Jurispruden tiol – Tomorrow's cases

By Vijay Kumar

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

Cenvat Credit on Canteen, Catering Services – Revenue's ROM applications dismissed

• Failure on the part of the Revenue to make enquiries is not an error apparent on record and needs no rectification;

• It cannot be said that the Tribunal has not considered the material evidence on record available before it;

• Non-citing of an existing judgement and failure to rely on the same before passing of the Final order would not give rise to any mistake in order warranting any rectification;

• Findings have been given in great detail and after due consideration of all the issues raised before the Tribunal;

• There is no error apparent on record in the Tribunal's order.

Customs

Any issue arising out of drawback related matters, which entails penal provisions has to be seen and linked in context of issue on which penal action stands and penalty alone cannot be separated from core issue – Tribunal cites lack of jurisdiction while dismissing appeal

The Bench observed that the issue of non-imposition of redemption fine is interlinked with the claim of drawback and hence the appeal is not maintainable in asmuch as the proper recourse for the exporter is to file an appeal with the Revisionary authority viz. the Government of India.

Income Tax

Interest on excess refund – Not applicable for assessment year 2003-04 and earlier years: ITAT Special Bench

No retrospective application for Section 234D: “There is no dispute to the proposition that court cannot read anything into a statutory provision which is plain and unambiguous A statute is the edict of the legislature. The language employed in a statute is a determinative of the legislative intent and according to the first and primary rule of construction the intention of the legislation must be found in the words used by the legislature itself and the function of the court is only to interpret the law and court cannot legislate, if a provision of law is misused and subjected to the abuse of the process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary. Legislative causus omissus cannot be supplied by judicial interpretative course.” Thus, on the basis of argument that legislature has brought this provision just to fill the lacuna in the law and, therefore, these provisions should be construed retrospective cannot be accepted more particularly when these provisions have been inserted on the statute w.e.f. 1st June, 2003 and not with retrospective effect. The legislature has specifically mentioned the date of applicability i.e., 1st June, 2003 and the legislature was not incompetent to make retrospective provision, if it was so intended. Therefore, merely on the basis of interpretation, retrospective effect cannot be given to the provisions of Section 234-D.

See our columns Tomorrow for the judgements