Jurisprudentiol – Monday's cases

By Vijay Kumar

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

Import of secondhand Digital Multifunction Print & Copying machines – freely importable; not hazardous waste – Confiscation and Penalty set aside: HC

NO Show Cause Notice given for Confiscation; Court will not turn a blind eye to such a glaring irregularity in the proceedings: The impugned order ordering confiscation of the goods with a direction to re-export, coupled with imposition of penalty, also suffers from the vice of arbitrariness and capriciousness in the proceedings under the Customs Act, 1962. Admittedly, no show cause notice has been issued for confiscation or for imposition of penalty and therefore there is a statutory violation in the order confiscating the goods and imposing penalty. The department is bound to issue show cause notice before adjudicating the matter for confiscation of goods and levy of penalty. Hence, the procedure prescribed under Section 124 of the Customs Act, 1962 has not been followed and on that ground also the impugned order is liable to be set aside. Though the said plea has not been specifically raised by the petitioners showing the shallowness in the preparation of the cases, the Court will not turn a blind eye to such a glaring irregularity in the proceedings.

Income Tax

Whether when a company sponsors gifts to winners of a TV Game Show, any TDS obligation arises on such gifts for assessee or TV Channel - Liability is on assessee: ITAT

THE issues before the Bench are - Whether when assessee makes emergency purchases for immediate consumption, clearing charges paid for the same are to be included in the value of closing stock; Whether first time insurance premium paid to register a vehicle purchased for business purposes is to be included in the actual cost of the asset and the same is to be treated as capital in nature; Whether when assessee sponsors gifts to winners of a game show on TV, any TDS obligation arises on such gifts and Whether TDS is deductible on stitching charges invoiced for making uniform of the assessee's employees. And the verdict partly goes in favour of assessee.

Service Tax

Since appeal was filed before Commissioner(A) against o-in-o by the appellant, the Commissioner had no power to review the o-in-o u/s 84 of the FA, 1994 - Appeal allowed: CESTAT

THE Commissioner, in exercise of his powers u/s 84 of FA, 1994, reviewed the O-in-O only on the ground that the mandatory penalty should be imposed upon the appellant u/s 76 of FA, 1994 and after issuing notice dt.01.09.2005 to the appellant, the present review order was passed by Commissioner, Central Excise, Daman and the penalty has been enhanced to Rs.21,96,743/- u/s 76 of FA, 1994.

The Revenue representative submitted that against the o-in-o passed by the original authority, the appellant had preferred an appeal before Commissioner (Appeals) and vide an o-in-a dated 28/07/2005 the appeal was allowed. However, against this o-in-a, the department had preferred an appeal and which is pending before the CESTAT. Inasmuch as the present appeal should also be tagged with department's appeal pending before the Tribunal, the Revenue submitted.

See our Columns Monday for the judgements