TIOL-DDT 1805 · the untouched capture
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<!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="2" face="Verdana, Arial, Helvetica, sans-serif"><a href="http://www.taxindiaonline.com/RC2/inside2.php3?filename=bnews_detail.php3&newsid=14276"><img src="http://www.taxindiaonline.com/RC2/image/ddt/ddt_1794.jpg" alt="DDT in Limca Book of Records" width="175" height="120" hspace="5" border="0" align="right"></a></font><font color="#663399">TIOL-DDT 1805 </font><br> 29.02.2012 <br> Wednesday </strong></font></p> <p align="center"><strong><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif">Justice Ajit Bharihoke is new President of CESTAT -Corruption is a high-risk business </font></strong></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>THE</strong> very name Ajit Bharihoke sends a chill down many a spine. He was the judge who sentenced former Prime Minister PV Narasimha Rao to three years rigorous imprisonment and had many high profile cases before him like Bofors, St Kitts, 3G, Amar Singh bail plea, to name a few. </font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Now, Justice Ajit Bharihoke is the new President of our own CESTAT. The Tribunal is going to be different with Justice Bharihoke at the helm. </font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Justice Bharihoke did his LL.B from Punjab University, Chandigarh. He joined Delhi Judicial Service on 07.12.1974. He had worked as Civil Judge, Metropolitan Magistrate, Additional Rent Controller, Senior Civil Judge and Chief Metropolitan Magistrate. He was appointed in Delhi Higher Judicial Service on 21.08.1995 and worked as Additional District and Sessions Judge, Additional Sessions Judge, Special Judge, Anti Corruption (CBI), Motor Accidents Claim Tribunal, Additional Rent Control Tribunal and additional charge of Additional Director, Delhi Judicial Academy. He also worked as Registrar, National Human Rights Commission on deputation from 19.05.2003 to 30.11.2006 and Registrar General in Delhi High Court with effect from 06.01.2007 to 13.05.2009. He was appointed as an Additional Judge in Delhi High Court on 14.05.2009. </font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">In his judgement in the PV Narasimha Rao case, Justice Bharihoke declared, </font><font size="2" face="Verdana, Arial, Helvetica, sans-serif" style="background-color:#FFFF00" span="span">“The best way to discourage corruption in the public life particularly in high places is to award exemplary punishment to the high ranking public servants in order to send a message to the society that corruption... is really a high-risk business".</font> <div align="justify"> <p><font size="2" face="Verdana, Arial, Helvetica, sans-serif">This was in the year 2000 and now after 12 years, the Justice is to head the Indirect Taxes Tribunal. The image of the Tribunal is not exactly envious and the previous President retired in rather unpleasant circumstances. Beware, Justice Bharihoke is here and in our own CESTAT! A lawyer remarked, “all the sinners are going to pay for the sins of even their past births” </font></p> </div> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Bharihoke retired from Delhi High Court on 16.10.2011. Justice Sikri of the Delhi High Court described him as a dignified and outstanding judge. After his retirement, he was chosen to head the CESTAT. Though the ACC had cleared his appointment, somehow the Revenue Department was not releasing the appointment order. The crusading Editor of ELT, RK Jain had filed a writ in the Delhi High Court seeking a direction to the Government to appoint a President for CESTAT. The writ petition is to come up today before the Court No.1 of the Chief Justice and Justice Rajiv Sahai Endlaw as item No. 28 in the First Supplementary List. Maybe to thwart any unpleasant result in the Delhi High Court today, the Revenue Department, in a pre-emptive looking move, released the appointment order of justice Bharihoke yesterday. </font></p> <p><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>TIOL</strong> congratulates Justice Ajit Bharihoke on his appointment and heartily welcomes him into the intaxicating world of taxation. </font></p> <p align="justify"><a href="http://www.taxindiaonline.com/RC2/inside2.php3?filename=wnew/Order_President.htm" target="_blank"><strong><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Dept of Revenue F.No.A.12026/2/2011AD IC (CESTAT), Dated: February 28, 2012 </font></strong></a></p> <p align="center"><font color="#006600"><strong><font size="2" face="Verdana, Arial, Helvetica, sans-serif">FTP - Reimport of Diamonds at zero duty </font></strong></font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>GOVERNMENT</strong> has amended the Foreign Trade Policy. An exporter (with annual export turnover of Rs 5 crores for each of the last three years) may export cut & polished diamonds (each of 0.25 carat or more) abroad to any of the authorised agencies/ laboratories with re-import facility at zero duty within 3 months from the date of export. Such facility of export and subsequent re-import at zero duty will be subject to guidelines issued by CBEC, Department of Revenue. </font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Basic Customs Duty of 2% on import of cut & polished diamonds has been imposed by the Department of Revenue with effect from 16.1.2012 vide Notification No. 01/2012. Such duty will not be applicable on <strong>re-import of cut & polished diamonds</strong> (each of 0.25 carat or more) sent for certification/ grading abroad to the authorised laboratories. (Earlier also similar provision existed in FTP which was deleted after the Basic Customs Duty on cut and polished diamonds was brought down to zero.) </font></p> <p align="justify"><strong><font color="#FF6633" size="2" face="Verdana, Arial, Helvetica, sans-serif">But can customs duty be exempted by a notification issued by the DGFT; shouldn't there be a Customs Notification? </font></strong></p> <p><a href="http://www.taxindiaonline.com/RC2/subCatDesc.php3?subCatDisp_Id=45&filename=notification/dgft/2010/dgft10not100.htm" target="_blank"><strong><font size="2" face="Verdana, Arial, Helvetica, sans-serif">DGFT Notification No. 100 (RE-2010) /2009-2014, Dated: February 28, 2012 </font></strong></a></p> <p align="center"><strong><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif">Exchange Rates for March 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 March 2012. </font></p> <p><a href="http://www.taxindiaonline.com/RC2/subCatDesc.php3?subCatDisp_Id=24&filename=notification/custom/2012/cnt12_014.htm" target="_blank"><strong><font size="2" face="Verdana, Arial, Helvetica, sans-serif">CBEC Notification No. 14/2012-Cus., (N.T.), Dated: February 27, 2012 </font></strong></a></p> <p align="center"><strong><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif">CBEC Circulars - Any Value? </font></strong></p> <p><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>WE </strong>got this mail from a Netizen: </font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">CBEC Vide Circular No. 02/2012 dated 16/01/2012 extended the period for utilization of re-credited DEPB/ reward scheme licenses up to 31/03/2012. Earlier the date was 30/09/2011. The irony is CBEC took 4 months to issue the circular for extending the period. During the period from 30/09/2011 to 16/02/2012 the licenses meant to be re-credited with lakhs of Rupees were lying with the Customs department who were taking their own sweet time to sanction the 4% SAD refund claims until 30/09/2011. Thereafter the date gone by, no action was taken on these licenses and kept lying unattended until Circular No. 02/2012 dated 16/01/2012 was issued. The CBEC did their work rather a favour by extending the time upto 31/03/2012 with a strong message that no further extension shall be granted; however a new problem has cropped up. Who will ring the bell at the DGFT????? The DGFT regional offices have refused to re-credit the scrips. Why? Sir, CBEC Circular has no binding force on us and there are no instructions from DGFT, New Delhi to do so, so far (read as 28/02/2012). </font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">It has been more than a month; any request to DGFT New Delhi is falling on deaf ears. With just a month remaining to go........ Where does trade ring the bell????????? What is the value of the Circular so issued by the CBEC???????? If 31/03/2012 goes by who shall be responsible for the loss??????? </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"> – Thursday's cases</font></strong></font></strong></font></p> <p><strong><font color="#663399" size="2" face="Verdana, Arial, Helvetica, sans-serif"><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">Central Excise </font></strong></p> <p align="justify"><strong><font color="#FF6633" size="2" face="Verdana, Arial, Helvetica, sans-serif">Classification - There is no fixed test for classification of a taxable commodity. This is probably reason why 'common parlance test' or 'commercial usage test' are most common: SC</font></strong></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>WHETHER</strong> a particular article will fall within a particular Tariff heading or not has to be decided on the basis of the tangible material or evidence to determine how such an article is understood in 'common parlance' or in 'commercial world' or in 'trade circle' or in its popular sense meaning. It is they who are concerned with it and it is the sense in which they understand it that constitutes the definitive index of the legislative intention, when the statute was enacted. However, there cannot be a static parameter for the correct classification of a commodity. The combined factor that requires to be taken note of for the purpose of the classification of the goods are the composition, the product literature, the label, the character of the product and the use to which the product is put. However, the miniscule quantity of the prophylactic ingredient is not a relevant factor. </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 for purpose of imposing penalty u/s 158BFA(2), necessary condition prescribed under Sec 271(1)(c) to prove concealment of income or furnishing of inaccurate particulars of income is not required to fulfilled - YES, rules Gujarat HC</font></strong></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>SEARCH</strong> and seizure operation u/s 132 was carried out. AO, while carrying out the assessment proceedings made various additions over and above the income disclosed by the assessee. CIT(A) restricted the additions. Tribunal granted further relief. Assessee did not carry the matter any further and Tribunal's order thus became final. AO issued notice for imposing penalty u/s 158BFA(2). No reply was received from the assessee and AO imposed penalty u/s 158BFA(2). CIT (A) confirmed the order of the AO. Tribunal retained a small portion of the penalty imposed. Revenue raised the question of law that whether the penalty u/s 158BFA(2) was mandatory or discretionary in character and if it was held to be discretionary, did the Tribunal exercise its discretion on legally sound principles so as to delete the penalty.</font></p> <p align="justify"><strong><font color="#663399" size="2" face="Verdana, Arial, Helvetica, sans-serif">Service Tax </font></strong></p> <p align="justify"><strong><font color="#FF6633" size="2" face="Verdana, Arial, Helvetica, sans-serif">Service Tax paid by job-worker although entitled to exemption notfn. 8/2005-ST - since Revenue has accepted tax paid and no action has been initiated against job worker, prima facie case in favour: CESTAT </font></strong></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>PRIMA</strong> facie, that the Revenue has accepted the duty paid by the job worker and no proceedings were initiated against the job worker, therefore, the applicants have a strong case in respect of the duty demanded of Rs. 3,95,771/-. </font></p> <p align="justify"><strong><font color="#663399" size="2" face="Verdana, Arial, Helvetica, sans-serif">See our columns Tomorrow for the judgements</font></strong></p> <p align="justify"><font color="#FF6666" size="2" face="Verdana, Arial, Helvetica, sans-serif">Until Tomorrow with more<strong> DDT</strong></font></p> <p><font color="#FF6666" size="2" face="Verdana, Arial, Helvetica, sans-serif">Have a Nice Day.</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>