Jurisprudentiol - Thursday's cases
Legal Corner Icon — the image was hosted by the publisher and was not captured.Central Excise
Rebate - Restrictions in relation to period etc. imposed by CBEC Circular NO 354/1997 dated 13.11.1997 are not valid - Refund claims to be processed by ignoring Circular: HC
THE question involved in the Writ Petition is whether rebate claims on export of goods can be denied by applying the conditions / restrictions imposed vide CBEC Circular No dated 13.11.1997. The petitioner has been denied rebate on export of goods by relying on restrictions relating to period etc. imposed by an executive order, i.e., Circular No. dated 13.11.1997 and it is contended that in the Statutory Order/Notification No. dated 6.9.2004, there is no such restriction of limitation and a statutory order issued in exercise of power under Rule 18 of Central Excise Rules, 2002 could not have been altered, amended, modified or efficacy thereof could not have been extended by issuing an executive order. Therefore, the respondents in proceeding to decline the claim of petitioner for rebate in Central Excise by relying on Circular dated 13.11.1997 have acted wholly illegally. It is stated that a statutory provision cannot be modified, amended or altered by an executive order.
On behalf of revenue it was contended that the Central Government possess power to issue Circulars also, which in absence of any otherwise provision, are binding.
Income Tax
Whether quashing of proceedings by Tribunal for faulty service of notice under Ss 148, 143(2) & 142(1) amounts to allowing assessee to go scot-free even if he is liable to pay capital gains tax on compensation received for statutory acquisition of his land - YES: HC
THE assessee Jasbir Singh received compensation amounting to Rs.1,04,54,474/- against compulsory acquisition of his land situated at village Mansoorwal Dona, District Kapurthala. The assessee had not furnished his return of income. Finding it to be a case of income having escaped assessment for the assessment year 1999-2000 by reason of failure on the part of the assessee to make a return under Section 139 of the Act, after recording reasons and obtaining necessary approval, notice under Section 148 of the Act was served on the assessee on 21.3.2006. He did not furnish his return even then. Thereafter, notice under Section 142(1) was issued along with a questionnaire. The assessee neither attended the office of the named Income Tax authority in the notice nor filed return nor made compliance of the said notice. Even on information made available, the Assessing Officer could not get current residential address of the assessee. The concerned Inspector of the revenue found that it was not possible to effect service in ordinary manner and consequently, service of the notice was effected under Section 142(1) of the Act through affixation on the last known address of the assessee.
The issues before the Bench are - Whether quashing of proceedings by the Tribunal for faulty service of notice under Ss 148, 143(2) & 142(1) amounts to allowing assessee to go scot-free even if he is liable to pay capital gains tax on compensation received for statutory acquisition of his land; Whether merely because there is an error in service of notice on the assessee, the statutory liability to pay tax on capital gains gets extinguished and Whether assessee is to be assessed at the place of its agent or the place where his land was acquired. And the Bench allows the Revenue's appeal.
Customs
Import of old and used photocopier machines - Transaction value - importer's declaration or chartered Engineer's certificate - RF and Fine of 10% and 5% - Matter referred to Third Member - CESTAT
THE appellant imported 105 pieces of assorted make old and used photocopier machines and filed a bill of entry dated 3.7.2008, claiming the classification of the same under Customs Tariff sub-heading 84433920 and declaring the value of the goods as Rs.10,13,256/-. They also produced a Chartered Engineer's certificate showing the value of the goods as Rs. 13,51,080/-. However, the Revenue did not accept the declared value and found that contemporary clearances as per NIDB data would be showing the value of around Rs.19,59,937/-. Accordingly, the consignment was taken up for further inquiries.
The Revenue still insisted on another Chartered Engineer's certificate which was produced by the appellant showing the value of the goods as Rs. 16,18,920/-. The said Chartered Engineer certificate issued by M/s. Rajesh Barman & Associates was also not accepted by the Revenue who procured another Chartered Engineer's certificate from Shri Pankaj Gupta wherein, he after examining the goods opined the value of the same as Rs.20,13,120/-.
On the above basis, proceedings were initiated against the appellant which culminated into impugned order passed by the Commissioner of Customs vide which he enhanced the value of imported photocopier from Rs. 10,13,256/- to Rs.20,13,120/-. He also confiscated the goods with an option to the appellant to redeem the same on payment of redemption fine to Rs.5 lakhs. In addition, penalty of Rs.2.50 lakhs was imposed upon the appellant under Section 112 (a) of the Customs Act, 1962.
In the Tribunal there was a difference of opinion.
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