TIOL-DDT 1722 · the untouched capture
Rendered as it looked. Links and images are disabled in this view; the file itself is untouched.
<!DOCTYPE HTML PUBLIC "-//W3C//DTD HTML 4.01 Transitional//EN" "http://www.w3.org/TR/html4/loose.dtd"> <html> <head> <title>Untitled Document</title> <meta http-equiv="Content-Type" content="text/html; charset=iso-8859-1"> </head> <body> <p><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong><font color="#663399" size="3">TIOL-DDT 1722 </font><br> 28.10.2011 <br> Friday</strong></font></p> <p align="center"><strong><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif">Exchange Rates for November Notified </font></strong></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>CBEC</strong> has notified the Exchange Rates for imported goods and export goods for November 2011.</font></p> <p align="justify"><a href="http://www.taxindiaonline.com/RC2/subCatDesc.php3?subCatDisp_Id=24&filename=notification/custom/2011/cnt11_074.htm" target="_blank"><strong><font size="2" face="Verdana, Arial, Helvetica, sans-serif">CBEC Notification No. 74/2011-Cus.,(N.T.), Dated: October 27, 2011 </font></strong></a></p> <p align="center"><strong><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif">No Bench of the Tribunal to hear Stay Petition – Department wants to Collect – Do fill Up the Vacancy in the Tribunal </font></strong></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>WHEN</strong> it comes to collection of dues (duly or unduly adjudicated), the Central Excise Department wants to use all its might against the unfortunate assessee. </font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Look at a classic case: </font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">A Commissioner adjudicated a case demanding about two Crores of rupees. The assessee went in appeal to the Tribunal with a stay application. The case was posted in the Tribunal on two days and on both the days, it had to be adjourned as there was no sitting of the bench. So the case could not be heard by the Tribunal – but the department is not concerned with this – they want their pound of flesh. When a stay application is pending in a higher forum, the Department should not take any coercive action to recover the adjudicated amount, but usually the Department is not bothered about such niceties and very often they threaten the assessees with coercive action. The hapless assessee had to approach the High Court. In the High Court, the Department's Counsel argued that since 6 month's time has already expired from the date of filing the stay application, as per the Act, the Department is at liberty to proceed further. However, he fairly conceded that there was no regular sitting of the Bench in the Tribunal and it is also not disputed that the stay petition filed by the petitioner in the appeal filed as against the order dated 23.11.2010 has not been taken up only on account of the same. </font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The High Court observed that <em>when the petitioner has taken the required steps in time and when the stay application has not been taken up by the Appellate Tribunal <strong>for no fault of the petitioner</strong> and when the said application is still pending before the Tribunal, the authorities, at this stage, need not take any coercive steps. </em></font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">It was brought to the notice of the Court that not only in this case, but also in other matters, there is no regular sitting of the Bench of the Tribunal. Consequently, according to the counsel, number of matters, as on date, is pending and only in the event of the vacancy of Judicial Member of the Tribunal being filled up, the pending cases can be taken up and disposed of. </font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The High Court directed the Department's Counsel to take steps to bring to the notice of the authority concerned, the existing vacancy, with a request to fill up the same. This order was delivered by the High Court on September 29 and the position remains the same even today. The problem has only worsened with the retirement of Vice-President Jyoti Balasundaram. </font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">It may be understandable that the Government has difficulties in appointing Members, but is the assessee responsible for this? Why should the Central Excise Department overact to collect dues when the matter is pending in the Tribunal and the department is well aware of the situation in the Tribunal? By taking coercive action and closing down factories, what do they get? They will lose even the revenue that they are getting and workers may become unemployed. Of course, there is one beneficiary in this – the lawyer! </font></p> <p><font size="2" face="Verdana, Arial, Helvetica, sans-serif">We bring you the High Court order today. <strong>Please see <a href="http://www.taxindiaonline.com/RC2/inside2.php3?filename=bnews_detail.php3&newsid=13509" target="_blank">Breaking News </a></strong></font></p> <p align="center"><strong><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif">CBDT and CBEC Members not to move into <em>Rajaswa Bhavan </em></font></strong></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>BULGING</strong> babudom has created space constraints in the North Block and a new National Tax Headquarters for the Central Revenue officers is coming up in Lutyen's Delhi – the <em>Rajaswa Bhavan</em>. The Bhavan was to house all the revenue offices of the CBEC and CBDT including all the directorates. The 75000 sq.m glass building hoped to be ready by 2014 is envisaged as an edifice epitomizing India's changing attitudes. The use of glass fosters a belief in the public's perception of Government, as moving from a closed, opaque and stoic system to a more open and transparent one. </font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Both the Boards were also supposed to shift to the new Bhavan, but there was stiff opposition from some quarters on shifting the Boards. A senior officer told us two years ago that it is not proper to shift the Chairman and Members of the two Revenue Boards. One reason is that the status and prestige attached to an office in the North Block cannot be compared to the best glasshouse in the world. And when the Chairman comes to meet the Finance Minister in the North Block, where will he sit? Even Joint Secretaries may put on a red light and not welcome the Chairman into their rooms and the Chairman will also have to wander in the corridors of power. </font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">It seems, finally the Boards have succeeded in convincing the powers that be, to retain the offices of the Chairman and Members of the CBDT and CBEC in the North Block. Any day the inconvenience in North Block is preferable to the ultra modern luxury in Rajaswa Bhavan. </font></p> <p align="center"><strong><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif">Ban on ICT for Central Excise Inspectors, Superintendents lifted </font></strong></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>THE</strong> CBEC has lifted the ban on Inter Commissionerate transfer of Group B and C employees of the Central Excise Department. Now Inspectors, Superintendents and other employees of the Department can apply for transfer from one cadre controlling authority to another. However, they will lose their seniority. </font></p> <p><a href="http://www.taxindiaonline.com/RC2/subCatDesc.php3?subCatDisp_Id=70&filename=pitara/oms/ict_ce.htm" target="_blank"><strong><font size="2" face="Verdana, Arial, Helvetica, sans-serif">CBEC F. No. A.22015/23/2011-Ad IIIA dated: October 27, 2011 </font></strong></a></p> <p align="center"><strong><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif">The Super Rich Indians - Mukesh Continues to head list but with reduced wealth - No politician in list </font></strong></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>ACCORDING</strong> to the Planning Commission, even I am super rich and so are you. Forbes' latest list of India's hundred richest persons has Mukesh Ambani heading the list with a wealth of about Rs. 1.13 lakh Crores. It is said that there are politicians who have more wealth than that, but not a single politician figures in the list. </font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The poorest of the richest Indians, GVK Reddy is worth just 1850 Crores. Anil Ambani is at No. 13 with 30,000 Crores. Vijay Mallya is at midpoint at No. 49 with 5500 Crores. Narayana Murthy, GM Rao and Nandan Nilekani are richer. Savitri Jindal is the richest lady with about 48000 Crores. </font></p> <p align="center"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong><font color="#006600">Jurispruden</font><font color="#FF6633" size="5">tiol</font><font color="#006600"> – Monday's cases</font></strong></font></strong></font></p> <p><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><a></a><img src="http://www.taxindiaonline.com/RC2/image/stories/ddt_hammer.jpg" alt="Legal Corner Icon" width="100" height="84" hspace="5" border="0" align="left"><strong><font color="#663399">Customs </font></strong></font></p> <p align="justify"><strong><font color="#FF6633" size="2" face="Verdana, Arial, Helvetica, sans-serif">When proposal for confiscation and penalties are consequent to allegation of undervaluation resulting in demand of differential duty under section 28, time limit of five years applies: CESTAT </font></strong></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>SECTION </strong>28 prescribes issue of show cause notice within maximum five years from the relevant date. The proposal for confiscation and imposition of penalties are directly linked to demand of differential duty invoking extended period of limitation. Even though Section 124 does not specify a time limit, the same cannot exceed the, maximum time limit of five years prescribed under Section 28 of the Customs Act. </font></p> <p align="justify"><strong><font color="#663399" size="2" face="Verdana, Arial, Helvetica, sans-serif">Income Tax </font></strong></p> <p align="justify"><strong><font color="#FF6633" size="2" face="Verdana, Arial, Helvetica, sans-serif">Whether expenditure incurred on reconditioning of machinery lying idle in broken-down condition but produces benefit of enduring nature on repair, is to be treated as revenue expenditure - NO, rules HC </font></strong></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>ASSESSEE</strong> claimed expenditure incurred as repairs and reconditioning of Machinery treating it as current repairs. The machine was purchased by the assessee in the year 1981 which was broke down on 24.10.1991. AO observed that the expenditure incurred for reconditioning the machine had given the assessee a benefit of enduring nature and therefore, the amount was not allowable as current repairs. The issue before the Bench is - Whether expenditure incurred on reconditioning of machinery, lying idle in a broken-down condition, but produces benefit of enduring nature on repair, is to be treated as revenue expenditure. </font></p> <p align="justify"><strong><font color="#663399" size="2" face="Verdana, Arial, Helvetica, sans-serif">Central Excise </font></strong></p> <p align="justify"><strong><font color="#FF6633" size="2" face="Verdana, Arial, Helvetica, sans-serif">Show Cause notice demanding duty issued to legal heir after death of sole Proprietor - There is no provision in Central Excise law or rules framed there under for such an action - Stay granted: CESTAT </font></strong></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>IN</strong> a case where show-cause notice issued after the death of proprietor of the concern to legal heir of proprietor and proprietary concern not maintainable in absence of such provision in the Central Excise law. In the circumstances the pre-deposit of duty, interest and penalty is waived and recovery thereof stayed during the pendency of the appeal. </font></p> <p align="justify"><strong><font color="#663399" size="2" face="Verdana, Arial, Helvetica, sans-serif">See our columns Monday for the judgements </font></strong></p> <p align="justify"><font color="#FF6666" size="2" face="Verdana, Arial, Helvetica, sans-serif">Until Monday with more <strong>DDT</strong></font></p> <p><font color="#FF6666" size="2" face="Verdana, Arial, Helvetica, sans-serif">Have a Nice Weekend. </font></p> <p><font color="#FF6666" size="2" face="Verdana, Arial, Helvetica, sans-serif">Mail your comments to </font><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><a href="mailto:vijaywrite@taxindiaonline.com"><strong>vijaywrite@taxindiaonline.com </strong></a></font></p> </body> </html>