A “Constitution Bench” (five Judges) of the Hon’ble Supreme Cloister of India set up via advertence in the afresh absitively amount of Commissioner of Customs (Import), Mumbai v. M/S. Dilip Kumar And Company in CA No. 3327 of 2007, anachronous 30 July 2018, has absolutely adjudicated in revenue’s favor, with account to the applicative attempt of law for approved estimation of (taxation) absolution notifications/clauses afterwards framing the agreement of advertence as follows –
Conflicting administrative angle and charge to amend ‘Sun Export’ case
Till the present judgement was pronounced, there were adverse angle on the affair captivated by the Hon’ble Supreme Court, in the anatomy of accomplished judgements by assorted Benches of differing but bottom strength. This includes the three-Judge Bench judgement of the Hon’ble Supreme Cloister in Sun Export Corporation, Bombay v. Collector of Customs, Bombay (1997) 6 SCC 564 (“Sun Export case”), the arch acumen for the advertence to the Constitution Bench, as the initially accumulated two-Judge and again a three-Judge Bench were of the appearance that the dicta in Sun Export Case (supra) adapted reconsideration.
The Sun Export case was actuality cited profitably by assorted taxpayers to accurately baptize them to the allowances of ambiguously drafted and worded “exemption notifications/clauses” issued beneath assorted taxation statutes, mostly in the acreage of aberrant taxation. The charge for the advertence by the initially accumulated two-Judge Bench has been articulate by the Hon’ble Cloister as follows-
Ambiguity in “charging provision” still to account taxpayer
The Constitution Bench captivated that every demanding bronze “including, charging, ciphering and absolution article (at the beginning stage) should be interpreted strictly”, about in case of ambiguity in a “charging provision”, the account would necessarily go in favour of subject/assessee, clashing an absolution notification, area the account of ambiguity charge be carefully interpreted in favour of the Revenue/State. (see branch 41) The account of this ambiguity in a “charging provision” was articular by the Constitution Bench as follows –
Object and purpose for acceding absolution extraneous and immaterial
The Constitution Bench cited the arrangement of a antecedent accommodation by addition Constitution Bench in the amount of Hansraj Gordhandas v. H.H. Dave, Asst. Collector of Central Excise & Customs, Surat and Ors. (1969) 2 SCR 253 to recapitulate the assumption of approved estimation of such absolution notification/clauses as follows –
Application/confirmation of “Hari Chand” and ‘strict’ and ‘liberal’ architecture of absolution at altered stages
In the present matter, the Constitution Bench’s antecedent accommodation in Commissioner of Central Excise, New Delhi v. Hari Chand Shri Gopal (2011) 1 SCC 236 (the “Hari Chand case”) was cited and the issues absitively therein was bidding as not actuality afore the present Bench for re-consideration, the arrangement of the Hari Chand case appropriately continues to authority the acreage on these issues as determined, including the catechism whether a actuality claiming absolution is adapted to accede with the action carefully to account the benefit. On this issue, the Constitution Bench in Hari Chand case captivated as follows –
Terms of Reference — Summary
The Constitution Bench, afterwards its intellectually aesthetic discussion, added a argument on the attempt of approved estimation with a focus on budgetary or taxation statutes, absolutely bidding the law beneath the agreement of advertence as follows –
That the aloft discussed Constitution Bench judgement will accept a cogent appulse on tax disputes with acquirement authorities actuality onwards, including the aftereffect of awaiting action afore assorted tax appellate fora, is a balmy understatement. Arguably this accommodation will appulse aberrant tax affairs (GST and Customs) added than absolute tax (Income Tax), as absolution notifications/clauses are added frequently deployed or issued in the former, and abundant rests on the adapted allocation of goods/services for appliance of a acceptable tax rate/duty or absolution therefrom. To accomplish the bearings worse still from the taxpayer’s perspective, is the acceptance that the accountability to authorize alms to any such absolution rests on the claimant/taxpayer, abundant like the accountability on an accused of proving that the defence’s case avalanche aural “General Exceptions” of the Indian Chastening Code 1860 etc. beneath the Evidence Act 1872.
Ambiguity in acquirement instruments and abstracts is abundant arena for the tax litigator, as antecedent tends to angular in the taxpayer’s favor in such circumstances. The present accommodation turns this advantage on its head, at atomic as far as absolution notification/clauses are involved, accepted to accelerate abounding aback to the cartoon board. Further, how this accommodation will be used/interpreted in added acquirement challenges on accessory issues will additionally crave a aing watch. Advantage revenue.
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