Jurisprudentiol – Monday's cases

By Vijay Kumar

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

Limit on Adjournment of Personal Hearing under proviso to Section 33 A (2) of Central Excise Act, 1944 - The limit of three times is to be understood in facts and circumstances of each case and may be extended if the circumstances so demand – Commissioner also acted with legal bias in disallowing the cross examination – matter to be decided by some other Commissioner - CESTAT

VIDE Finance Act, 2004, Section 33A was inserted the Central Excise Act, 1944, prescribing limitation on number of Adjournments of personal hearings. The relevant provisions read:

(2) The Adjudicating authority may, if sufficient cause is shown, at any stage of proceeding referred to in sub-section (1), grant time, from time to time, to the parties or any of them and adjourn the hearing for reasons to be recorded in writing :

Provided that no such adjournment shall be granted more than three times to a party during the proceeding.

After the insertion of this Section, it became a common practice for many adjudicating authorities to give three dates in a single personal hearing letter, often the three hearing dates separated by not more than a day. In fact, the section prescribes a limit on number of adjournments as three. That means, effectively there should be four dates of hearing, but not three.

Income Tax

Transfer Pricing - Indian company exports goods to Associated Enterprise in USA at cheaper price - whether provisions of Sec 92CA are applicable even in a case where there is no reduction in total tax liability to domestic assessee - YES, says ITAT

TRANSFER Pricing provisions were inserted into the I-T Act to curb avoidance of tax by transferring profits to Associated Enterprises by undertaking international transactions. The general understanding is that the TP provisions aim at clipping the profit-transferring wings of the transnational companies. But the facts which have emerged after looking at some of the TP cases, are that the domestic companies have so far faced greater wrath of anti-avoidance Sections than the MNCs. Reason: It is much easier for the Revenue to dig out details of their transactions as compared to the data relating to AEs of MNCs.

Service Tax

Only a mistake apparent from record can be rectified under s.35C(2) as applicable to Service Tax appeals – applications styled as ‘modification application' cannot be pressed into service for claiming benefits not claimed earlier – CESTAT.

“… THE Revenue's appeal was heard by the regular Bench in September, 2008. Learned Consultant for the assessee has not shown that the High Court's judgment was available during those days, nor has he claimed the existence of any other applicable case law at the time of disposal of the appeal. In this scenario, none of the decision cited by the learned Consultant for the assessee would make the assessees position any better.”

Resultantly, the application filed by the assessee was dismissed.

See our columns Monday for the judgements