Jurisprudentiol– Tuesday's cases

By Vijay Kumar

Legal Corner Icon — the image was hosted by the publisher and was not captured.Service Tax

Cenvat Credit of service tax - Even if the appellate authority while waiving penalty cited section 80 of the Finance Act, 1994 which does not apply to the facts of the case, in the absence of mens rea , penalty cannot be imposed u/s 11AC of the CEA , 1944 - CESTAT

Although the appellate authority has referred the wrong provision of law while dropping the penalty which is not applicable in this case but the penalty cannot be imposed without mens rea under section 11AC of the Central Excise Act, 1944.

Central Excise

Post Budget letter by JS ( TRU ) cannot add more words to the Notification and make it applicable retrospectively – Such communication issued is not tenable at law – Gujarat High Court.

ALONG with every budget, we find a letter issued by the JS( TRU ) explaining the changes proposed in the Finance Bill and the Notifications. It is also common practice to make amendments in the style of “for removal of doubts” and leave a doubt whether the proposed amendment is prospective or retrospective, which has only to be resolved by the Courts. This case is about one such amendment which the JS( TRU ) felt as only clarificatory in nature but the High Court thought otherwise.

Income Tax

Settlement Commission – abating of cases filed before June 2007 for no fault of applicant – not legal

THE choice of 31st March 2008 as the cut-off date is not supported by any rationale reasons. From the statistics of the Income-tax Department itself it is indisputable that the cut-off date of 31st March 2008 for disposal of all applications filed prior to 1st June 2007 were known to be illusory, whimsical, capricious and so wide off the reasonable mark as to make it palpably arbitrary. The arbitrariness of the choice of 31st March 2008 as the cut-off date is even more apparent when it is noticed that the Settlement Commission is not being wound up, but on the contrary even after the amendments made by the 2007 Act came into effect on 1st June 2007, the Act permits the filing of fresh applications before the Settlement Commission.

See our columns Tomorrow for the judgements