Jurisprudentiol–Wednesday's cases

By Vijay Kumar

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

Embroidered fabrics, which are subject to process of dyeing and bleaching merit classification under Chapter heading 58.05 and are entitled to exemption under Notification no. 4/97-CE - Revenue ROM dismissed - CESTAT

It is not open to the Revenue to reargue the matter and call upon the Tribunal to review the basis of the decision. This is beyond the scope of the rectification application. Mistake apparent on the face of the record must be an obvious and a patent mistake and not something which has to be established by a long drawn process of reasoning or where two opinions are possible.

Income Tax

Search - TPO finds no fault but Investigation finds documents of tax avoidance - HC upholds provisional attachment of Dmat account u/s 281B; Sec 132 does not mandate disclosure of satisfaction recorded before issue of warrant: Bombay High Court

THIS is one of the very few search cases where the charges of tax avoidance by making exaggerated foreign remittances for marketing and advertising expenditure and routing the same fund into the account of the CMD of the assessee company, have finally stuck against the assessee despite the expenses being scrutinised by the Transfer Pricing Officer and same being allowed in regular assessment. The HC has also upheld the provisional attachment of property and demat account of the CMD u/s 281B in view of the alleged non-cooperation of the CMD in investigation by the Revenue.

However, the HC has allowed the CMD's plea that whenever he applies for sale of the attached shares and seeks investment of the sale proceeds in the blue-chip shares so that no prejudice is caused to the interest of the assessee but at the same time, the same shares are to be attached by the Revenue to safeguard its interests. The Bench also dismissed the assessee's charge that they have lost Rs 29 Crore because of the attachment of their demat account.

Customs

A severe back pain and wife's mental illness does not constitute sufficient cause for delay – Applications for Condonation of Delay dismissed - CESTAT

• Case 1: The CHA had no back pain before 10.05.08 and could have instructed his Advocate to file the appeal. He might have taken rest as per medical advice from 10.05.08 to 03.06.08, but that did not stand in the way of his instructing the Advocate over telephone or otherwise for filing the appeal.

• Case 2: On query, it is admitted by the appellants that no medical examination was done by any specialist doctor nor any tests were performed to determine such serious illness and nothing was produced by the applicant in this regard. The only reason that the appeal could not be filed in time is due to the illness of the wife of the proprietor. The medical record placed before us does not inspire any confidence. The explanation given by the appellants for condonation of delay is not acceptable.

See our columns Tomorrow for the judgements