TIOL-DDT 2688
18 09 2015
Friday

IT has come to the notice of the Board that the High Court of Bombay in its judgment dated 15.07.2015 in the case of Lanvin Synthetics Pvt. Ltd. Vs Union of India reported in 2015-TIOL-1668-HC-MUM-CUS has quashed the Show Cause Notice dated 13.03.1997 and prohibited the department from passing any adjudication order as the Show Cause Notice was not adjudicated for 17 long years as no records were available. The High Court in its order at para 12 has observed:

"If the law postulates early end to such proceedings and there is no period of limitation prescribed, does not mean that the proceedings initiated could be concluded at the sweet will and fancies of the department."

The High Court in para 11 of said order has further quoted the Supreme Court in the case of Citedal Fine Pharmaceuticals - 2002-TIOL-680-SC-CX, where the Apex Court was pleased to hold that in the absence of any period of limitation, it is settled law that every authority should exercise the power within a reasonable period.

The Board painfully notes that in spite of various monitoring mechanisms in existence, such occurrence could not be avoided. The matter has been viewed seriously and all the adjudicating authorities are directed to pass adjudication orderswithin time limits as prescribed, so that the above said instance is not repeated in future.

Board also refers to its letter F.No.275/17/2015-CX.8Adated 11.03.2015 (copy available on CBEC website), on the subject of 'Steps needed to be taken to improve tax administration', wherein the need for passing the adjudication order within the specified time has been emphasised.

Board wants all the Commissioners to also explore the possibility of scanning and digitization of all papers connected with adjudication and litigation matters.

Board wants the Chief Commissioners to bring to the notice of the field formations these instructions for scrupulous compliance.

CBEC F.No.280/45/2015-CX.8A., Dated September 17, 2015

Board's Instructions on Adjudication - Some Questions

In the High Court order referred to above by the Board, the High Court also made some other uncomfortable observations:

We conclude this matter with some pain and anguish. If delay on the part of the department results in loss to the exchequer and as directed presently no recovery can be made of the sums demanded, then, it is for the Superiors to initiate all steps and measures. Our order should not be taken as relieving officials concerned of their duties and obligations in terms of the law including the departmental rules and circulars. We would highly appreciate if the Secretary in the Ministry of Finance, Government of India directs initiation of departmental and other legal proceedings so that all guilty of causing loss to public exchequer are brought to book .

What action did the Board take on this?

While reporting the Board's instructions dated 11.3.2015, DDT 2603 - 22 05 2015 observed,

Do you think the litigation mechanism is in for a major change? Don't expect anything remotely resembling that. As reported in these columns frequently, the field officers have scant respect for the Board and its routine instructions. Many adjudicating authorities openly tell the assessees,  "you will surely win in the Tribunal, but I can't give you the benefit" "Let them go to Tribunal",  is a favourite mantra of the adjudicator. If the departmental adjudication orders were legal if not fair, half the consultants would have gone out of business.

This kind of letters from the Board will not change the reality; in any case they have been issuing such letters for more than fifty years. The system will change only if there is a reward or punishment.

Has any change taken place?

Board has repeatedly asked the officers to adjudicate within the time limits as prescribed. Board does not specify what the prescribed time limits are. Does anyone know the time limits? Board could have mentioned the time limits or where they are prescribed.

What is the time limit for adjudication?

And mind you, searching for this letter F.No.275/17/2015-CX.8A dated 11.03.2015, which the Board proudly proclaims is available on the CBEC website, is no easy task.  It is in the section ‘Departmental Officers' and here too it has been uploaded on 21.05.2015.  Board certainly has an uncanny ability to hide its Circulars/Instructions from the prying eyes of everyone out there.

Board should have explained - How to find this instruction in the Board Website? Or given a link to the particular instruction.

Reference to Transfer Pricing Officer in Specified Domestic transaction cases - CBDT Clarifies

CLARIFICATIONS have been sought from the Board as to which authority will function as Transfer Pricing Officer ('TPO') for the purposes of determining Arm's Length Price ('ALP') in respect of Specified Domestic Transactions ('SDTs') as per the provisions of section 92CA of the Income-tax Act, 1961.

The Board clarifies that such cases involving SDTs shall continue to be handled by the TPOs working under the Commissioner (Transfer-Pricing). The Board, under section 120 of the Act, has already issued Notification No.(s)  58  &  59/2014  (F.No. 187/29/2014/ITA.I) dated 03.11.2014 to this effect.

CBDT Instruction No. 11/2015.,Dated: September 16, 2015

Customs - New Exchange Rates from Today

CBEC has notified new exchange rates for Imported Goods and for Export Goods with effect from 18th September 2015. The USD is at 67.05 rupees for imports and 66.00 rupees for exports.

Notification No. 93/2015-Customs (NT)., Dated: September 17, 2015

Income Tax Commissioner alleges...

AN an Income Tax Commissioner has in a sworn affidavit before the Central Administrative tribunal has alleged that his transfer was ‘to punish him for not heeding to the unlawful expectations' of higher officials who ‘conveyed' to him ‘repeatedly… to go soft on the tax evaders and money launderers'. The Commissioner has also named the former Finance Minister P. Chidambaram in the tax evasion case.

These are revealed by S. Gurumurthy in an article in the New Indian Express yesterday.

Quantity of Gold in warehouse cannot be disclosed: It seems the CBEC has refused to divulge the quantity of gold lying in Customs warehouses for ‘security reasons', as reported by PTI. In recent times, there have been too many cases of gold vanishing from Customs vaults.

Chief Commissioner pressurizing Assistant Commissioner to act in favour of Gutka lobby: Times of India has reported that an Assistant Commissioner of Central Excise investigating the gutka lobby was harassed by his Chief Commissioner.

And another newspaper commented - The Finance Minister Arun Jaitley can concentrate on recovering black money within customs and central excise department before bringing black money back into the country from foreign banks.

Lawless Lawyers in Madras High Court

THE Madras High Court is one of the oldest High Courts in the country and was once one of the most respected for the high calibre and stature of its lawyers and judges.

This is what happened on 14th September, as described by the Chief Justice in an order dated 14th September 2015.

Today, the 14th day of September, 2015, when the Court assembled as usual at 10.30 a.m., we were confronted with the spectacle of lawyers in their robes and other persons / children accompanying them, holding placards inside the Court hall wanting Tamil as a Court Language. There was perceived possibility of such a situation on account of confidential information received in the office of the Chief Justice and hence, the local police authorities had been duly informed to prevent such a situation. However, a number of lawyers and other people, as referred to aforesaid, had already occupied the First Court, a few minutes before the Court was to begin its sitting. Some were lawyers in robes, but the police could not even prevent the entry of people not in robes and children. One of the lawyers, Mr.V.Murugan, spoke in English and Tamil, and was threatening to continue squatting in the Court till their demand for Tamil as Official language of the High Court was met. It was explained to him by the Court that their grievance in this regard cannot be redressed here. Even such counselling had no effect and they continued to hold the placards.

This is not the first time that the functioning of the High Court or the First Bench has sought to be distracted, for one reason or the other - whether connected with this Court or otherwise. There is also an unhealthy so-called practice of lawyers raising slogans and marching in the corridors.

This problem has far more aggravated in the Madurai Bench of this Court, where there have been such periodic incidents of advocates taking out processions, entering Court and disrupting proceedings, using handheld microphones and even occupying the Chamber of the Puisne Judges at the Madurai Bench.

It is time that such unhealthy practice are curtailed and there cannot be unauthorised ingress and egress to the Court. The Judges must feel secure while administering justice and thus, proper security has to be arranged to prevent such incidents, which not only disrupt the functioning of the Court, but can result in security breaches when Courts are concerned with sensitive matters, especially a Court like the present High Court and its Bench .

Helpless police? And this is what the Police Department has to say about the lawyers:

The Police Personnel in the High Court Campus are trying their level best to maintain strict discipline in the High Court Campus. They face a number of problems, while facing advocates and at least on 10 different occasions, for the past three or four years, the Advocates have beaten the Police Personnel.

In general many of the Advocates do not listen to the requests of the police authorities:

1) To show their Identity Cards.

2) Not to park their vehicles in the main arterial roads.

3) Bringing client/accused without entry pass, etc., in their own cars.

4) Playing cricket especially during holidays in the High Court car parking area.

5) Passing unnecessary/lewd remarks against women police personnel, especially those who would be in their early 20's.

6) Giving false complaints against clients, if they do not give the heavy fees demanded.

7) Accusing the police for no fault of their whenever they get an opportunity.

8) Not to take liquor inside the campus

9) Not to conduct "Katta Panchayat".

10) Not to take processions and agitations inside the campus.

11) In June, 2015, despite permission granted by the Hon'ble Chief Justice to conduct Yoga classes for the staff members in which many advocates and police personnel also participated, a group of advocates headed by M/s. Rajinikanth, Milton, etc., prevented the conduct of Yoga classes from the 4th day onwards.

12) Some Advocates conducted "Beef Eating" programme in the campus recently. "Beef Curry" was brought in a big vessel and distributed in use and throw paper plates to the Advocates.

13) In front of Dr. Ambedkar statue, packets containing "chicken, mutton & beef biryani" were distributed and many advocates sat and ate at that place itself.

14) Some Advocates, including Notary Public park their vehicles in the High Court campus even during night hours, without caring for the strict circular issued by the Registry.

The Tamil Nadu Government has notified the High Court as a High Security Zone.

Until Monday with more DDT

Have a nice weekend.

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