Jurisprudentiol - Thursday's cases

By Vijay Kumar

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

Any order directing party to pay any amount as pre-deposit should be in writing and has to be tendered as per provisions of s.37C of the CEA, 1944 - matter remanded to Commissioner(A): CESTAT

WE recently reported the case 2013-TIOL-463-CESTAT-MUM wherein the CESTAT had observed thus -

“…In these circumstances, I find that the Commissioner has no knowledge how to deal with the appeals filed before him. In fact, the first duty of the Commissioner (Appeals) is to dispose of the stay application and if he is not satisfied with the arguments advanced for waiver of pre-deposit, he may ask for pre-deposit but while considering the stay application along with appeal together, he has no power to dismiss the appeal for non-compliance of Section 35F of the Central Excise Act.”

The Commissioner(A) in the firing line was the CCE(Appeals), Aurangabad.

The CCE(A), Pune-I finds himself in a similar situation in the present case.

Read further -

Income Tax

Whether retrospective amendment can be applied only to cases whose assessment or appellate proceedings are still pending - NO: HC

THE issues before the Bench are - Whether when the Supreme Court pointed out the inadequacy of the existing clause (c) of Section 115JB to cover a provision for the diminution in the value of any asset, the legislatative action to plug the lacuna by inserting clause (i) which permitted an upward adjustment of the book profit by the provision made for diminution in the value of any asset with retrospective operation, is unconstitutional; Whether the principle that fiscal benefits specifically provided under the Income Tax Act to foster growth in a sector, cannot be revoked retrospectively, be compared with the provisions of Minimum Alternate Tax; Whether retrospective amendment can be applied only to cases whose assessment or appellate proceedings are still pending and Whether a completed assessment, if reopened on genuine grounds can be treated separately on the basis of retrospective amendment. And the verdict goes against the assessee.

Central Excise

Inputs/Capital goods destroyed in fire - It is not in dispute that Inputs have gone into process of manufacturing and Capital goods were also in use - Appellant has been able to prove through certificate issued by Insurance Company that they have not entertained MODVAT credit component while entertaining their insurance claim - Credit cannot be denied: CESTAT

EARLY in the morning of 10.09.2000, a fire accident took place in appellant's Butyl Phenol Plant. In the fire, in-process material lying in the plant of the factory and the capital goods were destroyed/damaged.

The next day, the appellant informed the department that the capital goods on which CENVAT credit of Rs.55,26,242/- was availed and the “inputs” put in process of manufacturing of final product on which CENVAT credit of Rs, 14,74,796/- was availed have been damaged and destroyed in fire.

Almost a year later, a SCN was issued by the jurisdictional authorities asking the appellant to reverse the total CENVAT credit availed by them on capital goods and inputs used in-process of manufacturing that were lost/damaged in the fire.

See our Columns Tomorrow for the judgements