TIOL-DDT 981 · the untouched capture
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<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong><font color="#663399" size="3">TIOL-DDT 981</font><br>
30.10.2008<br>
Thursday</strong></font></p>
<p align="center"><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>CESTAT Transfers – Ultimatum by President</strong></font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Last week, the Hon'ble President transferred the two Vice-Presidents and four Members of the CESTAT. As we had reported, many of the transferred Members were not exactly happy with their transfer and we understand that at least one Member has resigned. It seems some others had represented against the transfer.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The Hon'ble President issued another order on 27 th October to the effect that the transferred Members who are yet to get relieved will stand relieved of their present charge of office on 31.10.2008.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">That is by tomorrow, all the transferred Hon'ble Members will honourably quit or they are deemed to be relieved.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Obviously they are not given time even to pack up.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">So far so good, but will it be ensured that the transferred Members will have a house in their new place of posting and possibly a car? Or should they go round asking for an accommodation in a shared auto rickshaw?</font></p>
<p align="center"><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>Service Tax - Closure of cases under Section 73(3)</strong></font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">As per Section 73(3) of the Finance Act of 1994,</font></p>
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<p align="justify"><font color="#FF6633" size="2" face="Verdana, Arial, Helvetica, sans-serif">(3) Where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded, the person chargeable with the service tax, or the person to whom such tax refund has erroneously been made, may pay the amount of such service tax, chargeable or erroneously refunded, on the basis of his own ascertainment thereof, or on the basis of tax ascertained by a Central Excise Officer before service of notice on him under sub-section (1) in respect of such service tax, and inform the Central Excise Officer of such payment in writing, who, on receipt of such information shall not serve any notice under sub-section (1) in respect of the amount so paid:</font></p>
<p align="justify"><font color="#FF6633" size="2" face="Verdana, Arial, Helvetica, sans-serif">Provided that the Central Excise Officer may determine the amount of short payment of service tax or erroneously refunded service tax, if any, which in his opinion has not been paid by such person and, then, the Central Excise Officer shall proceed to recover such amount in the manner specified in this section, and the period of “one year” referred to in sub-section (1) shall be counted from the date of receipt of such information of payment.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong><font color="#FF6633">Explanation. </font></strong><font color="#FF6633">— For the removal of doubts, it is hereby declared that the interest under section 75 shall be payable on the amount paid by the person under this sub-section and also on the amount of short payment of service tax or erroneously refunded service tax, if any, as may be determined by the Central Excise Officer but for this sub-section.</font></font></p>
<p align="justify"><font color="#FF6633" size="2" face="Verdana, Arial, Helvetica, sans-serif">The Hyderabad III Commissioner has noticed that different practices for closure of cases covered under Section 73(3) of the Finance Act, 1994 are being followed in the Commissionerate. There is neither any separate record prescribed nor is there any standard procedure for dealing with such cases.</font></p>
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<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The Commissioner feels that closure cases under Section 73(3) of the Act is akin to exercising quasi judicial function in as much as the competent authority has to decide about absence of evidence or grounds for invocation of proviso to section 73 and apply Section 73(3) of the Act. It is thus administrative propriety that closure of cases of cases under Section 73(3) of the Act should be carried out with the approval of the Commissioner who is the reviewing authority for the lower adjudicating authorities. If the case arises out of Audit objection then the closure will be approved in the Monthly Monitoring Committee (MMC) meeting chaired by the Commissioner, Anti-Evasion and Divisional cases will be put up to the Commissioner through the Additional Commissioner (Anti-Evasion).</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The Commissioner further directs, “Needless to mention that in all such cases full recovery of Service Tax with interest along with request for waiver of Show Cause Notice are necessary before closure of the case under Section 73(3) of the Act can be considered. Format for the letter to be obtained from the assessees is in the Annexure (enclosed). It is also imperative that the investigating officers should clearly certify that no evidence leading to invocation of the grounds for extended period as envisaged in the proviso to Section 73 are involved in the cases considered for closure under Section 73(3) of the Act.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">After the approval of the competent authority, details of these cases must be entered in a separate register in the Division/Hqrs. Audit/Hqrs. Anti-Evasion branches.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The Commissioner has also, in this internal circular, prescribed a proforma for the letter to be given by the assessee for avoiding penalty and non-issuance of SCN. How will the assessee come to know about this?</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong><a href="http://www.taxindiaonline.com/RC2/subCatDesc.php3?subCatDisp_Id=41&filename=notification/servicetax/2008/standing_order.htm" target="_blank">Hyderabad III Commissionerate Standing Order No. 01/2008-Service Tax. Dated: 25.06.2008</a></strong></font></p>
<p align="center"><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>Vigilance Awareness Week in Government Offices</strong></font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Vigilance Awareness Week would be observed in all government organisations from 3rd November to 7th November, 2008. According to the Central Vigilance Commission, “It is the time of the year when we rededicate ourselves and renew our commitment to the cause of creating conditions to eliminate rent-seeking behaviour and to ensure that public services are rendered with utmost honesty, sincerity and efficiency.”</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The Commission would like to see promotion of preventive vigilance activities with emphasis on development of a foolproof system. A system that encourages strict adherence to the principles of non-discretionary decision making on the basis of well defined rules would go a long way in obviating the need for disciplinary action well after the event is over. There cannot be a more apt description in this regard than the old adage: "Prevention is better than cure".</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The role of the Secretaries to the Government of India and the CMDs of the PSUs and the Public Sector Banks, as heads of the vigilance administration, in this regard, hardly needs any emphasis. Vigilance is very much a management tool and, as such, should be used synergetically with the other tools to improve efficiency by promoting competitiveness, equity and transparency;</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The fight against corruption is too serious a task to be left to the heads of vigilance in government organisations or the Commission alone. The civil society and citizens in general must play a far more effective and pro-active role in this fight. Of particular importance in this endeavour is the recourse to Public Interest Disclosure and Protection of Informers' ( PIDPI ) Resolution, 2004, under which the complainants can approach the Commission directly as 'whistleblowers'. The Commission remains committed to protecting the safety and identity of the whistleblowers and urges more such persons to come forward in order to expose corruption in public life, taking advantage of the PIDPI Resolution, 2004.</font></p>
<p align="center"><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>Modern Piracy</strong></font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Piracy is as old as maritime trade.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">It is said that Julius Caesar was kidnapped by Cilician pirates and held prisoner in the Dodecanese islet of Pharmacusa. When the pirates decided to demand a ransom of twenty talents of gold, Caesar is said to have insisted that he was worth at least fifty, and the pirates indeed raised the ransom to fifty talents.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">It used to be said that the English Aristocrats educated their daughters in the best of convents and then married them off to pirates.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Nothing has changed over the centuries and it seems the Somalian pirates of today have the most beautiful girls and the best of cars.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">See our <strong><a href="http://www.taxindiaonline.com/RC2/inside2.php3?filename=bnews_detail.php3&newsid=8076" target="_blank">CobWeb</a> </strong>today for more details.</font></p>
<p align="center"><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">– tomorrow's cases</font></strong></font></p>
<p align="justify"><font color="#FF6633" size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong><strong><strong><strong><strong><strong><strong><b><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"></b></strong></strong></strong></strong></strong></strong></strong></font><font color="#663399" size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>Central Excise</strong></font></p>
<p align="justify"><font color="#FF6633" size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>Chhattisgarh State Electricity Board is not a Department of State Government so as to be eligible for exemption in respect of PCC Poles manufactured in their factories: CESTAT Larger Bench</strong></font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>THE </strong>dispute in these two appeals on behalf of Chhattisgarh State Electricity Board relates to eligibility for exemption under Notification No. 74/93-CE dated 28.02.1993 which provided for exemption from payment of central excise duty in respect of goods manufactured by a factory belonging to a State Government if such goods are intended for use by another Department of the State Government.</font></p>
<p align="justify"><font color="#663399" size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>Limitation:</strong></font></p>
<p align="justify"><font color="#FF6633" size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>Limitation Act cannot be invoked for condonation of delay in filing revision application under Section 47 of Delhi Sales Act: High Court Larger Bench</strong></font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The basic question to be answered is that whether the Revisional Authority exercising power under Section 47 of the Act is a court within the meaning of Section 29(2) of the Limitation Act and provisions of Sections 4 and 24 of the Limitation Act would apply in spite of the specific applicability of only the provisions of Section 4 and 12 of the Limitation Act to a petition under Section 47 of the Act.</font></p>
<p align="justify"><font color="#663399" size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>Income Tax</strong></font></p>
<p align="justify"><font color="#FF6633" size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>Sale deeds clearly indicate that transactions entered into by willing owners to transfer land after negotiations were voluntary - Invoking Section 194LA in cases where sale deeds were executed in favour of petitioner was without jurisdiction – Writ allowed: High Court</strong></font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>MERE </strong>issuance of notification under Section 4(1) does not have the effect of divesting of title of the land owner. Only if there was divesting of the title of the land owner, and amounts were paid either as compensation or as enhanced compensation, it could be regarded as compulsory acquisition. In the instant case, sale deeds in this regard clearly support the contention of the petitioner that there was a voluntary transaction entered into by a willing owner to transfer land after negotiations. Hence, invoking Section 194LA in r/o cases where sale deeds were executed in favour of the petitioner was totally without jurisdiction.</font></p>
<p align="justify"><strong><font color="#663399" size="2" face="Verdana, Arial, Helvetica, sans-serif">See our columns tomorrow for the judgements</font></strong></p>
<p align="justify"><font color="#FF6633" size="2" face="Verdana, Arial, Helvetica, sans-serif">Until tomorrow with more <strong>DDT</strong></font></p>
<p align="justify"><font color="#FF6633" size="2" face="Verdana, Arial, Helvetica, sans-serif">Have a nice day.</font></p>
<p align="justify"><font color="#FF6633" size="2" face="Verdana, Arial, Helvetica, sans-serif">Mail your comments to</font><font size="2" face="Verdana, Arial, Helvetica, sans-serif"> <a href="mailto:vijaywrite@taxindiaonline.com">vijaywrite@taxindiaonline.com</a></font></p>
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