TMI Blog2016 (12) TMI 630X X X X Extracts X X X X X X X X Extracts X X X X ..... writ petition has to be allowed with cost as law is well settled that assessment once having become final should not have been reopened on the basis of judgment of the Apex Court which has no applicability to the facts of this case and is in ignorance of factual position as is very clear from facts narrated herein above - petition allowed - decided in favor of assessee. - Writ Tax No. 435 of 2016 - - - Dated:- 1-8-2016 - Hon'ble Sudhir Agarwal And Hon'ble Kaushal Jayendra Thaker, JJ. For the Petitioner : Nishant Mishra, Tarun Gulati For the Respondent : C.S.C.,C.B. Tripathi ORDER 1. Hard Sri Tarun Gulati, learned counsel for petitioner and Sri C.B. Tripathi for respondents. 2. By way of this petition, petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ust because a subsequent judgment taking a different view has been pronounced, there cannot be a change of opinion. 5. Present case is one of reassessment where original assessment is sought to be superseded on the ground that it was erroneous. The case is one relating to indirect taxes where assessee has to take several actions contemporaneously as per mandated by Statute. He has to raise an invoice stating the tax, which is collected from the buyer. The seller cannot collect any tax in excess of what is due and makes a self-assessment on that basis. All these actions are to be taken according to the law prevalent at relevant time. A subsequent judgment cannot be pressed into service to disturb those actions taken in good faith and in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, we have no hesitation in holding that all the material was before the authorities concerned. Judgment in State of Punjab Vs. Nokia India Pvt. Ltd., 2014 (16) SCC 410, could not have been followed so as to invoke the jurisdiction under Section 29 of the Act because in the case on hand as far as Nokia was concerned, the phone charger was sold as a separate accessory and, therefore, Apex Court held that it is not part of mobile phone. The battery was supplied with mobile phone and, therefore, battery charger was earlier classified as cell phone and it's part and that battery charger was sold as a separate entity and not as accessory. On merit, we hold that petitioner placed before respondents various facts to show that petitioner was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral Rules of Interpretation of Ist Schedule of Customs Tariff. Rule 3 (b) applies to three distinct categories of goods being mixtures, composite goods consisting of different materials and goods put up in sets for retail sale. (d) For all three categories, text for classification is that goods are classified as if they consisted of material or component which gives essential character . The only finding given by the Court is that merely because goods are sold in a composite pack, it does not become composite goods , perhaps because it was argued that cellphone and battery charger are composite goods. Petitioner in present case has never argued that two are composite goods. Instead it's case is that these goods are put up in sets f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... presumed that statute did not contemplate a tax on the subject matter (CC v. Larsen Toubro, (2016) 1 SCC 170 and CIT v. BC Srinivasa Shetty, (1981) 2 SCC 460). In the present case, neither there is a separate price for the mobile charger nor can it be determined under the Act/Rules and, therefore, it has been merely estimated at ₹ 180/- per piece in a most arbitrary manner. As the Act/Rules do not provide for a mechanism to disintegrate a composite contract, no tax can be charged separately on a mobile charger. These arguments were never raised or considered in Nokia's case. 11. Further, a subsequent judgment cannot be used to reopen assessments or disturb past assessments which have been concluded. [See Para 7, Austin Engin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oted that in Orys's case, a writ petition had been filed assailing a show cause notice that was pre-meditated. In the present case, the petitioner has been repeatedly pointing out that the impugned notice are pre-meditated and such he the outcome of the adjudication of the notice itself was obvious to the petitioner and that the adjudication was only an empty formality. It is thus submitted that the impugned notice and the impugned order deserves to be set aside on this ground alone. Therefore, the cost of ₹ 50,000/- is awarded to the petitioners as they have been forced to move this Hon'ble Court by way of this petition against the impugned illegal notice which was premeditated and are against the mandate of the Apex Court. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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