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By Vijay Kumar

Central Excise

One Commissioner wearing two hats cannot constitute a Committee - Tribunal decision in Remi Fans is seemingly per incuriam : Tribunal

AS a rule, the best things are done by a Committee of one - E.C.Mckenzie

On 30^th April we reported the Single Member Tribunal decision in Gupta Steel- 2007-TIOL-567-CESTAT-KOL- holding that a single Commissioner cannot sign at both places on a Review order & constitute a Committee, whatever be the administrative exigencies.

The next day we reported another Single Member decision of the WZB in the case of Remi Fans Pvt. Ltd. -2007-TIOL-573-CESTAT-MUM - wherein the Tribunal held that even if there is a single Commissioner who signs in a dual capacity as a Committee, there is no infirmity as he is holding additional charge of the other Commissionerate too.

We had suggested that such unpleasant situations can be avoided by constituting the Committee with any two Commissioners who can be nominated by the Chief Commissioner or the Chief Commissioner can himself/herself sit in the Committee in the absence of a Commissioner. More importantly, the signatures on the Review order should be of two different individuals, if that suffices the purpose.

Probably, Board is not interested in any of these solutions and feels that once the jurisdictional Commissioner has decided to review the Commissioner(Appeals)'s order, the second Committee Member has to only sign on the dotted line, whatever be his view.

Removal of inputs for job work - recorded in books - non-compliance with prescribed procedure - no duty can be demanded - no intent to evade and so no penalty : CESTAT

Does the Law permit delayed demand in a revenue neutral case?

The Tribunal examined this question and observed:-

1. It is well settled that demand under proviso to Section 11A could be raised only in exceptional cases.

2. Those exceptions are mentioned in the proviso itself.

3. They are fraud, wilful suppression of facts or misstatement of facts with intent to evade duty, etc.

Classification adopted by Revenue cannot be challenged by way of filing a refund claim subsequently : CESTAT

So long as the order of assessment stands, the duty would be payable as per the order of assessment. A refund claim is not an appeal proceeding. The Officer considering a refund claim cannot sit in appeal over an assessment made by a competent Officer.

Income Tax

Capital gains tax - Application of Sec 2(47) is valid only if conditions of Transfer of Property act are satisfied : Madras HC

CAN provisions of Sec 2(47)(v) of Income Tax Act be given effect to on its own or its coming into play depends on satisfaction of certain conditions? The court was faced with this question wherein it squarely held that Sec. 2(47)(v) cannot come to the aid of department unless conditions of Sec. 53A of Transfer of Property Act are satisfied i.e 2(47)(v) can only be invoked on satisfaction of 53A of TPA.

See our columns tomorrow for the judgements