Jurisprudentiol – Wednesday's cases

By Vijay Kumar

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

By not taking CENVAT Credit, Revenue realisation is more than Rs. 10 lakh extra No Suppression: CESTAT

BY not taking CENVAT Credit, Revenue realisation is more than Rs. 10 lakh extra No Suppression - There was no need for the appellant to suppress or mis-declare of any facts as the appellant could have taken CENVAT credit which was more than the duty payable as worked out by the department. In these circumstances, it cannot be said that the appellant has committed suppression or mis-declaration, fraud, collusion, etc. to evade payment of duty. By not availing the CENVAT credit, the revenue realisation is nearly more than Rs. 10 lakhs extra. In these circumstances, the entire demand is time-barred.

Income Tax

Whether power to waive interest u/s 215 is judicial discretion vested in tax authorities and cannot be challenged in writ - YES: Delhi HC

THE issues before the Bench are - Whether the power to waive interest u/s 215 is a judicial discretion vested in the tax authorities and cannot be challenged in a writ petition; Whether the duration of lapse of one year given in Rule 40(1) of Income Tax Rules needs to be computed from the date of the filing of the revised return or from the date of filing of the original return; Whether the assessee would enjoy any undue benefit, if the starting point of computation of such period is taken from the date of filing of the original return; Whether when the AO is not diligent enough and does not complete the assessment within the said period of one year, any interest liability for the period beyond that one year cannot be foisted on the assessee, unless the delay in not completing the assessment within the period of one year is clearly attributable to the assessee and Whether the delay as per Rule 40(1) can be attributable to the assessee, when the assessee has filed second revised return and sought adjournments during the assessment proceedings. And the assessee's writ is partly allowed.

Service Tax

Supply of cylinders is part of sale of gas and it is not separate activity in itself - rental charges form part of value of the goods sold - prima facie case in favour - Pre-deposit waived and stay granted: CESTAT

THE appellant imported helium gas which is supplied in reusable and returnable containers and have to be returned to the supplier. However, during the period the containers remained in the possession of the importer, they are charged rentals for the use of the containers. The department was of the view that the renting of containers falls within the taxable service category of "Supply of goods for tangible use" and the recipient of the service in India has to discharge service tax liability on the rent which he paid to the foreign supplier.

See our Columns Tomorrow for the judgements