Jurisprudentiol–Wednesday's cases

By Vijay Kumar

Legal Corner Icon — the image was hosted by the publisher and was not captured.Service Tax

Service Tax – Air Travel Agent – Tax collected on Basic Fare, but not paid to Government – Separate penalty under Section 76 and Section 78 imposable – Tax paid before Adjudication – penalty should be 25%: CESTAT

In view of Kerala High Court's judgment in case of Asstt . Commissioner, Central Excise vs. Krishna Poduval reported in 2006-TIOL-77-HC-KERALA-ST wherein i t was held in that case that incidents of imposition of penalty under Section 76 and 78 are distinct and separate under two provisions and even if the offences are committed in the course of the same transaction or arise out of the same act, penalty would be imposable both under Section 76 as well as Section 78.

Income Tax

Appointment of ITAT Member, who had not practised as an advocate for even a day, as High Court Judge upheld: Supreme Court.

“Eligibility” is a matter of fact whereas “suitability” is a matter of opinion. In cases involving lack of “eligibility” writ of quo warranto would certainly lie. One reason being that “eligibility” is not a matter of subjectivity. However, “suitability” or “fitness” of a person to be appointed a High Court Judge: his character, his integrity, his competence and the like are matters of opinion. At the end of the day “trust” in the decision-making process is an important element in the process of appointment of Judges to the Supreme Court and the High Court, which is the function of an integrated participatory consultative process.

Customs

Goods imported under 'Actual User' condition, diverted – penalty justified: Bombay HC

The Government of India formulated and announced the export and import policy for the period from April, 1992 to March, 1997. Clause 25 of the Export and Import Policy provides that all second hand capital goods, having a minimum residual life of 5 years, may be imported by the Actual Users, without a license, subject to “Actual User” condition. The Actual User was also required to furnish to the Customs at the time of clearance of the goods, self-declaration to the effect that the second hand capital goods being imported had minimum residual life of 5 years. In view of these provisions, it is clear that such second-hand capital goods could not be imported unless they were to be imported for actual user by the importer. That itself was a prohibition against import. However, the import would be exempted from the prohibition subject to “Actual User Condition”. If that condition is violated, provisions of S.111 ( o) of the Customs Act would be attracted.

See our columns Tomorrow for the judgements