Jurisprudentiol - Monday's cases

By Vijay Kumar

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

Plea that assessee is forced to pay equal penalty under Section 11 AC because adjudication order did not mention benefit of reduced penalty of 25% of duty - Facts of case different from K P Pouches case - No attempt by assessee to pay duty amount - No error in order of CESTAT: Delhi HC

VIDE adjudication order dated 5th March 2004 an amount of Rs 17,88,262/- was confirmed on account of duty payable on clandestine clearances. Penalty equal to the duty was also imposed under Section 11 AC of the Central Excise Act, 1944. The assessee was unsuccessful at Commissioner (Appeals) and the appeal against the order of Commissioner (Appeals) was also dismissed by the CESTAT in - 2010-TIOL-1239-CESTAT-DEL. Since the Tribunal order did not contain any specific finding on the plea raised by the assessee on penalty under Section 11 AC, the matter was agitated by the assessee before the Delhi High Court. The High Court remanded the matter to the CESTAT to deal with the contention of the assessee regarding penalty. Consequently, the CESTAT rejected the rectification application filed by the assessee. Thus, the matter reached the High Court for the second time.

Income Tax

Whether portfolio manger is an agent who does trading of shares on behalf of client with motive to earn profit, and hence gains attributable to such transactions is business profit and not STCG even if client has shown same as investment in books - YES, rules ITAT

ASSESSEE firm is engaged in the business of providing technical, marketing and maintenance services for earth-movers tyres and trading in tyres. Assessee filed its ROI declaring LTCG and STCG. During the course of assessment proceedings the AO observed that the assessee entered into numerous purchases and sales of shares, and hence the profits of the assessee were taxable as business income and not STCG or LTCG. The CIT(A) affirmed the order of the AO. In appeal before the ITAT the assessee argued that all the transactions were delivery based transactions and STT was paid on these transactions.

Customs

Anti Dumping - Government not bound to impose anti dumping duty on recommendation of Designated Authority; Court cannot sit in judgement over wisdom of policy of Legislature or executive: HC

TASK of DA is limited of ascertainment of various factors such as factum of dumping if at all, ascertainment of extent of dumping, injury to the domestic market and amount of dumping duty in his opinion would eliminate injury. These are issues which necessarily would be governed by material that may be brought on record and ascertainment of relevant factors on basis of facts presented. DA while examining these issues would not be involved in ascertaining other consequences of imposition or otherwise of Anti-dumping duty. It is necessarily the task of the Central Government to ascertain such factors and to come to conclusion whether despite such recommendations, Anti-dumping duty should be imposed or not.

See our columns Monday for the judgements