Jurisprudentiol– Monday's cases

By Vijay Kumar

Legal Corner Icon — the image was hosted by the publisher and was not captured.Central Excise

Excess duty paid in PLA by CFL manufacturer eligible for refund in terms of Notification 39/2001-CE and cannot be restricted to duty leviable in terms of exemption notification 6/2006-CE – No specific provision in S. 5A to prohibit a manufacturer from paying full rate of duty when there is only partial unconditional exemption for specified products – CESTAT

Though there is no estoppel in statutory matters, when assessee advised to classify CFL under Chapter 8539 39 10 instead of 8539 31 10 for which notification 6/2006-CE not applicable, excess duty paid cannot be denied as refund

Income Tax

DTAA – Korean Company's Liaison Office in India engaged in trading activities – Covered under PE – Liable to tax in India: ITAT

There is a business connection in respect of source of income in India of the non-resident assessee and therefore, the income from such activity is to be deemed to accrue or arise in India and will therefore is taxable in India. The business profit of the South Korean Company can be taxed in India in case the South Korean Company is having a permanent establishment.

NDPS

Mere inclusion of psychotropic substances in the Schedule to NDPS Act not conclusive to suggest that import and export of such substances is prohibited – Personal liberty being a hallowed right of every person, cannot be taken away when the very act which is sought to be prevented cannot definitely be classified as an illegal or prohibited act – Detention orders set aside – High Court

Any preventive detention has to be viewed with great circumspection as the liberty of an individual cannot be taken away even before he is found guilty of having committed an offence by a court of law – Deprivation of liberty by way of preventive detention has only been permitted when the executive has made out a clear and undisputable case for it within the parameters prescribed by the Constitution – Personal liberty being a hallowed right of every person, cannot be taken away when the very act which is sought to be prevented cannot definitely be classified as an illegal or prohibited act falling within the expression 'illicit traffic in psychotropic substances'

See our columns Monday for the judgements