SERVICE TAX

2018-TIOL-1344-CESTAT-MAD

Cus - Assessees are co-noticees in SCN issued to them, alleging misclassification and misdeclaration of value of Concentrated mineral drops (CMD) and Elete Electrolyte and NanoSil imported by M/s. Itspossible Marketing Ltd. - Assessees are Directors of main noticee, of said Company - The appeal filed by the main assessee viz., M/s. Its possible Marketing Ltd ., was disposed by Tribunal in 2018-TIOL-934-CESTAT-MAD - The Tribunal in said decision had held the issue of classification in favour of assessee - The issue with regard to valuation was remanded to adjudicating authority - Commissioner has imposed penalties for violation of classification as well as under valuation of goods - On such score, penalties imposed under Section 112 (a) requires interference as the issue with regard to classification has now been decided in favour of assessee - However, since there is finding by Tribunal that valuation of goods is not proper and requires redetermination, for which reason the matter has been remanded, penalties imposed under Section 112 (a) cannot be wholly set aside - Therefore penalties imposed under Section 112 (a) reduced - With regard to penalties under Section 114 AA, arguments put forward by assessee are not without substance - There is no allegation in SCN that assessee had used any false documents in transaction - The ingredients stated in said Section is not established by department and therefore the imposition of penalties under Section 114 AA, is unwarranted and set aside - Penalties imposed on each assessee is modified: CESTAT - Appeal partly allowed: CHENNAI CESTAT

2018-TIOL-800-HC-MAD-PMLA + Case Story

Nalini Chidambaram Vs Directorate Of Enforcement

PMLA - T he petitioner preferred the Writ challenging the summons issued consequently in proceedings dated 7.9.2016 for the petitioner's personal appearance by the Enforcement Directorate, Kolkata. The petitioner sought relief in a way to direct the Investigating Authorities to forbear the Enforcement Directorate (ED) officials in Kolkata from taking any action against her under the Prevention of Money Laundering Act (PMLA) of 2002 in connection with the professional legal fees received after deduction of tax from her client M/s. Saradha Realty India Ltd.

Held: This Court expects that as a responsible and dutiful citizen of this great Nation, the petitioner would participate in the investigation process in order to cull out the truth - General provisions are not made in order to defeat the very purpose and the object of the course of investigations - When the Supreme Court has elaborated the scope and meaning of Article 21, so as to ensure a decent life to the citizen, then the same is to be preserved in all respects - Under the guise of protection granted under Article 21 of the Constitution, the course of investigation in a case under the PMLA cannot be paralised - "PMLA" has overriding effect and the provisions of the CrPC would apply only if they are not inconsistent with the provisions of the PMLA - The petitioner is seeking exemption only on the ground that a woman is exempted from personal appearance u/s 160 of the CrPC - This Court has to consider the position, status and the capacity of a woman for the purpose of granting any exemption from participating or for personal appearance in investigation of such cases - When such is the current position, the spirit of Sec. 160 of the CrPC cannot be interpreted so as to nullify or paralise an effective investigation process of cases under PMLA - The writ petition against summons issued for the personal appearance of a person in order to give evidence or statement under the provisions of the Special Act, namely, "PMLA" can be entertained only on exceptional circumstances - This Court is of the view that there is no irregularity or illegality in respect of insisting the petitioner for personal appearance for the purpose of seeking certain clarifications so as to cull out the truth in relation to the financial transactions and the documents filed by her before the Enforcement Directorate through her authorised agent - A mere statement made in an affidavit that the authorities are having certain personal motive or mala fide intention can never be accepted for the purpose of granting the relief in a writ petition - The petitioner cannot say that the authorities are incompetent to summon any person - The Investigating Authorities are empowered to summon any person defined u/s 2(s) of the PMLA for the purpose of conducting investigations - Every person summoned under PMLA is duty bound to appear before the competent authorities: High Court (Para 107, 124, 128, 130, 131, 132, 133, 134, 135) - Writ petition dismissed : MADRAS HIGH COURT