Jurisprudentiol – Tuesday's cases

By Vijay Kumar

Legal Corner Icon — the image was hosted by the publisher and was not captured.Service Tax

Oral communication of order of pre-deposit is not envisaged in law - no order has been issued as envisaged in s.37C of CEA, 1944 asking appellant to make pre-deposit - in such a scenario, dismissal of appeal for failing to comply with oral directions is not proper in law - matter remanded: CESTAT

VIDE an order dated 13.12.2011, the CCE(A) dismissed the appeal filed by the appellant on the ground that the appellant had not complied with the condition of pre-deposit under the provisions of Section 35F of the Central Excise Act, 1944.

This is what he recorded in paragraph 12 of his order -

"I find that the appellants have failed to make a pre-deposit of the entire amount of Service Tax and interest, directed during the course of personal hearing held on 16.11.2011, as required in terms of the provisions of Section 35F of the Central Excise Act, 1944, till date, although they were required to submit compliance thereof by 7.12.2011."

Income Tax

Whether when assessee Trust exists only for medical education purpose, it loses entitlement to exemption under I-T Act once it is held that its admission procedures were not as per MCA regulations - NO: HC

ASSESSEE, a public charitable educational Trust, registered under the provisions of the Rajasthan Public Trust Act, 1959, filed writ contending that the assessee Trust was established in the year 2006 solely for educational purpose and since its inception, was imparting education in several of its institutions. It was further stated that the Trust applied for and was registered under the provisions of Section 12A(a) for availing exemption u/ss 11 and 12 thereof. It was then stated in the petition that on 9.1.2009, the Trust filed an application seeking exemption of its income u/s 10(23C)((vi). The application of the Trust was rejected by the order dated 27.1.2010, on the ground that the Trust was not satisfying the essential conditions for exemption u/s 10(23C). The issue before the Bench is - Whether when assessee Trust exists only for medical education purpose, it loses entitlement to exemption under I-T Act once it is held that its admission procedures were not as per MCA regulations. NO is the Bench's answer.

FTP/Customs

Para 2.17 of the FTP Vs para 2.33 of HBP - Used digital multifunction print and copying machines - No restriction under para 2.33 - Allowed to be cleared on payment of duty - No error in the order of Single Judge - Division Bench of HC

IN a batch of Writ Appeals, the department was challenging the order of single judge, wherein the Writ Petitions filed by various importers of second-hand digital multifunction print and copying machines were allowed by holding that the said goods were not restricted goods. The goods were allowed to be cleared freely on payment of applicable duties. The single judge relied on para 2.33 of the HBP to arrive at the above finding.

It is the contention of revenue that the Digital Multifunction and Copying Machine, as per Para 2.17 of the Foreign Trade Policy, is a restricted item and it is not freely importable. As the Handbook of Procedures (Vol-1) is framed in consonance with the Foreign Trade Policy to carry out the objects and purpose of the Policy, the interpretation of Clause 2.33 of the Handbook of Procedures (Vol-1) has to be in consonance with the Foreign Trade Policy.

See our Columns Tuesday for the judgements