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By Vijay Kumar

Income Tax

Onus to prove the service of the notice on the assessee within the statutory period is upon the Assessing Officer and not upon the assessee. As per provisions of Section 143(2) a statutory notice under section 143(2) of the Act is required to be served on the assessee within 12 months from the end of the month in which the return has been filed and it is not only required to be issued within 12 months from the end of the month in which the return has been filed. It means that the onus to prove the service of the notice on the assessee within the statutory period is upon the Assessing Officer and not upon the assessee.

In the instant case the Assessing Officer has failed to discharge the onus of proving the service of the notice upon the assessee under section 143(2) of the Act within the statutory period of limitation i.e. on or before 31.10.2002 (in the instant case of the assessee) because in the instant case the notice was only issued by the Assessing Officer on 31.10.2002 but neither the same has been received back by the Assessing Officer nor the department is able to prove the service of the notice upon the assessee on 31. 10.2002, therefore, the notice under section 143(2) of the Act is not proved to have been served upon the assessee on or before 31.10.2002 by the Department and, hence, any service of notice thereafter on a subsequent date is barred by a period of limitation as provided under proviso to section 143(2) of the Act.

Central Excise

Control samples – no duty payable; when a manufacturer preserves the samples of their product for some period for investigation of complaints, no duty shall be charged on these samples considering that those goods remain within the factory. It was held that the duty shall be charged only when the samples are cleared from the factory.

No penalty for not entering in the records - In our view, in the daily account register only those items are to be entered, which are withdrawn from the factory. Hence, in this appeal, no substantial question of law is arising from the order of the CESTAT

We do not find any substance in this argument, as in the case of CCE v. Dabur India Limited ( CEA No. 2 of 2005) (supra), it was held that no duty is to be charged on the control sample, but the proper account of receipts and utilization of such sample in the laboratory should be maintained. In the instant case, there is no allegation that the proper account was not being maintained, but it is said that the sample is to be accounted in the daily register. In our view, in the daily account register only those items are to be entered, which are withdrawn from the factory.

Customs

Notification 160/92- Cus – only a declaration is to be given that the export goods are manufactured using the machinery imported – evidence not required – DGFT issuing a certificate that export obligation has been fulfilled – Customs cannot dispute the same

The respondents have given sufficient explanation substantiating their claim that the exported goods were manufactured out of the imported capital goods against the disputed licence. There is not an iota of evidence to the contrary by the Customs. Besides under Notification No. 160/92- Cus the fulfillment of export obligation was to be verified by the licencing authority who were required to issue a certificate that the export obligation has been fulfilled. This certificate has been issued in the present it case and this certificate cannot be disputed by the customs authority. If they had any doubt over the certificate, they should have taken up the matter with the DGFT authorities and get the certificate modified. In the absence of the same the certificate issued by the DGFT authorities cannot be challenged.

See our columns tomorrow for the judgements