Court : Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Reported in : (2007)(122)ECC193
..... in view of the provisions of provisional collection of taxes act, 1931. ..... 9c we agree with the contention of the appellants that the provisional assessment resorted in the present cases, is non est in law, and therefore in the ..... ordinarily would interpret the provisions in favour of a tax payer and against the revenue.the lacuna pointed out by the supreme court has been overcome by the amendment to section 9a(8) in 2004, by specifically borrowing the provisions of customs act, relating to determination of rate of duty.in the absence of any provisions relating to provisional assessment borrowed in section 9a(8) and in the absence of any provisions providing for provisional assessment for the purpose of levy and collection of anti dumping duty in sections 9a to ..... however, we find that section 18 of the customs act, 1962 relating to provisional assessment has not been borrowed, either explicitly or impliedly, even today, and therefore, cannot be applied for the purposes of assessment and collection of anti dumping duty.hence, the provisional assessment resorted to in the present case is non est in law. .....
Tag this Judgment!Court : Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Reported in : (2002)LC619Tri(Mum.)bai
..... as a result of amendment made by the budget presented on 22-7-1996, which, by virtue of provision of the provisional collection of taxes act came into effect immediately, the rate of duty on the goods imported by the respondent increased from 23-7-1996. ..... 77 that "the date of entry inwards of the vessel by which the goods are imported" refers to in section 15(1)(a) of the act means, "the actual entry of the vessel inwards or the date of entry in the register kept by the department permitting the entry inwards of the vessel. .....
Tag this Judgment!Court : Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Reported in : (1997)LC763Tri(Mum.)bai
..... claim was barred by limitation as rt12 were finalised on 19-3-1993 (sic) and the claim for refund was received in the office on 24-9-1990, after expiry of period of six months provided for under section 11b of the act (c) the appellants had failed to prove that the burden of tax had not been passed over to the customers (d) as per the decision of the supreme court in collector v. ..... 953/- back from the department on the ground of department having collected this amount in excess of the duty legitimately payable.13. ..... from october, 1988 to september, 1989 were provisionally assessed and order of final assessment was passed on 19-3- ..... ) and refund could not be sanctioned except under section 11b of the act, (f) provisions contained in section 11d of the act, would disentitle them to get the refund (g) sanction of the refund claim would result into unjust enrichment to the ..... transpired that on finalisation of assessment, the duty worked out as payable was less than the amount initially paid in cash and collected by encashment of bank guarantee, by rs. ..... the said amount being not in the form of duty, there was no question of passing over the burden to the customers and neither the principle of unjust enrichment nor the provisions of section 11d of the act, would be applicable. ..... of duty was adequately reduced and with non-reduction of price, the duty burden is to be held as passed over to the consumer disentitling the appellants to claim refund both under section 11b as also 11d of the act. .....
Tag this Judgment!Court : Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Reported in : (2003)(151)ELT605Tri(Mum.)bai
..... other matters are concerned, namely, where the case is not of provisional assessment, in our view, the show cause notice could not have been issued by dri because they are not the proper officers in terms of section 28 of the customs act, 1962. ..... thus makes it clear that only such of the officers of customs to whom the specific functions (in the instant case, the functions of collection of duty) are assigned, would be the "proper officer" and he alone, to the exclusion of any other officer of customs, is authorised to issue the notice of demand vide section 28(1) of the act. ..... and 9.4 the court held as follows: "9.3 the subject show cause notices basically the notice issued under the provisions of section 28 of the customs act, 1962 and the said section provides for issuance of notice by the "proper officer". ..... as far as the cases relating to provisional assessment are concerned, he says that where the matter of certain conspiracy is involved, the same cannot be pleaded as a ..... either show that the commissioner issuing no tice was either conferred the duty or was an officer superior, not cadrewise but as a functionary, to the officer of customs who had been assigned the function of collection of the customs duty." . .5. ..... provisional assessment is concerned, there cannot be any partial provisional assessment ..... as otherwise, either the words "officer of customs" would have been used in section 28(1) of the act or the definition of the "proper officer" would have been appropriately given. .....
Tag this Judgment!Court : Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Reported in : (1987)(12)LC1121Tri(Mum.)bai
..... in answer to my query as to whether the provisions of chapter viiia under which duty was paid by the appellants did not envisage provisional assessment first and final assessment only at the time of assessment of the r.t. ..... the duty of central excise is levied under section 3 thereof and as per this charging section, duty is to be levied and collected in the manner as prescribed under the central excise rules, 1944. ..... in this behalf, it is relevant to observe that the provisions of section 35c(1) relating to the orders of the appellate tribunal are analogous to those of section 254 of the income tax act. ..... therefore, though the duty is leviable on the manufacture of goods under section 3, the collection is postponed in terms of the prescribed rules 9 and 49. ..... section 37(2)(1b) gives power to the central government to make rules for assessment, collection of duty etc; and manner "prescribed" is defined under section 2(g) as rules prescribed under the act. ..... the scheme for collection of duty under the rules enjoins on the assessee the filing of an application, namely ar 1 under rule 52, the assessment of duty thereon by the central excise officer and thereafter payment of duty as laid down under this rule. ..... is not an assessment in law and though this case was decided under old rules 10 and 10a its ratio is still valid and provides authoritative interpretation of incomplete and final assessments as also levy, assessment and collection of duty. .....
Tag this Judgment!Court : Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Reported in : (2001)(74)ECC495
..... arising out of the above order namely (1) whether after taking into consideration the facts of the case the impugned order is legally correct and proper, (2) whether by passing an order under 129b of the customs act, the tribunal should modify the impugned order, (a) holding that dri has full jurisdiction in such matters even if the goods are under assessment by the customs house, (b) enhancing the declared value as proposed in ..... of the officers of the cadre of assistant collectors who are specifically assigned the work of levy and collection of duty can issue the show cause notice in their capacity of the proper officer with no specific assignment of such duty either by the board or the commissioner of customs, dr1 (ad) cannot issue a notice contemplated under the act.this legal position is not specified in the present case, the issue to be determined for imposing the ..... there is no evidence available on record to show that such specific function of levy and collection of duty or to raise a demand by issue of show cause notice have been specifically assigned to ..... commissioner of customs being provisional the dri is having authority to make further enquiry for assessing the duty thereon, as per in ..... commissioner of customs being provisional assessment, the dri is having authority to make further enquiry for assessing the ..... pune roller analysed the meaning of proper officer under section 2(34) of the customs act.according to paragraph 15 to 20 of the said decision, it is held that though .....
Tag this Judgment!Court : Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Reported in : (2005)(188)ELT281Tri(Mum.)bai
..... it is clearly indicated therein that the assessment is provisional as it is ought to be so under the advance licence scheme till the export obligation is fulfilled. ..... we find that no such exclusion from payment of add is available under the provisional add notification no.22/98, dt. ..... the appellants cannot take the plea that they will only pay the bcd in terms of the bond and not the other duties and plead that there is no machinery for collection of other duties. ..... 22/98 imposed provisional add @ rs. ..... 30/97 has been retrospectively amended by section 127(1) of the finance act, 2003 read with si. no. ..... 30/97 by section 127(1) of the finance act, 2003 read with si. no. .....
Tag this Judgment!Court : Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Reported in : (1987)(30)ELT846Tri(Mum.)bai
..... of the tribunal dated 7-2-1986 are referred to the hon'ble gujarat high court for their valued opinion : (1) whether the provisions of chapter vii-a of central excise rules, 1944 envisage provisional assessment or not; and (2) whether limitation period is to be counted from the date of payment of duty as envisaged under rule 11 or section 11b or from the date of assessment, in such a case. ..... under the aforesaid order the tribunal held that the assessments under chapter vii-a were in the nature of provisional assessment till they were finalised by an assessment of the rt-12 return in terms of rule 173-i.therefore, for the purposes of claiming refund of duty paid under the self-removal procedure, the ..... by this present application under section 35g of the central excises & salt act, 1944, the collector of central excise, ahmedabad has requested the tribunal to draw up a statement of the following points for reference to hon'ble gujarat high court, ahmedabad :- (1) whether the provisions of chapter vh-a of central excise rules, 1944 envisage provisional assessment or not; and (2) whether limitation period is to be counted from the date of payment of duty as envisaged under rule 11 or ..... in the aforesaid order in appeals did not go into the question as to whether the assessment was provisional or not.therefore, the ratio of this decision does not apply to the present case under consideration. ..... be valid, it would involve the levy and collection of duty by a proper officer of central excise .....
Tag this Judgment!Court : Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Reported in : (2004)(170)ELT527Tri(Mum.)bai
..... in other words, the appellants pleaded that, in order to attract levy of service tax under the category of "consulting engineering" the service provider should be engaged solely in the process of rendering consulting services and not a firm like the appellants where the consulting engineer services are ..... terms of section 65 (18) of the finance act, 1944, "any professionally qualified engineer or engineering firm who either directly or indirectly renders any service, consultancy or technical assistance in any manner to a client in one or more disciplines of engineering is defined as "consulting engineer" for the levy and imposition of service tax on the services rendered by such consulting engineer ..... the said collection of technical service charges, were revealed only during ..... union of india, wherein it has been held that, the act does not make any distinction between different categories of service providers, be they individuals, partnership concerns or the ..... was confirmed against them under section 75 of the finance act, 1994 towards their liability for service tax. ..... the service tax was levied on the appellants in respect of "the consulting engineer's services" ..... rendering technical services were however not disclosed to both central excise authorities as well as service tax authorities. ..... of the judgments as referred to above, it is obvious that, in the case before us the appellants having rendered the services of a consulting engineer to a client, are liable to the service tax. .....
Tag this Judgment!Court : Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Reported in : (2005)(190)ELT465Tri(Mum.)bai
..... the high court admitted the petition by its order dt.21.12.1983 and directed the excise authorities having jurisdiction over the appellant's factory at thane to provisionally assess the goods without including post manufacturing expenses and post manufacturing profit. ..... 352/1983 before hon'ble bombay high court challenging, inter alia, the levy and collection of duty on what was then known as post manufacturing expenses and post manufacturing profit. ..... 3,62,56, 142/- and proposing imposition of penalty under rule 173q of the central excise rules and section 11ac of the central excise act.interest was also proposed to be charged under section 11ab of the act.the period covered is june 1997 to september 1998. ..... e/2449/99 - penalty under section 11ac of the central excise act, 1944 is reduced to rs. .....
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