Jurisprudentiol – Tuesday's cases

By Vijay Kumar

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

Expired Milk Powder re-imported - Valuable goods worth more than Rs.1 Crore cannot be allowed to be drained because of technical objections of Revenue that too about conditions which are practically difficult to be followed: CESTAT

THE appellant is engaged in manufacture of various milk products. Due to recession in the Gulf market, Full cream Milk Powder exported earlier was re-imported by them. The Commissioner has rejected the re-import and clearances on the ground that provisions of Prevention of Food Adulteration Act, 1954 do not stand substantiated by the appellant.

On examination of the re-imported goods by the Customs, it was found that the expiry date was printed on the same as February 2010. Accordingly, the Revenue entertained a view that inasmuch as the goods are not fit for consumption as the expiry date was over, they should not be cleared.

Income Tax

Rule 29 - Whether Tribunal has powers to admit additional evidence if it deems it necessary for proper disposal of case - Yes, rules Delhi High Court

THE issue before the HC is - Whether Tribunal is empowered to admit additional evidence if it deems it necessary for proper disposal of the issue. And the High Court's answer is YES.

Central Excise/Service Tax

Once the assessee is entitled to take credit in relation to duty paid on inputs or capital goods, merely because there is some infirmity observed in document on which credit is sought to be availed, that cannot be a justification for denying the credit availed on Supplementary invoices issued by service providers - Prima facie case - Stay granted of Rs.1.96 Crores: CESTAT

THE issue involved is whether the appellant is eligible to avail CENVAT Credit on the supplementary invoices issued by the service providers. The service providers of the services had not paid the Service Tax and this non-payment was subsequently noticed by the department. On being pointed about non payment of service tax the service providers discharged the tax liability and raised supplementary invoices on the appellant assessee. Based on these ‘supplementary invoices', the assessee availed Cenvat Credit on the ‘Input Services'.

This credit is proposed to be disallowed by the jurisdictional authorities on the ground that the service provider is not eligible to issue these invoices; even otherwise such supplementary invoices are not specified documents under the sub-rule 9(1)(f) read with sub rule 2 of Rule 9 of CENVAT Credit Rules 2004 and rule 4(A) of Service Tax Rules 1994 for availing CENVAT Credit.

See our columns Tomorrow for the Judgements