Jurisprudentiol – Tuesday's cases

By Vijay Kumar

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

CENVAT Credit - Capital goods used in captive power plant - since capital goods not used 'exclusively' for manufacture of 'exempted' electricity, prima facie strong case in favour - pre-deposit waived and Stay granted: CESTAT

CREDIT has been availed on the capital goods, which are used in the captive power plant, and the electricity so generated in the power plant is used in or in relation to the manufacture of finished goods and certain quantity of electricity so generated sold outside factory. The Revenue has relied upon Rule 6(4) of the CENVAT Credit Rules

Income Tax

Whether provisions of Sec 292B can cure only error in notice and cannot validate when Sec 148 notice itself is void - ruled in favour of Revenue: HC

A notice u/s 148 of the Act was issued to the assessee on 12/8/1991, in response to which the assessee filed his statement on 05/9/1991 stating that he had already filed return on 17/5/1991, which might be treated in compliance to the notice. Assessment order was passed by the AO on 16/11/1993, completing the assessment on total income of 1,56,040/-. The CIT(A) dismissed the appeal of the assessee.

In the appeal filed before the Tribunal no ground was taken challenging the validity of the notice issued u/s 148 of the Act. However, the assessee raised additional ground that the order passed u/s 148 in the status of URF was illegal and without jurisdiction. The assessee submitted that there being no valid notice issued u/s 148 of the Act, the entire proceedings were vitiated and void ab initio . The Tribunal considered the aforesaid additional ground and held that notice u/s 148 of the Act was bad in law, hence the assessment framed was bad and void - ab initio.

Service Tax

If a communication from Assistant Commissioner in substance contains determination of a question by application of objective standards as per legal rules and it declares right or imposes an obligation, such communication would become an appealable order - CESTAT

TO make a decision or an act judicial, the following criteria must be satisfied:

(1) It is in substance a determination upon investigation of a question by the application of objective standards to facts found in the light of pre-existing legal rules;

(2) It declares right or imposes upon parties obligations affecting their civil rights; and

(3) That the investigation is subject to certain procedural attributes contemplating an opportunity of presenting its case to a party, ascertainment of facts by means of evidence if a dispute be on question of law on the presentation of legal argument, and a decision resulting in the disposal of the matter on findings based on those questions of law and fact.

See our columns Tomorrow for the judgements