TIOL-DDT 1359
14.05.2010
Friday
ON April 13th, we had carried a story - CESTAT has power to grant stay beyond 180 days - Assistant Commissioner rules that CESTAT has erred and High Court has no jurisdiction – Cost of Rs. One Lakh imposed on the officer.
The Chief Commissioner of Customs, Central Excise and Service Tax, Lucknow, Mr. B R Tripathi sent us a very strong (to put it mildly) rejoinder and wanted us to publish it.
The Assistant Commissioner had ordered that “the Tribunal had erred in passing the stay order and the High Court has no jurisdiction to pass orders on the writ petition”.
The High Court noted that, “The aforesaid averments are contemptuous in nature. The Assistant Commissioner, Central Excise Division, Rae Bareli has no authority to say that the order of the Tribunal is erroneous and this Court has no jurisdiction to pass the order.”
Instead of taking a contempt proceeding against the officer concerned, the High Court imposed an exemplary cost of Rupees one lac on the respondent-officer.
Now the Chief Commissioner is highly aggrieved by the High Court order and here are some snippets from his agitated rejoinder.
++ in interest of maintaining judicial discipline by all concerned (i.e. not only by revenue authority), it had become now imperative that a re-joinders should be issued for wider coverage & publication, so that real crux comes out.
++ it is not understood, what warrants drastic modification of an order of the Tribunal based on fact of a case (and not on a question of law)
++ The exemplary cost of Rs. 1 lakh ought to have been imposed after issuing notice to that effect to Chief Commissioner and Commissioner on whose written directions the Assistant Commissioner had issued the notice for recovery.
++ Imposing a cost of Rs. 1 lakhs on a Government servant who was engaged in discharge of statutory duty ought not have been played like a toy / pistol. It came out to be lethal.
++ When the department is collecting a revenue of Rs. 2 lacs 50 thousands Crores in a year, Rs. 1 lac is a petty amount. Exemplary cost imposed on Asstt. Commissioner ought to have been at least Rs. 10 crores.
++ The revenue collected by Asstt. Commissioner goes to consolidated fund of India, it will be drawn out of that, where is question of black & white ? Why from his pocket. There was no misconduct, no malafide, nothing beyond jurisdiction, nothing unethical, not in defiance of any specific order, direction by name. Why a cost be imposed on him or on department?
++ Therefore, the imposing of a cost of Rs.1 lac was not justified and was not in good taste.
++ it was unwarranted on part of the Hon'ble High Court to entertain such WP and on raising the issues of jurisdiction and authority, got annoyed and hence imposed a cost of Rs. 1 lakh on the respondent.
++ In fact entertaining the WP, modification of interim order of the Tribunal dated 17th August, 2005, adversely affecting the revenue interest by the Hon'ble High Court, Allahabad, within a span of one month itself was less than proper.
++ It was expected by the leading and renowned Hon'ble High Court of the country that it will address the core issue and will pronounce the landmark judgment (like unseating of the Prime Minister of the country in 1977 from the membership of Lok Sabha of Raebareli constituency
++ But with his deep - pocket, Galaxy (assessee) was in a position to shop for (appropriate?) jurisdiction.
++ With utmost regard to higher judiciary of the country, somehow of late it is being perceived by the citizenry & bureaucracy of the country that era of judicial activism or of adventurism is over - now it had entered in the era of judicial terrorism.
Stunned as we are with his letter, he wants us to give it wide publicity and declares, “I do take full responsibility about what had been written herein by me.”
Click here for the full rejoinder. TIOL does not in any way support, subscribe to or associates with his views. We are obliged to carry it as it is a rejoinder to one of our reports.
Export of Wheat to Bangladesh – Exemption from Prohibition
THE Prohibition on export of wheat shall not be applicable to export of 4,00,000 MT of wheat to Bangladesh through Food Corporation of India.
The above mentioned quantity shall be exported by Food Corporation of India out of the Central Pool stock. Wheat shall be exported at economic cost.
DGFT has amended Notification No. 33(RE-2007)/2004-2009, dated 08.10.2007 suitably.
Notification No. 40 /2009-2014, Dated: May 12, 2010
FEMA - Current Account Transactions – Liberalisation
IN terms of Rule 4 of the Foreign Exchange Management (Current Account Transactions) Rules 2000, prior approval of the Ministry of Commerce and Industry, Government of India, is required for drawing foreign exchange for remittances under technical collaboration agreements where payment of royalty exceeds 5% on local sales and 8% on exports and lump-sum payment exceeds USD 2 million [item 8 of Schedule II to the Foreign Exchange Management (Current Account Transactions) Rules, 2000].
The Government of India has reviewed the extant policy with regard to liberalization of foreign technology agreement and it was decided to omit item number 8 of Schedule II to the Foreign Exchange Management (Current Account Transaction) Rules, 2000, and the entry relating thereto.
Accordingly, AD Category-I banks may permit drawal of foreign exchange by persons for payment of royalty and lump-sum payment under technical collaboration agreements without the approval of Ministry of Commerce and Industry, Government of India.
RBI/2009-10/465 A. P. (DIR Series) Circular No. 52 Dated: May 13, 2010
Jurisprudentiol – Monday's cases
Central Excise
CENVAT Credit - Assessee has to satisfy the Assessing Authorities that capital goods in form of component, spares and accessories had been utilized during process of manufacture of finished product: Supreme Court
IN order to avail of Modvat/Cenvat credit, an Assessee has to satisfy the Assessing Authorities that the capital goods in the form of component, spares and accessories had been utilized during the process of manufacture of the finished product. Admittedly, in this case the Appellant was not able to identify the machinery for which the goods in question had been used. In the absence of such identification, it was not possible for the Assessing Authorities to come to a decision as to whether Modvat Credit would be given in respect of the goods in question.
Income Tax
Section 147- Whether reopening of assessment is permissible on direction of higher authorities: Held - No
ASSESSEE a company deals in shares and securities for the impugned year it has filed return the same was processed u/s 143(1)(a) of the Act, thereafter on the basis of information received from the investigation wing the AO reopened the assessment and made the addition alleging that the assessee has received accommodation entries- CIT (A)affirmed the order of the AO-Before ITAT, assessee challenged the jurisdiction of the AO u/s 147 of the Act, by way of additional ground. ITAT takes the view that the case of the assessee is covered by the order of Delhi High Court in the case of Atul Kumar Jain.
Customs
Imported goods lying uncleared auctioned – successful bidder files Bill of entry and original importer also files Bill of Entry – As per terms of the Tender Notice, respondents can withdraw any lot or part from sale at any time before it is actually physically delivered out of the campus without disclosing reasons for such withdrawal which petitioner was also aware – the original importer could not clear the goods due to the fact that goods were prohibited due to Notification issued by Department of Animal Husbandry which was later removed – action of respondents in favour of original importer is based on cogent reasons – Writ petition dismissed.
IN response to the auction notice issued by the CONCOR, the petitioner had offered a tender amount of Rs.41,42,435 for the consignment of 'pig bristles' which had arrived in a container, but lying uncleared. As the petitioner was the highest bidder for the said consignment, as notified by CONCOR, which specifically approved the petitioner's bid, the petitioner applied for clearance, as per CBEC Circular No.13/2007-Cus dated 02.03.07.
See our columns Monday for the judgements
Until Monday with more DDT
Have a nice Weekend.
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