Jurisprudentiol – Wednesday's cases

By Vijay Kumar

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

Equivalent penalty imposed under Rule 57I(4) and/or Rule 173Q of CER, 1944 - it cannot be called composite penalty but much worse – adjudicating authority not clear in his mind as to which of provisions was applicable – such imposition was upheld by lower appellate authority with equal non-application of mind – composite penalties not permissible in law: CESTAT

THIS is an old case of the early nineties and is before the CESTAT for the second time inasmuch as when the case was adjudicated for the first time, the Commissioner(A) remanded it and after it was re-adjudicated and confirmed by the Commissioner(A), the CESTAT remanded the matter to the original authority and this denovo proceeding resulted in another order which too was confirmed by the original and first appellate authority. So, there were a total of three occasions when the matter was adjudicated by the original authority. By the way, the amount involved is Rs.4.09 lakhs and the allegation is that the appellant cleared inputs allegedly for job work but under “Advice Notes” without paying any duty or reversing the credit availed on the inputs or for that matter without following any procedure under rule 57F(4) or the notification 214/86-CE.

Income Tax

Can an amount received in advance for providing services in future be taxed on ground that under cash system of accounting every receipt is taxable irrespective of its nature - NO, says ITAT

WHAT is the difference between an advance and an income? Whether an amount received in advance for rendering services in future is taxable on the ground that under cash system of accounting each and every receipt is taxable irrespective of it's nature?

Customs

Abetment - penalty - Intentional aiding is the gist of abetment:

THE charge of abetment would stand substantiated if it is proved that the alleged abettor had instigated the doing of a particular thing or he had engaged with one or more persons in a conspiracy for doing of that thing or he had intentionally aided doing of that thing by an act or illegal omission. In order to constitute abetment by conspiracy, there must be a combination of two or more persons in the conspiracy and an act or illegal omission must take place in pursuance of that conspiracy. Where the parties concert together and have a common object, the act of one of the parties done in furtherance of the common object and in pursuance of the concerted plan, is the act of the whole. It is not sufficient to prove that the charged act could not have been committed without intervention of the alleged abettor. What is necessary is that the intervention should have been made with intent to facilitate the commission of that act.

See our columns Tomorrow for the judgements