Jurisprudentiol - Friday's cases

By Vijay Kumar

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

Customs - Export of meat - veterinary doctors certificates doubted - Customs demands duty - Prima facie Customs authorities cannot demand duty from exporters on any irregularity noticed by them and they should necessarily refer matter to DGFT - pre-deposit waived: CESTAT

IF Customs authorities find any irregularity in the exports, they have to report the matter to DGFT authorities for cancellation of the scrip issued to them and it is not within the jurisdiction of the Customs authorities to deny the benefit of said scrip. It is clear that to undo the effect precedent decision of the Tribunal, section 28AAA stands introduced in the Act but the same is only applicable prospectively and not retrospectively. The said section is to the effect that where instrument (defined in the Explanation) stand obtained by an exporter by means of collusion, wilful misstatement, suppression of facts etc., and such instruments are issued by the DGFT, duty can be demanded from the person who obtained such instruments by fraud and mis-representation. However explanation to said section clarifies that said section would be applicable to the use of such instruments after the date of ascent of the President.

Income Tax

I-T - Whether as per scheme formulated by MoC in locating Software Technology Park, assessee can be deprived of benefits of Sec 10A solely by reason of it being in existence already, but became STPI subsequently - NO: HC

THE assessee is a Proprietary Concern engaged in Electronic Data Transmission (Data Processing). The assessee's Unit was in operation ever since 1994. The Assessee's unit was approved as Software Technology Park by the Government of India as 100% Export Oriented Unit for Computer Software on 27.03.2002. Considering its status as 100% Export Oriented Unit, the assessee claimed the benefit of deduction u/s 10A of the Act, particularly for the AY 2003-04. The issue before the Bench is - Whether as per the scheme formulated by the Government of India, Ministry of Commerce and Industry in locating the Software Technology Park, the assessee can be deprived of the benefits of Section 10A solely by reason of it being in existence already, but became STPI subsequently. And the verdict goes against the Revenue.

Service Tax

Works Contract Service - whether composite contract can be vivisected to tax service portion prior to 1.6.2007 - Matter referred to Five Member Bench of CESTAT

SINCE there is a conflict of opinion between larger Bench decisions of this Tribunal Jyoti Ltd; Indian Oil Tanking Ltd. and BSBK Pvt. Ltd., in the interests of precedential coherence, the issue whether a composite contract, involving transfer of property in goods and services which is taxable only from 1.6.2007, onwards and not earlier thereto, in view of the provisions of Section 65(105)(zzzza), could be vivisected and service components of such composite contract could subjected to tax by classification of such service components under other pre existing taxable services such as commercial or industrial construction service or erection, installation and commissioning service, construction of residential complex service etc. for the period prior to 1.6.2007, must be referred to a larger bench of five members.

See our Columns Tomorrow for the judgements