Jurisprudentiol – Wednesday's cases

By Vijay Kumar

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

Refund rejected as petitioner could not prove that they had not passed on incidence of duty - No reason to interfere with Tribunal's Order: HC

REFUND was to be paid in accordance with the provision of the Act. The petitioner could not produce relevant documents to show that they had not passed the incidence of duty to the customers/consumers. The order dated 2nd June, 1994 passed by the Assistant Collector of Customs, records that repeated opportunities were granted to the petitioner to furnish proof to the effect that the burden/element of duty was not been passed to the customers/consumers, but no documents were produced to substantiate the case.

Income Tax

Whether where entire undertaking is transferred as per arrangement approved by HC against preference shares, it can be said to be slump sale for purpose of Sec 2(42C) or only an exchange - this is a case of exchange: ITAT

THE key issues before the Tribunal are - Whether where the whole undertaking is transferred as per the arrangement approved by the High Court u/s 391 & 394 of the Companies Act against the preference shares, it can be said to be a sale for the purpose of section 2(42C) or only an exchange – Whether where the cost of acquisition and/or the date of acquisition of the asset cannot be determined, it cannot be brought within the purview of section 45 for levy and computation of capital gains. And the verdict goes in favour of the assessee.

Central Excise

CENVAT Credit - penalty could be levied on person who did not actually deliver goods and merely issued a fake invoice: HC

THE person who purports to sell goods cannot say that he was not a person concerned with the selling of goods and merely issued invoice or that he did not contravene a provision relating to evasion of duty. The appellant issued invoices without delivery of goods with intent to enable evasion of duty to which effect a finding has been recorded and which finding has not been challenged. Appellant was liable to pay penalty.

See our columns Tomorrow for the judgements