Jurisprudentiol– TOMORROW's cases

By Vijay Kumar

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

Refund on finalisation of provisional assessment – unjust enrichment not applicable prior to 12.7.2006 when Section 18 was amended: Gujarat High Court

REFUND and unjust enrichment are concepts that have seen many a litigation. It had been almost settled in Central Excise that refunds arising as a consequence of finalisation of Provisional Assessments are not subject to the principles of unjust enrichment. The Government after being severely battered amended the Central Excise Rules in 1999, while they forgot to amend the Customs provisions till 2006 – and so the legal battle continues.

Income Tax

Interest earned on FDs deposited as margin monies with banks for securing LCs for import of gold bullion - Since there is an inextricable link between margin monies and assessee's business, such interest income eligible for exemption under Sec 10B : ITAT

A commission payment for services rendered can be allowed as a deduction only if the assessee proves to the satisfaction of the Income-tax authorities that the agent has rendered some services justifying the payment of commission.

Service Tax

Agents who undertake work of courier on behalf of Courier Company – not franchisees – Revenue loses Rs. 8 Crores case in CESTAT

IT cannot be held that any other service is involved in the transactions or that there is a different person receiving the service. "Courier Agency" means any person engaged in door-to-door transportation of time-sensitive documents, goods or articles utilizing the services of a person, either directly or indirectly.

Central Excise

Mere right to use the brand name without objection from owner does not confer ownership and accordingly benefit of SSI exemption notification is not available: Tribunal

There is a difference between assignment and permission to use the trade mark, though sometime the words are used synonymously. The right of use is different from the ownership, as the bar in exemption is on ownership and not mere right to use, as the wordings are carrying the brand name belonging to another person. Mere right to use the brand name without objection from the owner does not confer ownership and accordingly the benefit of exemption under Notification 1/93 and similar Notifications cannot be extended.

See our columns Tomorrow for the judgements