Jurisprudentiol - Tuesday's cases

By Vijay Kumar

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

Notification 10/97-CE - Clearance of Optical fibres and cables - certificate of Dy.Secy.not produced at time of clearance but applied thereafter and produced after issuance of SCN - condition is not merely procedural but has to be strictly complied with: CESTAT

THIS is a Revenue appeal filed ten years ago against the order of the Commissioner(A) allowing the appellant the benefit of Notification No.10/97-CE dated 1.3.97 in respect of optical fibres and optical cables.The lower appellate authority held that the requisite certificate as per the condition of the notification was produced by the respondents, albeit subsequent to the clearance of the goods and this would not disentitle the assessee from claiming the exemption.

It is the contention of the Revenue that as per the condition to the notification necessary certificate issued by the officer not below the rank of Dy. Secretary to the Government of India should be produced at the time of clearance of the goods.

Income Tax

Whether in case of Survey u/s 133A, if statement is recorded on oath it loses its evidentiary value - NO: Bombay HC

THE assessee is a practicing Dentist. The Revenue conducted a survey u/s 133A at the assessee's clinic, during which some diaries and loose documents were found. One such diary was marked as “A1 Fantasy”. In this diary, professional receipts from 6 August 2007 to 30 August 2007 were recorded but the pages before 6 August 2007 were torn there from. The receptionist of the assessee made a statement during the Survey that the receipts from each patient was recorded in diary and note book which were handed over to the assessee along with fees received. From the perusal of the fees recorded in the diary and note book with that recorded in the regular Books of Account, it was found that the regular books of account recorded receipts which were much lower than the amounts received as evidenced in the diary and note book.

The issues before the Bench are - Whether in case of a Survey u/s 133A, if a statement is recorded on oath it loses its evidentiary value; Whether if a statement is to be retracted it is necessary for the assessee to prove that the statement made was not correct; Whether if the allegation of the statement being recorded in the middle of the night is to stick against the Revenue, the assessee is required to substantiate the same by producing evidence; Whether the affidavit filed by the assessee indicating its intention to only estimate its income in loose papers so that some medical equipments could be taken on loan, can be construed as afterthought unless some evidence is furnished and Whether in case of a professional, receipts can be treated as income. And the verdict goes against the assessee.

Service Tax

ST liability on 'Insurance Auxiliary Service' payable by the appellant, provider of ‘General & Life Insurance Service' as service recipient on reverse charge basis can be discharged by utilizing CENVAT credit: CESTAT

THE appellants provide General and Life Insurance service. They also appoint Insurance Agents for canvassing business and such services fall under the taxable service category of ‘Insurance Auxiliary Service'. Service Tax liability on the ‘Insurance Auxiliary Service' is on the service recipient on reverse charge basis and the appellants are required to discharge Service Tax liability.

The question for consideration is whether for discharging Service Tax liability on Insurance Auxiliary service (on reverse charge basis) the appellant can utilize CENVAT Credit available with them.

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See our Columns Tomorrow for the judgements