TaxTMI 
TaxTMI 
2019 (9) TMI 970
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....ming benefit of duty drawback as permissible under Customs, Central Excise Duties and Service Tax Drawback Rules, 1995 (for short 'Drawback Rules, 1995) which were framed vide Notification No. 37/95- CUS (NT) dated 26.05.1995, in exercise of power conferred by Section 75 of Customs Act, 1962 (for short 'Act, 1962 '), Section 37 of the Central Excise Act, 1944 and Section 93A of the Finance Act, 1994. As required under Section 50 of the 1962 Act, the Petitioner as and when exported goods, filed shipping bills declaring description, quantity, value, name of buyer etc. A team of Custom Officers i.e. Inspector, Superintendent and Assistant Commissioner physically verified export goods and noted on shipping bill "as per invoice and packing list" or "value reduced for the purpose of duty drawback". The goods were examined and assessed in terms of Section 17 of the 1962 Act. It would be relevant to notice that prior to 8.4.2011, there was no self assessment which was introduced by Finance Act, 2011 w.e.f 8.4.2011. The Petitioner concededly exported goods vide 10 Shipping Bills during 2010 and 2 Shipping Bills during 2012 which are subject matter of present writ petition. The Custom....
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....ry of 5 years from the date of export. Under Section 28 of the 1962 Act maximum period prescribed to issue show cause notice is 5 years even in case of fraud, suppression of facts or wilful mis-statement so any demand notice beyond five years is bad in the eyes of law. Rules are piece of subordinate legislation and primary legislation i.e. Customs Act, 1962 has fixed outer limit of 5 years so any notice under any Rule beyond 5 years is bad in the eyes of law. The impugned notice (P-9) has been issued under Rule 16 of Drawback Rules, 1995 whereunder no limitation period has been prescribed. Gujrat High Court in the case of Padmini Exports Vs UOI 2012 (284) ELT 325 and Pratibha Syntex Ltd 2013 (287) ELT 290 has held that Section 28 of the Act, 1962 is not applicable in such cases of duty drawback, however three years period is reasonable period. Still further, as per judgment of Hon'ble Supreme Court in the case of State of Punjab versus Bhatinda District Co-Op. Milk P. Union Ltd. 2007 (217) ELT 325 revisional jurisdiction cannot be invoked after a reasonable period of limitation. There are a number of judgments under different statutes wherein Hon'ble Courts time to time have held t....
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....o hold any drawback as erroneous and thereafter its demand. Rule 16 only talks of repayment of excess or erroneous Drawback and it does not provide any machinery for determination and demand of erroneous or excess drawback. Erroneous drawback means drawback which has been paid by mistake or error like calculation error and excess drawback means drawback which after redetermination of entitlement of drawback is declared as excess drawback. It is settled law that demand cannot be made in the absence of prescribed mechanism which is absent in Drawback Rules, 1995. In support of his argument, Ld. Counsel cited judgment of Hon'ble Supreme Court in the case of Commissioner of Central Excise versus Larsen and Toubro 2015 (39) STR 913 and this court judgment in the case of Laqshya Media Pvt. Ltd. Vs State of Punjab and Others CWP No. 4215 of 2016. (iv) Prior to 08.04.2011, there was no self assessment and it was framed by Proper Officer under Section 17 of the Customs Act, 1962 which w.e.f. 08.04.2011 was substituted and as per substituted Section, scheme of self assessment was introduced. The Petitioner exported goods under physical supervision of the Respondent Officers who prio....
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....Export Goods" means any goods which are to be taken out of India to a place outside India. Ld. Counsel placed reliance upon judgment of Hon'ble Supreme Court in the case of Priya Blue Industries Vs CC (Preventive) 2004 (172) ELT 145. 4. Mr. Sourabh Goyal, Sr. Standing Counsel for the Union of India & Customs-Respondent No. 1 & 3 and Mr. Sunish Bindlish, Sr. Standing Counsel appearing for DRI/Respondent No. 2, on the question of limitation and maintainability of writ petition contended that no limitation period has been prescribed under Rule 16 of Drawback Rules, 1995, therefore, proceedings could be initiated within a reasonable time. It is well settled that what would be 'reasonable period' would have to be decided in the facts and circumstances of each case. In support of their contention, Ld. Counsels cited judgment of Hon'ble Supreme Court in the case of Collector of Central Excise, Jaipur Vs Raghuvar India Ltd. 2000 (118) ELT 311 (SC), Govt. of India Vs Citadel Fine Pharmaceuticals 1989 (42) ELT 515 (SC) and Karnataka High Court in the case of Gemini Dying and Printing Mills Limited Vs Commissioner of Customs, Bangalore 2017 (51) STR 255 (Kar.), Gujrat High Court in the cas....
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....at show cause notice has been issued calling upon the Petitioner to show cause as to why FOB Value of exported goods should not be rejected in terms of Valuation Rules, 2007 and Drawback Rules, 2017 contain identical provision for repayment of erroneous or excess payment of Drawback & interest, therefore, repeal of Drawback Rules, 1995 has no effect on pending cases. On the question of mechanism both the State Counsels contended that Drawback is sanctioned as some percentage of FOB Value. As per Rule 8 of the Valuation Rules, 2007 which are framed in terms of Section 14 of Act, 1962 the Proper Officer has power to reject declared value, in case he has reason to doubt the truth or accuracy of the value. The Proper Officer after rejecting value may determine value as per Rule 6 of the Valuation Rules, 2007. It clearly shows that there is complete mechanism to reject declared value and determine fresh value. In the present case, the value has been rejected under Rule 8 and show cause notice proposes to reassess value under Rule 6 of the Valuation Rules, 2007. As per Section 75(2)(ab) of the Customs Act, 1962 Central Government may specify the procedure for recovery or adjustment of....
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....demanded under Section 28 of the Act, 1962 on account of mis-declaration of value or description. The redetermination of value of goods under Valuation Rules, 2007 entails into demand of Customs duty in case of import as well export of goods. The short levied or not levied duty is consequential to re-determination of value under Valuation Rules, 2007, still procedure has been prescribed under Section 28 of the Act, 1962 thus it is wrong to contend that there is no need of machinery under Rule 16 of the Drawback Rules, 1995. In support of his contention he relied upon judgment in case of Eternit Everest Ltd. Vs UOI 1997 (89) ELT 28 (Mad)wherein Madras High Court quashed show cause notice issued under Section 11D of the Central Excise Act, 1944 holding that no procedure has been prescribed to raise demand of duty collected in excess of duty liability. Hon'ble Supreme Court in the case of Shabina Abraham Vs CCE 2015 (232) ELT 372 (S.C) has held that in the absence of prescribed procedure duty cannot be demanded from legal heir or estate of sole proprietor in case of his death. As per Section 147 of the Income Tax Act, 1961 an Income Tax Officer may reassess already assessed income, si....
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....se; (iii) the manner of acceptance or rejection of value declared by the importer or exporter, as the case may be, where the proper officer has reason to doubt the truth or accuracy of such value, and determination of value for the purposes of this section : Provided also that such price shall be calculated with reference to the rate of exchange as in force on the date on which a bill of entry is presented under section 46, or a shipping bill of export, as the case may be, is presented under section 50. (2) Notwithstanding anything contained in sub-section (1), if the Board is satisfied that it is necessary or expedient so to do, it may, by notification in the Official Gazette, fix tariff values for any class of imported goods or export goods, having regard to the trend of value of such or like goods, and where any such tariff values are fixed, the duty shall be chargeable with reference to such tariff value. Explanation. - For the purposes of this section - (a) "rate of exchange" means the rate of exchange - (i) determined by the Board, or (ii) ascertained in such manner as the Board may direct, for the conversion of I....
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....duty of the imported goods or export goods at his office or at the premises of the importer or exporter as may be expedient, in such manner as may be prescribed. Explanation.- For the removal of doubts, it is hereby declared that in cases where an importer has entered any imported goods under section 46 or an exporter has entered any export goods under section 50 before the date on which the Finance Bill, 2011 receives the assent of the President, such imported goods or export goods shall continue to be governed by the provisions of section 17 as it stood immediately before the date on which such assent is received. Applicable prior to 8.4.2011: SECTION 17. Assessment of duty. - (1) After an importer has entered any imported goods under section 46, or an exporter has entered any export goods under section 50 the imported goods or the export goods, as the case may be, or such part thereof as may be necessary may, without undue delay, be examined and tested by the proper officer. (2) After such examination and testing, the duty, if any, leviable on such goods shall, save as otherwise provided in Section 85, be assessed. (3) For the purpose....
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.... in any other manner. (2) The exporter of any goods, while presenting a shipping bill make and subscribe to a declaration as to the or bill of export, shall truth of its contents. (3) The exporter who presents a shipping bill or bill of export under this section shall ensure the following, namely :- (a) the accuracy and completeness of the information given therein; (b) the authenticity and validity of any document supporting it; and (c) compliance with the restriction or prohibition, if any, relating to the goods under this Act or under any other law for the time being in force. SECTION 51. Clearance of goods for exportation. (1) Where the proper officer is satisfied that any goods entered for export are not prohibited goods and the exporter has paid the duty, if any, assessed thereon and any charges payable under this Act in respect of the same, the proper officer may make an order permitting clearance and loading of the goods for exportation : Provided that such order may also be made electronically through the customs automated system on the basis of risk evaluation through appropriate selection criteria : ....
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....Tribunal or the Commissioner (Appeals), as the case may be, as if such application were an appeal made against the decision or order of the adjudicating authority and the provisions of this Act regarding appeals, including the provisions of sub-section (4) of section 129A shall, so far as may be, apply to such application. SECTION 28. Recovery of duties not levied or short-levied or erroneously refunded. - (1) Where any duty has not been levied or has been short-levied or erroneously refunded, or any interest payable has not been paid, part-paid or erroneously refunded, for any reason other than the reasons of collusion or any wilful mis-statement or suppression of facts,- (a) the proper officer shall, within one year from the relevant date, serve notice on the person chargeable with the duty or interest which has not been so levied or which has been short-levied or short-paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice; (b) the person chargeable with the duty or interest, may pay before service of notice under clause (a) on the basis of,- (i) his own ascert....
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....r sub-section (4) by the proper officer, such person may pay the duty in full or in part, as may be accepted by him, and the interest payable thereon under section 28AA and the penalty equal to twenty-five per cent. of the duty specified in the notice or the duty so accepted by that person, within thirty days of the receipt of the notice and inform the proper officer of such payment in writing. (6) Where the importer or the exporter or the agent or the employee of the importer or the exporter, as the case may be, has paid duty with interest and penalty under sub-section (5), the proper officer shall determine the amount of duty or interest and on determination, if the proper officer is of the opinion - (i) that the duty with interest and penalty has been paid in full, then, the proceedings in respect of such person or other persons to whom the notice is served under subsection (1) or sub-section (4), shall, without prejudice to the provisions of sections 135, 135A and 140 be deemed to be conclusive as to the matters stated therein; or (ii) that the duty with interest and penalty that has been paid falls short of the amount actually payable, then, the prop....
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....t thereof or re-assessment, as the case may be; (c) in a case where duty or interest has been erroneously refunded, the date of refund; (d) in any other case, the date of payment of duty or interest. Explanation 2. - For the removal of doubts, it is hereby declared that any non-levy, short-levy or erroneous refund before the date on which the Finance Bill, 2011 receives the assent of the President, shall continue to be governed by the provisions of section 28 as it stood immediately before the date on which such assent is received. Explanation 3. - For the removal of double, it is hereby declared that the proceedings in respect of any case of non-levy, short-levy, non-payment, short-payment or erroneous refund where show cause notice has been issued under sub-section (1) or sub-section (4) as the case may be, but an order determining duty under sub-section (8) has not been passed before the date on which the Finance Bill, 2015 receives the assent of the president, shall, without prejudice to the provisions of sections 135, 135A and 140, as may be applicable be deemed to be concluded, if the payment of duty, interest and penalty under the proviso ....
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.... the amount of such drawback. (1A) Where it appears to the Central Government that the quantity of a particular material imported into India is more than the total quantity of like material that has been used in the goods manufactured, processed or on which any operation has been carried out in India and exported outside India, then, the Central Government may, by notification in the Official Gazette, declare that so much of the material as is contained in the goods exported shall, for the purpose of sub-section (1), be deemed to be imported material (2) The Central Government may make rules for the purpose of carrying out the provisions of sub-section (1) and, in particular, such rules may provide - (a) for the payment of drawback equal to the amount of duty actually paid on the imported materials used in the manufacture or processing of the goods or carrying out any operation on the goods or as is specified in the rules as the average amount of duty paid on the materials of that class or description used in the manufacture or processing of export goods or carrying out any operation on export goods of that class or description either by manufacturers gen....
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....orter of such goods to furnish further information including documents or other evidence and if, after receiving such further information, or in the absence of a response of such exporter, the proper officer still has reasonable doubt about the truth or accuracy of the value so declared, the transaction value shall be deemed to have not been determined in accordance with sub-rule (1) of rule 3. (2) At the request of an exporter, the proper officer shall intimate the exporter in writing the ground for doubting the truth or accuracy of the value declared in relation to the export goods by such exporter and provide a reasonable opportunity of being heard, before taking a final decision under sub-rule (1). Explanation. - (1) For the removal of doubts, it is hereby declared that - (i) This rule by itself does not provide a method for determination of value, it provides a mechanism and procedure for rejection of declared value in cases where there is reasonable doubt that the declared value does not represent the transaction value; where the declared value is rejected, the value shall be determined by proceeding sequentially in accordance with rules 4 to 6. ....
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....e Foreign Exchange Management Act, 1999 (42 of 1999), including any extension of such period, such drawback shall be recovered in the manner specified below. Provided that the time-limit referred to in this sub-rule shall not be applicable to the goods exported from the Domestic Tariff Area to a special economic zone. (2) On receipt of relevant information from the Reserve Bank of India, the Assistant Commissioner of Customs or Deputy Commissioner of Customs shall cause notice to be issued to the exporter for production of evidence of realization of export proceeds within a period of thirty days from the date of receipt of such notice and where the exporter does not produce such evidence within the said period of thirty days, the Assistant Commissioner of Customs or Deputy Commissioner of Customs shall pass an order to recover the amount of drawback paid to the claimant and the exporter shall repay the amount so demanded within sixty days of the receipt of the said order: Provided that where a part of the sale proceeds has been realized, the amount of drawback to be recovered shall be the amount equal to that portion of the amount of drawback paid which b....
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....ful mis-statement or suppression of facts. Drawback Rules, 1995/2017 have been framed under Section 75 of the Customs Act, 1962. Drawback is an export incentive in the form of cash award admissible under Duty Drawback Rules, 1995/2017 which an exporter becomes entitled on export of goods and realization of export proceeds (foreign currency). In the absence of export of goods or realization of export proceeds, drawback cannot be released and if released, the Proper Officer has power to recover the same from the exporter. Drawback is claimed in the shipping bill itself and no separate application seeking drawback is filed. Section 14 of Act, 1962 talks of transaction value whereas Valuation Rules, 2007 prescribe method and manner to determine value in case Proper Officer finds that transaction value is not true and correct. Neither limitation period has been prescribed nor is there requirement of show cause notice for demand/recovery of duty drawback and its adjudication under Rule 16 of the Drawback Rules, 1995. 7. The conceded position as emerging from the record of case is that the Petitioner exported goods which were examined by a team of Customs Officers who after being sa....
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....ssue involved is demand of Duty Drawback, an export incentive. The Petitioner has raised question of limitation, repeal of Drawback Rules, 1995, absence of mechanism to raise demand of drawback and jurisdiction of Respondent to re-assess value of goods already exported. We are not oblivious of the fact that question of limitation is a mixed question of law and facts. In the present case the dates of export of goods, release of drawback, realisation of export proceeds and issue of show cause notice are undisputed, thus pure question of limitation in law i.e. reasonable period within which a show cause notice may be issued, being question of jurisdiction is involved. As per Respondent no period has been prescribed under Rule 16 of the Drawback Rules, 1995 so no limitation period can be read into said Rule. Hon'ble Supreme Court in umpteen numbers of cases as cited by both sides has enunciated that in the absence of period prescribed, every action should be initiated within reasonable period which would depend on facts and circumstances of each case. The authorities appointed under Customs Act, 1962 cannot decide that what is reasonable period of limitation and it is only courts wh....
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....eal etc. In the present case, the petitioner has challenged the impugned order mainly on the ground that respondent No. 2 did not have the jurisdiction to initiate the proceedings under the 1973 Act. Therefore, we do not find any justification to non-suit it on the ground of availability of alternative remedy. " Applying the ratio of afore-cited judgments and having regard to the fact that all the questions raised by Petitioner are question of jurisdiction, we find it appropriate to entertain present writ Petition under article 226 of the Constitution of India and accordingly proceed to answer other questions. 10. Question No. (ii) Whether demand of duty drawback under Rule 16 of the Drawback Rules, 1995 can be made without any reasonable period of limitation? All the judgments including judgments of Hon'ble Supreme Court in the case of Raghuvar (India) Ltd (Supra) and Citadal Fine Pharamaceutical (Supra) cited by counsels for Respondents hold that in the absence of specific period, action should be taken within reasonable period, thus both sides are at idem that every action in the absence of prescribed period should be initiated within reasonable period and what would be....
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....is quite evident that every action including show cause notice must be issued within reasonable period where no limitation is prescribed. Taking cue from Section 28 of Act, 1962 which prescribes maximum 5 years period to issue show cause notice even in case of fraud, wilful mis-statement and aforecited plethora of judgments, we find that in every case 3 years period may not be reasonable (as otherwise held by Gujrat High Court in Pratibha Syntex case (Supra), however notice issued after the expiry of 5 years cannot stand in the eyes of law. It would be apt to notice here that goods were exported during 2007-2012 after due verification by Customs officers and DRI searched premises on 27.12.2012 whereas impugned show cause notice came to be issued on 9.2.2018 means after the expiry of 5 years even from the date of search. Notice has been issued under Rule 16 and not 16A of Drawback Rules, 1995 so it is admitted fact that foreign currency stands realized thus in the absence of laying down some period as reasonable period, there would never be conclusion of assessment and it would be at the whims and fancies of Respondent to open any assessment at any point of time. Under Customs Ac....
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....k Rules, 2017 which are reproduced as under: " 159A. Effect of amendments, etc. of rules, regulations or orders. Where any rule, regulation, notification or order made or issued under this Act or any notification or order issued under such rule or regulation, is amended, repealed, superseded or rescinded, then, unless a different intention appears, such amendment, repeal, supersession or rescinding shall not- (a) revive anything not in force or existing at the time at which the amendment, repeal, supersession or rescinding takes effect; or (b) affect the previous operation of any rule, regulation, notification or order so amended, repealed, superseded or rescinded or anything duly done or suffered there under, or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any rule, regulation, notification or order so amended, repealed, superseded or rescinded; or' (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed under or in violation of any rule, regulation, notification or order so amended, repealed, superseded or rescinded; or (e) affect an....
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....while rights and liabilities arising out of Drawback Rules, 1995 are saved. Clause (a) of Rule 20(2) saves applications made for determination or revision of drawback which are still pending; clause (b) saves any claim of drawback which is pending with respect to goods exported prior to commencement of 2017 Rules; and clause (c) provides that any rate or amount of drawback determined under Rules of 1995 shall not be applicable to goods exported after commencement of Rules, 2017. From the bare reading of aforesaid clauses of Rule 20(2) of Drawback Rules, 2017, it is evident that none of clause deal with drawback claims filed and sanctioned prior to 1.10.2017. By saving few rights accrued under Drawback Rules, 1995 Government has expressed different intention so Section 159A of 1962 Act becomes inapplicable. Had there been intention to save all rights and liabilities arising from Drawback Rules, 1995, the Government would not have inserted Rule 20(2) in Drawback Rules, 2017 saving only few rights/acts. Had there not been Rule 20(2) in Drawback Rules, 2017 as is in present form and manner, Section 159A of 1962 Act would have come into play and saved all the rights and liabilitie....
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.... suit/proceeding whereas revision is not continuation of suit instead is an independent proceeding. It was held that Section 4 of Punjab General Clauses Act, 1898 cannot be considered because Section 61 of Haryana VAT Act, 2003 whereby Haryana Sales Tax Act, 1973 was repealed specifically deals with rights and liabilities arising out of repealed Act of 1973. The Hon'ble Supreme Court as well Full bench of this court has upheld said Division Bench judgment. Para 25 of the judgment of this court and Para 11 of judgment of Hon'ble Supreme Court read as under: " 25. We shall now deal with the provisions of section 4 of the General Clauses Act. A reading thereof shows that unless a different intention appears, the repeal does not affect any right, privilege or obligation or any legal proceedings or remedy in respect of any such right, privilege, obligation, liability etc. By virtue of Section 61 of the VAT Act, the legislature, while repealing the 1973 Act, save the pending application, appeal, revision and other proceedings made or preferred to any authority under that Act and transferred the same for disposal by the officer or authority, who would have had jurisdiction to ent....
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....port goods as well as goods which have already been exported. The department under Rule 8 has right to reject already assessed value and re-assess value under Rule 6 of the Valuation Rules. Drawback is sanctioned on export of goods and phrase 'export' has been defined under Rule 2(c) of the Drawback Rules, 1995. As drawback is sanctioned on export of goods, department has right to reassess value of goods already exported and consequentially raise demand of excess drawback. Demand of drawback under Rule 16 of Drawback Rules, 1995 is consequential so contention of Petitioner that mechanism is absent in Rule 16 of the Drawback Rules, 1995 is fallacious. Counsel for the Petitioner submitted that as per DRI itself they have been appointed as proper officer under Customs Act, 1962, therefore, there is no occasion to exercise any power which is not vested in Customs Officers-Proper officer. An officer appointed under a particular Act can exercise powers endowed by said Act, hence DRI cannot exercise a power which is not vested in Customs Officers. In case of mis-declaration of value of import or export goods, demand of duty which is calculated as some percentage of CIF/FOB Value is rai....
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....les, 1995 is applicable where drawback is released on account of some calculation mistake or other error which needs no adjudication and claimant is duty bound to refund as soon as demanded by proper officer. It is also applicable where after following procedure known to law, it is finally concluded that claimant/exporter was released drawback more than his actual entitlement. In such circumstances, there is no need to issue within reasonable period show cause notice and its adjudication thus under Rule 16 neither limitation period has been prescribed nor there is requirement of show cause notice and its adjudication. Rule 16 of Drawback Rules, 1995 cannot be straightway applied in a situation like case in hand where at the time of export, value of goods was assessed by Customs Officers; goods stand exported; currency stand realized and drawback stand released. In a situation like present case, due procedure i.e. complete machinery is inevitable which is absent in Rule 16 of Drawback Rules, 1995. Counsel for the Customs further relied upon phrase 'export' to say that export means taking out of India and drawback is sanctioned after taking goods out of India so value can be re-de....
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....of facts, for the purposes of this Act or the Foreign Trade (Development and Regulation) Act, 1992 (22 of 1992), by such person or his agent or employee and such instrument is utilised under the provisions of this Act or the rules made or notifications issued thereunder, by a person other than the person to whom the instrument was issued, the duty relatable to such utilisation of instrument shall be deemed never to have been exempted or debited and such duty shall be recovered from the person to whom the said instrument was issued: Provided that the action relating to recovery of duty under this section against the person to whom the instrument was issued shall be without prejudice to an action against the importer under section 28. Explanation 1.- For the purposes of this sub-section, "instrument" means any scrip or authorisation or licence or certificate or such other document, by whatever name called, issued under the Foreign Trade (Development and Regulation) Act, 1992 (22 of 1992), with respect to a reward or incentive scheme or duty exemption scheme or duty remission scheme or such other scheme bestowing financial or fiscal benefits, which may be ut....
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....Development and Regulation) Act, 1992. We find ourselves in agreement with counsel for the Petitioner that if Valuation Rules, 2007 are omnibus, there is no need to issue show cause notice and follow procedure prescribed under Section 28 of Act, 1962. The judgment cited by DRI counsel in the case of Jain Shudh Vanaspati (Supra) permits demand of duty under Section 28 of the Act which was short levied or not levied at the time of clearance of goods even though department refrained from filing appeal against assessment order. As noticed by Hon'ble Supreme Court, show cause notice under Section 28 can be issued within five years from the relevant date which is certainly beyond the period prescribed for filing appeal against order passed under Section 47 of the Act, 1962. Rule 16A of the Drawback Rules provides for demand of drawback if export proceeds are not realized within prescribed period or extended period. Though no adjudication is required in case of nonrealisation of export proceeds still Rule 16A of Drawback Rules, 1995 like Section 28 provides mechanism and is applicable after the expiry of period prescribed for filing appeal thus contention of DRI would be correct if demand....
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....e" as "any service provided". All the services referred to in the said sub-clauses are service contracts simpliciter without any other element in them, such as for example, a service contract which is a commissioning and installation, or erection, commissioning and installation contract. Further, under Section 67, as has been pointed out above, the value of a taxable service is the gross amount charged by the service provider for such service rendered by him. This would unmistakably show that what is referred to in the charging provision is the taxation of service contracts simpliciter and not composite works contracts, such as are contained on the facts of the present cases. It will also be noticed that no attempt to remove the nonservice elements from the composite works contracts has been made by any of the aforesaid Sections by deducting from the gross value of the works contract the value of property in goods transferred in the execution of a works contract. 25. In fact, by way of contrast, Section 67 post amendment (by the Finance Act, 2006) for the first time prescribes, in cases like the present, where the provision of service is for a consideration which is not as....
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....re regarding filing of returns, assessment of Tax and consequently recovery thereof has been prescribed. Hon'ble Supreme Court in the case of Shabina Abraham (Supra) while dealing with question of continuation of assessment proceedings under Section 11/11A of the Central Excise Act, 1944 has held that in the absence of machinery provisions to collect and assess duty, proceedings cannot continue against legal representative/estate of a sole proprietor/manufacturer after he is dead. Hon'ble Supreme Court in relevant Paras 19 to 21 has held as under: " 19. Learned counsel for the revenue relied upon Section 11 of the Act, which, according to him, indicates that an attachment and sale of excisable goods can belong to a dead person and such attachment and sale can continue notwithstanding the death of such person. Apart from the fact that there is nothing about dead persons in Section 11, Section 11 is limited only to recovery of sums that are due to the Government. The very opening words in Section 11 show that duty and other sums must first be payable to the Central Government under the Act or the rules. If such sums are not "payable" then the provisions of the Section do ....
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....d thereunder. If it discontinues its business, it shall within the specified time inform the prescribed authority accordingly. A dealer and its partners are jointly and severally responsible to pay the tax assessed on the dealer. But there is no provision expressly empowering the assessing authority to assess a dissolved firm in respect of its turnover before its dissolution. The question is whether such a power can be gathered by necessary implication from the other provisions of the Act." (at page 461) The Court went on to say: " Though under the partnership law a firm is not a legal entity but only consists of individual partners for the time being, for tax law, income-tax as well as sales-tax, it is a legal entity. If that be so, on dissolution, the firm ceases to be a legal entity. Thereafter, on principle, unless there is a statutory provision permitting the assessment of a dissolved firm, there is no longer any scope for assessing the firm which ceased to have a legal existence. As in the present case, admittedly, the firm was dissolved before the order of assessment was made, the said order was bad." (at page 462) The Court went on to consider various High....