Jurisprudentiol – Thursday's cases

By Vijay Kumar

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

Law does not provide for an appeal against self assessment – if this be so, refund claim sanctioned is proper – Stay of recovery ordered by CESTAT

THE assessee was paying Central Excise duty on a monthly basis in terms of Rule 8 of the CER, 2002. Although the duty payable on each invoice was shown correctly, there was an arithmetic mistake in totalling the assessable value for the entire month of September, 2007. Duty was paid on the erroneous total of assessable value of Rs.72,82,301/- whereas the correct amount should have been Rs.70,30,727/-. This error went un-noticed while filing the ER-1. At the time of reconciliation, this slip-up was detected.

Income Tax

India-Singapore DTAA - non-resident claims exports benefits - Sec 80HHC clearly mandates that such benefits cannot be granted to non-resident - even provisions of DTAA cannot oblige India to grant such deduction on ground of non-discrimination: ITAT

THE ruling of Advance Ruling is binding on the parties under Sec 245S. But here is a case where the assessee who is a non-resident has gone in appeal against the Revenue for denial of Sec 80HHC benefits. And the final verdict of the Tribunal is that Section 80HHC clearly mandates that deduction under this section cannot be granted to non-residents. Clause (4)(a) of the non-discrimination clause of Article 26 of the Double Taxation Avoidance Agreement between India and Singapore clearly provides that the said Article cannot oblige India to grant such deduction to the assessee, being resident of Singapore.

Service Tax

Delayed Payment of Tax – No reason submitted for delay – Penalty rightly imposed - vivid reasoning and great clarity of Appellate Commissioner appreciated – CESTAT

The tax returns were filed and the tax paid only after the default was pointed out by the department. No reason whatsoever has been stated by the appellant for the delay in filing returns and paying tax, nor even any relief under section 80 of the Act has been prayed for in this appeal. As a matter of fact, the assessee submitted before the lower appellate authority that penalty under section 76 was mandatory but could be reduced if sufficient cause was shown. In this connection, case law was also cited. Tribunal found that these arguments were considered by the lower appellate authority and, on this basis, the penalty imposed by the original authority under section 78 was vacated. The penalties under sections 76 and 77 were rightly maintained.

FERA

Seizure of foreign Currency from the Ashram when its head was in jail – Burden of proof still lies with him – conviction upheld: Madras HC

In the case of socio - economic offences, presumption under the strict liability theory would be more. A plain reading of those provisions would evince and exemplify that if there are certain facts within the exclusive knowledge of the accused and once the burden as per Section 71 of the FERA Act is on him to explain, certainly, he must explain himself.

See our columns Tomorrow for the judgements