Jurisprudentiol–Monday's cases

By Vijay Kumar

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

Valuation - expenses of loading of goods within the factory for clearance to a buyer are includable in the assessable value before and after 1.7.2000 – CESTAT LB

THE issue referred to the Larger Bench by the regular Bench is whether the expenses of loading of goods within the factory for clearance to a buyer are includable in the assessable value of the goods where such expenses are incurred by, or on behalf of, the buyer.

Larger Bench held that,

++ pre-1.7.2000, the expenses of loading of excisable goods within the factory for clearance to a buyer are liable to be included in the assessable value of the goods as held by the Supreme Court in Indian Oxygen case and,

++ for the period from 1.7.2000 also, it is liable to be included in the assessable value of the goods unless it is proved by the assessee that the burden of such expenses was not borne by them.

Income Tax

Principle of mutuality will apply to a cooperative Housing Society as long as there is no taint of commerciality, trade or business: Bombay High Court

The Tests: (1) Is there any commerciality involved? (2) From the moneys received are the services offered in the nature of profit sharing or privileges, advantages and conveniences? (3) Are the participants and contributors identifiable and belong to the same class in the case of cooperative housing society? (4) Do the members have the right to share in the surplus and do they have a right to deal with its surpluses?

Customs

Prosecution vs Departmental proceedings - once the department has no legs to stand with respect to the original cause of action, continuing criminal proceedings and prosecuting the accused in such like matters amounts to abuse of the process of Court: Delhi High Court

Once departmental adjudication exonerates the accused of the offences which are the basis of lodging a complaint against the accused/petitioners before a criminal Court under Section 135 Customs Act, the complaint cannot be permitted to be tried further because once the department has no legs to stand with respect to the original cause of action, continuing criminal proceedings and prosecuting the accused in such like matters tantamounts to abuse of the process of Court and therefore such proceedings must come to an end.

See our columns Monday for the judgements