Jurispruden tiol – Monday's cases

By Vijay Kumar

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

ROM application need not be disposed of within six months of the date of the order passed by CESTAT u/s 35C(1) – only requirement is it (ROM) is to be filed within six months: CESTAT

The issue involved in the appeal is whether the refund claim in question is liable to be allowed without the bar of unjust enrichment and not whether the admissibility of any MODVAT credit. The final order was erroneously rendered on the latter issue which had already been settled by the Tribunal. In the circumstances, the final order has to be recalled and the appeal to be disposed of afresh.

Income Tax

Indo-USA DTAA - non-resident broadcasters - Mutual Agreement Procedure - dispute over tax on deemed profit from advertising and subscription - gross Vs net revenue - First, order passed under MAP is an appealable order u/s 246A(1)(a) - second, if an order under MAP is passed, in case of doubts, clarification should be sought from contracting state authority: ITAT

DISPUTES under taxation laws are common worldwide. And they are no less in number even under DTAAs. But DTAAs also provide an exit route for avoiding normal judicial route of dispute resolution, and it is globally known as Mutual Agreement Procedure (MAP). Such procedure is notified as a part of one of the Articles of the DTAA. Now the question in this case before the Tribunal is whether an order passed by the AO under the MAP is appealable when the pre-conditions for resorting to MAP are that all appeals pending should be withdrawn by the assessees. And the Tribunal has held that even under MAP the order passed by the AO is an order under Sec 143(3) of the I-T Act, and the same is very much appealable.

Customs

Re-export of containers - constrained to direct reasonable pre-deposit towards penalty as Importer had acted with impunity regardless of the mandatory provisions of the notification: CESTAT

The maximum penalty imposable under section 117 of the Customs Act (one of the provisions invoked in the show cause notice) was Rs.1 lakh as on the date on which the impugned order was passed. The amount of penalty imposed on the appellant under section 112 of the Customs Act by the Commissioner is Rs. 5 lakhs. In the peculiar circumstances of this case, we direct the appellant to pre-deposit an amount of Rs. 1 lakh under section 129E of the Act, within a period of four weeks and report compliance.

See our columns Monday for the judgements