Jurisprudentiol – Wednesday's cases

By Vijay Kumar

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

Export of Indian currency in excess of Rs.5000 without RBI nod - general principle is that on whose possession goods are found then that person is to be owner of goods - Commissioner to release the currency on payment of RF of 10% of currency seized and on payment of penalty: CESTAT

ON an intelligence, the appellant, a native of Malapuram District, Kerala, was intercepted at the Sahar Airport , Mumbai on 08.12.2004 and during search, Indian currency of Rs.24,17,500/- was found with the appellant which was not declared or permitted by RBI for export.

Therefore, proceedings were initiated and the Commissioner of Customs (Airport) vide order dated 24.10.2007 ordered absolute confiscation of Indian currency and also imposed a penalty of Rs.2 lakhs.

Income Tax

Whether refund claim is to be allowed to an assessee consequent to an order passed in appeal irrespective of whether fresh assessment order has been passed by AO or not - YES: HC

THE assessee a company had duly filed its return declaring total income to a certain extent. The AO however, assessed the assessee's income to a greater extent and raised a further tax demand of such amount inclusive of interest. Being aggrieved, the assessee preferred an appeal against the order of the AO to the CIT(A). In the mean time, the assessee in consequence of the assessment order deposited some amount and the AO suomoto adjusted the refund due to the assessee for the earlier A.Ys to the extent of remaining amount against the total dues payable for the A.Y in question. In the result, the assessee had deposited with the Revenue an amount/ pending the disposal of its appeal by the CIT(A).

The issues before the Bench are - Whether refund claimed by the assessee could be granted only on a fresh assessment u/s 240; Whether refusal of assessing officer to grant refund to the assessee on ground of pendency of final assessment order would amount to collection of taxes without the authority of law and Whether a refund claim is to be allowed to an assessee consequent to an order passed in an appeal irrespective of whether a fresh assessment order has been passed by the AO in this regard. And the verdict favours the assessee.

Central Excise

Construction activity is service activity and there is also Service Tax levy, therefore, sale to such builders/developers would certainly qualify as sale to institutional consumers - Cement in 50 kg bags sold to builders/developers etc. are not required to be affixed with MRP under Packaged Commodities Rules - demand of 47 crores set aside: CESTAT

THE appellants are manufacturers of cement. There is a statutory requirement to affix MRP on packages sold to dealers for further sale to consumers in retail under the Legal Metrology (Packaged Commodities) Rules, 2011 and which the appellants have complied with.

The appellants have also cleared cement in 50kg bags to various bulk consumers like, builders/developers/industrial users, who use the cement for construction purpose or as raw material. Such buyers are covered by the definition of ‘industrial consumer' or ‘institutional consumer' under explanation to Rule 2A of PC Rules, 1977 and Rule 3(ii) of PC Rules, 2011. As per these provisions, commodity meant for industrial consumer or institutional consumers are not required to be affixed with MRP. Accordingly, the appellants have not declared the MRP on the cement bags and specifically have declared on the packages - "Not for Retail Sale - meant for industrial consumer/institutional consumer/RMC consumption".

See our Columns Tomorrow for the judgements