Jurisprudentiol – Tuesday's casess

By Vijay Kumar

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

Non-availability of files in Board is no reason to condone delay - A vigilant only gets leniency while an indolent fails to get so - Appeal dismissed as time barred: CESTAT

BEFORE the CESTAT, revenue submitted that review was done before 31.12.02 and unsigned review order was communicated on 17.3.2003. Upon receipt of such order, appeal was filed before Tribunal on 31.3.2003. Due to shifting of review cell of the Board from Jeevan Deep Building, Connaught Place to Hudco Vishala Building, R. K. Puram in New Delhi, review file was not traceable at present for placing before the Bench.

Entire contention of Revenue based on Board's unsworn affidavit averring non-availability of review record does not grant immunity from bar of limitation. Review in different cases was done at the eleventh hour without being conscious of remedial measure. The very communication of the unsigned review order by a Superintendent nearly after 3 months of 31.12.2002 establishes casual approach of Revenue. Accordingly, in absence of any cogent evidence establishing date of review was on 31.12.02, Revenue's appeal is not maintainable.

Income Tax

Whether when assessee enhances capacity of existing unit by going for substantial expansion, assessee cannot be allowed Sec 80I benefits merely because new unit depends on existing unit for completing processes of production - NO, benefits are available: HC

THE assessee is a public limited company engaged in the business of manufacturing caustic soda primarily and other chemicals. The assessee acquired a new industrial license and a new letter of intent for substantial expansion of the production capacity of caustic soda. Twelve new cells were installed for this purpose. The assessee incurred expenditure towards new machinery and plant added to the existing plant. The assessee claimed relief in respect of the profit attributable to the same as provided u/s 80-I. This claim came to be rejected by the ITO holding that this was a case of substantial expansion and hence the benefit was not available. The CIT(A) concurred with the ITO. The Tribunal held that since it was expansion of the same manufacturing unit, the assessee will not be entitled to the benefits of Section 80-I.

Customs

Prosecution - Acquittal - adjudication proceedings as well as criminal proceedings can be initiated simultaneously - Customs Department permitted to appeal against acquittal: HC

AN appeal against an order of acquittal is extraordinary remedy and the power to appeal is to be exercised by the government sparingly. Adjudication proceedings as well as criminal proceedings can be initiated simultaneously and that the findings of the departmental or adjudication proceedings would not amount to res judicata and that initiation of criminal proceedings would not be treated as double jeopardy. The findings of adjudication proceedings would have no bearing on the criminal case and that the criminal proceedings are to be determined in its own merits in accordance with law, uninhibited by the findings of the Tribunal or the adjudicating authority.

See our columns Tomorrow for the judgements