Jurisprudentiol – Friday's cases

By Vijay Kumar

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

Rebate on goods exported to overseas subsidiary - Revenue cannot restrict rebate on value under Section 4 of Central Excise Act - Market Price under condition "e" of Notification No 19/2004 CE(NT) is export market price - Not Indian Market price - Allows rebate of 23 crores to Dr Reddy's Labs: HC

THIS petition relates to two rebate claims of Rs.21,18,36,117 and Rs.1,75,57,537, made under the Central Excise Act, 1944 before the Deputy Commissioner of Customs and Central Excise. The petitioner, Dr. Reddy's Laboratories Ltd. claimed this rebate for refund of excise duty paid earlier by it on the export of certain pharmaceutical products to their overseas subsidiary. The refund was allowed by the Deputy Commissioner. Later, proceedings were initiated before the Commissioner of Customs, Central Excise and Service Tax (Appeal II) for recovery of the refunded amount, on the ground that the rebate amounts refunded were in excess. The Commissioner (Appeals) allowed the appeal by revenue and the Revision Application filed by the exporter was dismissed by the Revisional Authority. Hence this Writ Petition was filed.

Income Tax

Whether High Court has discretion not to exercise its judicial review powers in writ petition filed by assessee, when conduct of assessee himself is tainted and doubtful - YES: HC

THE assessee, a famous Bollywood film producer, filed his Return of Income for the AY 1990-91, declaring a loss on account of film - 'Shehzaade' produced by him. In his Return of Income, the assessee had disclosed his address in Mumbai. The AO served notices u/s 143(2) on several dates which were returned unserved by the postal authorities. After investigation, it was known that the assessee had settled in Dubai and accordingly, the AO passed a best judgment assessment on 19th March, 1993. The assessee claimed that he came to know of this assessment order in 2003 from the Tax Recovery Officer and obtained a copy of the order on 5th January 2004. In July 2004, the assessee filed a revision application u/s 264 challenging the assessment order with the argument that since the assessment order was received by the assessee in 2004, this application was within the limitation period. The Commissioner vide its order dated 30th March, 2006 had refused the application stating that it was time barred as the assessment order was communicated to the assessee on April 1st 1993 and a xerox copy of the acknowledgment received from the postal authorities was also shown to the assessee. Aggrieved, the assessee filed this writ petition challenging the Commissioner's order in 2006.

The issue before the Bench is - Whether High Court has the discretion not to exercise its judicial review in the writ petition filed by the assessee, when the conduct of the assessee himself is tainted and doubtful. And the verdict goes against the assessee.

Service Tax

As provision of telecommunication service to international roamers would amount to export of service, refund is permissible in law - Revenue appeal dismissed: CESTAT

REVENUE is in appeal before the CESTAT against the order passed by the lower appellate authority sanctioning refund of Rs.36,44,18,798/- to the respondent by allowing their appeal. The refunds were sanctioned pursuant to the decision of the Tribunal in the respondent's own case reported in 2013-TIOL-566-CESTAT-MUM wherein it was held that the provision of telecommunication service to international roamers would amount to export of service.

The AR submitted that provision of roaming facility to international roamers travelling in India would not amount to export and, therefore, the refunds/rebates are not permissible in law.

See our Columns Tomorrow for the judgements