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RECENT UPDATES IN DIRECT & INDIRECT TAXES AND IN OTHER AREAS OF PROFESSIONAL INTEREST

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INCOME TAX

CIT Vs Vikas International
Income Tax - Sections 28(iiib), 80HHC - export - gem stones - polished diamonds - Whether premium on the licences purchased by assessee from outside parties for sale or import, would be liable to be treated as cash assistance taxable u/s. 28(iiib) as against its export eligible to deduction us. 80HHC - Whether the said assistance would be taxable as income from other sources - Whether deduction u/s 80HHC could be claimed on export of cut and polished diamonds and gem stones. - Revenue's appeal dismissed : GUJARAT HIGH COURT


ACIT Vs Manubhai Tribhovandas (Huf)

Income Tax - Sections 234B, 234C - Whether the upfront one time payment of interest received immediately on allotment is deferred revenue expenditure - Whether in case assessee is creating asset on basis of interest for five years being paid in advance in first year and, thereafter, the assets written off over period of debentures for five years continuing benefit to business of the assessee over the entire period, the liability is to be spread over period of debentures - Whether the entire amount of interest received as upfront one time payment of interest immediately on allotment is included in the income for the first year in which the amount of interest is received. - Revenue's appeal dismissed : GUJARAT HIGH COURT

Jose Kuruvinakunnel Vs ITO

Income Tax - cash credit - rectification application - Whether the High Court can agitate issues which would require detailed discussions, in a rectification application - Whether merely for the reason that Tribunal found that the decisions are not applicable, the Tribunal would not have gone into the dictum laid down therein. - Assessee's appeal dismissed : KERALA HIGH COURT
Dighi Port Ltd Vs ITO
Income Tax - Sections 43B, 69 & 133A - wharfage / port dues - royalty - Special purpose vehicle.

Whether the expression 'Tax, Duty, Cess or Fee or by whatever name called' mentioned in the provisions of Sec 43B brings under its sweep port dues payable by the assessee to a government agency - Whether amount payable as royalty for cargo handling to a Public Sector Undertaking can be considered as tax, duty, cess or fee payable - Whether the provisions of section 43B would apply in such a case - Whether amount received in excess of the one mentioned in TDS certificates can be prevented from being treated as income on the basis of contention that TDS was deducted on payment basis - Whether in case an assessee as a special purpose vehicle is constructing, operating and managing a venture and was also having its income, it was also liable to claim corresponding expenditure relating to the said income. - Assessee's appeal partly allowed; Revenue's appeal dismissed : MUMBAI ITAT
ITO Vs Rajasthan Medical Relief Society
Income Tax - Sections 11(2), 10(23)(iiiac), 12AA, 28, 139(1) & 143(3).
Keywords - society - permitted time - total reciepts - capital expenditure.
Whether a society which has filed a declaration in Form 10, after the return u/s 139(1) is filed, can be denied deduction u/s 11(2) for such delay - Whether such an assessee can claim exemption u/s 10(23C)(iiiae) - Whether the set off of unabsorbed depreciation carried forward from earlier years can be allowed from income from other sources, if the assessee had no income falling u/s 28 of the Act. - Revenue's appeal & cross objection of assessee, dismissed : JODHPUR ITAT
DCIT Vs State Bank Of India
Income Tax - Sections 33ABA, 194A, 195(1), 197, 201 & 201(1)(a) - Site Restoration Fund account - TDS.
Whether the interest accrued on SRF a/c maintained with the State Bank of India as per the provisions of sec. 33ABA is subject to provisions of TDS u/s 194A - Whether site restoration fund maintained as per the provisions of section 33ABA is a time deposit - Whether in case it has been proved that the payee has included a certain amount in his income and has paid taxes thereon, the recipient cannot be held liable for non deduction of TDS thereon - Whether that interest income earned from SRF A/c is assessable as income from other sources and not as business income - Whether the provisions of section 33ABA(5), brings to tax the amount which was earlier allowed as deduction - Whether the interest accruing to SRF a/c is income of ONGC and the deeming provision as per third proviso to section 33ABA(1) of treating it as deposit is essentially application of income - Whether in case ONGC is accounting for the interest in its P&L A/c and then claiming deduction of deposit which includes the interest accrued on SRF a/c is genuine. - Assessee's appeals allowed & Revenue's appeals dismissed : DELHI ITAT
Vandeep Singh Shergil Vs ACIT
Income Tax - Sections 2(47), 143(1), 147, 148 - reassessment, capital gains, housing society, tripartite joint development agreement.
Whether notice u/s 148 can be validly issued when capital gain was not duly disclosed by the assessee – Whether the assessment can be reopened following the decision in case of ACIT V Rajesh Jhaveri Stock Brokers P. Ltd ,. - Assessee's appeal dismissed : CHANDIGARH ITAT

Prefab Gratings Ltd Vs ACIT
Income Tax Act - Sections 32A, 146, 147 & 154.
Keywords: rectification, unabsorbed investment allowance, modification of assessment order, permissibility.

Whether the Assessing Officer can invoke jurisdiction under Section 154 and modify the assessment order for the year in which unabsorbed investment allowance was allowed to be set off without modifying the order of the earlier years whether the allowance was determined to be allowed. - Assessee’s appeal allowed : ANDHRA PRADESH HIGH COURT
CIT Vs Harish R Sharma
Income Tax - Sections 68 & 69.
Keywords - unexplained investment - sales proceed - heirs - house property.
Whether the entire sale proceeds of a house property can be taxed in the hands of one heir, the assessee, when there are seven legal heirs for the same - Whether the Tribunal had rightly restricted the addition, on account of the share of sale proceeds upto 1/7 of the total amount received - Whether the addition on account of unexplained investment in house, which belonged to the assessee's father can be deleted by the appellate authority. - Revenue's appeal dismissed : GUJARAT HIGH COURT
Arjundas Rajkumar Vs CIT
Income Tax – Sections 139B, 217, Rule 40.
Keywords: reference, partnership firm, capital asset, stock in trade, dissolution of property, determination of value of property, market value, closing stock
Whether where the partnership deed itself makes it clear that the property is being contributed as an item of capital as the objective of the firm is to carry on the business in real estate, such an asset can be considered as a stock in trade – Whether the market value of the property has to be taken into consideration for determining the value of property, which is allotted to the respective partners on dissolution. - Reference answered in favour of Revenue : ANDHRA PRADESH HIGH COURT
CIT Vs Lord Krishna Bank Ltd
Income Tax - Section 10(23G).
Keywords - exemption - condition precedent.
Whether there is requirement of a notification in the official gazette as a condition precedent for availing exemption u/s 10(23G), in case, the bonds had been issued, in respect of which exemption is claimed by the assessee. - Revenue's appeal dismissed : BOMBAY HIGH COURT
CIT Vs Larsen And Toubro Ltd
Income Tax - Sections 271(1)(c) - Whether penalty for concealment u/s 271(1)(c) can be levied merely on the basis that assessee has raised a claim which was eventually disallowed by the assessing authority. - Revenue's appeal dismissed : BOMBAY HIGH COURT
CIT Vs Jayendra H Shah
Income Tax - Section 80IA - manufacturing activity - remand - Whether cutting and polishing of Diamond is a manufacturing activity - Whether if the same is not a manufacturing activity, the deduction u/s 80IA can still be claimed. - Revenue's appeal dismissed : BOMBAY HIGH COURT
CIT Vs Jayant Extraction Industries
Income Tax - Sections 43(1), 273(2)(a) - enhanced value - depreciation - WDV - succession of firm.
Whether in case of succession of the firm, depreciation can be allowed on the enhanced value of assets or it has to be allowed only on WDV of assets being transferred to the successor firm - Whether an order can be considered as void in case the issuing authority has not taken prior approval from himself before issuing such an order - Whether in case of succession of the firm, AO has to make two separate assessments for the two periods pre and post succession. - Revenue's appeal partly allowed : GUJARAT HIGH COURT
Sri Ravi Saraff Vs ITO
Income Tax - Sections 50C, 68, 69 & 143(3) - unexplained income - capital gain.
Whether a reference to a valuation officer can be made as per the provisions of section 50C(2), without giving an opportunity of being heard to the assessee - Whether in case it is proved that the assessee from whom an amount has been received, is an income tax assessee, addition u/s 68 can still be made. Matter Remanded : HYDERABAD ITAT
ACIT Vs Velingkar Brothers
Income Tax - Sections 10B, 10B(7), 80IA(10), 92, 94, 147(b), 263 - Whether a business arrangement is permissible between two concerns - Whether “market price” of the goods transferred from one concern to other would replace the actual price fetch though there is no evidence on record to establish that goods are under invoiced:-Held- Appeal of the revenue is dismissed. - Revenue's appeal dismissed : PANAJI ITAT




Toscana Lasts Ltd Vs ITO
Income Tax - Sections -11AC, 37, 271 (1)(c)
Keywords: penalty, concealment of income, furnishing of inaccurate particulars, business expenditure, stock written off, unpaid expenses, unabsorbed depreciation.

Whether penalty u/s 271(1)(c) is leviable where the assessee claimed that the expenditure incurred was a genuine expenditure debited to the books of accounts of the assessee which was settled by way of issuing the shares and the assessee had submitted the agreement, debit note for these expenses, ledger account the service provider to whom the payments were made and confirmation from that party was also filed in penalty proceedings - Whether claim of assessee can be said to be bogus where the assessee failed to obtain approval from the excise authorities, though the assessee had made a genuine claim of write off with regard to the obsolete items and the fact was disclosed in the return of income. - Assessee's appeal allowed : DELHI ITAT
ACIT Vs United Shippers Ltd
Income Tax - Sections - 14A & 41(1).
Keywords - Transshipment charges - reimbursement - miscellaneous income
Whether disallowance under Rule 8D has to be in terms with the decision of the jurisdictional High Court – Whether any interference by the Tribunal is required when the deletion by the CIT(A) has no revenue effect. - Revenue's appeal dismissed : MUMBAI ITAT
Dahej Harbour & Infrastructure Ltd Vs DCIT
Income tax - Sections 80IA - Port development - sale of water - storage facility - transportation charges.
Whether when the assessee is engaged in development of port infrastructure and earns certain income from supply of water to cargo ship, such income is entitled to Sec 80IA benefits - YES: ITAT
Whether the assessee is also eligible for deduction u/s 80IA on income earned from storage facility taken on rent and transportation income earned from sale of water from jetty to party's place - NO: ITAT - Assessee's appeal partly allowed : MUMBAI ITAT
Shri K Narendra Reddy Vs DCIT
Income Tax - Sections 133A, 143(3), 194A, 194C, 201(1) & (1A) - Whether it is justified for the Revenue authorities to invoke the provisions of S.201(1) and S.201(1A) so as to raise demands on account of non-compliance with the TDS provisions in relation to payments made in respect of earth works/labour payments when the AO examined the payments in detail and accepted the additional income offered on these payments and invoked provisions of S.37(1).

Dr Akilan Ramanathan Vs JCIT
Income Tax - Sections 68, 147 & 148.
Keywords - transfer of fund - stay - instruction No.1914 - instruction No.96.
Whether the individual assessees are entitled to blanket the order by demand of stay under the Circular No.96., taking into consideration that the difference between the income shown in the returns and assessment orders is very high. - Assessee's petitions allowed : MADRAS HIGH COURT
Merck Ltd Vs Tarkeshwar Singh
Income Tax - Sections 140A, 143(3), 243, 244(1), 244 (1A)
Keywords: TDS, advance tax, Self Assessment Tax, refund, interest payable
Whether Self Assessment Tax has to be treated as tax paid pursuant to the order of Assessment – Whether interest is payable on refund of self assessment tax from date of assessment order till grant of refund - Whether in exercise of powers under Article 226 of the Constitution, Court can direct the statutory authorities to grant interest as outside the statute. - Assessee’s writ petition partly allowed : BOMBAY HIGH COURT
CIT Vs Vodafone Essar Gujarat Ltd
Income Tax - Whether an assessee can be allowed deduction u/s 37(1), regarding expenditure incurred on telecommunication services, even if there were no business activities carried on by the assessee in that year. - Appeal admitted : GUJARAT HIGH COURT
Coromandel Cements Ltd Vs CIT
Income Tax - Sections 256(1) - power tariff - APSEB.
Whether an allowance can be permitted, only when the actual accrual takes place, irrespective of the actual payment - Whether allowing of deduction of disputed amounts, arising out of a contractual liability would arise, only if the matter has been settled amicably, or the adjudication has reached finality - Whether such deduction would be allowed in case neither of the events had taken place. - Assessee's appeal dismissed : ANDHRA PRADESH HIGH COURT
CIT Vs Islamic Academy Of Education
Income Tax - Sections 11, 12, 13(4) - Wealth Tax Act, 1957 - Sections 5(i), 21A.
Whether in the absence of any particular expression, before the word 'Capital' it is to be construed as 'Share' and it would amount to Court legislating which is not permissible - Whether while granting the benefit to the charitable institution, when the legislature consciously provided for the funds of the said Trust by way of investment and they have fixed a limit of 5%, by placing an interpretation, said benefits can be denied to the assessee. - Revenue's appeal dismissed : KARNATAKA HIGH COURT
CIT Vs Aditya Ferro Alloys Pvt Ltd
Income Tax - Revenue expenditure - iron scrap - ingots - capital expenditure.
Whether the expenditure incurred on reusable cast iron moulds are to be allowed as revenue expenditure - whether in the nature of manufacturing process carried out by the assessee, where the shelf life of the cast iron ingot moulds, which is used for about 30 to 40 times and, thereafter, scrapped, could be taken as capital asset or a revenue asset. - Revenue's appeal dismissed : MADRAS HIGH COURT
Lsg Sky Chef (India) Pvt Ltd Vs DCIT
Income Tax - Sections 143(3), 198 & 199.
Keywords - short credit - TDS
Whether the appellate authority can be said to be at fault when the credit is not allowed to the assessee on account of some procedural restrictions - Whether an assessee after furnishing the TDS certificates, credit for which is being claimed, discharges the primary onus on him toward claiming credit. - Assessee's appeal allowed : MUMBAI ITAT

SERVICE TAX
CCE Vs Golden Tabacco Ltd
CENVAT - Whether rent-a-car service amounts to input service as defined under Rule 2(l) of the CCR, 2004 though the said rent-a-car service was rendered at various other places other than the factory and declared warehouse/ depot of the Respondent – Tribunal has passed an order containing only two paragraphs of reasoning and held that credit is admissible without dealing with the question extensively – Tribunal has also referred to the Ultratech case– it would be fair, just and proper that the Revenue appeal is allowed and the matter is remitted back to the Tribunal - without creating any precedent and purely because the matter has been remitted and restored on account of faulty approach of the Tribunal that the Assessee is relieved of the condition of pre-deposit – Revenue appeal allowed: High Court - Appeal allowed : BOMBAY HIGH COURT
Vinayaka Securities And Detective Agency Vs DCCE
ST - Government of India introduced an Amnesty scheme where, those persons who have not paid tax, if they pay the tax within the stipulated period under the scheme, the entire interest and penalty is waived – since the assessee has paid the tax and the interest, the benefit of the scheme should be given to him – Imposition of duty and interest is affirmed and imposition of penalty u/s 78 of FA, 1994 is set-aside - Appeal partly allowed: High Court - Appeal partly allowed : KARNATAKA HIGH COURT

Cidco Ltd Vs CST
ST - Renting of Immovable property service - lease amount was collected by way of premium at the time of entering into the ‘agreement to lease' and by way of rental, when the ‘lease agreement' was entered into by the appellant - expressions ‘other similar arrangements' used in Section 65(90a) and ‘any other service in relation to such renting' used in Section 65 (105) (zzzz) are expressions of width and amplitude - CIDCO ordered to Pre-deposit Rs.20 Crores: CESTAT - Pre-deposit ordered : MUMBAI CESTAT
Spring Advertising Pvt Ltd Vs CC, CE & ST
ST - Appellants are only collecting the advertising and the same is forwarded to various newspapers for publication - since they are not undertaking any activity connected with the making, preparation, display etc., they are not an ‘Advertising Agency' - no Service Tax payable - orders set aside and appeals allowed: CESTAT  - Appeals allowed : MUMBAI CESTAT
Punjab State Federation Of Cooperative Sugar Mills Ltd Vs CCE
Service Tax – Appellant, an Apex Body of cooperative sugar mills of Punjab exercises supervisory control over sugar mills and monitors their functions and receive 0.3% of the sales turnover from each sugar mill – Demand of service tax under Management Consultant service - It is not disputed that the appellant is a Federation of the Cooperative Sugar Mills of Punjab and in terms of the charter of its functions, it is required to monitor the functioning of its Member Sugar Mills and provide guidance to them from time to time for improving their efficiency - The activity of the appellant have to be treated as club or association service as defined under Section 65 (25a) of the Finance Act, 1994 and hence in view of the judgment of the Tribunal in the case of Federation of Indian Chambers of Commerce and Industry vs. CST, Delhi and M/s Electronic and Computer Software Export Promotion Council vs. CST, Delhi 2014-TIOL-701-CESTAT-DEL no service tax would be chargeable on the amount being received by the appellant from its Member Sugar Mills - The impugned order is not sustainable. - Appeals allowed : DELHI CESTAT
M Rajan Vs CST
Service Tax - Stay / dispensation of pre deposit – ‘Commercial coaching and training service – appellants engaged in imparting personal development course and English language skills; viewed as provision of taxable service for consideration – exemptions under notification No.9/2003-ST dated 20.06.2003 and No.24/2004-ST dated 10.9.2004 denied in adjudication – tax demands confirmed and agitated herein.
Held: Tribunal on an identical issue consistently directed the assessee to make a predeposit of above 25% of the tax amount – Appellants 1 to 4 respectively directed to pre deposit amounts of Rs.35,000; Rs.85,000; Rs.80,000; and Rs.1,00,000 within six weeks – upon compliance, predeposit of the balance dues stands waived and recovery thereof stayed during the pendency of the appeals. - Pre deposit ordered : CHENNAI CESTAT


Shreenathji Builders Vs CCE & ST
Service Tax - Refund - Appellant provided Civil Construction work to a Trust; collected tax and discharged it - subsequently filed a refund claim on the ground that the service was exempt from tax under Para 13.2 of CBEC Circular No. 80/10/2004-ST dated 17.09.2004 - claim rejected in adjudication and upheld by Commissioner (Appeals) on grounds of limitation as well as unjust enrichment; and agitated herein. - Matter remanded : AHMEDABAD CESTAT
Patel Engineering Limited Vs CCE, C & ST
Service Tax - Waiver of pre-deposit - Pay or Perish? High Court's Order of pre-deposit recalled and matter remanded to Tribunal to consider financial difficulty: demand was for about Rs. 33 Crores - CESTAT ordered pre-deposit of about Rs. 30 Crores and interest. High Court reduced Pre-deposit to 50 percent of the tax demand. Supreme Court allowed the appellant to file a review petition in the High Court.
In review order, High Court noted that the ground of financial incapacity or inability was not dealt with by the Tribunal, obviously because it was not pressed. The discussion was undertaken mostly on the contentions, touching upon the legality, or prima facie case.
Earlier order of High Court recalled and Tribunal's order set aside to remand the matter to Tribunal for the exclusive purpose of paving the way for the petitioner to urge the ground of their financial weakness, or inability, before the Tribunal - Appeal allowed by remand : ANDHRA PRADESH HIGH COURT
CC & CE Vs New Hindustan Rubber Works
ST - Notfn. 12/2003-ST - Management, Maintenance and Repairs service - Benefit is available provided there is documentary proof specifically indicating the value of materials - since respondents are showing the deemed sale of materials to the extent of 60% and 40% towards labour charges and not indicating the value of goods and materials actually sold, cost of materials is not excludible - O-in-O to the said extent restored: CESTAT
Penalty - Since there was a difference of opinion on same issue and the matter was referred to the Third Member, penalty not imposable in view of s.80 of the FA, 1994 - Revenue Appeal disposed of: CESTAT - Appeal disposed : MUMBAI CESTAT
Light & Life Academy Vs CCE
Service Tax - Stay / dispensation of pre deposit - "Commercial Training or Coaching Services" under Section 65 (105) (zze) of the Finance Act 1994 – Applicant firm conducting Professional Photography Programme in different courses and claimed the benefit of exemption notification No.24/2004-ST dt.10.9.2004 as it is a vocational training institute – denied in adjudication, tax demands confirmed with interest and penalties on firm and individual, agitated herein.
Held: On a plain reading of the Notification no.24/2004-ST dt.10.9.2004, the exemption benefit is extended to enable the trainees to seek employment or undertake self-employment directly after such training or coaching; and not to others who are already employed - In the present case, the persons who are joining courses are already employed which is apparently contrary to the conditions prescribed in the notification - case laws relied upon by the appellant are not applicable, as the present case relates to persons who are employed and impugned courses are to improve their career - applicant directed to deposit 50% of the tax; Rs.18,16,071/- which is appropriated in the adjudication order adjusted and further amount of Rs.12,00,000/- to be deposited within 8 weeks - Upon deposit of the said amount, predeposit of balance amount of tax along with interest and penalty waived on the applicants and its recovery is stayed till disposal of appeals. - Pre deposit ordered : CHENNAI CESTAT
CCE Vs Gopal Enterprises
Service Tax – Refund - Works contract – Respondents providing commercial or industrial construction service to HPCL; included in new entry at Section 65(105)(zzzza) of the Finance Act 1994 wef 01.06.2007 – Refund claims filed for tax paid prior to 01.06.2007 on the ground that the services being provided by them were covered by works contract service, which became taxable only w.e.f. 01/06/07 and hence during the period prior to 01/06/07 the same were not taxable – claims rejected in adjudication but allowed by Commissioner (Appeals); agitated by Revenue herein.
Held: No dispute that both the respondents during the period of dispute had provided the services of commercial or industrial construction which were taxable at that time under Section 65 (105) (zzq) readwith Section 65 (25b) - respondent's plea that during the period prior to 01/06/07, their activity would not be taxable is unacceptable in view of Delhi High Court ruling in the case of G.D. Builders - Tribunal also in the cases of Alstom Projects India Ltd. and Instrumentation Ltd. taken the same view - impugned orders holding that during the period prior to 01/06/07 the services of civil or industrial construction or erection, installation or commissioning, provided as indivisible works contract were not taxable, unsustainable; same set aside and the orders passed by the original Adjudicating Authority restored. - Appeals allowed : DELHI CESTAT
Gammon India Ltd Vs CCE, C & ST
ST -Amendment of Works Contract (Composition Scheme for Payment of Service Tax) Rules, 2007 by Notf. 23/2009-ST dt. 7.7.2009 is not a mere clarification of the earlier Rules -since the contract had commenced earlier, the amended rules would not apply: CESTAT
Works Contract - In the present case there is no doubt as to the nature of the contract -it involves supply of material as well as labour - Because there was a separate supply contract for the supply of transmission towers, it cannot be deduced that the Service contract is a pure labour contract without looking at the terms of the contract - facts clearly show that substantial portion of material is involved in the execution of the Service contract - not merely the nomenclature and form of the contract that should be seen - What is material is the form as well as substance of the Contract -both have to be examined before coming to a conclusion - After reading the contract, we have come to the conclusion that the Service Contract is a Works Contract: CESTAT
ST -Consumption of goods/Sale - The condition [clause (i) under explanation to Section 65 (105) (zzzza)] to be fulfilled for classifying a service under Works contract is that the transfer of property in goods involved in the execution of such contract is leviable to tax as sale of goods. Therefore, firstly, there must transfer of property in goods involved and secondly such transfer of property is leviable to tax as sale of goods - Commissioner has highlighted the fact that the materials get consumed in the process of erection and installation and therefore there is no sale of goods - In our view, this is not correct presentation of facts regarding use of material - In most case of Works contract involving structures, important component materials such as Cement and Steel can only be used in the manner depicted in the photographs - That is to say, these materials such as steel also remain present in the structure although they may remain embedded and not visible after the structure is completed - This does not mean that there is no sale of goods/materials - Going by the Revenue's reasoning, no such structure can be said to have arisen as a result of execution of a Works contract - Such reasoning goes against the very definition of Works contract - records shown by appellants indicate that a significant percentage of the total contract work under the ‘Service Contract' involves material component. Therefore we hold that there is transfer of property in goods involved in the execution of the Service Contract - appellants pay Sales Tax/Vat on the transfer of property in the goods involved in execution of the Service contract. Copies of VAT returns have also been placed on record. Therefore, the second aspect that goods in the Service Contract are leviable to tax as sale of goods is also fulfilled: CESTAT - Appeals allowed : MUMBAI CESTAT
BSNL Vs CCE & ST
Service Tax – Stay Order passed by Tribunal, directing pre deposit, challenged by appellant in HC – Writ dismissed by HC - Applicant had failed to deposit the directed amount within the stipulated time and also failed to produce any order staying the operation of order dated 10.02.2014 by any higher forum - Appeal dismissed for non-compliance with Section 35F of Central Excise Act, 1944. - Appeal dismissed : KOLKATA CESTAT
Standard Dry Cleaners Vs CCE & ST
ST - Appellant providing Dry Cleaning service - although registered with department, the appellant did not file any ST-3 return up to September 2005 and did not pay any service tax during period April 2004 to December 2005 - demand confirmed along with interest - penalty imposed u/ ss 77 & 78 only & not u/s 76 of FA, 1994 - Commissioner (A) upholding o-in-o - appeal before CESTAT - appellant contending that since their computer was down they could not deposit service tax and file returns; that since adjudicating authority had waived penalty u/s 76 by referring to s.80 of FA, 1994 penalties under other sections should not have arisen.
Held: On holistic reading of the O-in-O as well as O-in-A it is abundantly clear that having imposed penalty u/s 78, penalty u/s 76 was not imposed as it would tantamount to imposing double penalty - judgment cited in the O-in-O also were in support of that view - Nowhere in the O-in-O/O-in-A, there is even a whisper to the effect that S. 80 ibid has even been considered for the purpose of not imposing penalty u/s 76 - Thus, a mere mention of S. 80 in the order portion is nothing more than an inadvertence & of no consequence - even if the computer was down, the appellant could have filed the return manually and paid service tax by computing the same manually - statutory levies cannot be obviated for so long merely because the computer was down - having not informed the department, bonafide of appellant is not above board - It was only when the raid was conducted and they were caught that they admitted their violations - ingredients for invoking the provisions of Section 78 are conspicuously present in this case and penalty of Rs.1000/- imposed u/s 77 is also obviously imposable - Appeal dismissed: CESTAT - Appeal dismissed : DELHI CESTAT


Saradha Travels Vs CST
ST - Condonation of delay - Order-in-Original was pasted on the premises of the appellant on 06.10.2010 under a Mahazar before two independent witnesses as required under Section 37C(b) of the CEA, 1944, since the appellant was not available in the premises and the premises was also locked - This date is the effective date of service - However, the appellant construed as if the order was affixed only on 06.10.2011 and filed an appeal before the Commissioner (Appeals) along with a petition to condone the delay of 32 days - However, the Commissioner (Appeals) held that the date of service of summons was 06.10.2010 and not 06.10.2011 and dismissed the appeal - Tribunal also upheld this order and dismissed the appeal relying on the decision of apex court in Singh Enterprises - appeal to High Court.  Held:  Court is in full agreement with the cited decisions and, therefore, not inclined to entertain the appeal - Tribunal order is confirmed - Appeal dismissed: High Court - Appeal dismissed : MADRAS HIGH COURT
CCE Vs Bharat Sanchar Nigam Ltd
CENVAT - Rule 2(l) of CCR, 2004 - Service Tax paid on rent-a-cab service during the period October, 2009 to September, 2010, whether eligible for credit as Input service - Revenue appeal is on the ground that the rented cabs were not exclusively used for the purpose of providing output service - Commissioner (A) has given a categorical finding that the cabs in respect of which credit has been taken were used for providing output service which would clearly make the impugned credit admissible - In the grounds of appeal, Department has merely stated that the impugned cabs were not exclusively used for the purpose of maintenance etc. but have not given any evidence to that effect – also no evidence produced to counter that the observation in the impugned order-in-appeal are factually incorrect – no infirmity in order – Revenue appeal rejected: CESTAT - Appeal rejected : DELHI CESTAT
Agencia Comercial Maritima Logistics Pvt Ltd Vs CCE, ST & CC
ST - Commissioner confirming service tax demand on the ground that appellant has provided Cargo Handling Service – Appellant filing appeal before CESTAT and pleading that submissions made by them were not at all considered by adjudicating authority . Held: From the contents of paragraphs 19 & 23 of o-in-o, it can be seen that the Commissioner has left the analytical work of analysing the case of the department, the ground taken in SCN & reply etc. to the Tribunal and which is unacceptable – matter remanded for fresh decision with a direction to consider submissions made and pass a well-reasoned order whereby it would be possible for the appellate authority to consider whether the basis for reaching a conclusion adopted by the original authority is sound and whether the demand can be confirmed or not – Matter remanded: CESTAT - Matter remanded : BANGALORE CESTAT
K Shanmugavelu Vs CCE
ST - Appellant had entered into contract with TNEB to facilitate erection of electricity transmission tower – in terms of notfn. 45/2010-ST dt 20.07.2010 issued under s.11C of the CEA, 1944 r/w s.83 of FA, 1994, the Central government has exempted all taxable services relating to transmission and distribution of electricity for the period up to 26.02.2010 & 21.06.2010 respectively – in the present case the demand of tax is for the period May 2006 to May 2007 relating to transmission of electricity - in view of the s.11C notification, demand of tax is not sustainable – order set aside and appeal allowed with consequential relief: CESTAT - Appeal allowed : CHENNAI CESTAT
Triveni Structurals Ltd Vs CCE
ST - Since the appellant had preferred an appeal against the entirety of the adjudication order which included imposition of penalties thereunder as well and the issue regarding validity of imposition of penalty was equally the subject matter of appellate proceedings pending before the appellate Commissioner since 25.5.2007, the date on which the appeal preferred to that authority had culminated in the order dated 29.8.2007 dismissing the appeal, the initiation of revisional proceedings is unsustainable - revisional proceedings initiated by the show cause notice dated 13.9.2007 and culminating in the impugned order in revision dated 31.1.2008 are in clear transgression of provisions of Section 84(4) of the Act – Appeal allowed: CESTAT - Appeal allowed : DELHI CESTAT
CCE Vs Chaman Color Lab & Studio
ST - Valuation - Photography Service - Respondent is liable to pay service tax on the gross amount charged and the exclusion from the assessable value of the value of paper and other consumables and chemicals used for providing photography service was not permissible - issue stands decided in favour of Revenue by LB Tribunal in case of Agarwal Colour Advance Photo System : CESTAT
Limitation - s. 73 of FA, 1994 - period of demand is from September 2003 to March 2005 and SCN issued on 23/07/2007 - during the period of dispute there was divergence of views on account of conflicting judgments of Tribunal/High Courts and assessee had paid tax in accordance with one group of judgments which were in his favour - respondent having acted bonafide, longer period of limitation is not available to Revenue - demand is time barred - for the same reason, penalty u/s 78 is also not imposable - Revenue appeal dismissed: CESTAT - Appeal dismissed : DELHI CESTAT
Tafe Access Ltd Vs CCE
Service Tax - Stay / dispensation of pre deposit – Valuation in respect of "Authorised Service Station and Repairs Service" – reimbursements received in the course of rendering taxable service viewed as includible for assessment to tax; demands confirmed and disputed herein.
Held: Earlier stay order dated 18.02.2013 in appellant's own case applicable; which discussed notification No.12/2003-ST dated 20.06.2003, holding prima facie eligibility to exemption under it - pre-deposit of tax along with interest and penalty waived till disposal of the appeal. - Stay granted : CHENNAI CESTAT




CENTRAL EXCISE
Bilag Industries P Ltd Vs CCE
CENVAT - Corporate office is situated in the registered premises as shown in the ground plan - sister concern is an 100% EOU unit - supply of steam made to EOU cannot be considered as “exempted” goods in view of rule 6(6)(ii) of CCR, 2004 - cenvatted Furnace oil used to generate electricity and steam which is supplied to sister concern & corporate office - reversal of CENVAT credit and payment of amount under rule 6 is not warranted - issue of admissibility of such credit was under litigation and different courts have given different interpretations regarding admissibility of CENVAT Credit on inputs involved in this issue - extended period is not invokable - Appeal allowed: CESTAT  - Appeal allowed : AHMEDABAD CESTAT
Shri Sachin Gandhi Vs CCE & ST
Central Excise – Undervaluation – assessable value adopted for impugned clearances contested by Revenue, differential duty demands with interest and penalties confirmed in adjudication, agitated before Tribunal, remanded to original authority and (re)confirmed in denovo adjudication, now agitated herein.
Held: As per the SCN, main appellant (Magna Laboratories) was to show cause as to why the price of the goods as has been charged by M/s US Vitamins be not considered for discharge of excise duty – lower authority in the impugned denovo order has abandoned the allegations made in the show cause notice and has held that the price charged by M/s US Vitamins Ltd. cannot be the price on which excise duty can be demanded from the main appellant - he has gone beyond the allegations and has confirmed demands by recording findings beyond scope of the show cause notice, fatal to the case of revenue in terms of Apex Court ruling in Bellarpur case – in view of the authoritative judicial pronouncements to the effect that the duty, interest and penalties on all appellants on a ground different from the allegations made in the show cause notice, is unsustainable and liable to be set aside. - Appeals allowed : AHMEDABAD CESTAT
CCE Vs Thiagarajar Mills Ltd
Central Excise – CENVAT credit - issue involved is whether the amount equivalent to the credit originally taken has to be reversed or not for the clearance of the capital goods after usages for a considerable period; with department viewing that credit originally availed is to be reversed.
Held: The issue should be examined in the light of the decision of the Larger Bench in the case of Navodhaya Plastic Industries - impugned orders set aside and remitted to the adjudicating authority to decide afresh after considering the cited decision and the submission in the context of utilization of unutilized credit. - Matter remanded : CHENNAI CESTAT
Bharat Oman Refineries Ltd Vs CCE
Central Excise - Registered premises - appellant, manufacturer of petro products, filed an application to amend their approved ground plan of Central Excise registration to include the pipeline laid down from Wadinar (Gujarat) state to the refinery at Bina (M.P.), on the ground that the pipelines laid down on various parts of the land and areas in India/used for the ground pipelines were forming of integral part of premises of the refineries - request rejected on the grounds inter alia that the various locations of the pipeline are outside the jurisdiction of Central Excise Division, Sagar; that in terms of Rule 9 of Central Excise Rules, 2002, permission as regards registration of the manufacturer is restricted to the premises where manufacturing activity is being carried out; that the activity of lying and jointing of pipes does not come under the purview of manufacture of excisable goods; and as such the location of pipelines which runs from Gujarat State to M.P. cannot be regarded as precinct of the noticees refinery - same upheld by Commissioner (Appeals) and agitated herein.
Held: A combined reading of statutory definitions of factory and manufacture in Sections 2(e) and 2(f) of the Central Excise Act 1944, makes it clear that while obtaining registration for carrying out any manufacturing activity, the approval of the ground plan would relate to manufacturing premises or factory - In various judicial pronouncements, the factory premises and precincts have been interpreted to mean all building or complex with its surroundings where manufacturing activity is taking place - The transportation of the crude oil through the pipelines which travel through various States of India cannot be held to be a process integrally connected with the final manufacturing so as to include the same with the refinery functions - definition of factory covers the premises and precincts of factory and not the premises or precincts beyond the factory premises and a dam reservoir located away from the factory cannot be treated as within the factory premises - in the present case, it is seen that the pipelines laid down beneath the land for transportation of the crude travel through various States and is primarily meant for transportation of the raw material - The entire area of the pipeline is around 900 Kms. of length - To allow the registration of the same by holding the same to be a factory premises or precinct thereof would mean allowing the road area used by transportation of the raw materials by a truck - no justification in the above prayer of the appellant. - Appeal rejected : DELHI CESTAT
Singla Forgings (P) Ltd Vs CCE
Central Excise – CENVAT credit – Appellant firm, engaged in manufacture of MV Parts, availed credit on invoices issued by HSAL without physical receipt of material, evidenced in proceedings against HSAL - investigations were conducted at the appellants end wherein the authorised signatory admitted that they have availed the Cenvat credit against eight invoices of M/s HSAL, without receiving the goods physically; that it was erroneous credit and voluntarily debited Cenvat Credit involved – demand for recovery adjudicated with interest and penalty on firm and individual, payment appropriated; upheld by Commissioner (Appeals) and agitated herein.
Held: investigations conducted at the end of the manufacturer, transporter as also the appellant resulted in emergence of evidence clearly pointing out to the fact of wrong availment of credit – irrefutable conclusion that the appellant had taken the credit on the basis of the Cenvatable invoices issued by M/s HSAL, without actually receiving the goods – case law relied upon by appellants stand distinguished - no merits in the appellants contention as regards the demand being barred by limitation - fraud committed by the appellant stands unearthed by the Revenue only at the time of exhaustive investigation, hence longer period of limitation is rightly invoked by the Revenue - fact of payment of the Cenvat credit by reversing the entries in the Cenvat account before the issuance of the Show Cause Notice is not sufficient to accept the appellants contention that no penalty should be imposed - In cases of fraud, mere deposit of the duty before the issuance of the Show Cause Notice is not sufficient for non-invocation of the penal provision - no merits in the present appeals. - Appeals rejected : DELHI CESTAT

Vandana Dyeing Pvt Ltd Vs CCE
CE - Appellant receiving fabrics [Chapter 52, 54, 55 & 58 of the CETA, 1985] under rule 4(5)(a) of CCR, 2002 and undertaking the process of washing and stentering and thereafter returning the goods to supplier of fabrics - department of the view that since stentering amounts to manufacture appellant as a job worker should have discharged excise duty liability - duty demand confirmed by lower authorities - appeal to CESTAT. Held: Liability to pay duty in respect of goods moved under rule 4(5)(a) of CCR is on the supplier of the goods and not on the job worker - notwithstanding the fact that the processed fabrics are not included in notfn. 214/86-CE, job worker is not liable to discharge CE duty and any liability thereon is to be discharged by supplier of raw materials - rule 4(6) of the CCR makes it abundantly clear that if the goods are to be cleared from job worker's premises instead of being returned to supplier, then Commissioner can direct clearance on payment of duty from job worker's premises and this would indicate that liability to discharge duty under rule 4(5)(a) is on supplier and not on the processor of goods - order is not sustainable in law and merits, hence set aside - Appeal allowed: CESTAT  - Appeal allowed : MUMBAI CESTAT
Zuari Cement Ltd Vs CCE, C & ST
Central Excise - Clearance of goods - Appellant, manufacturer of cement, cleared cement in bulk to consumers like Contractors, Apartment Builders, Developers, Construction Companies - In view of the decision of High Court, the consumers in question are considered as industrial/institutional consumers in terms of Legal Metrology (Packaged Commodities) Rules, 2011 - Matter remanded to Commissioner for fresh consideration - Appeal disposed of. - Appeal disposed of : BANGALORE CESTAT
Senor Metals P Ltd Vs CCE & ST
CE - Appellant, in addition to manufacturing their own products is also undertaking job work of other parties who are availing the benefit of SSI exemption notfn. 8/2003-CE, dt. 01.03.2003 - For the job work activities, brass scrap is received by the appellant under challans in terms of Notfn. 83 & 84/1994-CE, dt. 11.04.1994 - Revenue alleging that billets/bars, which come into existence in the factory premises of the appellant, are not specified goods under notification no.8/2003-CE and hence the benefit of exemption notifications no.83 & 84/1994-CE will not be available - Demand confirmed by CCE, Rajkot - appeal to CESTAT - Appellant submitting that as per the undertakings given by the suppliers of the raw materials the entire duty liability of the goods manufactured by the appellant is required to be discharged by the supplier of the raw material and no duty can be demanded from the appellant; that intimations filed with the jurisdictional CE authorities by the raw material suppliers and also the challans under which the raw materials were received and the finished specified goods supplied back to the raw material suppliers; that periodical returns were filed and hence demand time barred. - Appeal dismissed : AHMEDABAD CESTAT
Stan Commodities Pvt Ltd Vs CCE & ST
Central Excise - Application seeking restoration of appeal dismissed earlier on the ground that no communication of hearing was received from the Tribunal - From the records, it is seen that the letters/communications had been issued from time to time by the Registry on the address mentioned in the EA-3 Appeal Form and the same were not returned, as undelivered, by the postal authorities - No substance in the argument of the appellant that they have not received either the notices of hearing or the orders from the registry, for the simple reason that they had received the subsequent communication sent to them in August, 2013 on the same address mentioned in the EA-3 Appeal Form - Section 37C lays down about the procedure for service of decisions/orders, summons etc. In the present case, the notices/orders were dispatched, following the procedure laid down under Section 37C and the same were not returned by the postal authorities as undelivered. Hence, the orders were delivered/communicated to the Applicant - No merit in the application. - Application dismissed : KOLKATA CESTAT
CCE Vs Indian Oil Corporation Ltd
CE - Valuation - s.4 of CEA, 1944 - Import Parity Price is not an artificially fixed price - It is an actual price at the time and place of import which is also place for the sales effected by the Refinery or OMC to another OMC - To say that such a price is an artificially fixed notional value is completely contrary to facts - Import price cannot be influenced by the marketing companies situated in India - Therefore, there is a major flaw in the reasoning adopted in the order relied upon by the Revenue - import price agreed between one OMC and another based on the MOU reached between them can be considered as a transaction value - Order of Supreme Court in case of HPCL prevails over all other decisions - Revenue appeal dismissed: CESTAT  - Appeal dismissed : MUMBAI CESTAT
Premium Bars Pvt Ltd Vs CCE & ST
CE - Clandestine removal - Excess stock of Raw material and shortage of finished goods coupled with seizure of un-accounted cash of Rs.22.5 lakhs at the residential premises of Director are facts which do indicate that appellant company was indulging in duty evasion - allegation of duty evasion of Rs.1,98,10,357/- against the appellant company is not merely based on oral evidence but is also based on the documents recovered from factory premises of PBPL and also from the premises of their raw-material suppliers and their customers - apart from the monies paid and cash seized, appellant directed to make a further deposit of Rs.44 lakhs for obtaining stay: CESTAT  - Pre-deposit ordered : DELHI CESTAT
Rane Engine Valve Ltd Vs CC, CE & ST
Central Excise – CENVAT Credit – Eligibility – Revenue denied the CENVAT credit availed by appellant's manufacturing unit of automobile parts in respect of the input services – Commissioner (A) rejected appellant's appeal for non-compliance with pre-deposit order – In view of the several decisions of various High Courts and Tribunal, appellant is prima facie eligible for the credit on the input services – Matter remanded to Commissioner (A) for fresh consideration without insisting on pre-deposit – Appeal disposed of. - Appeal disposed of : BANAGALORE CESTAT
CCE Vs Gupta Coal Field & Washeries Ltd
CENVAT – Credit taken of service tax paid on services of Road construction, photocopying, fees for valuation of construction, fees for rating for bank loan, excavation of pond, insurance policy for employees, JCB piston repairing, security charges on railway siding, transportation of coal from plant to railway siding are Input Services as they have been availed by the respondent for their activity of coal washing – there is no doubt that all the services availed by the respondent are for the activity of coal washing only – respondent is entitled for CENVAT credit of service tax paid on these services – no infirmity in order of Commissioner (A) – Revenue appeal dismissed: CESTAT - Appeal dismissed : MUMBAI CESTAT
Rasi Tex (India) Pvt Ltd Vs CCE
Central Excise – Condonation of Delay (COD) – application pleading that the Manager who handles this case had received the impugned order and left the service without handing over case papers to his successor.
Held: Reason for delay is the misplacement of the record by the employee of the appellant Company - It is not the case of the applicant that the Manager had left the Company with the case file; it is the duty of the successor to trace the files lying in the office - applicant appeared in personal hearing before the Commissioner (Appeals); thus, they were well aware of the proceeding - There is a gross negligence and inaction on the part of the applicant - Allahabad High Court in the case of Prem Heavy Engineering Works dismissed the application filed by the assessee of a delay of 41 days in filing the appeal before the Tribunal for the reason that the Managing Director of the Company was the only responsible officer left in the factory due to sickness - It is consistently held by the High Court and the Tribunal, that the delay cannot be condoned for the same reason that the record was misplaced by the employee of the company - no substance in the application filed by the applicant; accordingly, COD application is rejected. - Appeal dismissed : CHENNAI CESTAT
Sun Pharmaceuticals Industries Ltd Vs CCE & ST
CENVAT - Excess amount of credit reversed at the time of removal of inputs ‘as such' cannot be adjusted against instances where lesser amount was required to be reversed - proper procedure is to file refund claim - appellant has not made out a case for waiver - pre-deposit ordered of Rs.60,000/-: CESTAT - Pre-deposit ordered : AHMEDABAD CESTAT
Vapi Paper Mills Ltd Vs CCE
Central Excise - Penalty - common issue involved in these appeals is regarding imposition of penalties under Rule 25 for violating the provisions of Rule 8 of Central Excise Rules, 2002; disputed by Party and Revenue on imposition / non-verification respectively, herein.
Held: Appellant-assessee has paid the amount through PLA along with interest - If the said duty liability which has been fastened on him for making payment through PLA is discharged along with interest, the provisions of Rule 8(3) have been more or less complied with - In terms of Gujarat HC ruling in Saurashtra Cements case, appeal allowed to the extent of penalty under Rule 25 - however, appellant liable to be penalized under Rule 27 of Central Excise Rules, 2002 - Revenue's appeal is devoid of merit as the appellant has already made the payment due to the Central Government along with interest; hence rejected. - Appeals disposed of : CESTAT AHMEDABAD
Chief Workshop Manager Central Workshop Southern Railway Vs CCE
CE - Condonation of delay of 413 days - delay is on account of obtaining requisite departmental approval from higher authorities for filing appeal – such a reason cannot be accepted as sufficient cause for condoning the delay - COD applications rejected and appeals dismissed: CESTAT - Appeal dismissed : CHENNAI CESTAT
Ultra Tech Cement Ltd Vs CCE
CENVAT credit – Cement received through water channel at Navi Mumbai from mother plant located in Gujarat – Cement cleared from mother plant on payment of duty as per weighment done there – goods later shipped to JNPT and the cement was unloaded into road tankers which carried the cement to appellant's factory at Navi Mumbai – loaded tankers were weighed at weighbridge before and after unloading the cement – difference in weight of cement – on occasions it is in excess and sometimes there is short receipt – department denying credit when cement short received – appellant submitting that the maximum difference works out to 2% and which is only a mirage difference – denial of CENVAT credit – appeal to CESTAT. Held: there is no allegation that goods have been diverted during transit or there is any pilferage of the goods during the course of transportation – if the appellant had not weighed the inputs in their factory they were entitled to take credit on the quantity shown in invoice – loss occurred only due to the various methods of weighment – CENVAT cannot be denied – orders set aside and appeals allowed with consequential relief: CESTAT - Appeals allowed : MUMBAI CESTAT
Oriental Containers Ltd Vs CCE
CENVAT – Credit of duty paid on Outward transportation service – Karnataka HC in case of ABB Ltd. - allowing credit but there is a contrary decision of Calcutta HC in Vesuvious India Ltd. - in view of two contrary decisions, applicant has made out a case for 100% waiver of pre-deposit – pre-deposit waived and stay granted: CESTAT- Stay granted : MUMBAI CESTAT
Mainetti (India) Pvt Ltd Vs CCE
Central Excise - Stay / dispensation of pre deposit – Refund/Rebate under Rule 18 of the Central Excise Rules 2002 – Appellant cleared credit availed material to their SEZ Unit, reversed corresponding credit under Rule 3(5) of Cenvat Credit Rules 2004 and claimed rebate – rebate sanctioned in adjudication, agitated by Revenue, set aside by Commissioner (Appeals), now agitated by appellant herein.
Held: Rule 18 provides for rebate of duty paid on excisable goods or duty paid on clearance in the manufacture of processing of such goods - the applicant claimed rebate on the duty paid as input credit in the raw materials which is prima facie covered by Rule 18 of the said Rules - Accordingly, predeposit of duty is waived and its recovery is stayed till disposal of appeals.- Stay granted : CHENNAI CESTAT
Roca Bath Room Products Pvt Ltd Vs CCE
Central Excise - Stay / dispensation of pre deposit – Demand – applicant, manufacturer of POP Moulds, cleared them for captive consumption and claimed exemption under Notification No.67/95-CE, dated 16.03.1995 – after goods were repeatedly used it was cleared as waste and scrap of POP moulds – Revenue viewed that they are treatable as moulds and not waste/scrap, confirmed demands agitated herein.
Held: on an identical issue the Tribunal granted unconditional stay in the applicant's own case for the earlier period vide Misc. Order No.41435/2013, dated 22.05.2013 – impugned POP moulds cannot be treated as duty paid capital goods and prima facie, Rule 3(5A) of Cenvat Credit Rules, 2004 would not apply – JNM Fibres decision relied upon by Revenue distinguished in context - Tribunal consistently granted stay on similar issue - pre-deposit of duty along with interest and penalty waived, demands stayed till disposal of the appeal.- Stay granted : CHENNAI CESTAT

CUSTOMS
Qimiti Lal Sharma Vs CC
Customs – Penalty - primary allegation of Revenue is that the CHA appellant Qmity Lal was involved in the mis-declaration of export to enable the exporter to make fraudulent claim of DEPB benefit for which he was bound to suffer penalty. Held: Impugned order reveals that one Shri Vijay Madaan who was representative of CHA appellant had forged signatures and also substituted antedated documents to defraud Revenue, apparently with connivance of some of the customs officers - no evidence to show that the appellant was innocent - Customs area is a sensitive place where the protection of Revenue as well as security of the country is involved - matter sent back to Adjudicating authority to make a full inquiry as to ascertain who had forged the signatures and who were involved in antedating the documents and issuing summons to Qimiti Lal Sharma and also Vijay Madaan shall discover the truth behind the scene - appellant directed to appear and participate in the inquiry as well as re-adjudication of the matter - authority shall take into consideration the result of his enquiry before passing the order confronting the same to the appellant. - Matter remanded : DELHI CESTAT
CCE Vs Hi-Tech Medical Products Ltd
Cus - Allegation of contravention of conditions of LOP and contravention of the provisions of Customs (Import of goods at concessional rate of duty for manufacture of excisable goods) Rule 1996 & duty involved in imported raw material i.e. cannulae demanded - when the unit was de-bonded on 25.3.2004 and no objection certificate was issued by the department there was no dues pending against the assessee - on this ground as well as on limitation, Revenue's appeal was rightly rejected by Commissioner (Appeals) – Revenue in appeal before CESTAT. - Matter remanded : DELHI CESTAT
Unison Hotels Ltd Vs CC
Customs – Condonation of delay & Stay / dispensation of pre deposit – Appellant Hotel imported BMW 730 LD Limousine cars under EPCG Scheme vide Notification No.97/2004-Cus. dated 17.09.2004 – Investigation revealed that the cars were deployed for private use; applicant had not maintained any log book and failed to produce any evidence that any payment was received in freely convertible foreign currency – cars seized, confiscation, RF option, duty demand with interest and penalties on Hotel and individual adjudged; now agitated herein.
Held: applicant inadvertently filed the appeal in the O/o Commissioner (Appeals) within the statutory time; subsequently filed with Tribunal on realizing error - delay in filing the appeal condoned.
EPCG Scheme provides that the vehicle imported is to be used for tourist purposes only - Clause (4)(ii) of Para 5 of Notification No.97/2004-Cus requires earnings in foreign exchange - Prima facie, no material available to evidence that the imported cars were used for tourist purposes - there is violation of exemption notification as the applicant failed to produce any evidence that the payments were received in freely convertible foreign currency for services rendered to use of the cars - no prima facie case made out for waiver of pre-deposit of the entire amount of duty along with interest and penalty – applicant directed to pre deposit entire amount of duty, Revenue to encash bank guarantee to that extent within six weeks – upon compliance, predeposit of balance waived and recovery of dues stayed during pendency of appeal. - Pre deposit ordered : CHENNAI CESTAT
Srithai Superware India Ltd Vs CC
Cus - Commissioner (Appeals) has not followed the law to decide the appeal - An appellate Commissioner has to first determine the points in dispute which is normally called as issues to proceed with the appeal - Unless he lists the issues, it is difficult to understand what was in controversy and how appellate authority addressed the wrong done to the aggrieved - That shall not be known to law - No doubt there may be case for Revenue but by one sentence, the appeal of Revenue cannot be allowed - It appears that the respondent was altogether deprived from the process of justice and in absence of recording the arguments and evidence of the respondent, the order cannot be said to be the order passed by application of mind - To cure the defect as above, which is touching the root of the matter and violation of natural justice being patent, is incurable at the appellate stage, matter remanded: CESTAT - Appeal allowed by way of remand : DELHI CESTAT
CP Aqua Culture India Pvt Ltd Vs CC
Customs – Refund – Appellant, a 100% EOU, exported shrimp during 2001-02 and paid cess under the Agricultural Produce Cess Act, 1940 – Later claimed exemption under Notification No. 451/2001 dated 30.6.2001 and sought refund of cess already paid, on 29.04.2004 – claim rejected in adjudication on the ground that it is hit by limitation under Section 27(1)(b) of the Customs Act, 1962 and also on the ground of unjust enrichment; rejection upheld by Commissioner (Appeals) and agitated herein.
Held: Force in Revenue's contention that refund claim was filed on the basis of the exemption Notification No. 451/2001 dated 30.6.2001 which would be governed by Section 27 of the Customs Act, 1962 and accordingly, both the authorities below had rightly rejected the refund claim on the ground of time limit and unjust enrichment - However, subsequent development in this matter as decided by High Court and the Tribunal that Prawns and Shrimps are not fish and is not covered to the Schedule of the said Cess Act, 1940, requires to be examined by the lower authority in the interest of justice - adjudicating authority directed to examine the refund claim in the light of the High Court ruling in accordance with law, after providing reasonable opportunity of hearing to the appellant before passing an order. - Matter remanded : CHENNAI CESTAT
CC Vs Advance Components Engg.
Customs – EOU - De-bonding – Depreciation on the value of capital goods imported but not used fully for the purpose of manufacture so as to discharge export obligation: , while respondent has target of one lakh pieces to export, it exported 300 pieces during the entire export period. Upon debonding of unit, Adjudicating authority allowed depreciation on the value of capital goods imported.

Held: depreciation is admissible once there was export obligation discharged even partly irrespective of quantum of export made in absence of any clause in the notification for disallowance against partly discharge of export obligation. Therefore there shall be allowance of depreciation on the capital goods imported to calculate the value thereof for the purpose of recovery of duty foregone. Respondent shall be entitled to depreciation.
Matter remanded to calculate quantum of depreciation. - Appeal disposed of: DELHI CESTAT
Proflex Systems Vs CC
Customs – Refund – claims filed under Notification No. 102/2007-Cus, dt.14.09.2007 rejected primarily on the ground that the imported goods are not sold as such and thus appellant is not eligible to refund; agitated herein.
Held: Issue involved in the present appeals is whether the appellant is entitled to the refund of Special Additional Duty (SAD) paid at the time of import under Section 3(5) of Customs Tariff Act, 1975 as per cited notification – Under Clause 2(d) of the notification, importer is required to pay sales appropriate sales tax or value added tax on subsequent sales of the imported goods - From the working arrangement between applicant and customer, it is seen that quantity of imported goods used or sold is not known till the completion of the contracted work (Roof) - In the final invoices also, it is not separately shown as to how much quantity of imported goods have been sold to the clients; unused quantity of material/wastage also remains the property of the appellant - The rate of laying of 'Proflex Roof' is also charged on per square meter including the value of the materials, and final retail invoice is issued after completion of work when the imported goods are not at all existing in the form they were imported - When the deemed sale of the material takes place, the imported goods do not exist as such but what exists is the 'Proflex Roof' - facts of the present case different from the facts of the case before Gujarat High Court in the case of Posco India Delhi Steel Processing Centre - the relied upon case law inapplicable to the facts & circumstances of the present appeals. - Appeals rejected : AHMEDABAD CESTAT
J U Pesticides & Chemicals Pvt Ltd Vs CC
Customs - Stay / dispensation of pre deposit - Classification - Applicant imported pesticides in bulk and classified it under Chapter 29, declined by Revenue, viewing that the goods fell under chapter 38 - duty demand adjudicated; Commissioner (Appeals) dismissed case for non-compliance of stay order; and agitated herein.
Held: Issue covered by the Apex Court ruling in the Pesticides Manufacturing & Formulations Association case - judgment held that technical grade pesticides in bulk form are covered under Heading 38.08 - goods in question are technical grade pesticides in bulk form - applicants failed to make out a prima facie case for waiver of predeposit of entire dues; hence directed to predeposit the entire amount of duty within a period of eight weeks - upon compliance, predeposit of the balance dues stands waived and recovery thereof stayed during the pendency of the appeals. - Pre deposit ordered : CHENNAI CESTAT
CC Vs Shilpa Trading Company
Cus – Undervaluation – Tribunal holding that no redemption fine is imposable when the bond and bank guarantee executed by the assessee has already been cancelled – Revenue in appeal.
Held: It is clear that when goods are liable for confiscation, and confiscated and released to the assessee on his executing a bond or bank guarantee, the proceedings are concluded holding that if there is a violation of the provisions of the Act, then the order of confiscation has to follow as a matter of course - As the goods are already released in favour of the assessee instead of again taking possession of the confiscated goods, the law provides for payment of fine in lieu of confiscation which is popularly known as redemption fine - Therefore, whether the bond executed by the assessee is in force; whether the bank guarantee executed for due compliance of the bond is in force or not; whether goods are in possession of the authority or not; whether the goods in existence or not on the day when order was passed is totally irrelevant – Order of Tribunal set aside and Revenue appeal allowed: High Court
Confiscation - Question for consideration is whether the assessee has contravened the law and the goods are liable for confiscation - Once that finding is recorded in lieu of confiscation of the goods an option is given to the assessee to pay confiscation fine i.e., redemption fine to retain the goods - In that view of the matter, the finding recorded by the Tribunal runs counter to the judgment and law laid down by the Apex Court in the case of Weston Components Ltd., - impugned order cannot be sustained: High Court - Revenue appeal allowed : KARNATAKA HIGH COURT


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ay 2011-12,2,itax calculator fy 10-11,1,itns 280,2,itns 281,1,itns 282,1,itns 283,1,itns281,2,itr -3 excel 2010-11,1,ITR 11-12,2,itr 2 excel,2,itr 2 rpu,3,itr 4 e filing utility,4,itr 4 fy 2010-11,1,itr 4 rpu,1,ITR EFILING SOFTWARE,10,ITR FORM 12-13,5,itr form 13-14,16,itr form 2 ay 2011-12,1,itr form 2008-09,4,itr form 2011-12,4,itr form 2013-14,1,ITR FORM SAHAJ,14,ITR FORM SELECTION,3,ITR FORM SUGAM,6,itr forms,22,itr forms ay 2009-10,4,ITR RPU 2010-11,2,ITR RPU AY 2008-09,2,ITR RPU AY 2009-10,1,ITR SOFTWARE,3,itr sugam,5,ITR V STATUS,4,ITR WORD FORMAT,1,itr-1 2010-11 ay,6,ITR-1 EXCEL 08-09,2,ITR-1 EXCEL 11-12,1,ITR-1 rpu in excel free,1,ITR-2 AY11-12,2,ITR-2 EXCEL 08-09,2,itr-2 excel 2010-11,4,ITR-2A,1,ITR-3 EXCEL 08-09 AND ITR 4 EXCEL 08-09,1,itr-3 rpu,1,itr-4 efiling .itr-5 efiling,5,ITR-4S SUGAM,3,ITR-5 EXCEL,2,itr-6,1,ITR-7,2,ITR-V,26,itr-v status,19,jan 2012 da rate,3,jan lokpal bill,5,jan lokpal vs lokpal bill,2,JAVA BASED INCOME TAX RETURN FORMS,1,JCO,1,Jewellery,5,job switch,2,Job work,4,joint employment,1,joint name,4,judicial decision,1,karnataka high court case,5,key highlights,1,kisan vikas patar,1,KKC,2,KNOW ALL ABOUT TDS,1,KNOW PAN STRUCTURE,5,know the ip address of sender yahoo mail,3,KNOW YOUR,10,KNOW YOUR CST NUMBER,5,know your customer,6,KNOW YOUR DIVISION CODE,1,know your epf balance,12,know your ip address,1,KNOW YOUR LOCATION CODE,2,know your pan,17,know your pan address,2,KNOW YOUR PPF,10,know your refund status,20,KNOW YOUR REFUND STATUS ONLINE,10,KNOW YOUR SERVICE TAX NUMBER,8,know your tax deducted,2,know your tax deposited,2,KNOW YOUR TIN,8,KNOW YOUR VAT/TIN NUMBER,4,Krishi Kalyan Cess,15,krishu kalyan cess,1,KV Kamath,1,kvp,7,kyc,11,LAHMAN BROTHERS,1,land lord pan must,2,laptop,1,LARGE TRANSACTION,3,last date to deposit tds,1,LAST DATE TO FILE ETDS RETURNS,2,last date to file itr 2007-08 extended,1,late deposit of tds,2,LATE FILING OF ITR-V,20,late funishing of return,4,late payment of service tax,4,latest depreciation 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SIMPLE TAX INDIA: RECENT UPDATES IN DIRECT & INDIRECT TAXES AND IN OTHER AREAS OF PROFESSIONAL INTEREST
RECENT UPDATES IN DIRECT & INDIRECT TAXES AND IN OTHER AREAS OF PROFESSIONAL INTEREST
SIMPLE TAX INDIA
http://www.simpletaxindia.net/2014/07/recent-updates-in-direct-indirect-taxes.html
http://www.simpletaxindia.net/
http://www.simpletaxindia.net/
http://www.simpletaxindia.net/2014/07/recent-updates-in-direct-indirect-taxes.html
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