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By Vijay Kumar

Judicial indiscipline

Commissioner's findings in denovo adjudication anger Tribunal so much so that it endorses copy of order to CBEC Chairman for taking appropriate action

The Tribunal remanded a case to the Commissioner in 1992 to decide the case within six months. He did it after 13 years in 2005 and blamed the Tribunal for the department's failure.

The Tribunal while observing that the order was an act of judicial indiscipline could not resist commenting -

"Not only the specific directions/terms contained in the remand order are not fulfilled but there are certain findings, comments and observations in the order of the Commissioner which are unwarranted. His observations "from skin deep submission such remand order was passed", "CEGAT's order had become as if a boon and an armour to the assessee", "the order of the CEGAT somehow brought the department at a receiving end", "the Hon'ble Tribunal's order and the indifferent attitude on the part of Income Tax Department had placed the Central Excise Department in a precarious position to decide a case of evasion of duty for which sufficient and tangible evidence has been collected and brought on record by way of investigation had been as if undone" do not show the ld. Commissioner was aware of his role in de-novo adjudication in pursuance of Tribunal's order. He ought to have decided strictly following the directions or should have filed appeal against the order of the Tribunal. His attitude towards the higher judicial forum is not at all healthy. The observations and insinuations are totally unwarranted . He has dealt with the de novo adjudication proceedings as if he was dealing with an appeal against the order of the Tribunal dated 27.4.92."

What should you do with such Commissioners? Immediately promote them to Chief Commissioner.

Customs

Adjudication without hearing - neither SCN issuing authority, nor Adjudicating Authority has seen relied upon documents - classic example of mindless negation of natural justice - another DRI case falls flat - CESTAT

THE premier investigating agency has again fumbled. The DRI issues a SCN but does not give copies of the relied upon documents. Normally no Commissioner would dare to quash a notice issued by DRI. But what is often forgotten is that there are still courts in India.

Service Tax

Non-inclusion of TR-6 challan issued by GTA as a notified document in rule 9 of CCR, 2004 prior to insertion by Not 28/2005-CE is an inadvertent omission - Credit allowed for past period : Tribunal

TR-6 challan is the most primary document evidencing payment of duty/tax. No doubt the TR-6 challan was not included in the list of specified documents. It was included by virtue of notification no. 28/2005-CE(N.T) dated 7.6.05. I find that this is an inadvertent omission, which was rectified by issuing the said notification. This is so because any duty payment documents is related to and based on TR-6 challan which is the source document. Similar view has been taken up by the Hon'ble Tribunal in the case of National Organics Chemical India Ltd.

Income Tax

Maintenance cost of website is revenue expenditure but development cost is capital in nature : ITAT

NOWADAYS maintaining a website has become a business compulsion. Any business entity worth its salt has to have its presence in the world wide web for faster interaction with its target audience. Given that a company's website only provides information about its businesses and product portfolios, it is certainly not an end in itself. It only projects the forward-looking, modern and agile image of the company and does not earn any revenue in most cases. In this background, an interesting case came up before the Chennai Bench of Tribunal which had upheld the CIT(A) order, allowing half of the expenditure as revenue expenditure and the rest to the capital account. Why?

See our columns tomorrow for the judgements