Jurisprudentiol - Tuesday's cases
Legal Corner Icon — the image was hosted by the publisher and was not captured.Central Excise
Pre-deposit orders of Commissioner (Appeals) - Writ in High Court or appeal before CESTAT? -Section 35B and Section 35G of Central Excise Act, 1944 are not parimateria - Section 35B does not use expression "any'' or "every order'', unlike Section 35G - It is fundamental principle of law that statutory authorities derive powers of appeal only in terms of statutes: HC
THE specific case of the petitioner is that there were three Orders-in-Original. As against two Order-in-Original, the petitioner filed appeals to the CESTAT. The CESTAT granted waiver of 100% and also granted stay. As against the 3rd order, in view of the amount involved, the petitioner had to go before the Commissioner (Appeals). Therefore, the Commissioner (Appeals) ought to have followed the precedents provided by the Tribunal. When the provisions in respect of which duty is levied are one and the same and when the CESTAT has granted absolute stay without any condition in respect of two Orders-in-Original, it is not fair for the Commissioner (Appeals) to impose a condition when the third case comes up.
Income Tax
Whether when once income is assessed u/s 115JB, no penalty is imposable even if concealed income is unearthed by Revenue - YES: HC
THE Assessee engaged in the business of ceramic tiles. The assessee declared total income as ‘Nil', after claiming deduction u/s 80IB and depreciations. The company's book profit u/s 115JB was worked out at Rs.3,78,87,230/. In the scrutiny assessment the AO found that there was a search carried out at the premises of the dealers of the company by the excise authorities. On the basis of revelations made by such dealers indicating clandestine removal of goods of the company without paying excise duty. For the A.Y under consideration, the AO out of the said cash receipts apportioned a sum of Rs.46,78,545/. He, accordingly, added such amount to the income of the assessee, both for normal computation as well as for computing book profit u/s 115JB.
The issue before the Bench is - Whether when once the income of the assessee is assessed u/s 115JB, no penalty is imposable even if concealed income is unearthed by the Revenue. And the answer favours the assessee.
Customs
Conversion of free shipping bill to drawback shipping bill - export goods not taxers - conversion allowed - CESTAT
HIGH Court of Mumbai in the case of Repro India Ltd - has specifically laid down in Para 8 that the intentions of the Government is not to export taxes but only to export the goods. In the case in hand, if the duty drawback is not allowed to the appellant, the appellant is perforce required to export the taxes, which gets included in the FOB value. This being not the intention, conversion of free shipping bills into drawback shipping bills needs to be allowed.
Documents like ARE-1, Bills of Lading, shipping bills specifically were signed by the Customs officers clearly indicate that the goods which were cleared for export was furnace oil.
Until Tomorrow with more DDT
Have a nice day.
Mail your comments to vijaywrite@taxindiaonline.com