Jurisprudentiol – Tuesday's cases

By Vijay Kumar

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

Toilet papers are separately classifiable than handkerchiefs, cleansing or facial tissues and towels and third schedule to Tariff does not cover toilet papers - in view of this, prima facie applicants have made out strong case in their favour - pre-deposit of duty of Rs.1.19 Crores waived & stay granted: CESTAT

THE Commissioner of Central Excise, Pune-I confirmed a demand of Rs.1,19,46,341/- along with interest and penalty on the ground that the toilet paper which is manufactured and cleared by the applicant is assessable to duty under section 4A of the CEA, 1944 and not u/s 4 of the CEA, 1944 as was being done by the assessee.

Income Tax

Whether Explanation introduced in Sec 80IA(4) by Finance Act, 2009 having retrospective operation w.e.f 1.4.2000 is unconstitutional, although it only attempts to clarify that deduction u/s 80IA(4)would not be available in case of execution of works contracts - NO: HC

THE issues before the Bench are - Whether Explanation introduced in Section 80IA(4) by the Finance Act, 2009 having retrospective operation w.e.f 1.4.2000 is unconstitutional, although it only attempts to clarify that deduction under section 80IA(4) of the Act would not be available in case of execution of works contracts; Whether the intrinsic difference between developing an infrastructure facility and executing a 'works contract' was already made clear in the amendment itself introduced in the year 2002; Whether the amended Section 80IA(4) with effect from 1.4.2002 could be construed as not including execution of 'works contract' as one of the eligible activities for claiming deduction and Whether when the intention of the legislature is clear from the substantive provision of a Section, can an explanation later introduced in the same Section be interpreted as something different, from a mere clarification. And the verdict goes in favour of the Revenue..

Customs

Appellant absconding in view of COFEPOSA detention order and proclamation made for his appearance by cancelling his bail - Appellant was eluding the law and, therefore, such person cannot be given benefit of condonation of any delay - O-in-O passed in January, 2002 and appellant filing appeal in November, 2012 - Appeal time barred and hence dismissed: CESTAT

VIDE Order-in-Original dated 31/01/2002, the Commissioner of Customs (Prev.), New Customs House, Mumbai confirmed a duty demand of Rs.1,60,90,028/- against the appellant u/s 28(1) of the Customs Act, 1962 along with interest u/s 28AB ibid. Further, absolute confiscation was ordered of the goods viz. cigarettes and biscuits of foreign origin and a penalty of Rs.50 lakhs was imposed on the appellant.

The appellant filed an appeal before the CESTAT on 02/11/2012.

Therefore, the appellant was asked why the appeal should not be rejected as time barred. On 05/12/2012 when the case was called for hearing the appellant has submitted a statement where he declared that he has not received the impugned order due to change in address. Inasmuch as since he had changed his residence from Mumbai to Pune, he came to know of the order only in October, 2012 when he enquired about the status of the case from the department.

See our Columns Tuesday for the judgements