Jurisprudentiol - Monday's cases

By Vijay Kumar

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

Once the Commissioner (Appeals) has come to finding for non-imposition of penalty by invoking s.80 of FA, 1994, then same cause is also to be factored in to conclude that extended period of limitation cannot be invoked - Prima facie, appeal should be heard by Tribunal without requiring any pre-deposit of Service Tax: HC

THE condition for invocation of the extended period of limitation as provided under Section 73 of the Act and the condition precedent for imposing penalty under Section 78 of the Act are identical viz: there should be either, fraud, collusion or willful misstatement or suppression of facts or contravention with intent to evade payment of service tax. Once the Commissioner (Appeals) has come to a finding that for the relevant period, there was genuine cause for confusion regarding the correct legal position and also scope for doubt about the service tax liability on GTA as the 'Commercial concern' for non-imposition of penalty then the same cause is also to be factored in to conclude that extended period of limitation cannot be invoked even if the finding that there was sufficient cause for non-payment of service tax was rendered in the context of Section 80 of the Act (as it stood at the relevant time). This finding will also apply to determine whether there was any intent to evade payment of service tax.

Income Tax

Whether Sec 54EC benefits are available to assessee if it invests short-term capital gains on transfer of long-term depreciable assets - YES: HC

ASSESSEE had sold a property with superstructure, plant and machinery for the total sale consideration of Rs.24,99,000/-. Yet another Plot was also sold along with the same for sale consideration of Rs.4,93,104/-. Assessee had purchased REC bond of Rs.41,70,000/- to claim deduction u/s 54EC. The issues before the Bench are - Whether Sec 54EC benefits are available to the assessee if it invests short-term capital gains on transfer of long-term depreciable assets and Whether such benefit is available to the assessee in case computation of capital gains is done either under Sections 48 and 49 or under Section 50. And the verdict goes against the Revenue.

Central Excise

Whether Aluminium Dross & Skimmings can be considered as 'manufactured goods' and hence excisable for period post 10/05/2008 - in view of conflicting decisions, matter placed before Larger Bench: CESTAT

THE appellant manufactures various aluminium products and during the process of manufacture, aluminium dross and skimmings arise, which they cleared without payment of duty. The department was of the view that aluminium dross and skimming are classifiable under CETH 26204010 of the CETA, 1985 and the appellant is liable to discharge the duty liability thereon for the period after 10.05.2008 and accordingly, the demands were confirmed vide the aforesaid orders along with interest thereon and equivalent amount of penalties were also imposed on the appellant. The Bench observed that in view of the conflicting decisions of the two Benches the matter should be placed before a larger Bench for resolution of the conflicting views.

Tomorrow is a holiday on account of Muharram.

See our Columns Monday for the judgements