Jurisprudentiol - Wednesday's cases

By Vijay Kumar

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

Valuation - cylinder testing charges are not includible in assessable value of liquid chlorine: CESTAT

THE respondent assessees are manufacturers of Caustic Soda, Liquid Chlorine,S.B.Petc. chargeable to Central Excise duty under various Headings of Chapter 28 of the Central Excise Tariff. The liquid Chlorine is sold by them to their customers in their own cylinders called Tonners, and also in the cylinders/Tonners brought by the customers. Some quantity of liquid chlorine is also supplied through pipeline. The Tonners are required to undergo periodical Hydraulic testing as per the provision of Gas Cylinder Rules, 1981.

The audit officers in course of examination of the respondents records for the period from 2000-2001 to 20001-2002, pointed out that while the respondent are collecting the charges from their customers for testing of Tonners, they are not including these charges in the assessable value of Chlorine being sold by them. Accordingly two Show Cause Notices were issued for demand of Central Excise duty of Rs. 94,264/- and 67,792/- for the period from 01.07.2000 to 29.02.2004. The Show Cause Notices were adjudicated by the Assistant Commissioner by a common Order-in-Originaldt.09.09.04 by which the duty demands, as mentioned above, were confirmed along with interest and penalty of equal amount was imposed on the Respondent under Rule 25(1) of the Central Excise Rules.

Income Tax

Whether provisions of Sec 10A enlarge ambit of term 'computer programme' by including process of management of electronic data - YES: ITAT

THE assessee is a 100% export oriented unit under the STP Scheme. It filed its Return of Income claiming deduction of section 10A. The Return of Income filed by the assessee was picked up for scrutiny. During the course of assessment proceedings the AO disallowed the claim of deduction of section 10A on the ground that assessee was engaged in providing BPO services, which services neither amounted to manufacturing nor services as envisaged in section 10A.

Aggrieved with the order of the AO, the assessee filed appeal before the CIT (Appeal) and contented that the claim of the assessee was fully tenable in view of the Board Circular. However, the CIT (Appeal) affirmed the order of the AO.

The issue before the Bench is - Whether the provisions of Sec 10A enlarge the ambit of the term 'computer programme' by including the process of management of electronic data. And the answer favours the assessee.

Central Excise/Service Tax

CENVAT Credit - cash refund of - Rule 5 of CCR - Interest for delayed payment of refund - assesse gives up right to claim interest before Adjudication authority - Assessee is not barred from claiming interest at appellate stage - No estoppel against law: CESTAT

THERE is no estoppel in law against an assessee in taxation matters.

Besides this, the Apex Court in case of Union of India Vs. Madhumilan Syntex Ltd. reported in 2006-TIOL-160-SC-CX has held that right conferred under the statute cannot be given up on the basis of concession made by any party to the lis. Therefore, just because the appellant by the letters addressed to the Jurisdictional Assistant Commissioner had given up their claim for interest on the amount of refund for the period of delay in sanction of the refund claims, they would not be estoppel from challenging the denial of interest and claiming the same when they are entitled for the same under the statutory provisions of Section 11BB.

See our Columns Tomorrow for the judgements