Jurisprudentiol – Wednesday's cases

By Vijay Kumar

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

Refund under Rule 5 of CENVAT Credit 2005 Rules is admissible even if goods exported are exempted:

As an illustration, if a car which is dutiable is exported under bond without payment of duty there may be doubt as to whether credit on the inputs will be available, since the car is cleared without payment of duty under Rule 6(5) of CENVAT Credit Rules. 2002. It could be argued that it covers only the exempted goods exported and not dutiable goods exported. In order to cover such a situation also, Rule 6(6) of CENVAT Credit Rules, 2004 used the expression 'excisable goods' which is wider to include both dutiable as well as exempted goods.

Income Tax

FII -assessee makes both short-term capital gains and also loss - Finance Act 2004 amends regime for taxation of short-term capital gains - capital loss suffered prior to amendment can be set off against gains made post-amendment: ITAT

FINANCE ( No2 ) Act, 2004 brought in a new regime of taxation of capital gains on transfer of shares with effect from 1.10.2004. Till 30.9.2004, short term capital gains on transfer of shares was chargeable to tax at the normal applicable rate. For an FII , the rate was @30% as per section 115AD . From 1.10.2004, this regime underwent a change. A new section 111A was inserted in terms of which in respect of short term capital gains arising out of transfer of listed shares transacted through a recognised stock exchange and subject to the newly introduced Securities Transaction Tax, tax was to be charged at a concessional rate of 10%. The same rate was allowed to FIIs also by inserting a proviso to section 115AD .

Customs

Allegation of mis -declaration in export of gold jewellery – Documents filed by exporters have more evidentiary value than those relied upon by Revenue in SCN – Goods exported under 100% examination of Customs authorities not disputed – Rs. 55 Crore Customs case goes for a toss: CESTAT

Since the goods were subjected to 100% examination by the Customs before exports which was not rebutted by the Revenue at any stage, the same cannot be subjected to any dispute subsequently more so when the representative of the revenue recognized Jewellers Association has certified the purity of the gold jewellery exported.

See our columns Tomorrow for the judgements