Jurisprudentiol – Wednesday's cases

By Vijay Kumar

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

Review by Committee - mere signing on draft note mechanically does not constitute sufficient compliance with requirement of application of mind by Chief Commissioners comprising Committee to twin requirements of decision making process namely, due consideration of material pertaining to adjudication/appellate order and appropriateness/desirability of preferring an appeal -: CESTAT

THE respondent raised a preliminary objection that the appeal is misconceived since there is no application of mind by the Committee of Chief Commissioners in considering the draft review order recommending filling of the appeal before the Tribunal against the adjudication order inasmuch as -

+ The Chief Commissioner of Central Excise, Delhi Zone merely signed on the draft review note, prepared by the Inspector (Review) on 11.3.2013, countersigned by the Superintendent (Review) on 11.3.2013, the deputy Commissioner in Chief Commissioner's unit on 5.4.2013, and the Additional Commissioner in C.C. unit on 11.4.2013, on 15.4.2013.

+ Similarly, the Chief Commissioner, Central Excise, Chandigarh Zone on 26.4.2013 merely signed on the draft review note as prepared by sub-ordinate officers of his office.

Income Tax

Whether when AO had no occasion to verify shares transactions, it can still be stated that there was change of opinion while issuing notice u/s 148 - NO: Delhi HC

THE AO made assessment u/s 143(3) r.w.s. 147 but did not deem it fit and appropriate to make any addition in respect of share transactions which was subject matter of second reassessment notice. Petitioner contended that it was a case of change of opinion after application of mind. The issue before the Bench is - Whether when the assessing officer did not have any occasion to verify the shares transactions, which were considered as bogus based on the information from investigation wing and for which full particulars were not furnished by the assessee in original assessment proceedings, it can still be stated that there was change of opinion while issuing notice u/s 148 of the Income tax Act. NO is the High Court's answer.

Customs

Ascertainment of damage to imported goods has been done by re-exporting same for repairs and upon re-import by paying duty on repair and freight charges - refund of duty paid second time correctly allowed by appellate authority - no merit in Revenue appeal, hence dismissed: CESTAT

THE respondent imported machinery and paid duty as per the value assessed. Subsequently during examination, the goods were found to be in damaged condition. Therefore, the respondent filed a refund claim of the duty paid by them u/s 27 & 22 of the Customs Act, 1962. However, since damage could not be ascertained, no refund was granted. Subsequently, the damaged goods were sent to Germany for repair and re-import on payment of duty on the value of repair charges plus to and fro freight charges and the appellant filed a refund claim for the duty paid second time on the repair and freight charges.

See our Columns Tomorrow for the judgements