Jurisprudentiol – Wednesday's cases

By Vijay Kumar

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

Sec 260A - Appeal to High Court from ITAT - It is manifest that an appeal to High Court from a decision of Tribunal lies only when a substantial question of law is involved: Supreme Court

WHAT is "substantial question of law"? Though not defined in the Act, it has acquired a definite connotation through various judicial pronouncements.

A finding of fact may give rise to a substantial question of law, inter alia, in the event the findings are based on no evidence and/or while arriving at the said finding, relevant admissible evidence has not been taken into consideration or inadmissible evidence has been taken into consideration or legal principles have not been applied in appreciating the evidence, or when the evidence has been misread.

Central Excise

Omission of Rule 12B of the CER, 2002 – as application for surrender of registration as manufacturer was not accepted by the department it would mean that applicant was still deemed to be a manufacturer after 9.7.2004 and they retain their right to CENVAT credit – Prima facie case – Pre-deposit waived and stay granted: CESTAT

THE applicant was working as a 'deemed manufacturer' under Rule 12B of the Central Excise Rules prior to 9.7.2004. This Rule was omitted on 9.7.2004 and no new provision was made for enabling dealers to work as deemed manufacturers with a right to avail CENVAT credit. However, the applicant continued to work as a processor of fabrics from 9.7.2004 and cleared processed fabrics on payment of duty up to September, 2005 by utilizing CENVAT credit taken on inputs. These payments of duty were made on the value addition and by way of debits in PLA and CENVAT accounts. They were also filing returns periodically, which were being accepted by the department.

Customs

Unloading of imported goods at an unapproved place - Unloading done under supervision of Customs - ignorance of notification on part of Customs officers cannot be condoned if importers and the custodian are to be punished : CESTAT

THIS is a classic case where the Department sought to punish the importer for the ignorance of the Customs Officers. Customs officers approved the documents and supervised the unloading of goods and later the Commissioner imposed hefty fines and penalties, as the unloading was not in an approved area!

See our columns Tomorrow for the judgements