Jurisprudentiol–Tomorrow's cases

By Vijay Kumar

Legal Corner Icon — the image was hosted by the publisher and was not captured.Central Excise

Appeals - CESTAT only legally competent to hear appeal against an order passed by Commissioner and has no jurisdiction to scrutinize the legality or otherwise of a review order – CESTAT's orders recalled and Revenues appeal held maintainable: CESTAT

NETIZENS may recall the hot pursuit of Member, CBEC by the East Zonal Bench of CESTAT for his personal appearance before the Tribunal to depose and explain the inordinate delay in constituting the Committee of Chief Commissioners to review an order passed by the Commissioner which resulted in a delay of 423 days in filing an appeal by Revenue.

While there are numerous instances where Tribunals have recalled their own earlier final orders by allowing ROM applications and even Apex Court in Sunita Devi Singhania Hospital Trust vs. Union of India [2008-TIOL-235-SC-CUS] observing that the Tribunal has an inherent power to recall its own order subject to sufficient causes shown in this regard, it is not legally clear as to whether an order passed by one Bench of the Tribunal can be recalled by another Bench.

Income Tax

Indo-German DTAA - definition of supervisory PE - for computing minimum period of six months, various sites or projects cannot be considered particularly when different contracts have no effective interconnection with each other: ITAT

EVERY tax treaty India has signed with a foreign country has certain distinctive features which do not match with others. Though the concept of Permanent Establishment (PE) is a basic feature of all but the definition of PE is not the same for all treaties. That is how a dispute cropped up in the instant case, involving the Indo-German tax treaty. All it prescribes under Article 5(2 )( i ) is the minimum period of six months for treating a site of the project as PE. But in this case the non-resident company had entered into various contracts with different parties and had carried out supervisory works at them for less than six months period on each of them. However, the Revenue insisted that for considering the PE, it is not the period of supervisory work done at one site, but all sites together should be taken into account.

Customs

Appeal – Executive order refusing licence or rejecting renewal of application cannot be equated to adjudication order – Appeal under Sec. 129(A) of Customs Act against such letter not maintainable: CESTAT

THE appellant was issued a letter by the Additional Commissioner conveying the Commissioner's decision permitting the appellant to resume their CHA operations for a period of two months. Aggrieved by this the appellant approached the Tribunal for relief. The Departmental Representative at the outset put forth that the appeal itself is not maintainable.

See our columns Tomorrow for the judgements