Jurisprudentiol – Friday's cases

By Vijay Kumar

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

Argument that term ‘refrigerator' used in customs tariff should be interpreted not in technical terms but according to commercial parlance is fallacious as customs duty applies to import and export transactions in commodity trade and tariff takes into account commercial parlance while classifying products: CESTAT

THE appellant filed bills of entry during May and June 2009 declaring the goods under importation as Hitachi brand refrigerator originating from Thailand and classifying the goods under CTHNo.84182100 and claiming the benefit of notification No. 85/04-Cus dated 31-8-2004. The assessing officer classified the goods under CTH 84181090 on the ground that the goods under importation were combined refrigerators-freezers, fitted with separate external doors and therefore, not eligible for the aforesaid exemption.

Income Tax

Whether issue of certificate for no TDS or lower rate u/s 197(1) is mandatory or discretionary when assessee fulfills conditions laid down under rule - Mandatory, rules HC

THE issues before the High Court are - Whether the issue of certificate for no TDS or lower rate u/s 197(1) is mandatory or discretionary when the assessee fulfills the conditions laid down under the rule; Whether AO is under obligation to furnish reasons if he rejects such applications and Whether when an order is challenged and found patently illegal, the petition would lie to the High Court. And the verdict goes against the Revenue.

Service Tax

Since assessee is selling electricity, for billing consumer for electricity consumed it is essential to install electricity meter - as such, any activity or service like erection, commissioning and installation of meters as also technical testing and analysis can easily be termed as service relating to transmission and distribution of electricity - benefit of s. 11 Cnotification 45/2010-ST available - CESTAT

THE appellant M/s PURVANCHALVIDYUTVITRAN NIGAM LTD is engaged in the purchase of electricity from Uttar Pradesh Power Corporation Ltd. and transmitting it to various consumers within its jurisdiction.

Pursuant to an intelligence received, the department learnt that apart from transmission of electricity the appellant assessee was also engaged in the business of "erection, commissioning and installation" as also "technical testing and analysis" which, according to the department, were leviable to service tax.

Central Excise

Demand raised for recovery of Cenvat Credit and also for recovery u/s 11D of the CEA, 1944 totaling Rs.6 crores - as applicant paid more duty than credit availed prima facie applicant has made a strong case for waiver of pre-deposit - Stay petition allowed: CESTAT

THE case concerns an assessee who has availed Cenvat Credit on inputs claiming that the activity engaged in by them amounts to manufacture under the Central Excise Act, 1944 but the Revenue is of the view that the activity is not "manufacture". Saying so, the department wants to recover the Cenvat Credit so wrongly availed and further alleges that the purported "duty" paid is a deposit and since the same is recovered from the consignee as Central Excise duty, the same is also recoverable from the assessee in terms of section 11D of the CEA, 1944.

See our columns Tomorrow for the judgements