Jurisprudentiol – Tuesday's cases

By Vijay Kumar

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

Refund of duty paid under protest - Once cause of protest came to an end with dispute being settled in favour of importer, limitation under Sec 27 (1) of Customs Act, 1962 becomes applicable: CESTAT

THE dispute in assessment came to finality once the matter was decided in favour of the appellants by the lower appellate authority and the department chose not to file any further appeal against the same. Once the very cause of the protest came to an end by the resolution of the assessment dispute at the hands of the lower appellate authority, it cannot be held that the protest would survive beyond the date of the order passed by the lower appellate authority in favour of the appellants. Thereafter, it was the duty of the appellants to take steps to file necessary refund claims within the time limit prescribed.

Income Tax

Whether assessee is entitled to interest on deposit with Revenue from end of 120 days from date of last of authorisations for search u/s 132 or from date when sum is transferred into AO's account from PD Account - after 120 days, rules HC

THE two issues before the Bench are - Whether the interest u/s 234A, 234B, 234C & 220(2) is rightly levied on the demand for various years when the department is having huge deposit on account of the assessee in PD account and the assessee repeatedly requested to adjust the said amount against the demand – Whether the assessee is entitled to interest on the deposit with the department u/s 132D from the end of 120 days from the date on which the last of the authorizations for search under Section 132 or requisition under Section 132A and not from the date when sum is transferred into AO's account from PD a/c. And the verdict goes in favour of the assessee.

Service Tax

GTA service - Exemption under Notification No 33/2004 ST is not admissible for Transport of Processed Mushrooms as same cannot be treated as fresh vegetables – CESTAT.

THE appellants in the instant case availed the benefit of the exemption under Notification No 33/2004 for transport of canned mushrooms which was denied by the revenue. They submitted before the Adjudicating Authority that Chapter Note 1 of Chapter 4 of the brings edible mushroom to the category of "vegetables" and the canned mushrooms are "vegetables" for the purpose of enjoying exemption from payment of service tax by GTA in respect of transportation of the such vegetables. Without an explanation to the Notification to say vegetables means green vegetables and not processed vegetable, there is no basis to read the term vegetable as fresh vegetables.

See our columns Tomorrow for the judgements