Jurisprudentiol – Monday's cases

By Vijay Kumar

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

ST - Merely because service recipient did not pay service tax liability initially, that would not take away/obliterate liability on service provider to discharge the tax - If this plea is accepted, it would make taxable event as receipt of service tax from recipient of service which is not the law - Appeal dismissed: CESTAT

EFFECTIVE from September, 2006 the service recipient had been reimbursing the service tax on the very same activity and the appellant was discharging service tax on the said activity under the category of "Site formation and clearance, excavation and earthmoving and demolition service".

The dispute in the present proceedings is for the period prior to September, 2006.

The CCE, Nagpur confirmed a Service Tax liability of Rs.1.64 crores along with interest and imposed penalties. An amount of Rs.1.36 crores paid by the appellant under protest was also appropriated by the adjudicating authority.

Income Tax

Income tax - Whether if no materials are found during the Search, AO is duty bound to go by original assessment and cannot made any additions u/s 153A - YES: ITAT

THE issues before the Bench are - Whether if no materials are found during the Search, the AO is duty bound to reiterate the original assessment and cannot made any additions u/s 153A and Whether the statement recorded at the time of search which was retracted by the assessee and documents which are already the part of books of account can be considered as incriminating documents for making assessment under section 153A. And the verdict goes against the Revenue.

Customs

Cus - Export of basmati rice - DRI alleging that what is sought to be exported is non-basmati rice - goods confiscated with option for redemption and penalties imposed - as per DGFT Circular No.33/2008 dated 30.9.2008, samples for testing to ascertain variety for identification are to be sent to Agmark Testing Centre - in present case samples sent to other agencies for testing, so cannot be relied upon - based on retracted statement charges cannot be established - Appeal allowed: CESTAT

SUSPECTING the rice to be non-basmati, the officers of Customs, Mumbai withdrew the samples from the goods lying for export. Within a few days, the DRI, Mumbai also on some information that the appellant exporter is illegally exporting non-basmati rice by misdeclaring the same as Basmati rice inspected the consignment lying in Dock and also withdrew samples.

See our Columns Monday for the judgements