Jurispruden tiol – Monday's cases
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Refund claim is not maintainable unless original order of assessment for levy of duty is challenged: CESTAT
HERE is another saga of cases where Tribunal (benches) have been at loggerheads in deciding the issues. Well each Tribunal bench has its own reasoning and follows a set of judicial precedents and the loser is the assessee not knowing which case to be relied upon when they are hit with a show cause notice by the Department. The issue involved is whether refund claim is maintainable if the earlier order of assessment for levy of duty is not challenged by the assessee. Earlier the Bangalore Bench of the Tribunal in Jindal Vijaynagar Steels Ltd = [ ] and Aditya Birla Nuvo Limited = [ ] after deliberating extensively on the prevailing case laws and relying on the decision of the Apex Court in Karnataka Power Corporation Limited = [ ] held that the refund claim would sustain itself irrespective of the fact that the earlier order of assessment was not challenged by the assessee. Interestingly, the decision of the Apex Court in the Karnataka Power Corporation Limited case is on re-classification of goods and re-assessment of duty on such goods which were filed before the jurisdictional Assistant Collector. The Apex Court held that since the application for the same is filed before the Assistant Collector himself the matter was remanded back to this original authority to deal with the issue.
Customs
Scribbling by Commissioner on margins of party's letter is also appealable under Section 129A (1)(a) of Customs Act – Conversion of Drawback shipping bill into DEEC shipping bills can be allowed as no drawback claimed: Tribunal
As for the point raised by the Revenue that the letter communicating the decision of the Commissioner refusing to convert the shipping bills is not an order that can be appealed to the Tribunal, the Bench noted that the Division Bench in the case of Jindal Stainless Ltd. [ ] has held that even notings of the Commissioner/scribble on margins of party's letter is appealable u/s 129A (1)a) of the Customs Act, and hence the argument raised was not a valid one.
Income Tax
The law is settled: If business liability is definitely arisen in accounting year, deduction should be allowed although liability may have to be quantified and discharged at future date: ITAT
What should be certain is the incurring of the liability. It should also be capable of being estimated with reasonable certainty though the actual quantification may not be possible. If these requirements are satisfied the liability is not a contingent one. The liability is in present though it will be discharged at a future date. It does not make any difference if the future date on which the liability shall have to be discharged is not certain.
Until Monday with more DDT
Have a nice Weekend.
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