Sunday, October 25, 2015

In exercise of the powers conferred by clause (da) of sub-section (2) of section 29 of the Securities and Exchange Board of India Act, 1992, (15 of 1992), the Central Government hereby makes the following rules further to amend the Securities and Exchange Board of India (Procedure for Holding Inquiry and imposing penalties by adjudicating officer) Rules, 1995, namely :—

1. (1) These rules may be called the Securities and Exchange Board of India (Procedure for Holding Inquiry and imposing penalties by adjudicating officer) Amendment Rules, 2015.

(2) They shall come into force on the date of their publication in the Official Gazette.

2. In the Securities and Exchange Board of India (Procedure for Holding Inquiry and imposing penalties by adjudicating officer) Rules, 1995, in rule 7,—

(a)

in clause (b),—

(i)		after the words "by sending it to the person by", the words "fax or electronic mail or courier or speed post with acknowledgement due or "shall be inserted;
(ii)		the following provisos shall be inserted, namely,—

		"Provided that a notice sent by Fax shall bear a note that the same is being sent by fax and in case the document contains annexure, the number of pages being sent shall also be mentioned:
		Provided further that a notice sent through electronic mail shall be digitally signed by the competent authority and bouncing of the electronic mail shall not constitute valid service."
(b)		after clause (c), the following clause shall be inserted, namely,—
		"(d) if it cannot be affixed on the outer door as per clause (c), by publishing the notice in atleast two newspapers, one in a English daily newspaper having nationwide circulation, and another in a newspaper having wide circulation published in the language of the region where that person was last known to have resided or carried on business or personally worked for gain."

Friday, July 17, 2015

SC dismisses Vijay Mallya's appeal against prosecution

SC dismisses Vijay Mallya's appeal against prosecution under FERA with exemplary costs

FERA : Evasion of summons under FERA is an independent offence under section 56 of FERA,1973 - independent of whether accused is found guilty of the substantive offence in connection with which summons is issued

• The fact that the adjudicating officer chose to drop the proceedings against the appellant does not absolve the appellant of the criminal liability incurred by him by virtue of the operation of Section 40 read with Section 56 of the Act.

• The offence under Section 56 read with Section 40 of the Act is an independent offence.

• Exonerating an accused, who successfully evades the process of law and thereby commits an independent offence on the ground that he is found to be not guilty of the substantive offence would be destructive of law and order, apart from being against public interest.

• Such an exposition of law would only encourage unscrupulous elements in the society to defy the authority conferred upon the public servants to enforce the law with impunity.

• It is also possible, in certain cases that the time gained by such evasive tactics adopted by a person summoned itself would result in the destruction of the material which might otherwise constitute valuable evidence for establishing the commission of a substantive offence by such a recalcitrant accused.

SUPREME COURT OF INDIA

Vijay Mallya

Enforcement Directorate, Ministery of Finance

ADARSH KUMAR GOEL AND J. CHELAMESWAR, JJ.

CRIMINAL APPEAL NO.1406 OF 2009

JULY 13, 2015

Surender Kumar Gupta, B.K. Prasad and B.V. Balaram Das, Advs. for the Respondent.

JUDGMENT

Adarsh Kumar Goel, J. - This appeal has been preferred against judgment and order dated 21st May, 2007 of the High Court of Delhi at New Delhi in Criminal Revision Petition No.554 of 2001.

2. Brief facts necessary for decision of this appeal are that the appellant was summoned by the Chief Enforcement Officer, Enforcement Directorate, under Section 40 of the Foreign Exchange Regulation Act, 1973 ("the Act") with his passport and correspondence relating to a transaction with Flavio Briatore of M/s. Benetton Formula Ltd., London, to which the appellant, as Chairman of United Breweries Ltd., was a party. Allegation against the appellant was that he entered into an agreement dated 1st December, 1995 with the earlier mentioned English Company for advertisement of 'Kingfisher' brand name on racing cars during Formula-I World Championships for the years 1996, 1997 and 1998 providing for fee payable. Requisite permission of the Reserve Bank of India was not taken which was in violation of provisions of Sections 47(1) & (2), 9(1)(c) and 8(1) of the Act. Approval was later sought from Finance Ministry for payment on 19th June, 1996, which was rejected on 4th February, 1999. Since the appellant failed to appear in response to summons issued more than once, a complaint dated 8th March, 2000 under Section 56 of the Act was filed before the Additional Chief Metropolitan Magistrate, New Delhi. The trial court after considering the material on record summoned the appellant and framed charge against him under Section 56 of the Act.

3. The appellant challenged the order of the Magistrate dated 9th August, 2001 in above Criminal Complaint No.16/1 of 2000 and also sought quashing of proceedings in the said complaint before the High Court by fling Criminal Revision Petition No.554 of 2001 on the ground that willful default of the appellant could not have been inferred and that there was non-application of mind in the issuance of summons as well as in framing the charge which was in violation of procedure laid down under Section 219 of the Criminal Procedure Code. The charge related to failure of the appellant to appear on four occasions, i.e., 27th September, 1999, 8th November,1999, 26th November, 1999 and 3rd January, 2000. In respect of first date, it was submitted that the trial court itself accepted that the service of summons was after the time for appearance indicated in the summons. In respect of second and third dates, the appellant had responded and informed about his inability to appear and for the last date, summons was not as per procedure, i.e., by registered post. It was submitted that composite charge was against Section 219 of the Criminal Procedure Code.

4. The High Court rejected the contentions by holding that framing of composite charge could not be treated to have caused prejudice so as to vitiate the proceedings. It was further observed that default of the appellant in relation to summons dated 15th September, 1999 for attendance on 27th September, 1999 could not be taken into account and to that extent the charge was liable to be deleted but with regard to the defaults in relation to summons dated 7th October, 1989, 8th November, 2009 and 21st December, 1999, the proceedings were not liable to be interfered with as the appellant could contest the matter before the trial court itself in the first instance.

5. We have heard Shri F.S. Nariman, learned senior counsel for the appellant and Shri K. Radhakrishnan, learned senior counsel for the respondent.

6. When the matter came up for hearing before this Court earlier, a statement was made on behalf of the appellant that the appellant expressed regret for not responding to the summons on which learned senior counsel for the respondent took time to ascertain whether the complaint could be withdrawn. Thereafter, it was stated that withdrawal of the complaint may have impact on other matters and for that reason withdrawal was not possible. However, the question whether the non compliance was deliberate was required to be examined. Learned senior counsel for the appellant submitted that the default was not deliberate, intentional or willful which may be punishable under Section 56 of the Act and the appellant had sent reply and sought a fresh date on two occasions.

7. It was further submitted that subsequent events which were not gone into by the High Court may also be seen. The complaint was filed on 8th March, 2000. During pendency of the complaint, the Act (FERA) was repealed on 1st June, 2000. Still, show cause notice dated 13th March, 2001 was issued to which reply was given and the adjudicating officer vide order dated 10th January, 2002 dropped the proceedings on merits. The Appellate Board dismissed the Revision Petition filed by the Department on 16th March, 2004. Against the said order, Criminal Appeal No.515 of 2004 was pending in the High Court.

8. It was submitted that having regard to repeal of the Act and exoneration of the appellant by the departmental authorities (even though an appeal was pending in the High Court), this Court in the circumstances of the case ought to quash proceedings, following law laid down in Dy. Chief Controller of Import and Export v. Roshan Lal Agarwal (2003) 4 SCC 139 as follows :

"13. In view of the findings recorded by us, the learned Magistrate has to proceed with the trial of the accused-respondents. Shri Ashok Desai, learned Senior Counsel has, however, submitted that the Imports and Exports (Control) Act, 1947 has since been repealed and in the departmental proceedings taken under the aforesaid Act, the Central Government has passed orders in favour of the respondents and, therefore, their trial before the criminal court at this stage would be an exercise in futility. He has placed before us copies of the orders passed by the Additional Director General of Foreign Trade on 16-8-1993 and also by the Appellate Committee Cell, Ministry of Commerce, Government of India on 13-3-1997 by which the appeals preferred by the respondents were allowed by the Appellate Committee and the accused-respondents were exonerated. Having regard to the material existing against the respondents and the reasons and findings given in the aforesaid orders, we are of the opinion that no useful purpose would be served by the trial of the accused-respondents in the criminal court at this stage. The proceedings of the criminal cases instituted against the accused-respondents on the basis of the complaints filed by the Deputy Chief Controller of Imports and Exports are, therefore, quashed".

Alternatively, explanation of the appellant for non appearance may be looked into on merits instead of the same being left to the trial court.

9. Before we consider the submissions made, the provisions of Section 40 and 56 of the Act may be noticed which are as follows :

Section 40 - Power to summon persons to give evidence and produce documents

(1)		Any Gazetted Officer of Enforcement shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document during the course of any investigation or proceeding under this Act.
(2)		A summon to produce documents may be for the production of certain specified documents or for the production of all documents of a certain description in the possession or under the control of the person summoned.
(3)		All persons so summoned shall be bound to attend either in person or by authorised agents, as such officer may direct; and all persons so summoned shall be bound to state the truth upon any subject respecting which they are examined or make statements and produce such documents as may be required:
		Provided that the exemption under section 132 of the Code of Civil Procedure, 1908 (5 of 1908) shall be applicable to any requisition for attendance under this section.
(4)		Every such investigation or proceeding as aforesaid shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the Indian Penal Code, 1860 (45of 1860).

Section 56 - Offences and prosecutions

(1) Without prejudice to any award of penalty by the adjudicating officer under this Act, if any person contravenes any of the provisions of this Act [other than Section 13, Clause (a) of sub-section(1) of (Section 18, Section 18A), clause (a) of sub-section (1) of Section 19, sub-section(2) of Section 44 and Section 57 and 58] or of any rule, direction or order made thereunder, he shall, upon conviction by a court, be punishable

(i)		in the case of an offence the amount or value involved in which exceeds one lakh of rupees with imprisonment for a term which shall not be less than six months, but which may extend to seven years and with fine; Provided that the Court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months;
(ii)		in any other case, with imprisonment for a term which may extend to three years or with fine or with both."

10. In Enforcement Directorate v. M. Samba Siva Rao(2000) 5 SCC 431, it was observed :

"3. **

The Foreign Exchange Regulation Act, 1973 was enacted by Parliament, basically for the conservation of the foreign exchange resources of the country and the proper utilisation thereof in the interest of economic development of the country. The Act having been enacted in the interest of national economy, the provisions thereof should be construed so as to make it workable and the interpretation given should be purposive and the provisions should receive a fair construction without doing any violence to the language employed by the legislature. The provisions of Section 40 itself, which confers power on the officer of the Enforcement Directorate, to summon any person whose attendance he considers necessary during the course of any investigation, makes it binding as provided under sub-section (3) of Section 40, and the investigation or the proceeding in the course of which such summons are issued have been deemed to be a judicial proceeding by virtue of sub-section (4) of Section 40. These principles should be borne in mind, while interpreting the provisions of Section 40 and its effect, if a person violates or disobeys the directions issued under Section 40."

11. The above observations clearly show that a complaint is maintainable if there is default in not carrying out summons lawfully issued. The averments in the complaint show that the summons dated 21st December, 1999 were refused by the appellant and earlier summons were not carried out deliberately. The averments in paras 3 and 4 of the complaint are as follows :

"3. That the complainant issued a summons dated 21.12.1999 under Section 40 of FERA, 1973 in connection with the impending investigations for the appearance of the accused on 3.1.2000 but the same have been returned back by the postal authorities with the remarks "refused".

It is submitted that the accused has deliberately avoided his appearance before the Investigating Officer and on account of his non co-operative attitude the investigation has come to a standstill.

4. It is respectfully submitted that the accused has been intentionally avoiding his appearance before the Enforcement Directorate knowing fully well that non compliance of the directions made under Section 40 of the Act renders the person liable for prosecution in a Court of law under Section 56 of the Act which is a non-bailable offence. It is further submitted that by virtue of Section 40(3) of the Act, the accused was bound to appear before the Officers of the Enforcement Directorate in the best interest of investigation. Section 40(3) is reproduced below for kind perusal and ready reference to this Hon'ble Court :

"Section 40(3) :

(3) All persons so summoned shall be bound to attend either in person or by authorised agents, as such officer may direct; and all persons so summoned shall be bound to state the truth upon any subject respecting which they are examined or make statements and produce such documents as may be required."

It is respectfully submitted that non compliance of any rule, directions or law is punishable under Section 56 of the Act. The accused willfully failed to appear before the Enforcement Directorate at the given venue, time and dates mentioned in the respective summons and has thus, contravened the provisions of Section 56 of the Act."

12. As regards summons dated 8th November, 1999, learned senior counsel for the appellant has referred to the explanation offered by the appellant. Letter dated 22nd November, 1999 is as follows :

"As you will appreciate, I am the Chairman of several public Companies both in India as well as in the USA and, therefore, my schedule is finalized several months in advance. During the fiscal year end period, the problem only gets compounded.

I would, therefore, request you to excuse me from the personal appearance on November 26, 1999 as I will be out of India.

I am willing to fix a mutually convenient date to appear before you."

13. From the tenor of the letter, it appears that it was not a case of mere seeking accommodation by the appellant but requiring date to be fixed by his convenience. Such stand by a person facing allegation of serious nature could hardly be appreciated. Obviously, the enormous money power makes him believe that the State should adjust its affairs to suit his commercial convenience.

14. In our opinion, the appeal is required to be dismissed for more than one reason. The fact that the adjudicating officer chose to drop the proceedings against the appellant herein does not absolve the appellant of the criminal liability incurred by him by virtue of the operation of Section 40 read with Section 56 of the Act. The offence under Section 56 read with Section 40 of the Act is an independent offence. If the factual allegations contained in the charge are to be proved eventually at the trial of the criminal case, the appellant is still liable for the punishment notwithstanding the fact that the presence of the appellant was required by the adjudicating officer in connection with an enquiry into certain alleged violations of the various provisions of the Act, but at a subsequent stage the adjudicating officer opined that there was either insufficient or no material to proceed against the appellant for the alleged violations of the Act, is immaterial. The observations made by this Court in Roshanlal Agarwal (supra), in our opinion, must be confined to the facts of that case because this Court recorded such a conclusion "having regard to the material existing against the respondent and the reasons and findings given in the aforesaid orders…..".The said case cannot be read as laying down a general statement of law that the prosecution of the accused, who is alleged to be guilty of an offence of not responding to the summons issued by a lawful authority for the purpose of either an inquiry or investigation into another substantive offence, would not be justified. Exonerating such an accused, who successfully evades the process of law and thereby commits an independent offence on the ground that he is found to be not guilty of the substantive offence would be destructive of law and order, apart from being against public interest. Such an exposition of law would only encourage unscrupulous elements in the society to defy the authority conferred upon the public servants to enforce the law with impunity. It is also possible, in certain cases that the time gained by such evasive tactics adopted by a person summoned itself would result in the destruction of the material which might otherwise constitute valuable evidence for establishing the commission of a substantive offence by such a recalcitrant accused.

15. Secondly, an appeal against the conclusion of the adjudicating officer that the proceedings against the appellant herein for the alleged violation of the various provisions of the FERA Act are required to be dropped has not even attained finality. Admittedly, such an order of the adjudicating officer confirmed by the statutory appellate authority is pending consideration in an appeal before the High Court. Though, in our opinion, the result of such an appeal is immaterial for determining the culpability of the appellant for the alleged violation of Section 40 read with Section 56, we must record that the submission made on behalf of the appellant in this regard itself is inherently untenable.

16. For all the abovementioned reasons, we do not see any merit in the appeal. We are also of the opinion that the entire approach adopted by the appellant is a sheer abuse of the process of law. Any other view of the matter would only go to once again establishing the notorious truth stated by Anatole France that - "the law in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets and to steal bread".

17. The appeal is dismissed with exemplary costs quantified at rupees ten lakhs to be paid to the Supreme Court Legal Service Authority.

Monday, July 13, 2015

Delay condoned in filing of appeal

CST & VAT : Haryana VAT - Where against order of Commissioner, assessee filed appeal before Tribunal late by 155 days along with application seeking condonation of delay and submitted that due to different levels of decision making authorities, there was delay in taking final decision of filing appeal before Tribunal, there was sufficient cause for delay in filing appeal

HIGH COURT OF PUNJAB AND HARYANA

Indian Oil Corporation Ltd.

State of Haryana

AJAY KUMAR MITTAL AND FATEH DEEP SINGH, JJ.

VATAP NO. 62 OF 2014

SEPTEMBER 9, 2014

Section 33 of the Haryana Value Added Tax Act, 2003 read with section 5 of the Limitation Act, 1963 - Appeals, revision, etc. - Appeal - Assessing Authority passed assessment order on assessee on 20-3-2007 - Thereafter Commissioner vide order dated 30-7-2011 passed under section 34 revised order of assessment - Against order of Commissioner, assessee filed appeal before Tribunal late by 155 days alongwith application seeking condonation of delay - Tribunal dismissed appeal being barred by limitation - Assessee submitted before High Court that due to different levels of decision making authorities, there was delay in taking final decision of filing appeal before Tribunal - Delay was unintentional and due to circumstances beyond its control - Whether there was sufficient cause for delay in filing appeal - Held, yes - Whether delay in filing appeal deserved to be condoned - Held, yes [Para 10] [In favour of assessee/Matter remanded]

Words and Phrases : Expression 'sufficient cause' occurring in section 5 of the Limitation Act, 1963

Matter can't be decided by relying on earlier decision if challenged in High Court

A matter can't be decided by relying on earlier decision of Tribunal which is challenged in High Court

CST & VAT: Gujarat VAT - Where Tribunal had remanded matter to First Appellate Authority with direction to decide appeal of assessee following its decision rendered in case of ONGC Ltd., since appeal against decision in case of ONGC Ltd. was pending before High Court, Tribunal could not have insisted for disposing of appeal following its decision

HIGH COURT OF GUJARAT

State of Gujarat

Essar Oil Ltd.

M.R. SHAH AND S.H. VORA, JJ.

TAX APPEAL NOS. 254 AND 255 OF 2015
CIVIL APPLICATION (OJ) NOS. 321 AND 322 OF 2015
SPECIAL CIVIL APPLICATION NOS. 6989 AND 6990 OF 2015

MAY 1, 2015

Section 73 of the Gujarat Value Added Tax Act, 2003 - Appellate Tribunal - Powers of - Assessment year 2008-09 - Tribunal set aside order passed by First Appellate Authority directing assessee to make payment of 20 per cent of total demand by way of predeposit - It remanded matter to him with direction to decide appeal of assessee keeping in mind decision of Tribunal rendered in case of ONGC Ltd. within three months - It also directed First Appellate Authority to refund amount of tax deposited by assessee by way of pre deposit with interest - Record showed that decision of Tribunal in case of ONGC Ltd. was pending for final disposal before High Court - Whether Tribunal could not have insisted for disposing of appeal by First Appellate Authority following decision in case of ONGC Ltd. - Held, yes - Whether direction given to revenue authorities to refund amount of tax deposited by assessee with interest was absolutely beyond scope and ambit of powers of Tribunal - Held, yes - Whether aforesaid amount deposited by assessee deserved to be refunded on furnishing unconditional and irrevocable bank guarantee of like amount in name of Commissioner - Held, yes [Paras 7.4,7.5 and 8] [Partly in favour of revenue]

FACTS

when Notice served at old address of assessee was void

Notice served at old address of assessee was void when assessee had already informed new address to department

HIGH COURT OF BOMBAY

Balaji Marbles

Union of India

S.C. DHARMADHIKARI AND SUNIL P. DESHMUKH, JJ.

WRIT PETITION NO. 1805 OF 2015

MARCH 2, 2015

Section 153 of the Customs Act, 1962, read with section 83 of the Finance Act, 1994 and section 37C of the Central Excise Act, 1944 - Service of decisions, orders, summons, etc. - Section 153(a) provides for 'service' of orders, notices, etc. by tendering it personally or sending it by registered post/approved courier - When assessee has informed of his changed address to department, service under section 153(a) ought to be effected at changed address - It is only when service is not possible as per section 153(a) that affixation of order, decision, summons or notice on notice board of customs house is permitted under section 153(b) [Para 5] [In favour of assessee]

Section 129A of the Customs Act, 1962, read with section 35B of the Central Excise Act, 1944 and section 86 of the Finance Act, 1994 - Appeals - Condonation of delay - Appellate Tribunal - Assessee explained that it had informed department of its new address on 12-5-1999 but despite that adjudication order dated 10-3-2008 was served at old address and returned with postal remark 'left' - Assessee claimed that it came to know of adjudication order only when recovery was initiated and said order was received on 20-6-2013 and, therefore, appeal filed on 23-6-2013 was valid - Tribunal held that since order was affixed in customs house, hence, service was complete under section 153(b) - HELD : Since adjudication order was not served at new address, there was no complete service under section 153(a) and hence, service under section 153(b) cannot be resorted to - Time-limit for filing appeal would run only from date of service/knowledge of adjudication order, which, in this case, is 20-6-2013 - Hence, appeal was within time and was restored before Tribunal [Para 5] [In favour of assessee]

Monday, June 29, 2015

Online Payment of EPF Mandatory

Employees’ Provident Fund Organisation
(Ministry of Labour & Employment, Govt. Of India)
Head Office
Bhavishya Nidhi Bhawan, 14- Bhikaji Cama Place, New Delhi — 110066
Fax: 011-26173022, Telephone: 26172685
No. Bkg.1(4)2010/Online Remittance /12871 , Date: 24th June 2015

To

All Regional P.F. Commissioner-I/In charge Regional & Sub-Regional Offices

Subject: Mandatory Deposit of Contributions through Internet Banking.

Reference:
i) MoL&E Notification No. G.S.R. 360(E) dated 05.05.2015.
ii) HO Circular of even No. dated 22.06.2015

Sir/Madam,

Please refer to the above said subject.

2. The Central Government in exercise of the powers conferred by section 5 read with sub-section (1) of section 7 of the EPF&MP Act 1952 has notified amendments in Paras 38(1) and 48 of EPF Scheme, 1952 making it mandatory for employers to pay the statutory contributions through Internet Banking.

3. In exercise of powers conferred to the Central Provident Fund Commissioner under amended para 38(1) of EPF Scheme, 1952, it has been allowed vide order of even No. dated 24.06.2015 that an employer who makes payment of less than Rupees one lakh in a particular month as contributions under Employees’ Provident Funds and Miscellaneous Funds Act, 1952 and Schemes framed thereunder, shall have the option to make such payments through bank drafts or banker’s cheques or cheques drawn only on the local bank as was being done earlier. A copy of the said order is enclosed for information. This order shall be valid upto the month of September, 2015. Thereafter, it shall be mandatory for all employers to make payments electronically through internet banking. The employers remitting contribution below Rs. 1 lakh per month shall, however, have the option to remit such dues through the internet banking even during the interim period upto September, 2015.

4. The employers may be advised through e-mail/SMS/press release for depositing contributions through Internet Banking as specified above.

Yours faithfully
(Sanjay Kumar)
RCFA

ORDER

Ministry of Labour & Employment vide notification no. G.S.R. 360(E) dated 5th May, 2015 has amended Para 38(1) of the EPF Scheme, 1952. The Central Government has made it mandatory for employers to pay statutory contributions electronically through Internet Banking only.

2. In exercise of powers conferred to the Central Provident Fund Commissioner under amended para 38(1) of EPF Scheme, 1952, it is hereby ordered that an employer who makes payment of less than Rupees one lakh in a particular month as contributions under Employees’ Provident Funds and Miscellaneous Funds Act, 1952 and Schemes framed thereunder, shall have the option to make such payments through bank drafts or banker’s cheques or cheques drawn only on the local bank as was being done earlier. This order is being issued considering the fact that many of the participating employers having smaller work force may not readily have facility of internet banking.

3. This order shall be valid upto the month of September, 2015. Thereafter, it shall be mandatory for all employers to make payments electronically through internet banking.

(K.K. Jalan)
Central Provident Fund Commissioner

Wednesday, June 24, 2015

Delay in filing refund claim due to terrorist attack is condonable

CESTAT, MUMBAI BENCH

Newstech (India) (P.) Ltd.

Commissioner of Customs, Mumbai*

ANIL CHOUDHARY, JUDICIAL MEMBER

FINAL ORDER NO. A/397/2014-WZB/C-IV(SMB)
APPEAL NO. C/783/2010-MUM

DECEMBER 23, 2013

Section 27, read with section 25, of the Customs Act, 1962 , section 83 of the Finance Act, 1994 and section 11B of the Central Excise Act, 1944 - Refund - Period of limitation - Department rejected refund claim filed on 1-12-2008 as barred by limitation on ground that it was not filed within 1 year from date of payment of duty on 26-11-2007 - Assessee argued that due to terror attack in Mumbai on 26-11-2008 and consequent disturbance of normal life, claim could be filed on 1-12-2008 (29-11-2008 and 30-11-2008 being Saturday and Sunday) - Commissioner (Appeals) held that delay in filing refund claim cannot be condoned, even if same is due to reasons beyond control of assessee - HELD : There is reasonable cause for filing refund claim on 1-12-2008 and delay is properly explained, which is only of 3 days beyond control - Hence, said delay was condoned and refund was ordered to be granted with interest, if otherwise eligible on merits [Para 4] [In favour of assessee]

Circulars and Notifications : Notification No. 102/2007-Cus., dated 14-9-2007

Monday, June 22, 2015

smuggling :Person aware are also liable for penalty

Person who was aware of smuggling but didn't intimate it to customs authorities was liable to penalty

HIGH COURT OF MADRAS

Commissioner of Customs, Trichy

S. Janarthanan

R. SUDHAKAR AND R. KARUPPIAH, JJ.

C.M.A. NO. 93 OF 2009
M.P. NO. 1 OF 2009

FEBRUARY 27, 2015

Section 114, read with sections 113 and 124 of the Customs Act, 1962 - Penalty - Smuggling/Illegal Export - In matter of attempted export of 'prohibited sandalwood' in guise of 'roofing tiles', department found that : (a) respondent was informed by exporting parties about said smuggling; (b) in spite of having knowledge, respondent did not inform same to Customs and was induced for monetary consideration to keep quiet; (c) his omitting to do action required by him under Customs Act, showed that he was involved in smuggling of sandal wood; and hence, department levied penalty on him - Tribunal held that respondent's omission was 'non-disclosure of attempted smuggling by others' and since such omission had not rendered goods liable for confiscation under section 113, penalty could not be levied on him - HELD : Respondent was complicit in act of smuggling, which render goods liable for confiscation under section 113 - He also abetted in doing such acts - Respondent is one among culprits, who attempted to smuggle sandalwood - Since respondent had knowledge about sandalwood being part of roofing tiles and he did not intimate same to customs authorities, he is liable for penalty [Paras 13 to 16] [In favour of revenue]

Saturday, June 13, 2015

AIDS Control Program: Govt. exempts excise duty on medicines

Govt. exempts excise duty on medicines required for National AIDS Control Program

SECTION 5A OF THE CENTRAL EXCISE ACT, 1944 - POWER TO GRANT EXEMPTION FROM DUTY OF EXCISE - EXEMPTION TO ANTI-RETROVIRAL DRUGS (ARV DRGUS) AND DIAGNOSTICS AND EQUIPMENTS

NOTIFICATION NO.33/2015-CE, DATED 10-6-2015

In exercise of the powers conferred by sub-section (1) of section 5A of the Central Excise Act, 1944 (1 of 1944), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts the goods mentioned in column (1) of the Table below of the description specified in column (2) of the said Table from the whole of the duty of excise leviable thereon which is specified in the Schedule to the Central Excise Tariff Act, 1985 (5 of 1986), subject to the condition that the manufacturer produces at the time of clearance of the said goods, before the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise having jurisdiction, a certificate from an officer not below the rank of Deputy Secretary to the Government of India in the Ministry of Health and Family Welfare to the effect that the said goods are required for the National AIDS Control Programme funded by Global Fund to fight AIDS, TB and Malaria(GFATM):—

TABLE

(1)	(2)
Goods	Description
Anti-Retroviral Drugs (ARV Drugs)	Adult First Line - Zidovudine 300 mg + Lamivudine 150 mg + Nevirapine 200 mg, Zidovudine 300 mg + Lamivudine 150 mg, Tenofivir 300 mg + Lamivudine 150 mg, Tenofivir 300 mg + Lamivudine 300 mg, Nevirapine 200 mg, Efavirenz 600 mg, Stavudine 30 mg + Lamivudine 150 mg + Nevirapine 200 mg, Stavudine 30 mg + Lamivudine 150 mg, Abacavir 600 mg + Lamivudine 300 mg and Tenofivir 300 mg + Lamivudine 300 mg + Efavirenz 600 mg
	Adult Second Line - Atazanavir 300 mg Capsules, Ritonavir 100 mg tablets, Lopinavir 200 mg + Ritonavir 50 mg tablets
	Paediatric Drugs - Zidovudine 60 mg + Lamivudine 30 mg + Nevirapine 50 mg tablets, Stavudine 6 mg + Lamivudine 30 mg + Nevirapine 50 mg tablets, Abacavir 60 mg + Lamivudine 30 mg, Zidovudine 60 mg + Lamivudine 30 mg tablets, Stavudine 6 mg + Lamivudine 30 mg tablets, Nevirapine 50 mg tablets, Efavirenz 200 mg tablets, Lopinavir 100 mg + Ritonavir 25 mg tablets
Diagnostics and Equipments	Cluster of Differentiation (CD) 4 Kits / Reagents, HIV-DNA-PCR Kits for DNA Testing of Early Infant Diagnostics, Viral Load Kits, CD4 Machines, Viral Load Machines

2. Nothing contained in this notification shall have effect on or after the first day of April, 2016.

Transporting goods via route which didn't have check post : No Penalty

No penalty even when assessee was transporting goods via route which didn't have check post as he had genuine docs

[2015] 57 taxmann.com 425 (Rajasthan)

HIGH COURT OF RAJASTHAN

Assistant Commissioner of Commercial Tax, Bharatpur

Mukesh Singh

Section 78 of the Rajasthan Sales Tax Act, 1994 - Penalty - For violation of provisions of Act - Competent Authority checked a vehicle transporting refined lude oil from Jaipur to Agra and having found that vehicle was moving on road which did not have check-post imposed penalty under section 78(10A) upon driver of vehicle - First Appellate Authority set aside penalty imposed upon driver - Tax Board upheld impugned order - Record showed that documents produced by driver were neither found to be incomplete nor forged one and only contention raised by revenue was that said documents did not bear stamp of any check-post - Whether imposition of penalty was not justified - Held, yes [Paras 3 and 4] [In favour of assessee]

Purchased Assets of Company in Liquidation inclusive of Taxes : Buyer isn't liable to sales tax

Buyer isn't liable to sales tax when he offered an amount inclusive of all taxes to purchase assets of company in liquidation

[2015] 58 taxmann.com 27 (SC)

SUPREME COURT OF INDIA

Hindustan Urban Infrastructure Ltd.

Assistant Commissioner, Ernakulam

Section 5 of the Kerala General Sales Tax Act, 1963 - Levy of tax - On sale or purchase of goods- Official Liquidator, in order to settle liabilities of a company in liquidation, issued a notice inviting tenders in respect of sale of assets of said company - Appellant had offered its highest bid, which was inclusive of all statutory levies such as sales tax, etc. - Offer so made was accepted by Official Liquidator - Appellant, in order to move aforesaid assets beyond boundaries of State of Kerala, had requested Official Liquidator to indicate his sales tax registration number in sales tax certificate, which request was rejected - Whether there was a concluded contract between Official Liquidator and appellant - Held, yes - Whether since appellant had specifically indicated to Official Liquidator that offer made by it was inclusive of all statutory levies, liability to pay taxes could not be imposed on appellant - Held, yes [Para 10] [In favour of appellant]

Dont Approach Supreme Court if Tribunal proceeded on wrong facts

If Tribunal proceeded on wrong facts assessee had to file rectification application instead of approaching SC

[2015] 57 taxmann.com 269 (SC)

SUPREME COURT OF INDIA

Plasopan Engineers (I) (P.) Ltd.

Commissioner of Central Excise

Section 35C, read with section 35L, of the Central Excise Act, 1944, sections 83, and 86 of the Finance Act, 1994 and section 129B of the Customs Act, 1962 - Appeals - Rectification of mistakes/review - Appellate Tribunal - Assessee claimed that 'doors and windows' manufactured by it are complete in all respects and are cleared in unassembled or disassembled form and, therefore, classifiable under Heading 3925.20 - Department claimed classification under sub-heading 3925.99 - Tribunal held in favour of revenue observing that 'doors and windows are removed by assessee in running length and are fabricated at side' - Assessee argued that aforesaid observations of Tribunal are factually incorrect and not arising from record - HELD : Since assessee's contention is factual in nature, remedy is to approach Tribunal by moving an appropriate application for rectification - Hence, present appeals were dismissed as withdrawn with liberty to file rectification application before Tribunal within 30 days from present judgment [Para 3] [In favour of assessee/Matter remanded]

Thursday, June 11, 2015

Cenvat Credit on Capital Goods when They are not Owned

Credit on capital goods allowable even if they are not owned by assessee

[2015] 57 taxmann.com 404 (Bombay)

HIGH COURT OF BOMBAY

Commissioner of Central Excise

Modernova Plastyles (P.) Ltd.

Rule 57Q, read with rule 57R, of the Central Excise Rules, 1944, rule 4, read with Rules 2(a) and 3, of the Cenvat Credit Rules, 2004 - Cenvat Credit - Conditions for allowing of - Capital Goods - Period 1997-98 and 1998-99 - Assessee was engaged in manufacture of plastic articles using injection moulding machines - Moulds, used in manufacture, were supplied to assessee by Original Equipment Manufacturers - Assessee took credit of said moulds as 'capital goods' - Department denied credit on ground that capital goods were neither owned, nor taken on lease/finance/hire-purchase; hence, credit could not be allowed to assessee - HELD : For taking credit of duty paid on said goods, it would not be necessary that capital goods shall either be owned by assessee or those shall be acquired by finance from financing agency - Denial of credit based on such ground is unsustainable - Having regard to prevailing legal position applicable to case of assessee, credit cannot be disallowed to assessee and it would be entitled to same [Paras 5 to 16] [In favour of assessee]

Sunday, October 25, 2015

Saturday, October 24, 2015

Wednesday, October 21, 2015

Thursday, October 15, 2015

Sunday, October 4, 2015

Sunday, September 27, 2015

Wednesday, August 5, 2015

Monday, August 3, 2015

Sunday, July 19, 2015

SEBI adopts e-route for service of notice; allows service via email and fax by adjudicating officer

Friday, July 17, 2015

SC dismisses Vijay Mallya's appeal against prosecution under FERA with exemplary costs

Monday, July 13, 2015

A matter can't be decided by relying on earlier decision of Tribunal which is challenged in High Court

Tuesday, June 30, 2015

Notice served at old address of assessee was void when assessee had already informed new address to department

Monday, June 29, 2015

Wednesday, June 24, 2015

Delay in filing refund claim due to terrorist attack is condonable

Monday, June 22, 2015

Person who was aware of smuggling but didn't intimate it to customs authorities was liable to penalty

Saturday, June 13, 2015

Govt. exempts excise duty on medicines required for National AIDS Control Program

No penalty even when assessee was transporting goods via route which didn't have check post as he had genuine docs

If Tribunal proceeded on wrong facts assessee had to file rectification application instead of approaching SC

Thursday, June 11, 2015

Credit on capital goods allowable even if they are not owned by assessee