Jurisprudentiol – Monday's cases

By Vijay Kumar

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

Since appellants are not able to prove that burden of amount claimed by them as refund has not been passed on to their consumers, refund has rightly been rejected: CESTAT

A refund claim of Rs.1.01 Crores filed by the appellant on the basis of the CESTAT's order was sanctioned by the adjudicating authority but the same was credited to Consumer Welfare Fund on the ground that the appellants were not able to prove that the amount was not collected by them from their buyers.

Income Tax

Whether first appellate authority has inherent powers to grant stay even if provisions in I-T Act do not confer any such specific power to grant stay against recovery of disputed demand - YES, rules ITAT

THE powers of the appellate authorities are indisputably concurrent and co-extensive with that of the Assessing Authority but wider and superior in nature. Section 251 of the Act clearly stipulates that in disposing of an appeal, the CIT (Appeals) can confirm, reduce, enhance or annul the assessment. Section 251 (1) (c) of the Act further provides that in other cases, he may pass such orders in appeal as he thinks fit. These words harmoniously read, definitely mean that powers of appellate authorities under the Act are wide enough. Such powers could not be intended to be drained out or rendered meaningless, if the power to grant stay against the recovery of disputed demand is to be taken away from the first appellate authority. Such implied, necessary and inherent power must necessarily be read into these provisions conferring the powers upon the appellate authority to modify the impugned assessment order in any manner.

Customs

Non-fulfilment of export obligation resulting in demand of customs duty on brass scrap imported duty free – Pre-deposit to be made in three equal monthly instalments: Delhi HC

THE appellant imported 144.163 MTs of brass scrap in 1998 without payment of duty and was obliged to fulfil export obligation of 134.105MTs in the form of builder hardware. As per the relevant notification, the appellant was required to submit details of exports made within one month from the expiry of the period of export obligation, which was not submitted. The department contended that the appellant fulfilled only 14.977% of the export obligation and had exported hardware of the requisite quantity.

See our columns Monday for the judgements