TIOL-DDT 2072 · 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 size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong><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=17063"><img src="http://www.taxindiaonline.com/RC2/image/stories/limca_book2013.jpg" alt="DDT in Limca Book of Records" width="175" height="120" hspace="5" border="0" align="right"></a></font></strong></font></strong></font></strong></font></strong></font><font color="#663399" size="3">TIOL-DDT 2072</font><br> 25.03.2013<br> Monday</strong></font></p> <p align="center"><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>3 days strike by Inspectors and Superintendents of Central Excise & Service Tax </strong></font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>THE</strong> Inspectors and Superintendents of Central Excise will observe a countywide 3 days strike on 29.03.13 to 31.03.13 against the apathetic & indifferent attitude of the concerned authorities in r/o their promotional avenues, pay matters and working conditions despite of the orders of the government to attend the offices on these holidays on account of being Good Friday, Saturday & Sunday. They have decided that the authorities of Central Board of Customs & Excise can't force them to attend the office in non-statutory manner. This decision has been taken during a combined meeting of the All India Association of Central Excise Gazetted Executive Officers and All India Central Excise Inspectors Association. All India Association of Central Excise Gazetted Executive Officers has also taken the decision to intensify their already declared agitational programme of “mass resignations” on 30.04.13 throughout the country. These officers are retiring with single promotion in their service career of 35-40 years.</font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The above is a press release from the All India Association of Central Excise Gazetted Executive Officers. They are also upset that Satyagraha programmes for many years like fasting, Anshan, Dharnas, Shantigosh this, Gandhigiri, lunch hour protests, bearing black badges, boycott of Excise day function etc. did not work. One can only hope that this time the “mass resignation” will work. </font></p> <p align="center"><font color="#663399" size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong><img src="http://www.taxindiaonline.com/RC2/image/stories/indecision.jpg" alt="Legal Corner Icon" width="400" height="329" hspace="5" border="0" align="center"></strong></font></p> <p align="center"><strong><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif">Department is not serious about filing appeals - shows lethargic attitude of departmental officers in taking work in light manner </font></strong></p> <p align="justify"><em><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>WORDS</strong>, not pleasing to the ears of the Revenue officials but they rarely make an attempt to change this image. Read the circumstances which led the Bench to comment so. </font></em></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The Commissioner (Appeals) held that since the refund claim was filed within one year from the date of finalization of the provisional assessment the assessee is entitled for the refund claim. This order dated 24th July, 2012 was received in the office of the Revenue on 30th July, 2012 and, therefore, the appeals against the said order were required to be filed on or before 29th October, 2012. </font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">However, the Revenue filed an appeal on 5th November, 2012 along with a COD application and the reason for delay in filing the appeal was stated as under:- </font></p> <p align="justify"><em><font color="#663399" size="2" face="Verdana, Arial, Helvetica, sans-serif">“As the preparation of the appeal involved verification of some facts pertaining to the Letters of Rejection as also some facts pertaining to the legal position with regard to the period of limitation and the implications of the process of finalization of provisional assessment, the appeal memorandum could not be finalized in time.” </font></em></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Remaining four appeals that were also supposed to be filed on or before 29th October, 2012 were filed on 4th December, 2012 with a delay of more than 34 days and the reason for causing delay is the same as mentioned earlier. </font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The Bench observed –</font></p> <blockquote> <p align="justify"><em><font color="#663399" size="2" face="Verdana, Arial, Helvetica, sans-serif">“3. From the above facts, it is clear that the departmental officers are not serious enough about the filing of the appeals before this Tribunal and are filing the same in a casual manner. They even did not verify the facts or reasons for causing delay, as one appeal has been filed on 5th November, 2012 and remaining appeals were filed on 4th December, 2012 against the same order-in-appeal without whispering any new reason for causing any further delay. Moreover, the verification of the COD application done has been sent on 23rd October, 2012 which was within the period of limitation for filing the appeal but an application for COD has been preferred and signed on 5th November, 2012 which also show the lethargy attitude of the departmental officers taking the work in a light manner and without verifying the correct and true facts. Though the reasons for Condonation of Delay are not convincing but considering the fact that the merit of the case should not be devoided therefore, in the interest of the natural justice, I allow the applications for Condonation of Delay and take up the appeals for consideration and disposal.” </font></em></p> </blockquote> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Thereafter the Bench held that the refund claim filed by the respondent is within time and rejected the Revenue appeal. </font></p> <p><strong><font size="2" face="Verdana, Arial, Helvetica, sans-serif">(See <font size="1"><a href="http://www.taxindiaonline.com/RC2/subCatDesc.php3?subCatDisp_Id=28&filename=legal/cestat/2013/2013-TIOL-505-CESTAT-MUM.htm" target="_blank">2013-TIOL-505-CESTAT-MUM</a></font>) </font></strong></p> <p align="center"><strong><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif">Reforms are on-going process - FM </font></strong></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>THE</strong> Finance Minister, Chidambaram while addressing the National Editors' Conference said that the reforms are on-going process and far reaching changes have been made in the macro-economic and sectoral policies since 1991. He said that the Government has introduced a series of reforms to improve and sustain the investment climate in the country as well as to make growth more inclusive. These include liberalisation of FDI in multi brand retail, civil aviation and broadcasting, rationalization of diesel and other petroleum prices including capping subsidized LPG cylinders to consumers. With introduction of direct benefit transfer (DBT) through Aadhar, introducing Competition Commission of India (Amendment) Bill, 2012 in Parliament; reducing the rate of withholding tax to enable low cost foreign borrowing by Indian companies; legislative measures in the banking sector paving the way for granting new bank licenses by the RBI, setting up of Cabinet Committee on Investment for fast tracking mega projects of over Rs. 1000 crores and approving the scheme for financial restructuring of State Distribution Companies (DISCOMs) by Cabinet Committee on Economic Affairs (CCEA). Besides this, other reforms are also being considered. The Financial Sector Legislative Reforms Commission (FSLRC), which was examining the laws governing the financial sector, has submitted its report and the report will be put in public domain in the next few days, said the Finance Minister. </font></p> <p align="center"><strong><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif">ST 3 Return – Last date is not today, but 15th April 2013 </font></strong></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>MANY</strong> assessees are still calling us to know whether the ST 3 return for the period July 2012 to September 2012 has to before 25th March, 2013, i.e., today. But the date has already been extended to 15th April 2013 vide Order No 1/2013-Service Tax dated 06.03.2013. </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"> – Tuesday's cases</font></strong></font></strong></font></p> <p><font 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"><font color="#663399"><strong>Central Excise </strong></font></font></p> <p align="justify"><strong><font color="#FF6633" size="2" face="Verdana, Arial, Helvetica, sans-serif">Toilet papers are separately classifiable than handkerchiefs, cleansing or facial tissues and towels and third schedule to Tariff does not cover toilet papers - in view of this, prima facie applicants have made out strong case in their favour - pre-deposit of duty of Rs.1.19 Crores waived & stay granted: CESTAT </font></strong></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>THE</strong> <em>Commissioner of Central Excise, Pune-I </em> confirmed a demand of Rs.1,19,46,341/- along with interest and penalty on the ground that the <em><strong>toilet paper </strong></em> which is manufactured and cleared by the applicant is assessable to duty under section 4A of the CEA, 1944 and not u/s 4 of the CEA, 1944 as was being done by the assessee. </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 Explanation introduced in Sec 80IA(4) by Finance Act, 2009 having retrospective operation w.e.f 1.4.2000 is unconstitutional, although it only attempts to clarify that deduction u/s 80IA(4)would not be available in case of execution of works contracts - NO: HC </font></strong></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>THE</strong> issues before the Bench are - Whether Explanation introduced in Section 80IA(4) by the Finance Act, 2009 having retrospective operation w.e.f 1.4.2000 is unconstitutional, although it only attempts to clarify that deduction under section 80IA(4) of the Act would not be available in case of execution of works contracts; Whether the intrinsic difference between developing an infrastructure facility and executing a 'works contract' was already made clear in the amendment itself introduced in the year 2002; Whether the amended Section 80IA(4) with effect from 1.4.2002 could be construed as not including execution of 'works contract' as one of the eligible activities for claiming deduction and Whether when the intention of the legislature is clear from the substantive provision of a Section, can an explanation later introduced in the same Section be interpreted as something different, from a mere clarification. And the verdict goes in favour of the Revenue.. </font></p> <p align="justify"><strong><font color="#663399" size="2" face="Verdana, Arial, Helvetica, sans-serif">Customs </font></strong></p> <p align="justify"><strong><font color="#FF6633" size="2" face="Verdana, Arial, Helvetica, sans-serif">Appellant absconding in view of COFEPOSA detention order and proclamation made for his appearance by cancelling his bail - Appellant was eluding the law and, therefore, such person cannot be given benefit of condonation of any delay - O-in-O passed in January, 2002 and appellant filing appeal in November, 2012 - Appeal time barred and hence dismissed: CESTAT </font></strong></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>VIDE</strong> Order-in-Original dated 31/01/2002, the Commissioner of Customs (Prev.), New Customs House, Mumbai confirmed a duty demand of Rs.1,60,90,028/- against the appellant u/s 28(1) of the Customs Act, 1962 along with interest u/s 28AB ibid. Further, absolute confiscation was ordered of the goods viz. cigarettes and biscuits of foreign origin and a penalty of Rs.50 lakhs was imposed on the appellant. </font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The appellant filed an appeal before the CESTAT on 02/11/2012. </font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Therefore, the appellant was asked why the appeal should not be rejected as time barred. On 05/12/2012 when the case was called for hearing the appellant has submitted a statement where he declared that he has not received the impugned order due to change in address. Inasmuch as since he had changed his residence from Mumbai to Pune, he came to know of the order only in October, 2012 when he enquired about the status of the case from the department. </font></p> <p align="justify"><strong><font color="#663399" size="2" face="Verdana, Arial, Helvetica, sans-serif">See our Columns Tuesday 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 align="justify"><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>