From our Legal Corner - tomorrow cases

By Vijay Kumar

Customs

Demurrage charges - Regulations framed cast a duty upon IAAI to charge demurrage for period of detention of goods - Delhi HC dismisses appeal of importer

The IAAI who is an independent statutory corporation although is an approved custodian under Section 45 of the Customs Act, exercises their independent power and jurisdiction in demanding payment of the demurrage charges which a party incurs for various reasons. Regulations framed also cast a duty upon the IAAI to charge demurrage for the period of detention of the goods and, therefore, in our opinion demurrage charges shall be payable and at this stage in the appellate proceedings we are not required to ascertain as to whether the Customs Department was at fault or not.

Settlement - Central Excise

Settlement Commission has power to grant immunity from payment of interest - HC can interfere with order of Settlement only if order is contrary to any provisions or suffers from bias, fraud or malice : High Court

The sole overall limitation upon the Commission thus appears to be that it should act in accordance with the provisions of the Act. The scope of enquiry, whether by the High Court under Article 226 or by the Supreme Court under Article 136 is also the same- whether the order of the Commission is contrary to any of the provisions of the Act and if so, apart from ground of bias, fraud and malice which, of course, constitute a separate and independent category , has it prejudiced the petitioner/ appellant. In such a case, this Court is "concerned with the legality of the procedure followed and not with the validity of the order". The learned Judge added " judicial review is concerned not with the decision but with the decision making process"......."

Settlement - Income Tax

Income Tax - Settlement Commission - Full and true disclosure is a onetime activity : Bombay High Court

There is no right in the assessee to invoke the Commission's jurisdiction even while he continues with his dishonest conduct.

A person who seeks to invoke the jurisdiction of the Commission must come and disclose the true facts.

Central Excise

Removal of capital goods - whether reversal of credit availed is warranted only when they are removed "as such" or on all occasions like after use - Tribunal refers matter to Larger Bench

IT was only a week ago that DDT - 741 & 742 carried an interesting piece of information about the ups and downs of the modvat/cenvat provisions relating to removal of capital goods on which credit was availed - the reason being the latest notification 39/2007CE(N.T) dated 13.11.2007.

By the way, what did this notification achieve - nothing more except that it filled the void that was caused by an absence in the cenvat provisions concerning removal of capital goods that were removed after use, of course for probable future use by the consignee. No doubt, the Cenvat Credit Rules, 2004 meticulously lays down as to what should be done when the cenvatted capital goods are removed "as such" or when they are cleared as 'waste and scrap', but the aforesaid absence was left to be tackled by the Tribunals - after the Audit and the CERA had had a sumptuous feast.

See our columns tomorrow for the judgements