Jurisprudentiol-Thursday's cases

By Vijay Kumar

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

Appellant appointed by foreign clients to provide repair & maintenance service during warranty period on their behalf to buyers in India - service qualifies as Export - Appeal allowed with consequential relief: CESTAT

THE appellant is providing services which are taxable under the category of Business Auxiliary Service. As per agreement the appellant are operating as distributor for sales and after sales service of Hitachi Analytical product. Initially the appellant paid service tax but thereafter realised that they are covered by the Export of Services Rules, 2005. And so, they claimed refund of the ST paid of Rs.50.40 lakhs during the period August 2005 to July 2006.

On the ground that the services rendered by the appellant does not fall under the Export of Services Rules, 2005 the claims were rejected.

Income Tax

Whether assets or cash seized u/s 132 is adjustable against any existing liability, including advance tax payable - NO: ITAT

SEARCH and seizure operation was carried out on the premises of the assessee during the financial year 2008-09 which was related to A.Y. 2009-10. At the time of search cash was found at different places and seized by the Revenue authorities. On 29.4.2008 a letter addressed to Additional Director of Investigation requesting that the seized cash may kindly be adjusted and appropriated against the tax liability in respect of the income of the A.Y. 2008-09 which was offered as the income in the statement made u/s 132(4). Letter dated 30.06.2008 addressed to Assistant Director Investigation was also filed stating the fact that the assessee had discharged its more than 60% of tax liability in the form of seized cash which had been requested to be adjusted towards the tax liability for the A.Y. 2008-09 and also paid first installment of the tax. AO denied prayer of the assessee that the adjustment of seized cash should be given from the date of search i.e. 29.4.2008. AO gave adjustment of seized cash towards demand from 23.2.2011. AO levied interest u/s 234A & 234B.

The issue before the Bench is - Whether the assets or cash seized u/s 132 of the Act is adjustable against the amount of any "existing liability" under the Act which does not include "advance tax" payable in accordance with the provisions of Part 'C' of Chapter XVII of the Act. And NO is the answer.

Customs

Notfn. 45/2013-Cus dated 17.09.2013 is not clarificatory, hence not retrospective - appellant is not eligible for benefit of exemption from safeguard duty and anti-dumping duty in r/o ex-bond B/E filed on 09/05/2013 although DFIA authorisation was transferred on 09/04/2013 - Appeal dismissed: CESTAT by Majority

THE appellant purchased 10.5 MT Phosphoric Acid from Desmo Export Ltd. out of the total quantity of 110.25 tons of Phosphoric Acid imported and warehoused under bill of entry dated 25.04.2013. The said goods were assessed and anti-dumping was imposed under Notification 19/2012-Cus dated 04.04.2012. The appellants filed ex-bond bill of entry on 09.05.2013 and claimed the benefit of Notification no. 98/2009 dated 11.09.2009 based on the valid DFIA dated 21.05.2012, which was transferred in the name of the appellant as per the provisions of the Foreign Trade Policy on 09.04.2013. As per the said DFIA, the appellant were allowed import of goods of the quantity and value mentioned therein without payment of duties of customs including Anti-Dumping Duty within the validity period of 36 months.

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