Jurisprudentiol– Tomorrow's cases

By Vijay Kumar

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

Whether Interest is payable under Section 11 AB on the differential amounts received on supplementary invoices - Matter goes to five member Bench

Close on the heels of the Larger Bench ruling that interest is payable on finalisation of provisional assessments even in cases where the duty was paid before the finalisation of the assessments by the assessee on his own, here is yet another decision by Larger Bench on the issue whether interest is payable on the duty paid on supplementary invoices. The Bench held:

"Between the assessee and the buyer, the differential price was deemed to have been paid at the time of removal of the goods itself. If that be so, between the assessee and the department also, the differential price should be deemed to have been paid at the time of removal of goods."

However, since this view was in conflict with the decision of the Larger Bench in case of M/s Arvind Mills Ltd, the Bench recommended constitution of Five member Bench to resolve the issue.

Any Law

NDPS – Bail - A person's liberty is protected in terms of Article 21 of the Constitution of India. When two views are possible, the view which leans in favour of an accused must be favoured. It is easier to reject a bail application in a non-bailable case than to cancel a bail granted in such a case – Supreme Court

Decisions on bail are intrinsically within the domain of the judiciary. At the very least that means that historically decisions on bail were regarded as judicial. Rejection of bail when bail is applied for is one thing; cancellation of bail already granted is quite another. It is easier to reject a bail application in a non-bailable case than to cancel a bail granted in such a case. Cancellation of bail necessarily involves the review of a decision already made and can by and large be permitted only if, by reason of supervening circumstances, it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial. The fact that prosecution witnesses have turned hostile cannot by itself justify the inference that the accused has won them over.

[Though this decision is in connection with an NDPS case, it is equally applicable to other laws]

Income Tax

Appeal by Revenue when no appeal had been filed in another case - If assessee takes stand that Revenue acted mala fide in not preferring appeal in one case and filing appeal in other case, it has to establish mala fides : Supreme Court

THE basic question before the Supreme Court in this appeal by the Commissioner of Income Tax, is whether the revenue can be precluded from filing an appeal even though in respect of some other years involving identical dispute no appeal is filed.

[Though this is an Income Tax case, it has application in Customs, excise Service Tax and other tax laws]

Sales Tax

Sales Tax - non filling of vital entries in Form 18A - Penalty justified - Penalty is attracted as soon as there is contravention of statutory obligations - Intention is wholly irrelevant: Apex Court

Default or failure to comply with Section 78(2) is the failure/default of statutory civil obligation and proceedings under Section 78(5) is neither criminal nor quasi-criminal in nature. The penalty is for statutory offence. Therefore, there is no question of proving of intention or of mens rea as the same is excluded from the category of essential element for imposing penalty. Penalty under Section 78(5) is attracted as soon as there is contravention of statutory obligations. Intention of parties committing such violation is wholly irrelevant. Moreover, in the present case, the modus operandi adopted by the assessees itself indicates mens rea .

See our columns tomorrow for the judgements