TIOL-DDT 2335 · the untouched capture
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<p><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong><font color="#663399" size="3"><s><strong><font size="2"><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=20079"><img src="http://www.taxindiaonline.com/RC2/image/stories/limca_book2014_1.jpg" alt="DDT in Limca Book of Records - Third Time in a row" width="250" height="123" hspace="5" border="0" align="right"></a></font></strong></font></strong></font></strong></font></strong></font></strong></s>TIOL-DDT 2335 </font><br>
17.04.2014 <br>
Thursday</strong></font></p>
<p align="center"><strong><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif">Appeals - For Eight Years, Central Excise Department fails to file affidavit - Appeal Dismissed </font></strong></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>THE</strong> Commissioner of Central Excise filed an appeal on 6.3.2006 against an order of the Tribunal received by him on 10.6.2005. The appeal should have been filed before 9.12.2005. Along with the appeal, an application for condonation of delay was also filed. No affidavit has been filed along with the application for condonation of delay. </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The appeal has been dismissed for want of prosecution on 17.11.2009. Till 17.11.2009, affidavit in support of the averments made in the application under section 5 of Limitation Act has not been filed.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The recall application No. 126999 of 2010 dated 28.04.2010 was filed. The said application was dismissed in default on 17.09.2010. </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Further restoration application No. 225022 of 2011 has been filed. On 09.01.2014 both restoration applications No. 225022 of 2011 and 126999 of 2010 have been allowed. </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">On 14.03.2014 the appellant has been allowed one month and no more time to file affidavit in support of Delay Condonation Application. </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">After one month the High Court took up the matter on 15.04.2014 and found that the affidavit has not been filed as yet. </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The Counsel for the Commissioner prayed for some more time to file the affidavit, but the High Court declined to accept the request.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The High Court observed, </font></p>
<blockquote>
<p><font size="2" face="Verdana, Arial, Helvetica, sans-serif" align="justify">- Since the year 2006 till date, the affidavit could not be prepared and filed. </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">- Despite stop order passed on 14.03.2014, no affidavit in support of the condonation of delay has been filed. </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">- In the circumstances, no further indulgence can be granted to the appellant. </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">- On perusal of averments made in the application, it reveals that it is a case of negligence and latches on the part of the office of the Union of India and on the part of the office of Assistant Commissioner as well. </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">- The limitation for filing appeal is 180 days, which is quite sufficient. </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">- It is unfortunate that during the aforesaid period, the appeal could not be properly prepared and filed. </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">- The reason given in the application are not supported by any documents and affidavit. Therefore, the same can not be accepted. </font></p>
</blockquote>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">For some strange reason, the Central Excise Department is not able to file an affidavit in the High Court for the last eight years, in a case where the appeal was filed late with an application for condonation of delay. </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">An appeal by the State is defeated because of the negligence of an Assistant Commissioner. The System will ensure that the Assistant Commissioner is protected. </font></p>
<p align="justify"><strong><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Please see
<a href="http://www.taxindiaonline.com/RC2/caseLawDet.php?QoPmnXyZ=OTMxMTI=" target="_blank"><font size="1">2014-TIOL-514-HC-ALL-CX</font></a></font></strong></p>
<p align="center"><strong><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif">A woman employee of Central Government can take uninterrupted 730 days of Child Care Leave </font></strong></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>AS</strong> per the recommendations of the VI Pay Commission, women employees having minor children were made eligible for a Child Care Leave for a maximum period of 730 days during their entire service for taking care of up to two children, whether for rearing or to look after any of their needs like examination, sickness etc. </font></p>
<div align="justify">
<blockquote>
<p><font size="2" face="Verdana, Arial, Helvetica, sans-serif">• Child Care Leave can be granted to women employees having minor children below the age of 18 years, for a maximum period of 2 years (i.e. 730 days) during their entire service, for taking care of up to two children whether for rearing or to look after any of their needs like examination, sickness etc. Child Care Leave shall not be admissible if the child is eighteen years of age or older.</font></p>
<p><font size="2" face="Verdana, Arial, Helvetica, sans-serif">• The Conditions regarding spell of CCL, imposed upon by the Government are that it may not be granted in more than 3 spells in a calendar year and that CCL may not be granted for less than 15 days. </font></p>
<p><font size="2" face="Verdana, Arial, Helvetica, sans-serif">• During the period of such leave, the women employees shall be paid leave salary equal to the pay drawn immediately before proceeding on leave. </font></p>
<p><font size="2" face="Verdana, Arial, Helvetica, sans-serif">• Child Care Leave shall not be debited against the leave account. There is also no condition that CCL can be availed only if the employee concerned has no Earned Leave at her credit, Child Care Leave may also be allowed for the third year as leave not due (without production of medical certificate). </font></p>
</blockquote>
</div>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">In a case decided by the Supreme Court yesterday, the issue was whether a woman employee of the Central Government can ask for uninterrupted 730 days of Child Care Leave (CCL) under Rule 43-C of the Central Civil Services (Leave) Rules, 1972. </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">In this case, the appellant initially applied for CCL for six months commencing from 5th July, 2011 by her letter dated 16th May, 2011 to take care of her son who was in 10th standard. In her application, she intimated that she is the only person to look after her minor son and her mother is a heart patient and has not recovered from the shock due to the sudden demise of her father; her father-in-law is almost bed ridden and in such circumstances, she was not in a position to perform her duties effectively. While her application was pending, she was transferred to Campbell Bay in Nicobar District (Andaman and Nicobar) where she joined on 06th July, 2011. By her subsequent letter dated 14th February, 2012 she requested the competent authority to allow her to avail CCL for two years commencing from 21st May, 2012. However, the authorities allowed only 45 days of CCL by their Office Order No. 254 dated 16th March, 2012. </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The appellant approached the Central Administrative Tribunal which allowed the application and directed the Government to act strictly in accordance with DOPTO.M. dated 11.9.2008 as amended/clarified on 29.9.2008 and 18.11.2008, granting her CCL for the due period. </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Government does not let go of an opportunity to perpetuate litigation and took the matter in appeal to the High Court. The High Court allowed the Government appeal and held that leave cannot be claimed as a right. </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The spirited employee took the matter to the Supreme Court. </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The Supreme Court allowed her appeal and observed; </font></p>
<blockquote>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><em>On perusal of circulars and Rule 43-C, it is apparent that a woman government employee having minor children below 18 years can avail CCL for maximum period of 730 days i.e. during the entire service period for taking care of upto two children. The care of children is not for rearing the smaller child but also to look after any of their needs like examination, sickness etc. Sub Rule (3) of Rule 43-C allows woman government employee to combine CCL with leave of any other kind. Under Sub Rule (4) of Rule 43-C leave of the kind due and admissible to woman government employee including commuted leave not exceeding 60 days; leave not due up to a maximum of one year, can be applied for and granted in continuation with CCL granted under Sub Rule (1). From plain reading of Sub Rules (3) and (4) of Rule 43-C it is clear that CCL even beyond 730 days can be granted by combining other leave if due. The finding of the High Court is based neither on Rule 43-C nor on guidelines issued by the Central Government. The Tribunal was correct in directing the respondents to act strictly in accordance with the guidelines issued by the Government of India and Rule 43-C. </em></font></p>
<p align="justify"><em><font size="2" face="Verdana, Arial, Helvetica, sans-serif">In the present case, the appellant claimed for 730 days of CCL at a stretch to ensure success of her son in the forthcoming secondary/senior examinations (10th/11th standard). It is not in dispute that son was minor below 18 years of age when she applied for CCL. This is apparent from the fact that the competent authority allowed 45 days of CCL in favour of the appellant. However, no reason has been shown by the competent authority for disallowing rest of the period of leave. </font></em></p>
</blockquote>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The Supreme Court also noted that<em> Government of India from its Ministry of Home Affairs and Department of Personnel and Training all the time encourage the government employees to take leave regularly, preferably annually by its Circular issued by the Government of India M.H.A.O.M. No. 6/51/60-Ests. (A), dated 25th January, 1961, reiterated vide Government of India letter dated 22/27th March, 2001. As per those circulars where all applications for leave cannot, in the interest of public service, be granted at the same time, the leave sanctioning authority may draw up phased programme for the grant of leave to the applicants by turn with due regard to the principles enunciated under the aforesaid circulars. </em></font></p>
<p align="justify"><strong><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Please see <font size="1"><a href="http://www.taxindiaonline.com/RC2/caseLawDet.php?QoPmnXyZ=OTMxMTM=" target="_blank">2014-TIOL-38-SC-MISC</a></font></font></strong></p>
<p align="center"><strong><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif">Justice Delayed? </font></strong></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>THIS</strong> woman employee who took her Child Care Leave application right up to the Supreme Court may not perhaps benefit from the favourable order of the Supreme Court. She applied for leave three years ago when her son was studying in 10th standard and must have been 15 years old. Now after three years, the son would be 18 years old and if she does not have another child who is less than 18 years, she would not be eligible for Child Care Leave at all. </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">When it comes to interpretation of rules, the babus perhaps are as harsh with their employees as they are with the public. </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">DDT understands that a lady IRS probationer recently joined the academy for training with a days old child in tow. How will she undergo the rigorous training while attending to her infant? Is it not prudent to give her a year or two of Child Care Leave rather than produce an ill-trained officer who will end up a permanent liability to the Department and Society? </font></p>
<p align="center"><strong><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif">Onions Smuggled from India to Nepal </font></strong></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>WHILE</strong> tons of gold are being smuggled into India, our onions are also worth smuggling into Nepal. The Nepali Newspaper ‘The Himalayan' reported yesterday that a man driving a tractor load of onions from India to Nepal was taken into custody along with his tractor. </font></p>
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<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"> - Monday's cases</font></strong></font></strong></font></p>
<p><font color="#663399" size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong><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">Central Excise </strong></font></p>
<p align="justify"><strong><font color="#FF6633" size="2" face="Verdana, Arial, Helvetica, sans-serif">Inter-unit transfer of excisable goods consumed by recipient unit for further manufacture and clearance of goods to its own units - Valuation - Whether cost of material is 100% or 115%/110% - Matter referred to Larger Bench in view of conflicting views between Mumbai and Chennai Benches: CESTAT</font></strong></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>THE</strong> appellant unit is engaged in manufacture of packing material which is supplied to its own units on payment of duty in terms of Rule 8 of the Central Excise Valuation (Determination of price of excisable goods) Rules, 2000. The raw material, i.e., paper and paper board required for manufacture of packing material is received from their Bhadrachalam unit. Bhadrachalam unit is paying excise duty on paper and paper board by adopting value at 115%/110%% of the cost of production. The appellant unit is also paying excise duty on packing material cleared to their own units by adopting the value at 115%/110% of the cost of production. While arriving at the cost of production of packing material, the appellant unit is adopting the cost of paper at 100% and it is the case of department that the cost of paper should be adopted at 115%/110% instead of 100%. In addition to this, the department also disputed the cost of production computed by the appellant unit by holding that the Intra-Division Service Charges raised by the Bhadrachalam unit are to be included in the cost of production and also the appellant has to include the unabsorbed overheads due to idle capacity have to be included in the cost of production. </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 Delhi Sikh Gurudwara Committee has powers to create Trust or Society to run hospital, eligible for exemption u/s 12A - NO: Delhi HC </font></strong></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>DELHI</strong> Sikh Gurudwara Management Committee had constructed a hospital at Gurudwara Bala Saheb. During the hospital's construction, the Committee's President proposed that the hospital be managed by an independent trust settled by the Committee, whose trustees would be decided upon by the Committee itself. The proposal was accepted, and accordingly, the Guru Harkishen Medical Trust, the respondent Trust, was created. A trust deed was drawn up, by which the Committee was described as the settler. The Deed also stated that the Committee was running a number of charitable institutions, and that it was interested in establishing a specialty hospital to provide medical services at affordable rates. The Deed further stated that the trust was being established to run and operate the hospital either by itself or in collaboration with other organizations with experience and expertise in this field. The deed also indicated that "to fulfil these objectives, a sum of Rs. 1 lakh had been settled to the trustees. </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">IN a major setback to the Delhi Sikh Gurudwara Management Committee the Delhi High Court has held that since the Act does not empower the Committee to create a new body like a Trust or a Society to run a hospital on its own or in joint venture, such a body cannot be allowed exemption u/s 12A.</font></p>
<p align="justify"><strong><font color="#663399" size="2" face="Verdana, Arial, Helvetica, sans-serif">Service Tax </font></strong></p>
<p align="justify"><strong><font color="#FF6633" size="2" face="Verdana, Arial, Helvetica, sans-serif">ST - Levelling of area and preparing of courtyards, plantation of trees/shrub and laying pebbles and water fall around lake, maintenance of lawn, providing water supply arrangement and maintenance of trees and plants including trimming, removing grass shrubs etc. cannot be considered as advisory or consultancy or technical assistance so as to be charged to ST under category of Interior Decorator -: CESTAT </font></strong></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>THE</strong> appellant undertook the activity of plantation of grass and trees, shrubs in factory area and also the work of maintenance of lawns etc. It is the allegation of the CE jurisdictional authorities at Pune that the appellants are directly or indirectly in the business of providing by way of advice, consultancy and technical assistance in respect of beautification of space and such service is covered under the definition of "Interior decorator" as mentioned in clause 59 of Section 65 of the Finance Act, 1994.</font></p>
<p><strong><font color="#FF0000" size="2" face="Verdana, Arial, Helvetica, sans-serif"><a>Tomorrow is a Holiday - Good Friday</a></font></strong></p>
<p><strong><font color="#663399" size="2" face="Verdana, Arial, Helvetica, sans-serif">See our Columns Monday for the judgements </font></strong></p>
<p><font color="#FF6666" size="2" face="Verdana, Arial, Helvetica, sans-serif">Until Monday with more <strong>DDT</strong></font></p>
<p><font color="#FF6666" size="2" face="Verdana, Arial, Helvetica, sans-serif">Have a nice weekend. </font></p>
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