if following conditions are satisfied.

A.    Valued on the basis of MRP valuation.

B.     Appropriate duty of excise of customs have been paid thereon.

C.     A declaration by the service provider on the invoice that no amount recovered in excess of MRP declared on invoice.

46.  Self adjustment of excess payment of service tax - maximum limit increased from Rs. 1.00 lac to Rs. 2.00 lacs.

47.  W.e.f. 01.04.2011 as per rule 6(6A) where service tax self assessed but not paid completely or partly, the same shall be recoverable along with interest in the prescribed manner

48.  Special rate of service tax on ‘foreign exchange service’

S.no.    For an amount             Service tax shall be calculated at the rate of

(1).    Up to Rs. 100,000                0.1 % of the gross amount of currency

                                                      exchanged or Rs. 25, whichever is higher

(2)    Exceeding Rs. 100,000        Rs. 100 +0.05% of the gross amount of currency                                                                   and Up to Rs. 10,00,000      exchanged

(3)    Exceeding Rs. 10,00,000     Rs.550 +0.01 % of the gross amount of currency

                                                      exchanged or Rs. 5,000, whichever is lower

However, the person providing the service shall exercise such option for a financial year and such option shall not be withdrawn during the remaining part of that financial year.

49.  Special rates of service tax on life insurance service increased from 1% to 1.5%.

50.  Clarification issued that Service tax exemption also applicable to Education Cess and SHE Cess.

51.  Rate of interest for delayed payment of service tax increased from 13% p.a. to 18% p.a. but where value of taxable services does not exceed Rs. 60.00 lacs in a financial year rate of interest shall be 15 % p.a.

52.  Where service are wholly consumed within SEZ, service tax exempted, means not required to be paid, but where services are not wholly consumed within SEZ, then first service tax paid and then refund claimed proportionately. 

RECENT CASE LAWS

1.      In Sony Music Entertainment (I) P. Ltd. (2010) case, the Bombay High Court held that converting recorded audio and video discs packed in Boxes of 50 into pack of single disc, is not manufacture.

2.      In Karnataka Vidyut Karkhana Ltd. (2010) case, the Supreme Court held that during repairs of transformers by rewinding of coil to replace old worn out coils with the new coil not amounts to manufacture as no new product emerges.

3.      In Bata India Ltd. (2010) case, the Supreme Court held that mere hypothetical possibility of purchase and sales doesn’t mean marketability of goods.

4.      In Solid & Correct Engg. Work (2010) case, the Supreme Court held that affixations of Drums/ hot mix, plants by nuts and bolts as foundations on earth to ensure vibration free operation of the plant doesn’t result into immovable property.

5.      In Vicco Leb (2010) case, the Supreme Court held that Vicco Vajradenti Powder, Paste and Turmeric Cream classifiable as Ayurvedic medicine and not as Cosmetics.

6.      In LML Ltd. (2010) case, the Supreme Court held that Drawing and designs contained in a  CD ROM shall be classifiable as Recorded CD ROM as decided by lower authorities because classification of technical products by lower authorised not to be rejected unless patently wrong.

7.      In N.I. systems (1) P. Ltd. (2010) case, the Supreme Court held that controller/ Adaptor meant for use as measuring and controlling equipment shall be classifiable as measuring and checking instruments and not as computer/ Data processing machines.

8.      In Pleasentiime Products (2009) case, the Supreme Court held that Scrabble is a game and not a puzzle or Toy.

9.      In Ford India Ltd. (2010) case, the Supreme Court held that optional extended warranty charges for cars are not includible in the assessable Value of such cars.

10.  In Maruti Suzuki India Ltd. (2010) case, the Tribunal held that pre-delivering inspection charges and after sales service charges for the said service provided by the dealer form part of the transaction value of the vehicles and is liable to excise duty in the hands of the manufacturer.

11.  In Xerographic Ltd. case (2010) case, the Supreme Court held that price charged from related person acceptable as Assessable value if no extra commercial consideration in fixing price or it was the normal market prices at which the good was ordinarily  sold in the market.

12.  As per Circular No 915 dated 19-02-2010 samples of goods notified u/s 4A to be valued at deemed value computed u/s 4A.

13.  In Rellis India Ltd (2010) case, the Supreme Court held that goods notified u/s 4A supplied in bulk to a party for the purpose of supplying them free of cost to the farmers, since were not meant for retail sales, therefore were liable to be assessed on the value u/s 4 and not u/s 4A of the Act.

14.  In Hankins Cooker Ltd. (2010) case, the Bombay High Court held that goods used at Depots also eligible for CENVAT as input, since inputs need not be used in the factory of production.

15.  In Tata Engg. & locomotive Co Ltd. (2010) case, the Bombay High Court held that CENVAT credit admissible or inputs which are consumed in quality control test and cleared as scrap on payment of duty on such scraps.

16.  In Bhuwalka Steel Ind. Ltd. (2010) case, the Tribunal held that credit allowable on inputs which are  lost during transit, if loss within normal limits.

17.  In Wringley India P Ltd. (2010) case, the P&H High Court held that the “boomer Tattos”  simply kept in side the packing container of the product  is neither a packing material nor an input used in manufacturing, hence not eligible for CENVAT.

18.  In Madres Cement Ltd (2010) case, the Supreme Court held that if mines are within the factory premises, credit on capital goods is available but if mines are not within factory  premises  then the CENVAT credit on capital goods used in such mines not be available. Inputs used in mines, whither or not within factory premises are eligible for CENVAT.

19.  In Biopac India Corporation Ltd (2010) case, the Gujrat High Court held that if capital good (after put to use ) are destroyed by fire, credit not required to be reversed.

20.  In Nish fibres (2010) case, the Gujarat High Court held that Cenvat credit shall be allowed on capital goods even if the assessee had wrongly claimed depreciation on duty element of capital goods in its Income Tax return but subsequently revised that Income Tax return by withdrawing the depreciation claimed on duty element of capital goods cost.

21.  As per Circular No 7/2010 dated 23-03-2010 drawback not payable where export proceed have not been realized in accordance with FEMA provision, even if claim has been settled by the authorities.

22.  As per Circular No 125 dated 30-07-2010 service provided by State Govt. under Centrally Sponsored Schemes (CSS) in not a provision of taxable Service and not liable to service tax.

23.  As per Circular 127 date 16-08-2010 donation or grant received by Commercial training and coaching centre not linked to specific trainee or training is not consideration received for taxable sevices and not subject to service tax.

24.  In Cochin International Airport Ltd. (2010) case the Supreme Court held that charges recovered form selected category of customers for augmenting revenue, which do not relate to service provided, cannot amount to consideration for service, hence not liable for service tax.

25.  In P. C. Panlose (2010) case Karnataka High Court held that entrance fee at the Airport charged by the license  holder is liable to service tax in the hands of the  license holder.

26.  In Nahar Industrial Ent. Ltd. (2010) case the P & H High Court held that Buffer stock subsidy received from Govt. is not a consideration, nor any service provided, hence not taxable as ‘storage & warehousing service’.

27.  In Idea Mobile Communication Ltd (2010) case the Karnataka High Court held that value of SIM card shall be liable to service tax as an essential part of  service.

28.  In Tarpaulin International (2010) case the Supreme Court held that conversion of tarpaulin in to Tarpaulin made ups would not amount to manufacture.

29.  In Ashok Kumar (2010) case the Bombay High Court held that penalty cannot be imposed on the director of the company for the wrong CENVAT  Credit availed by the company, as penalty under Rule 15(1) imposable only on the person who had availed  CENVAT credit.

30.  In Stelko Strips Ltd. (2010) case, the P&H High Court held that Cenvat Credit could be taken on the strength of private challans, as the same were not found to be fake and there was  proper certification that duty had been paid.

31.  In International Auto Ltd. (2010) case the Supreme Court held that the assessee is liable to pay interest u/s 11AB on the differential duty paid on the difference between price at the date of removal and enhanced price at which goods are ultimately sold.

32.  In Gen Properties P Ltd. (2010) case the Karnataka High Court held that  merely because assessee has sustained loss more than the refund claim, applicability of concept of unjust enrichment cannot be ruled out in refund claim.

33.  In Alfred Meneres (2009) case, the Bombay High Court held that u/s 125 of the Customs Act. 1962 discretion vests with the adjudication authority to give option to redeem the goods even though the said goods are liable to absolute  confiscation.

34.  In Poona Health Service (2009) case, the Bombay High Court held that in case the imported goods are confiscated and goods are not redeemed by paying fine, the importer is bound to pay the customs duty.

35.  In finesse Creation Ine, (2009) case, the Bombay High Court held that where the goods held to be improperly imported, liable for confiscation, cleared for home consumption and not available for seizure, redemption fine cannot be imposed with regard to such goods, as once good cannot be redeemed, no fine can be imposed.

36.  In Gawar Construction Ltd (2009) case, the Bombay High Court held that in case of seizure of goods from the custody of person other than importer, notice must also be give to person from whose custody goods were seized.

37.  In Sanghvi Reconditions P Ltd. (2010) case, the Supreme Court held that the appellant could not permitted to dissect the Settlement Commission’s order with a view to accept what is favorable to them and reject what is not.

38.  In East & West Shipping Agency (2010) case, the Bombay High Court held that the order passed by the Settlement Commissioner is judicial proceeding and it is a judicial order.

39.  In Deora Engg. Works (2010) case, the P & H High Court held that the clearness of two firms having common brand name, goods manufacturing is the same factory premises, having common management and account etc. shall be clubbed for the purpose of SSI exemption limit.

40.  In Ashwani Tobacco Co. P. Ltd (2010) case, the Delhi High Court held that benefit under the provision to Sec 11AC could not be granted by the Settlement Commissioner in case of settlement.

41.  In C P S Textile P. Ltd (2010) case, the Madras High Court held that the description of the goods as per the document submitted along with the shipping bill will be relevant  criterion for the purpose of classification, if not disputed on the basis of any technical opinion or test.

42.  In Paras Feb International (2010) case, the Tribunal held that the issue of the imported goods warehouse in the premises of 100% EOU for manufacture/ production/ processing  in 100% EOU would  amount to clearance for home consumption.

43.  In Aman Medical Product Ltd. (2010) case, the Delhi High Court held that refund claim of the appellant was maintainable u/s 27 and not filling of the appeal against the assessed bill of entry did not deprive the appellant to file its claim for the refund.

44. In Mehta & Co. (2011) case the Supreme Court held that furniture manufactured at customer’s site is movable and different for fixtures, which are attached to earth or wall and therefore liable to excise duty.
45. in Medlay Pharmaceuticals Ltd. (2011) case, the Supreme Court held that physician’s sample are marketable and therefore liable to excise duty. Even though physician’s samples are clearly marked “not for sales” still they are marketable, since for marketability actual sale is not required.
46. In Usha Rectifier Corp. Ltd. (2011) case the Supreme Court held that testing equipments manufactured instead of importing the same and used captively means they are marketable and therefore liable to excise duty.
47. In Nicholus India Ltd. (2010) case the Supreme Court held that crude vitamin A (intermediate product) used in manufacture of animal feed supplements which was exempt is marketable as it has short shelf life of 2-3 days hence liable to excise duty.
48. in Bata India Ltd. (2010) case the Supreme Court held that marketability doesn’t mean hypothetical possibility of purchase and sale. It means commercial capability of being bought and sold. The fact that the product is sent outside for some job work doesn’t establish its marketability.
49. In Xerox India Ltd. (2011) case the Supreme Court held that multifunctional machines performing functioning of printer, fax machine and scanner will be classifiable as printer since printing account for more than 70% of the functions / cost and it gives the whole its essential character.
50. In Kwality ice cream Co. (2010) case the Supreme Court held that interest free deposit on account of commercial expediency not amounts to additional consideration.