Newsletter: Where Service Meets Reader Approval.
TMI Tax Updates - e-Newsletter
October 8, 2013
Case Laws in this Newsletter:
Income Tax
Customs
Corporate Laws
Service Tax
Central Excise
CST, VAT & Sales Tax
Indian Laws
Articles
News
Circulars / Instructions / Orders
Highlights / Catch Notes
Income Tax
-
Depreciation on imported cars - amalgamation / merger - Respondent assessee had acquired the asset i.e. imported cars after the cut off date i.e. 1st April, 2001 and, therefore, is entitled to depreciation - HC
-
Explanation to section 73 only provides for a deeming fiction in certain circumstances where the assessee would be deemed to be carrying on a speculation business. Such deeming fiction would not apply in situations not covered u/s 73 - HC
-
Reassessment u/s 147 - notice under Section 143(2) is mandatory and in the absence of such service, the Assessing Officer cannot proceed to make an inquiry on the return filed in compliance with the notice issued under Section 148 - HC
-
TDS u/s 195 - whether reimbursement of lease line charges does/does not qualify as Royalty under Article 12 of India UK Treaty held no - HC
-
Depreciation - reduction of subsidy from actual cost reduced - though subsidy was held as capital receipt but this cannot be held to be a rule of universal application without examination of relevant facts - HC
-
Power of Tribunal to recall its earlier order and hear the appeal afresh - power to review or power of rectification Tribunal committed no error in exercising power of rectification - HC
-
Object of Trust - scope of section 2(15) - In the present case, activity of manufacturing and sale of ayurvedic preparations has been undertaken only for the purpose of effectuating the charitable objective - AT
-
Ad-hoc disallowance of 20% of the creditor value there is no provision in the Act to disallow 20% out of sundry creditors. - AT
-
Assessment u/s 153A pursuant to search - estimation of rate of net profit - The net profit rates shown by the appellant in the revised returns are considered as unfair and unreasonable - estimated at 8% - AT
Customs
-
Valuation of goods - inclusion of Demurrage charges - In no stretch of imagination the demurrage can be included in the value of the goods for the purpose of assessment of customs duty u/s 14(1) - AT
-
Valuation - Import of turtle shells - the plea of the appellant that the consignment which they got free-of-cost from the foreign supplier is of value of Rs.3500/- only in the international market has to be accepted - AT
-
Extended period of limitation - Benefit of notification - disposal of goods imported against Duty Free Import Authorizations Licence (DFIA) - export obligation was met - no penalty - AT
Corporate Law
-
Jurisdiction of Court - Infringement of copyright and trademark - It is possible that the goods manufactured by the plaintiff are available in the market of Delhi or they are sold in Delhi but that by itself would not mean that the plaintiff carries on any business in Delhi - HC
Service Tax
-
CENVAT Credit on the basis of debit note Prima facie when the appellant failed to follow prescribed mode, as an interim measure it was directed to deposit 50% of the service tax demanded in each appeal - AT
-
CENVAT Credit It has been interpreted by the Courts that the scope of input services given before 01.04.2011 was very wide - stay granted - AT
-
CENVAT Credit input services - promotional activities - LIC insurance for employees Prima facie case in favour of assessee - a part of credit stand reversed Stay granted - AT
-
Cenvat Credit - duty paying documents - document based on which credit has been taken is issued by an organization other than an organisation providing the service - stay grated being no loss of revenue - AT
Central Excise
-
Power of Judicial Review - challenge the order of Settlement Commission - majority order versus minority order - The opinion of the majority quashed and the minority opinion upheld - HC
-
Activity Manufacture OR Not the processes of decantation and distillation done by the appellant - whether processed goods remain same as Crude Oil - held no manufacturing activity - AT
-
CENVAT Credit - Aluminium/ Copper coils for the repair of transformers winding of wire/ coils would not amount an item to be considered as goods within the meaning of Central Excise Act, 1944. - stay granted. - AT
-
SSI Exemption - Notification No. 08/2003 - The Revenues entire case is that inasmuch as branded goods are exempted in terms of Notification No. 4/06, their clearance value is required to be taken into consideration for computing the eligibility criteria of clearance value of Rs.4 crores - stay granted - AT
-
Valuation of Goods Transaction value u/s 4 or MRP based valuation u/s 4A - Bulk pack of the Tooth Brushes cannot be considered as for retail sale - stay granted - AT
-
CENVAT Credit Capital Goods or inputs - credit on Racks - They have taken credit on these items by classifying the same as capital goods but that by itself cannot be reason to deny credit when they are eligible for credit by classifying it as inputs - AT
VAT
-
Amendment to u/s 41C of Bombay Sales Tax Act - Constitutional validity - Interest of justice can be met with by directing the Respondents not to extend the provision of S.41C(1)(a)(i)(A) to the Petitioners if their Units never ceased to be SSI units during the eligibility period - HC
Case Laws:
-
Income Tax
-
2013 (10) TMI 228
Depreciation on imported cars - amalgamation / merger - depreciation in respect of a motor car manufactured outside India where such car was acquired by the assessee after 28th February, 1975 but before 1st April, 2001 - Held that:- In terms of the order passed under Section 394 of the Companies Act, 1956, the respondent company acquired the imported motor cars. The cars were not acquired and the respondent assessee was not owner of the motor cars prior to the said date. On merger of the three concerns with the respondent assessee, shares were issued as consideration to the proprietors of the business concerns. The shares issued were consideration for the transfer of the assets. It is immaterial, according to us, whether there was transfer of an undertaking, including the block of assets, which also included the imported motor cars.ts. It is immaterial, whether there was transfer of an undertaking, including the block of assets, which also included the imported motor cars. Reliance has been placed upon the judgment in the case of Singer India Limited versus Chander Mohan Chadha [2004 (8) TMI 386 - SUPREME COURT OF INDIA], wherein it has been held that amalgamation is a blending of two or more existing undertakings into one undertaking, the shareholders of each blending company becoming substantially the shareholders in the company which is to carry on the blended undertakings. There may be amalgamation either by the transfer of two or more undertakings to a new company, or by the transfer of one or more undertakings to an existing company. Strictly "amalgamation" does not, it seems, cover the mere acquisition by a company of the share capital of other companies which remain in existence and continue their undertakings, but the context to which the term is used may show that it is intended to include such an acquisition. Respondent assessee had acquired the asset i.e. imported cars after the cut off date i.e. 1st April, 2001 and, therefore, is entitled to depreciation and the bar/prohibition in clause (a) to proviso to Section 32(1) would not apply Decided against the Revenue.
-
2013 (10) TMI 227
Revision u/s 263 - an order erroneous and prejudicial to the interest of the Revenue power of CIT to revise - The order under Section 263 in the first paragraph refers to profit on sale of shares, which was treated as short-term capital gain or long- term capital gain. Notice was issued why profit from sales of shares should not be treated as business profit. - Held that:- The Commissioner has accepted that this is not a case of no inquiry or investigation but it could be a case of an erroneous decision. - In Malabar Industrial Co. Ltd. Vs. CIT, [2000 (2) TMI 10 - SUPREME Court], it has been observed that where two views are possible and the Assessing Officer takes one view or accepts the assessees stand, the order is not erroneous, unless the order is not sustainable in law. Thus in such cases, Commissioner is not powerless. After hearing the assessee, he can hold that the finding of the Assessing Officer is erroneous. In rare cases the inadequate inquiry per se can be treated as erroneous, but this must be indicated and stated by the Commissioner in clear and lucid term by pointing out the relevant facts In the present case, statutory requirement is not met Decided against the Revenue.
-
2013 (10) TMI 226
Penalty u/s 271(1)(c) - Valuation of property u/s 50C - Held that:- subject matter of the appeal is less than Rs. 10 lakhs and as per the Board Circular, such appeal of the revenue is not tenable - we dismiss this appeal in like terms reserving liberty to the revenue to seek for revival if the disposal of the appeal based on Board Circular is held to be not satisfactory - Decided against Revenue.
-
2013 (10) TMI 225
Exemption u/s 10 (26AAB) - income of an agricultural produce market committee or board - Business of supply of essential commodities for general public - Held that:- petitioner has been granted exemption by the First Appellate Authority. Though the department has preferred an appeal before the Tribunal, yet no order has been passed. Since the appeal of the department is pending adjudication, we are refrained ourselves from making any observations - In Union of India v. Kamlakshi Finance Corpn. Ltd. [1991 (9) TMI 72 - SUPREME COURT OF INDIA] it was held that, mere fact that the order of the appellate authority is not "acceptable" to the department - in itself an objectionable phrase - and is the subject matter of an appeal can furnish no ground for not following it unless its operation has been suspended by a competent court The writ petition is disposed of finally with a direction that the proceedings pertaining to the Assessment Year 2010-11 shall be kept in abeyance, till disposal of appeal filed by the department before the Tribunal. - Decided against assessee.
-
2013 (10) TMI 224
Disallowance u/s 14A - Appointment of remuneration of the directors, travelling expenses - Held that:- since the amount involved is not very large, we reserve our final conclusion on such an issue in appropriate case. Therefore, we are not inclined to entertain this Tax Appeal. However, we should not be seen to have confirmed the Tribunal's view on the aspect that in absence of Rule 8D, no disallowances can be made under Section 14A of the Act, by proportionate bifurcation of the expenditure - Decided against Revenue.
-
2013 (10) TMI 223
Deduction of a provision made towards warranty Provision for warranties is not made on any scientific basis and past experience and made merely on estimate basis Held that:- Relying upon the judgment in the case of Rotork Controls India (P.) Ltd [2009 (5) TMI 16 - SUPREME COURT OF INDIA], disallowed this amount of provision for warranties - The matter is sent to the Assessing Officer for redetermination of the quantum that can be allowed as a provision towards warranty claims in the light of the Judgment of the Supreme Court in Rotork Controls' case Decided in favor of Revenue.
-
2013 (10) TMI 222
Whether the income earned by the assessee through sale of shares should be taxed as business income or should be treated as capital gain Held that:- Such issue had to be decided on the basis of the question whether the assessee is involved in any business of buying and selling shares or had purchased and sold the shares by way of investment - Assessing Officer went completely in a wrong direction and relied on the explanation to section 73 of the Act - Section 73 of the Act pertains to "losses in speculation business". Sub-section (1) thereof provides that any loss computed in respect of speculation business carried on by the assessee shall not be set off except against profits and gains of another speculation business. Sub-section (2) of section 73, likewise, puts certain restrictions on carrying forward the speculative losses. Sub-section (4) further provides that no loss shall be carried forward under that section for more than four assessment years. Thus the entire section has application when the assessee has incurred loss or intends to carry forward non-absorbed loss. Explanation to section 73 only provides for a deeming fiction in certain circumstances where the assessee would be deemed to be carrying on a speculation business. Such deeming fiction would not apply in situations not covered under section 73 since such explanation is applicable to section 73 only Decided against the Revenue.
-
2013 (10) TMI 221
Condonation of delay - Whether the Income Tax Appellate Tribunal was justified in dismissing the appeal as barred by time filed by the appellant in limine, and refusing to condone the delay of 77 days - Held that:- The name of clerk and date on which the mistake was discovered should have been mentioned in the affidavit itself. But taking a lenient view of the matter and the fact that the delay is not enormous and is around 77 days, we are of the view that the Tribunal should have condoned the delay by imposing some cost to compensate the department for the delay - order under appeal cannot be allowed to stand. The Tribunal was not justified in rejecting the applications for condonation of delay or dismissing the appeals as barred by time. - delay condoned subject to cost of Rs. 5000/- for each appeal.
-
2013 (10) TMI 220
Block assessment - Petitioner contended that he was not liable for payment of income tax but inspite of this, a liability has been imposed upon the petitioner for disentitling of exemption Held that:- revenue to consider the stay application and decide the issue expeditiously - direction issued to dispose off the appeal expeditiously.
-
2013 (10) TMI 219
Re-opening u/s 147 / 148 of the Income Tax Act reason to believe that the income shown as agriculture income is to be taxed as income from other sources - Held that:- Reason assigned for initiating the reassessment proceeding is non-est and no useful purpose is going to be served by permitting the Assessing Officer to proceed further in the matter as the very basis has gone - It has been held that the Tribunal was justified in treating the entire income as agriculture income. The learned counsel for the department could not dispute that the assessee had no agriculture income. The department's version that the returned agriculture income is income from other sources has been negated up to this Court for the assessment years 2001-2002 and 2003-04 Decided in favor of Assessee.
-
2013 (10) TMI 218
Reassessment u/s 147 - failure to issue Notice u/s 143(2) - Deduction u/s 80IB of the Income Tax Act - Held that:- No notice under Section 143(2) had been issued while making assessment under Section 143(3) read with Section 147 - The ITAT, after relying on the judgment of the Apex Court in R. Dalmia v. CIT [1999 (2) TMI 4 - SUPREME Court], came to the conclusion that issuance of notice under Section 143(2) was mandatory. The ITAT has taken into consideration the relevant provisions and has also taken into consideration the judgment of the Apex Court and relying on the said judgments, the ITAT has held that notice under Section 143(2) is mandatory and in the absence of such service, the Assessing Officer cannot proceed to make an inquiry on the return filed in compliance with the notice issued under Section 148 Decided against the Revenue.
-
2013 (10) TMI 217
Allowability of case to be proceeded before Settlement Commission Held that:- On receipt of an application under section 245C, the Settlement Commission shall call for a report from the Commissioner and on the basis of the materials contained in such report and having regard to the nature and circumstances of the case or the complexity of the investigation involved therein, shall, where it is possible, by order, reject the application or allow the application to be proceeded with within a period of one year from the end of the month in which such application was made under section 245C - In the present case, the impugned order permitted the respondent-assessee to clear the stage of sub-section (1) of section 245C of the Act. It merely amounted not to terminate the assessee's application for settlement - Settlement Commission shall decide the application of assessee for settlement on the basis of material on record.
-
2013 (10) TMI 216
Rejection of books of accounts - estimation of income - Computation of net profit - Held that:- Assessing Officer assessed the net profit at the rate of 13%, which the Commissioner of Income Tax (Appeals) reduced to 8%. Such rate of profit has been affirmed by the Tribunal. It would be a pure finding of fact that what should be net rate of profit from the work of a civil contract. In Parbhat Kumar's case (2008 (11) TMI 356 - PUNJAB & HARYANA HIGH COURT), it was the revenue appeal, which was dismissed holding that net profit rate in proceedings of best judgment assessment after rejecting the account books would be question of fact when the findings recorded can be proved to be arbitrary and perverse. In the aforesaid case, 12% was applied as net profit rate in the case of civil contractor. We do not find that applying 8% as net profit rate is so arbitrary or perverse, so as to warrant any interference in the facts of the present case - Decided against Revenue.
-
2013 (10) TMI 215
TDS u/s 195 - whether reimbursement of lease line charges does/does not qualify as Royalty under Article 12 of India UK Treaty Amount attributable to PE in India or not Held that:- Amount received by the Respondent-Assessee as reimbursement of lease line charges and would not classify either as royalty or as income attributed to a Permanent Establishment in India - Reimbursement of lease line charges received by the Respondent-Assessee is the actual amount which is incurred by it on making payment to the international telecom operator - There is no income earned by Respondent-Assessee which is subject to tax but is only a reimbursement of lease line charges paid by it to international telecom operator Decided against the Revenue.
-
2013 (10) TMI 214
Depreciation - reduction of subsidy from actual cost reduced - sec.43(1) of the Income Tax Act, 1961 Held that:- Though ordinarily, it may be true that the subsidies, which are in the nature of capital receipts given for covering the capital details for acquisition of fixed assets such as plants, machineries, land and building etc., may go on to reduce the cost of acquisition of such assets and resultantly, may have an effect of reducing the depreciation available on the assets on such investment, nevertheless, this cannot be held to be a rule of universal application without examination of relevant facts - Tribunal to consider the issue afresh bearing in mind the nature of subsidy, purpose for which the same was made available and all other relevant factors bearing in mind the case laws cited before us and which may further be argued before the Tribunal by both the sides
-
2013 (10) TMI 213
Power of Tribunal to recall its earlier order and hear the appeal afresh - power to review or power of rectification Held that:- Tribunal proceeded to decide certain issues on merits without giving full opportunity to the aggrieved party to make submissions thereon, the order did certainly suffer from an error apparent on the record. Tribunal, therefore, committed no error in exercising power of rectification - Tribunal, therefore, committed no error in exercising power of rectification. - By recalling the said order, the Tribunal cannot seem to have recalled its earlier conclusions Reliance has been placed upon the judgment in the case of Neesa Leisure Ltd. v. Union of India Through Secretary [2011 (3) TMI 706 - Gujarat High Court] Decided against the Revenue.
-
2013 (10) TMI 212
Cash credit - Whether the Appellate Tribunal is right in law and on facts in confirming the order passed by CIT(A) deleting the addition of Rs.3,28,46,319/- made on account of cash credit from Kakani Enterprise - Held that:- The issue is essentially based on factual matrix presented before both the authorities. We see no error in the findings arrived at by them. Predominantly, the question having been based on facts, no question of law arises, much less a substantial question of law - Decided against Revenue.
-
2013 (10) TMI 211
Object of Trust - scope of section 2(15) of the Income Tax Act Held that:- Pre-dominent object of the trust is to alleviate extreme sufferings and cure diseases by providing practical and functional training of Astang yog, Raj yog, Dhyan Yog, Hath Yog, Ashan and Pranayam etc. as received from the ancient tradition pronounced by the rishies and munis - The various other objectives provided in the trust deed are merely independent/ancillary to the main objection which is to provide medical relief and impart education and do not in any way constitute/objectives of general public utility as contended by Revenue - Case of the appellant does not fall within the last limb of the definition of charitable purpose given u/s 2(15) of the Act Relying upon the judgment of Honble Supreme Court of India in the case of Thiagarajar Charities v. ACIT [1997 (4) TMI 7 - SUPREME Court], it has been held that ancillary activity undertaken by the assessee was to afford relief to poor falling within scope of section 2(15) of the Act and was not an object of general public utility - Business being only a means of achieving the object of the trust, exemption could not be denied - Appellant trust falls within the purview of providing 'relief to the poor' Decided in favor of Assessee. Sub section (4A) of section 11 also exempts income tax of a business carried on by the trust so long as the business carried on by the trust is (a) incidental to the attainment of main objects (b) feeds the charitable objects (c) separate books of accounts are maintained in respect of the same, even on fulfillment of the aforesaid conditions profit from such business are exempt u/s 11/12 of the Act In the present case, activity of manufacturing and sale of ayurvedic preparations has been undertaken only for the purpose of effectuating the charitable objective of providing 'medical relief to the society at large on a genuine need was felt to provide superior quality ayurvedic preparations at economical prices in order to attain effective medical results. Only because the activity carried on yielded" profits a negative inference cannot drawn that the activity was undertaken with the sole intention of earning profits. It is also pertinent to note that the total donations/voluntary contributions received by the appellant trust during the assessment year under consideration amounted to ₹ 3,89,14,100/- only. Whereas the total revenue expenditure incurred by the appellant trust in the assessment year under consideration for undertaking its charitable activities amounted to ₹ 48,54,93,383/- (excluding depreciation). In the present case, income and expenditure account for the year ending 31st March, 2009 that substantial capital expenditure has also been incurred by the appellant trust in pursuing its charitable activities - Donations/contributions received by the appellant trust constituted only a minuscule portion of the heavy outlay of expenditure incurred in pursuing the charitable activities. The meaning of expression not for purpose of profit is no longer res integra the test being what is the predominant object of the activity whether it is to carry out a charitable purpose or to earn profit ? If the predominant object is to carry out as charitable purpose and not to earn profit the organization would not lose its charitable character merely because some profits arises from the activity. In the present case, authorities below have failed to appreciate that the business set up and held by the appellant under trust is to sub serve the predominant charitable objects of providing medical relief education and relief to poor - Separate books of accounts were maintained and the entire profits are for charitable objects, the conditions prescribed in section 11(4A) of the Act, too were fulfilled. The revenue authorities have failed to appreciate that out of total sales of ₹ 168.12 crores of Divya Pharmacy medicines of ₹ 4.2 crores only were sold from the hospital sales counter Decided in favor of Assessee.
-
2013 (10) TMI 210
Ad-hoc disallowance of 20% of the creditor value Held that:- the way the Assessing Officer has decided this issue is really surprising because there is no provision in the Act to disallow 20% out of sundry creditors. If the sundry creditors are not genuine, the AO should have made whole of the addition against the assessee, but it would not allow the AO to make 20% of disallowance out of sundry creditors finding the rest of the amount of the creditors to be genuine. It appears that the AO has considered this issue with the eyes of disallowance of part of the expenses which may not be related to the business of the assessee. The way, the AO has decided this ground and made addition of 20% disallowance out of sundry creditors is really surprising and would show that the AO has not applied his mind to this issue as per law and the addition is purely adhoc in nature. Decided in favor of Assessee. Addition u/s 68 of the Income Tax Act on unsecured loan taken from different parties Assessee could not bring out all creditors for examination on the pretext of medical advice etc. Held that:- as discussed in the cases of various creditors, we find that the assessee has been able to prove the creditworthiness of the creditors and genuineness of the transactions in certain cases of the creditors, for which the additions have been deleted. However, in other cases, the assessee failed to prove the creditworthiness of the creditors and genuineness of the transaction, for which the additions have been sustained. In the result, the appeal of the assessee is partly allowed.
-
2013 (10) TMI 209
Assessment u/s 153A pursuant to search - estimation of rate of net profit - Whether the rate of profit shown in return is reasonable or not - Selection of Comparables for the computation of rate of profit Held that:- Comparison with other cases must taken into account the total turnover, the favourable or unfavourable conditions of the assessee vis-ΰ-vis comparable cases, etc - There are two related parties carrying an identical business of running of bakery viz. Sri Abdul Gadhafi and Smt. Thasleena P.P. in whose cases my predecessor has held that net profit rate of 11% and 5% respectively - The net profit rates shown by the appellant in the revised returns are considered as unfair and unreasonable - The reasonable and justifiable net profit rate that is required to be adopted in the appellants case is determined at 8.00% for the reason that the peak net profit rate worked out on the basis of appellants revised income for assessment year 2006-07 and 07-08 are above 7% - Net profit rate @ 8% should be adopted on the estimated turnover as upheld in this proceedings for the impugned assessment years Decided against the Assessee.
-
Customs
-
2013 (10) TMI 246
Valuation of goods - inclusion of Demurrage charges in the value - Held that:- Value of the goods for the purpose of assessment of Customs Duty has been defined under Section 14(1) of the Customs Act, 1962. According to Section 14(1) of the Customs Act value of the goods means price at which such goods are ordinarily sold or offered for sale for delivery at the time and place of importation or exportation. When the goods are offered for sale at the place of importation it includes freight charges and as such the freight is included in the value of the said goods. Demurrage is an eventuality which causes not due to importation or exportation of the goods. The goods are imported as and when it arrives at the port. Unloading of such consignment is an event consequential to making of effective delivery. If there is any delay at the time of unloading for any reason the consignee will have to pay demurrage charges to the port authority in view of the fact that the berth is unnecessary blocked because of delay in unloading. This is an eventuality which has nothing to do with regard to importation of the goods for the purpose of assessment of customs duty. Customs duty is charged on the basis of the value described in the bill of lading. If there is any under-invoicing made, the authority is entitled to take appropriate assessment to find the actual value. In no stretch of imagination the demurrage can be included in the value of the goods for the purpose of assessment of customs duty under Section 14(1) of the Customs Act, 1962 or any other provision of the said Act - Following decision of HINDUSTAN LEVER LIMITED Versus UNION OF INDIA [2002 (2) TMI 111 - HIGH COURT AT CALCUTTA] - Decided against revenue.
-
2013 (10) TMI 245
Application for Restoration of Appeal Non Compliance of Direction of Pre-deposit Held that:- The Applicant had complied with the Tribunals Order dated 25.06.2007 and the direction of the Honble High Court dated 08.05.2013, we recall our Order dated 08.08.2007 and restore the Appeal to its original number - Miscellaneous Application was accordingly allowed.
-
2013 (10) TMI 244
Valuation - Import of turtle shells - import of restricted / prohibited items - penalty - Held that:- department has arrived at the value of the shells on the basis of value of live turtles and have assumed the value to be 50% of the value of live turtles. The department does not seem to have made any efforts to ascertain the value of turtle shells. If turtle shells are tradable items, the department could have easily found out what is the price prevalent in the international market for such turtle shells. In the absence of any such efforts made by the department, the valuation of Rs.1,50,000/- arrived at by the department without any sound basis is not sustainable in law. Therefore, the plea of the appellant that the consignment which they got free-of-cost from the foreign supplier is of value of Rs.3500/- only in the international market has to be accepted. If this is done, the imposition of penalty of Rs. 25,000/- on the appellant cannot be justified. Nevertheless, since the item imported is a restricted item and is prohibited for the purpose of imports into India and is governed by CITES agreement, the appellant needs to be penalized for violating the provisions of law - Decided partly against assessee.
-
2013 (10) TMI 243
Stay application against the order of commissioner (Appeals) in favor of assessee - Import of DSR camera with lens - e-Waste or not - Held that:- used cameras were imported for own use of the respondent in a working condition as evident from the letter of the Tamil Nadu Pollution Control Board. In view of that, prima facie, we find that there is no reason for stay of operation of the impugned order - Stay denied.
-
2013 (10) TMI 242
Extended period of limitation - Benefit of notification - disposal of goods imported against Duty Free Import Authorizations Licence (DFIA) - Held that:- Notification 40/2006 does not impose any condition on the licence holder that without the permission from the licensing authority the applicants shall not dispose of the goods after discharging the export obligation. Further, we find that it is not in dispute that the applicants have not discharged the export obligation on 18.04.2008 and it is also not in dispute that the goods have been sold by the applicants in open market after discharging the export obligation. Therefore, prima facie the applicants have fulfilled the condition of Notification No.40/2006. We further find that the bond executed by the applicants against duty free import licence has been cancelled by the Customs authorities in 2010 itself. Therefore, extended period of limitation is not invokable in the facts of the case - stay granted.
-
2013 (10) TMI 241
Confiscation of goods - GSM Dual SIM mobile imported - Requirement of IMEI - Held that:- appellants have imported the GSM Dual SIM Mobile Phones. The lower adjudicating authority has categorically held that the handsets were having single IMEI no. This aspect has not been challenged by the department. It is not zeroes IMEI. It is also not the case of the department that the mobile phones are CDMA mobile phones. In these circumstances, the mobile handset cannot be held to be prohibited. Therefore confiscation of the impugned goods and imposition of penalty are not sustainable in law - Decided in favour of assessee.
-
Corporate Laws
-
2013 (10) TMI 240
Jurisdiction of Court - Infringement of copyright and trademark - Held that:- For the purposes of a passing off action, or an infringement action where the plaintiff is not carrying on business within the jurisdiction of a court, and in the absence of a long-arm statute, in order to satisfy the forum court that it has jurisdiction to entertain the suit, the plaintiff would have to show that the Defendant purposefully availed itself of the jurisdiction of the forum court. For this it would have to be prima facie shown that the nature of the activity indulged in by the Defendant by the use of the website was with an intention to conclude a commercial transaction with the website user and that the specific targeting of the forum state by the Defendant resulted in an injury or harm to the plaintiff within the forum state - It is possible that the goods manufactured by the plaintiff are available in the market of Delhi or they are sold in Delhi but that by itself would not mean that the plaintiff carries on any business in Delhi. The broadcast of the plaintiffs programs in Delhi is also not sufficient to confer jurisdiction. Just as mere advertisement in a journal or paper is not sufficient to confer jurisdiction - Similarly, broadcast of the plaintiffs programmes is insufficient to vest jurisdiction in this Court - Decided against petitioner.
-
2013 (10) TMI 239
Regulations for lodging Caveats - Whether a failure by the CLB to provide notice to the petitioners as caveators under Section 148A of the CPC renders those proceedings, and the orders passed therein, a nullity - Held that:- with some concern that the petitioner appears to deliberately have implicated not only the CLB but also its Judicial Member and two Bench officers. Even if there was some justification in impleading the CLB, in furtherance of the relief of a direction to frame rules, this Court perceives no such rationale for impleading a Judicial Member and other officials of the CLB - It goes without saying that the petitioners may, in accordance with law, pursue their caveat application, or another application to intervene in the matter, before the CLB itself which is free to pass appropriate orders. Nothing stated in this order would be construed as an expression of the merits as to whether the petitioners had lodged the caveat, as they allege, and whether they had caveatable rights, which can be recognized and whether they can be heard in the matter in which they claim to be interested - Decided against petitioner.
-
Service Tax
-
2013 (10) TMI 255
CENVAT Credit on the basis of debit note Waiver of Pre-deposit - associated company - the appellant took credit of input tax in respect of input services in both the appeals involving demand of service tax of Rs. 10,97,849/- and Rs. 17,12,995/-, due to disallowance of the credit - Whether failure to follow the mode of grant of CENVAT credit recognized by law debars from eligibility to such credit Held that:- Prima facie when the appellant failed to follow prescribed mode, as an interim measure it was directed to deposit 50% of the service tax demanded in each appeal - Subject to compliance realization of the balance demands shall be stayed during pendency of appeals.
-
2013 (10) TMI 254
CENVAT Credit Waiver of Pre-deposit - Whether the CENVAT Credit is admissible to the appellant on the services availed with respect to document processing service charges incurred with respect to the processing of appellants rebate claim Held that:- The period involved in this appeal is from November 2010 to April 2011, which is before 01.04.2011 when the definition of input services given in CENVAT Credit Rules was changed where certain specific services were excluded from the ambit of the input services - It has been interpreted by the Courts that the scope of input services given before 01.04.2011 was very wide - Appellant has made out a prima facie case for complete waiver of the amounts and penalty Stay granted.
-
2013 (10) TMI 253
Cenvat Credit Waiver of Pre-deposit - input services - wharfage charges - Whether services availed up to the Port of loading in an FOB contract should be admitted or not, has been referred to Larger Bench in the case of Deepak Fertilizers Petrochemicals Corporation Limited vs. CCE Belapur [2013 (4) TMI 44 - BOMBAY HIGH COURT ] wherein, it has been noted that some coordinated benches of CESTAT have held that place of removal in FOB contracts shall be Port of loading and the GTA service utilised from the factory to the Port should be considered as input services - In view of the fact that matter stands referred to the Larger Bench of the Tribunal, the appellant has made out a prima facie case for complete waiver of confirmed dues, interest and penalty - Stay Granted.
-
2013 (10) TMI 252
CENVAT Credit Waiver of Pre-deposit - input services - promotional activities - LIC insurance for employees Held that:- credit relates to the services availed for promotional activities to promote the sales of motorcycles. Such advertising and promotional activities are directly related to business of appellant and covered under the definition and as also by various decisions - Similarly, the service tax paid on the LIC insurance for the employees as also for car used by officials etc. have been held to be eligible services by various High Courts - One such reference can be made to Karnataka High Court decision in the case of CCE, Bangalore vs. Stanzen Toyotetsu India (P) Ltd. [2011 (4) TMI 201 - KARNATAKA HIGH COURT] - almost all the disputed service have been held to be cenvatable - Prima facie appellant has a good case in its favour - a part of credit stand reversed Stay granted.
-
2013 (10) TMI 251
Application for Restoration of Appeals - Appellant did not ask for any extension of time or modification of stay order after the stay order was passed - Appellant was sitting quiet on the order of pre-deposit - On the date of compliance also neither the order was complied nor any body represented the appellant - It had been rightly pointed out by the A.R. appearing for Revenue that more than one year had passed from the stay order and if the appellant was sincere then he should have made the entire pre-deposit in instalments himself and could have come with a stronger case for restoration of his appeals - the right course for the appellant would have been to file an appeal against the dismissal order passed by CESTAT which was correctly passed in view of the law laid down by Gujarat High Court and Bombay High Court in the case of Sattar Habib Hamdani vs. UOI [1989 (10) TMI 69 - HIGH COURT OF GUJARAT AT AHMEDABAD] and Hanila Era Textiles Ltd vs. UOI - [2010 (9) TMI 202 - BOMBAY HIGH COURT] - application for Restoration of Appeals filed by the appellant was rejected.
-
2013 (10) TMI 250
Waiver of pre deposit - Coaching for spoken English - Held that:- Prima facie, we find merit in the argument of Ld. Advocate that when there was a clarification issued by the Board, it is not proper to invoke extended period of limitation for demanding service tax. The Tribunal also, in cases cited above have gone by such clarification. But the issue of taxability for the period subsequent to the issue of circular dated 28-01-09 has to be decided afresh. - stay granted partly.
-
2013 (10) TMI 249
Cenvat Credit - duty paying documents - Waiver of pre deposit - Banking service - Held that:- document based on which credit has been taken is issued by an organization other than an organisation providing the service. But in the facts and circumstances of the case, we are of the view that no loss of revenue has been made out and instead of considering the balance of convenience, it will be unfair to call pre-deposit from the applicant for making pre-deposit for admission of the appeal. - stay granted.
-
Central Excise
-
2013 (10) TMI 238
Locus Standi of the Assistant Director (Investigation) to challenge the order of Settlement Commission Held that:- There is no authorisation produced before us in favour of the petitioner No.2 to challenge the order of the Settlement Commission before this Court by way of a writ petition. Even according to the hierarchy, petitioner No.2 is several levels below the Settlement Commission and the officers manning it. - petitioner No.2 has no locus standi to challenge the order of the Settlement Commission. - petitioner No.2 deleted from the proceedings. Power of Judicial Review - challenge the order of Settlement Commission - majority order versus minority order - Held that:- The power of judicial review is more about the decision-making process rather than the merits of the decision itself, while examining and scrutinizing the decision making process, it becomes inevitable to also appreciate the facts of a given case so as to test the decision on the touchstones of illegality, irrationality or procedural impropriety - An evaluation of the facts of the case would necessarily be involved even to record a finding that the decision is irrational - Relying upon R.B. Shreeram Durga Prasad and Fatechand Nursing Das v. Settlement Commission (It and Wt) and Anr. [1989 (1) TMI 4 - SUPREME Court ] With particular reference to orders of the Settlement Commission. The present case clearly appears to be eminently a case for adjudication and not for settlement. The decision making process adopted by the majority of the Settlement Commission is flawed. The majority opinion rightly posed the question to themselves that the real question is whether the applicant has accounted for all the catechu bought by it and whether any duty liability was incurred by utilizing the unaccounted catechu for the purpose of clandestine manufacture and clearance of the goods. However, it appears to us that they did not examine the question with the insights and incisiveness which the dissenting member employed in examining the question. That has to be examined by the adjudicating authority under the Central Excise Act in accordance with law and the provisions of the Act. We are quite aware of the limits of judicial review as contoured by the authorities to which we have referred earlier. The view taken by the majority in the present case appears to us, with respect, vitiated by irrationality, procedural impropriety and illegality. The majority clearly erred in holding that the applicant has made a full and true disclosure of the duty liability which was not admitted before the central excise authorities and the manner in which such liability was derived. They also erred in holding that the case was simple and did not involve any dispute or complex questions of fact or law which can only be decided by the adjudicating authority and therefore it was a case for settlement by the Settlement Commission. We accord our approval to the reasoning and conclusion arrived at by the dissenting member who constituted the minority. The opinion of the majority is accordingly, quashed and the minority opinion is upheld. The writ petition allowed.
-
2013 (10) TMI 237
Discriminatory Approach Held that:- We fail to understand as to why different approach has been adopted in the case of another dealer raising similar question and not resorting to order of remand, as was the order passed in the case of Rohit Industries - the decision of the Tribunal set aside and instead accept the request of the petitioner to dispense with the requirement of pre-deposit so as to enable the petitioner to contest the appeal on merits, as, in all probabilities, the petitioners appeal will also be remanded to the Commissioner (Appeals), as was done in the case of other dealers stay granted.
-
2013 (10) TMI 236
Activity Manufacture OR Not the processes of decantation and distillation done by the appellant - whether processed goods remain same as Crude Oil - Waiver of Pre-deposit Held that:- The processes undertaken by the appellant does not lead to emergence of a new product and, therefore, no manufacturing is involved - The processes undertaken by the appellant it is evident that commingled crude oil received from the supplier is unloaded into a storage tank - The material is allowed to settle and water collected in the bottom of tanks is slowly removed - However, the bottom is left with the mixture containing mixed quantity of water and commingled Crude Oil which is heated in a distillation tower - The light petroleum fractions are cooled in the condenser and collected separately in receivers and distilled water in separate receivers - The light petroleum fractions separately recovered after the processes of decanting, distillation and left at the bottom of water tank, containing small quantity of commingled crude oil are again mixed. It is evident that only water is taken out of the product and accordingly, after HSN explanatory notes given under heading 27.09, even the processes like decantation or distillation done to separate hydrocarbons and their remixing during the course of processes will not take the product out of CETH- 2709 - The process of decantation and distillation are only physical processes and there is no chemical modification and at the end of the process the ingredients are mixed again making the same mixture except taking away of water content - Moreover, it is also observed from the chemical testing done by the DGCEI that two reports are in the favour of appellant - appellant has made out a prima facie case for complete waiver of confirmed dues and penalty - Stay granted.
-
2013 (10) TMI 235
CENVAT Credit - Aluminium/ Copper coils for the repair of transformers Held that:- The demand of the duty on the appellant on the Aluminium/ Copper coils for the repair of transformers seems to be, prima facie, covered by the decision of the Tribunal in the case of CCE, Mangalore vs. KVK Control Panels [2008 (1) TMI 756 - CESTAT, BANGALORE] - winding of wire/ coils would not amount an item to be considered as goods within the meaning of Central Excise Act, 1944. - stay granted. CENVAT Credit on Input Services - As regards, the cenvat credit on inputs short received from the job workers - there is no dispute as to the quantity of inputs received back by the appellant being contracted with the job workers - We find strong force in the contentions raised by the learned counsel that if any duty liability that arises due to working on the Copper/ Aluminium coils sent by the appellant, it would be on the job workers and not on the appellant. - stay granted.
-
2013 (10) TMI 234
Clandestine remove - estimated production on the basis of consumption of electricity and loose slips towards unaccounted purchase - Held that:- Though the show cause notice, mentions the recovery of loose slips from the residential premises showing purchase of 437.58 MT of scrap and also discusses the statement of Shri Anil Kumar Agarwal, wherein he has stated that purchase of this scrap is not accounted for and scrap was used in production MS Ingots cleared clandestinely, the duty demand has not been specifically made in the show cause notice on the basis of alleged unaccounted purchase of 437.58 MT of scrap and its use in the unaccounted manufacture of Ingots - The Commissioner while dropping the duty demand made purely on the basis of the electricity consumption, has confined the confirmation of duty demand based on the paper slips showing unaccounted purchase of 437.58 MT of scrap. - Partial stay granted.
-
2013 (10) TMI 233
SSI Exemption - Notification No. 08/2003 - computation of value of clearance of the proceeding year - inclusion of value of branded goods - There is also no dispute to the effect that while computing the threshold limit of ₹ 4 crore, the value of such branded items is not required to be taken into consideration. However, the said medicines manufactured by the appellant with the brand name of other person are exempted in terms of another notification No. 4/06-CE. The Revenues entire case is that inasmuch as branded goods are exempted in terms of Notification No. 4/06, their clearance value is required to be taken into consideration for computing the eligibility criteria of clearance value of ₹ 4 crores Held that:- The Revenue reliance on the earlier stay order of the Tribunal in the case of Astra Lighting Ltd. vs. CCE, Chandigarh [2009 (4) TMI 646 - CESTAT, NEW DELHI], wherein by entertaining prima facie view that clearance of exempted branded goods from a unit located at Baddi unit in Himachal Pradesh after availing exemption notification No. 50/03 CE, are required to be taken into consideration while arriving at the total clearance - Tribunal while passing the said order has not examined the provisions of notification in question in detail and has not referred to said para 3A (b) of the notification. Bar Of Period of Limitation Held that:- The demand involved in one of the cases is prima-facie barred by limitation inasmuch as the same is for the period April, 2007 to December, 2007 whereas the show cause notice was issued on 19.8.09 - the department was aware of the facts - Stay granted.
-
2013 (10) TMI 232
Classification of Goods - Waiver of Pre-deposit - The applicant is engaged in the manufacture of bio-fertilizer and classified under Chapter 31 of CETA, 1985 and cleared at NIL rate of duty abatement of 33% under Notification No. 49/2008 - Held that:- Sl. No. 45 of the Table appended to Notification No. 49/2008 provides abatement of 33% in respect of insecticides classified under sub-heading 3808 - Prima facie, after considering the submissions of both sides and the financial hardship of the applicant, we find that the deposit already made by the applicant would be sufficient for waiver of predeposit of balance amount of duty along with interest and penalty - Stay granted.
-
2013 (10) TMI 231
Valuation of Goods Transaction value u/s 4 or MRP based valuation u/s 4A - Bulk pack of the Tooth Brushes Waiver of Pre-deposit - Held that:- Prima facie, bulk pack of the Tooth Brushes which are cleared by the appellant cannot be considered as for retail sale, as the Hindustan Unilever is an industrial consumer who supplies these Tooth Brushes as free supplies to the purchasers of Tooth Pastes Relying upon Jayanti Food Processing (P) Ltd Versus Commissioner of Central Excise, Rajasthan [2007 (8) TMI 3 - Supreme Court] the issue to be decided in favour of Assessee - stay granted.
-
2013 (10) TMI 230
Classification of Goods - Differential Duty Waiver of Pre-deposit - Revenue was of the view the goods i.e Polyester Staple Fibres and PET Flakes are to be classified under Chapter Heading No.3915 as waste and parings Held that:- The perusal of the Chapter Note No.6 under Chapter Heading No.39, the said Note categorically states that the expression primary form applies only to the forms, one of which is stated as flakes the appellant is manufacturing flakes out of the PET bottles in factory premises and hence any demand arising out of the classification of the product from Chapter Heading No.3907 to Chapter Heading No.3915, prima facie is incorrect as the Chapter Heading No.3915 would apply to a manufacturer in whose factory premises waste, parings and scrap arises - the appellant has made out a case for waiver of pre-deposit of the amounts involved in respect of PET flakes. - stay granted. Duty Liability on PET Fibre - The duty liability arises on the appellant due to the retrospective amendment which has been brought into effect - the notification which has been issued exempting such product is of retrospective nature and will be applicable, needs to be considered at the time of final disposal of appeal - the appellants unit has been taken over but at the same time, there is nothing on record to show that the appellant has a severe financial hardship Partial stay granted.
-
2013 (10) TMI 229
CENVAT Credit Capital Goods or inputs - credit on Racks - Revenue was of the view that the item could not be considered as an accessory of any machinery in their factory and would not qualify to be capital goods as per the definition of the said expression under Rule 2 of the Cenvat Credit Rules, 2004 - Held that:- Following Banco Products (India) Ltd. Vs Commissioner of Central Excise, Vadodara [2009 (2) TMI 101 - CESTAT AHMEDABAD] - There is nothing in the definition of input, which would exclude an item like racks from the scope of the definition - Such construction can be achieved only by relying on the old understanding of the word inputs ignoring the legal definition given under Rule 2(k) of the Cenvat Credit Rules, 2004, which is not a proper approach - the credit claimed by the appellant was allowed and the orders of the lower authorities set aside - the items will squarely fall within the definition of inputs and it will not be justified to deny credit on these items - They have taken credit on these items by classifying the same as capital goods but that by itself cannot be reason to deny credit when they are eligible for credit by classifying it as inputs Decided in favour of Assessee.
-
CST, VAT & Sales Tax
-
2013 (10) TMI 257
Classification of sale - Inter state sale or Intra state sale - Held that:- recorded a categorical finding that the sale took place from the Hyderabad Depot and CST @ 4% was recovered on the said sale. Further the absence of pre-existing contract for sale was also noticed by the Dy. Comm., while passing the order dated 13.9.2001. The said findings recorded by the Dy. Comm. though questioned by the Department have been upheld by the Tax Board by its impugned judgment dated 16.10.2003 - A perusal of the judgment dated 16.10.2003 passed by the Tax Board would reveal that the petitioner Department has not questioned the validity and / or authenticity of the documents, which were produced before the Dy. Comm., which form the bedrock of passing of the order by the said appellate authority. Further the findings based on those documents are essentially findings of fact and the absence of pre-existing contract of sale between the assessee and the Gulburga firm has been the case throughout i.e. even the A.O. has failed to point out any such pre-existing contract, in absence whereof the sale cannot be treated as inter-State sale - Decided against Revenue.
-
2013 (10) TMI 256
Amendment to u/s 41C of Bombay Sales Tax Act - Constitutional validity - Cessation of SSI units - Package Incentive Scheme of 1979 - validity of Eligibility Certificates - Held that:- Government was aware of the alleged error in the 1979 Scheme since 1982 & took some steps to provide cure through 5.7.1982 modification. But then consistent with the commitments contained in 1979 policy, it gave option to SSI units & allowed them to continue under 1979 unmodified Scheme. The amendment in the shape of S.41C(1)(a)(i)(A) has come in 1995 and it results in curtailment of the benefit period & also imposes an unforeseen tax liability. Till then all benefits without any ceiling or then, after 10.1.1983, incentives equal to 100% of the fixed capital investments made during entire period of eligibility qualified for claiming the exemptions. That has been suddenly changed & eligibility is pegged down to initial year in which the eligibility certificate was issued. This drastic change results in retrospective cancellation of the eligibility certificate. Need for such a measure was felt in 1982 itself & it lead to issuance of 5.7.1982 modification. Why State Government could not bring in such an amendment immediately after 1982 is not clear. If the measure of imposing ceiling on quantum of incentives was evolved in public interest, its advance notice to aspiring investors was possible & also must. But, even in 1982 modification, the Petitioner Units are given exemption equal to cent-percent capital investments made during the period of eligibility. The mode & manner of calculating quantum continued without any ceiling for all these Petitioners & they may have also expanded their projects by investing back the exemptions granted. Even otherwise, it is obvious that no SSI unit under 1979 Scheme would have surrendered & voluntarily subjected themselves to any ceiling and hence, if Government wanted really to remedy the mischief, bringing proper legislation at the earliest was the only solution. The legislation has been brought after majority of the units completed their eligibility period. A liability not in contemplation, has been fastened for past investments which were then eligible for exemption. Past investments may be expansions which catered to the development of underdeveloped area & therefore, advanced the objective of State Government. Thus, such investments & appropriation of incentives are now irreversible & it is irrational to disallow the same & demand taxes. It is strange to levy penalty for the same. We, therefore, see no justification in subjecting very few units to such legislation ie to S.41C(1)(a)(i)(A). Had the legislation been enacted immediately after 1982 & all SSI units were subjected to it, a different perspective may have been required to be adopted. The present situation demands a liberal approach & as observed by Hon. Apex Court (supra) the Government has itself come forward alluring industrial units to set up their industries. Since we do not see absence of power in State Legislature, it is not necessary to quash & set aside said provision which may have outlived itself considering the fact that out of total possible 14, only three matters are before us. But then exposing Petitioners to such unforeseen liability prejudices their entire planning, projections & future. We reiterate that it is not the case of the Respondents that expansion of project or then investment in capital affected the status of Petitioner Units & thereby, they ceased to be SSI Units or then the Petitioners have violated any other term or condition of the 1979 Scheme. Appropriations made & expansions are now irreversible. No commercial concern can shoulder such a burden for past legal transactions. Therefore permitting S.41C(1)(a)(i)(A) to be used against the Petitioners will be inequitable & may result in killing the Units & defeat the 1979 Scheme which was deliberately designed to be broad-based. Interest of justice can be met with by directing the Respondents not to extend the provision of S.41C(1)(a)(i)(A) to the Petitioners if their Units never ceased to be SSI units during the eligibility period as per the eligibility & entitlement certificates granted to them. - Decided partly in favour of assessee.
-
Indian Laws
-
2013 (10) TMI 248
Right to information - Wrong information furnished - Held that:- as prima facie there has been a considerable delay in providing information to the appellant and incorrect information provided, the CPIO shall be issued with a show cause notice as to why a penalty should not be imposed on him as per Section 20 of the RTI Act.
-
2013 (10) TMI 247
Validity of Charge Sheet - Proceedings against the Addl. CIT - Whether the charge sheet issued against the respondents was without jurisdiction - Held that:- The Central Administrative Tribunal as well as the High Court had correctly interpreted the provisions of the Office Order No. 205 of 2005 - Factually also, a perusal of the record would show that the file was put up to the Finance Minister by the Director General of Income Tax (Vigilance) seeking the approval of the Finance Minister for sanctioning prosecution against one officer and for initiation of major penalty proceeding under Rule 3(1)( i ) and (3) (1) (iii) of the Central Civil Services (Conduct) Rules against the officers mentioned in the note which included the appellant herein - Ultimately, it appeared that the charge memo was not put up for approval by the Finance Minister. The action had been taken against the respondent in Rule 14(3) of the CCS( CCA ) Rules which enjoins the disciplinary authority to draw up or cause to be drawn up the substance of imputation of misconduct or misbehaviour into definite and distinct articles of charges - The term cause to be drawn up" does not mean that the definite and distinct articles of charges once drawn up do not have to be approved by the disciplinary authority - The term cause to be drawn up" merely refers to a delegation by the disciplinary authority to a subordinate authority to perform the task of drawing up substance of proposed definite and distinct articles of charge sheet" - These proposed articles of charge would only be finalized upon approval by the disciplinary authority - Article 311(1) does not say that even the departmental proceeding must be initiated only by the appointing authority - However, at the same time it was pointed out that However, it was open to Union of India or a State Government to make any rule prescribing that even the proceeding against any delinquent officer shall be initiated by an officer not subordinate to the appointing authority - It was further held that Any such rule shall not be inconsistent with Article 311 of the Constitution because it will amount to providing an additional safeguard or protection to the holders of a civil post." During the pendency of these proceedings the appellants have after 2009, amended the procedure which provides that the charge memo shall be issued only after the approval is granted by the Finance Minister - it appears that the appeals in these matters were filed and pursued for an authoritative resolution of the legal issues raised. Although number of collateral issues had been raised by the learned counsel for the appellants as well the respondents, we deem it appropriate not to opine on the same in view of the conclusion that the charge sheet/charge memo having not been approved by the disciplinary authority was non est in the eye of law - there was no merit in the appeals filed by the Union of India - CAT had granted liberty to the appellants to take appropriate action in accordance with law.
|
9911796707
