Newsletter: Where Service Meets Reader Approval.
TMI Tax Updates - e-Newsletter
March 18, 2013
Case Laws in this Newsletter:
Income Tax
Customs
Corporate Laws
Service Tax
Central Excise
CST, VAT & Sales Tax
Indian Laws
News
Notifications
Circulars / Instructions / Orders
Highlights / Catch Notes
Income Tax
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Central Processing of Income Tax Returns - HC issues direction relating to rectification u/s 154 - adjustment of tax due with refund - interest on refund u/s 244A - Non filing or wrong filing of TDS returns by the deductor with regard to Tax Credit - HC
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Disallowance u/s. 36(1)(viia) - advances from their Rural Branches - deduction u/s 36(1)(viia) is to be allowed only on the amount of provision made for bad and doubtful debts subject to the maximum on the basis of rural advances/ income prescribed under that section - AT
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Minimum Alternate Tax (MAT) - Sec.115JB cannot be applied to the banking company. - AT
Customs
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Non-discharge of duty liability on the inputs consumed for manufacturing of LPG - No removal of inputs as such - no duty requires to be paid if inputs are consumed that in an EOU, as it is treated as warehouse. - AT
Corporate Law
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Professional and other misconduct - submission of forged and fabricated income-tax returns - though membership was cancelled but represented as a member of ICAI - removal extended to 5 years as against 2 years as suggested by ICAI - HC
Service Tax
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Commercial and Industrial Construction Services - The appellants are liable to pay service tax under Works' Contract services with effect from 1.6.2007 - Demand confirmed invoking extended period of limitation - AT
Central Excise
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The delay (6 months) in taking the credit is only due to delay in endorsing the Bills of Entry by Customs authorities and therefore, benefit of MODVAT credit cannot be denied to the Respondent - HC
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Service of order - revenue can not take the shelter of provisions of Section 37C of the Central Excise Act as these provisions are only for the Department - AT
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Demand of differential duty - Revenue adjusted rebate (refund) from Unit II towards interest due from Unit I - the rebate cannot be adjusted towards the interest due of the assesses - HC
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Refund - Unjust enrichment - the contention that once credit note is issued, the manufacturer should be deemed to have absorbed the duty burden is to be rejected. - AT
VAT
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Kerosen v/s White Kerosene - Vat Rate 4% v/s 25% - no illegality in imposing tax on white kerosene meant for industrial purpose at 25% to curb the misuse of kerosene meant for PDS - HC
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Validity of tax invoice - sale of trade mark - It is not one of the goods for which composition money is to be paid and in fact, the petitioner had realized tax @ 4% and deposited - Thus, the petitioner was entitled to issue tax invoices - no penal action - HC
Case Laws:
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Income Tax
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2013 (3) TMI 316
Whether computerisation and Central Processing of Income Tax Returns is a boon or bane - Letter by CA Anand Prakash was treated as PIL - held that:- the respondents have taken a right decision to computerise the income tax records, have Central Processing Unit for processing of returns and issue of refunds. Besides, these steps relate to policy and fall within the exclusive domain of the respondents. These steps have to be appreciated as they ensure transparency, openness, eliminate high handedness and curtail corruption/red tapism. UPLOADING OF WRONG OR FICTITIOUS DEMAND - Rectification u/s 154 - held that:- Each application under Section 154 has to be disposed of and decided by a speaking order. This is the mandate of the Act. The order has to be communicated to the assessee and there is a relevant column to be filled in the register, which is now required to be maintained. The Board should issue specific directions to ensure that there is full compliance of the said requirements and directions by the Assessing Officers, Dak counters and Aayakar Sewa Kendras. This is the first mandamus or direction we have issued in the present judgment. ADJUSTMENT OF REFUND CONTRARY TO THE MANDATE OF SECTION 245 OF THE INCOME TAX ACT - held that:- have taken remedial steps to ensure compliance of Section 245 of the Act as they now give an option to the assessee to approach the Assessing Officer. This is the second mandamus which we have issued. As noticed above, the interim order passed in the writ petition [2012 (9) TMI 163 - DELHI HIGH COURT] has been implemented. Directions given in the order dated 21-8-2012, will be applicable only to cases where returns have been processed by the CPC Bengaluru and refunds have been fully or partly adjusted against the past arrears while passing or communicating the order under Section 143(1) of the Act, without following the procedure under Section 245 of the Act. The problem was created and caused by the respondents who did not realise the effect and impact of incorrect and wrong arrears being uploaded in CPU Bengaluru and did not follow the statutory requirements of Section 245 of the Act. Interest u/s 244A - held that:- An assessee can be certainly denied interest if delay is attributable to him in terms of sub-section (2) to Section 244A. However, when the delay is not attributable to the assessee but due to the fault of the Revenue, then interest should be paid under the said Section. False or wrong uploading of past arrears and failure to follow the mandate before adjustment is made under Section 245 of the Act, cannot be attributed and treated as a fault of the assessee. These are lapses on the part of the Assessing Officer i.e. the Revenue. Interest cannot be denied to the assessees when the twin conditions are satisfied and in favour of the assessee. However, even in such cases Assessing officer may deny interest for reasons to be recorded in writing if the assessee was in fault and responsible for the delay. This is the fourth mandamus which we have issued. Uncommunicated intimiations under Section 143(1) - held that:- The onus to show that the order was communicated and was served on the assessee is on the Revenue and not upon the assessee. We may note in case an order under Section 143(1) is not communicated or served on the assessee, the return as declared/filed is treated as deemed intimation and an order under Section 143(1). Therefore, if an assessee does not receive or is not communicated an order under Section 143(1), he will never know that some adjustments on account of rejection of TDS or tax paid has been made. While deciding applications under Section 154, or passing an order under Section 245, the Assessing Officers are required to know and follow the said principle. CREDIT OF TAX DEDUCTED AT SOURCE (TDS) - held that:- There can be mismatch because of deductor and the assessee may be following different methods of accounting. Further, the assessee may treat the income on which tax has been deducted as income for two or more different years. The respondents must take remedial steps and ensure that in such cases TDS is not rejected on the ground that the amounts do not tally. Of course, while issuing corrective steps, the respondents can ensure that fraudulent or double claims for TDS are not made. It is unfortunate that the Board did not take immediate steps after even noticing lacuna and waited till Finance Act, 2012, when Section 234E was enacted. Mere writing of a letter by the Assessing Officer to the deductor by no stretch can be treated as sufficient action on the part of the respondents. Even this, it appears, was done in a few cases as the respondents in the counter affidavit have stated that they have written 20119 communications to the tax deductors, where TDS credit claimed by the taxpayers did not match with the details loaded by the deductors. The Act empowers and authorises the Assessing Officer to verify the contents of the return and notices can be issued to a third party, i.e. the deductor, to furnish information and details. The deductor, the principal officer or person responsible for making deduction, once issued notice to appear, in most cases, would like to comply with the statutory requirements and also furnish details with regard to TDS deducted from the income of the assessee. - AO to exercise powers u/s 133.
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2013 (3) TMI 309
Rejection of questions raised in the memo of appeal before the High Court - Held that:- The High Court's power to frame substantial question(s) of law at the time of hearing of the appeal other than the questions on which appeal has been admitted remains under Section 260A(4). This power is subject to two conditions, i.e. the Court must be satisfied that appeal involves such questions, and the Court has to record reasons therefor. No justifiable reason to entertain this special leave petition, although delay of 72 days condoned.
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2013 (3) TMI 308
Interpretation of provision of Section 80HHC with special reference to the phrase “total turnover” - whether trade discount offered by the assessee to its dealers be included for the purpose of computing deduction u/s 80HCC - Held that:- Turnover for the purpose of the said Act is an aggregate of the sale prices received and receivable by dealer in respect of sales of goods in course of inter-State trade or commerce made during the prescribed period. In turn, the term “sale price” in Section 2(h) of the said Act means the amount payable to a dealer as consideration for sale of any goods as reduced by any sum allowed as cash discount according to the prevailing practice in the trade, but inclusive of certain specified items. As per the decision The Deputy Commissioner of Sales Tax (Law), Board of Revenue (Taxes) Vs. M/s. Advani Coorlikon (P.) Ltd. [1979 (10) TMI 194 - SUPREME COURT] even in absence of any specific exclusion of trade discount from the sale price, it was held that the same cannot form part of the total turnover since the net amount that the dealer receives is the sale price and it is that net amount which is entered as amount realizable.It would thus appear that such amount which the dealer would never receive could not form part of the turnover. Thus as in the present case discount the assessee offered to its dealer was in cash but proportionate to the total sales effected by an individual dealer. The amount of discount depended on such total sales. In view of the decision of the M/s. Advani Coorlikon (P.) Ltd. (supra), such discount would not form part of the sale price that the assessee would receive. It is not in dispute that in the books of accounts also the assessee had shown the reduced amount as total sale price - the Tribunal committed an error in holding that trade discount made to the assessee should form part of total turnover for the purpose of computing deduction under Section 80HHC of the Act - in favour of the assessee.
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2013 (3) TMI 307
Disallowance of proportionate expenditure on exempted income u/s.14A r.w.r. 8D - Held that:- The Assessment Year on appeal is 2007-08 and hence the provision of Rule 8D will not be applicable as held in the case of Godrej & Boyce Mfg Co Ltd. (2010 (8) TMI 77 - BOMBAY HIGH COURT). Therefore, set aside the issue of disallowance of income u/s 14A to the files of AO to make reasonable estimate of expenditure which are attributable to earning of exempt income and disallow the same u/s14A - in favour of assessee by way of remand. Disallowance u/s.36(1)(viia) in respect of advances from their Rural Branches - The assessee had claimed 10% of the aggregate average rural branches advance and have also claimed provision and doubtful debts @ 7.5% of the total income under sec 36(1)(viia) - Held that:- As decided in TRF Ltd (2010 (2) TMI 211 - SUPREME COURT), Vijaya bank Ltd (2010 (4) TMI 46 - SUPREME COURT) and Catholic Syrian Bank Ltd (2012 (2) TMI 262 - SUPREME COURT OF INDIA) that any debt written off as irrecoverable should be allowed as deduction. If the provision for bad debts debited to the P&L is netted against the current assets the provisions is an allowable deduction even if individual accounts of the debtors are not wtitten off. Thus the bank would be entitled to both the deductions, one under Clause (vii) on the basis of actual write off and another on the basis of clause (viia) in respect of mere provision but to prevent to double deduction, proviso to clause (vii) was inserted which says that in respect of bad debts arising out of rural advances the deduction on account of actual write off would be limited to the excess of the amount written off over the amount of the provision allowed under clause (viia). Thus deduction u/s 36(1)(viia) is to be allowed only on the amount of provision made for bad and doubtful debts subject to the maximum on the basis of rural advances/ income prescribed under that section - Thus set aside the issue to the file of the AO to decide the issue in the light of the above decisions. Applicability of provision of Sec.115JB to the assessee bank - assessee contented that being a bank, the provisions of companies act will not apply to it and hence will not be liable to tax u/s.115JB - Held that:- Prior to AY 2013-14, provisions of sec 115JB will not apply to companies to which proviso to sec 211(2) of the companies Act, 1956 applies. The Assessee being a company to which proviso to sec 211(2) of the Companies Act 1956 applies, will not be liable to be taxed under sec 115JB. As in Krung Thai Bank Vs. JCIT (2010 (9) TMI 18 - ITAT, MUMBAI) that provision of Sec.115JB cannot be applied to the banking company. Thus the claim of the assessee that provision of Sec.115JB will not be applicable to the Assessee Bank and set aside the assessment made u/s 115JB on the Assessee company - in favour of assessee. Disallowance of broken period interest - appellant's contention that the securities constituted stock in trade - Held that:- As decided American Express International Banking Corporation Vs. CIT [2002 (9) TMI 96 - BOMBAY HIGH COURT] the broken period interest is an allowable deduction - against revenue.
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Customs
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2013 (3) TMI 306
Non-discharge of duty liability on the inputs consumed for manufacturing of LPG and cleared by availing the benefit of exemption notification No. 21/2002-Cus. and Notification No. 4/2006-Central Excise - appellant herein being 100% EOU - appellant contested the show cause notice on merits of the case as well as on limitation - whether the appellant had made themselves liable for penalty under the provisions of Section 114A of Customs Act, 1962 and Section 11AC of Central Excise Act, 1944? - Held that:- It is noted that the inputs which were procured by the appellant, were consumed in an EOU, after filing in-bond bills of entry or documents like re-warehousing certificate. These documents are not disputed by the Revenue. This would mean that the goods imported or procured locally, were warehoused in the appellant’s licensed warehouse and it is admitted that inputs were not cleared as such but were consumed. At this juncture it is to note and record that, in a similar issue in the case of Paras Fab International (2010 (6) TMI 184 - CESTAT, NEW DELHI) has ruled that no duty requires to be paid if inputs are consumed that in an EOU, as it is treated as warehouse. Fine distinction drawn between private bonded house and 100% EOU are of no help to the Revenue, inasmuch as the issue on the said dispute stands answered by the Larger Bench in the case of Paras Fab International (Supra) which even Shri Mondal has also not denied. Further, the fact of payment of duty at the time of filing bill of entry for warehouse “Under Protest” will also not change the legal position that 100% EOU is required to pay duty only at the time of clearances of warehoused goods for home consumption. Thus the above ratio would apply in full force to the case in hand, as it is undisputed that the inputs procured by appellant, on which department has foregone duty, was consumed in the EOU for manufacturing of LPG and said LPG was sold to Public Sector Units. There is no allegation of removal of inputs as such in the entire case records. In the case in hand, it is undisputed that appellant themselves has discharged the duty foregone along with interest, on their own. There was no intimation or letter from departmental authorities directing them to do so. Thus the action of the appellant in keeping informed the departmental authorities about the availment of exemption notification for LPG, filing returns by the appellant who is an EOU, would mean that they had no intention to suppress material facts. This fact of filing returns indicating entire transactions of EOU is not disputed by Revenue authorities. Thus there was no need to issue any show cause notice to appellant as the duty liability either Customs or Central Excise is the same as has been calculated by the appellant & consequently authorities have no authority to initiate proceedings for recovery of penalty See COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX Versus M/s ADECCO FLEXIONE WORKFORCE SOLUTIONS LTD [2011 (9) TMI 114 - KARNATAKA HIGH COURT] Thus the adjudicating authority has committed an error, in invoking the provisions of Section 114A of the Customs Act, 1962 and Section 11AC of the Central Excise Act, 1944 for imposition equivalent amount of penalties as indicated in his order as appellant had definitely not suppressed any material information from the department as regards the consumption of inputs procured, on which the duty liability was forgone by the Revenue and as also clearance of final products to DTA- in favour of assessee.
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2013 (3) TMI 305
Prohibition order - Appeal against the order of Commissioner of Customs under Regulation 21 of Custom House Agent Licensing - held that:- As per regulation 22(8) Tribunal has no jurisdiction to entertain appeal against the order passed under Regulation 21 - present appeal is not maintainable. In accordance with Regulation 22(8) the Tribunal has jurisdiction to entertain the appeal only against any decision or order passed under Regulation 20 or sub-regulation (7) of Regulation 22 of the Regulations.
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Corporate Laws
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2013 (3) TMI 304
Chartered Accountants Act, 1949 - Guilty of professional and other misconduct - submission of forged and fabricated income-tax returns to induce the complainant-bank to extend loan to him. - Code of Conduct - Held that:- Council has found the Chartered Accountant guilty of misconduct and has decided to refer the case to the disciplinary committee for inquiry. - Council decided to recommend to this court that the name of the respondent be removed from the register of members for a period of two years.- The court has directed that the respondent be removed forthwith from the membership of the Institute for a period of five years. Whether there is any misconduct committed by the respondent being member of the Institute or not - the contention was that he not a member of ICAI during the relevant period as his membership was cancelled due to non payment of fees - held that:- he was not a member of the Institute from August 1, 1987 to May 1, 2002, but he continued to be in practice which is proved by his own visiting card/business card which was affixed on an application form for loan. - it is proved from the visiting/business card that he had offered to perform his services as chartered accountant and had held himself out to the public as accountant. - Therefore, as per section 2(2), under these circumstances, he was deemed to be in practice. The facts of the present case reveal that the respondent has proved himself to be capable of infamous conduct. The recommended punishment of removal of his name for two years would, be a mockery of the proceedings in view of the serious nature of misconduct. - Taking into consideration his age as 58 years as per documents submitted before the income-tax office, in our opinion, the interest of justice will be met if the respondent is removed forthwith from the membership of the Institute for a period of five years.
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Service Tax
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2013 (3) TMI 313
Liability to pay the penalty in view of the Section 117 of the Finance Act, 2000 - Recovery of refund post M/s Laghu Udyog Bharati Vs. Union of India [1999 (7) TMI 1 - SUPREME COURT OF INDIA] to refund the tax collected. - Held that:- As per Sec 117 Validation of certain action taken under Service Tax Rules no act or omission on the part of any person shall be punishable as an offence which would not have been so punishable if this section had not come into force. There is provision of levy of interest only and there is no provision for levy of penalty. Commissioner (Appeals), Customs and Central Excise, Ranchi as well as the Tribunal were right in holding that penalty cannot be imposed upon the assessee. There is no merit in the Tax Case - in favour of assessee.
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2013 (3) TMI 312
Eligibility to CENVAT credit of the service tax paid on insurance premium for the health insurance of retired employees - Held that:- As the appellant has already reversed the CENVAT credit wrongly availed, waiver of the pre-deposit of interest and penalty adjudged against the appellant granted and stay recovery thereof during the pendency of the appeal.
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2013 (3) TMI 311
Commercial and Industrial Construction Services - demand of service tax - assessee contested against invoking extended period of limitation - Held that:- The appellants are liable to pay service tax under Works' Contract services with effect from 1.6.2007 and have get themselves registered with the service tax department from 1.6.2007. The ground taken by the appellants that they were not aware of the fact that they are liable to pay service tax under works' contract with effect from 1.6.2007 is not sustainable, as ignorance of law is not an excuse. As the activity of the appellants has been detected by the Department during the course of investigation, the findings of the first appellate authority for invoking extended period of limitation confirmed. Against assessee.
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Central Excise
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2013 (3) TMI 303
Powers of Commissioner to remand - as per the department the amendment of Section 35A(3) as substituted vide Section 128 of the Finance Act, 2001, power of the Commissioner to remand the matter back for fresh adjudication has been taken away - Held that:- Section 35A(3) as amended confers powers on the Commissioner (Appeals) to annul the order-in-original and also to pass just and proper order. There may be circumstances where only just and proper order could be remand of the matter for fresh adjudication. Like if the order-in-original is passed without giving opportunity of being heard to the assessee or without permitting him to adduce evidence in support of his case then only order-in-appeal by the Commissioner (Appeals) could be to set aside the impugned order on the ground of failure of justice. Therefore, only just and proper order in such a case would be the order of remand to adjudicate the matter de novo after giving due hearing to the assessee. Thus, power to remand the matter back in appropriate cases is inbuilt in Section 35A(3) of the Central Excise Act, 1944 and it is apparent that the Commissioner (Appeals) have power to remand the matter back to the original adjudicating authority even after the amendment of Section 35A(3). No merit in the appeal filed by department.
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2013 (3) TMI 301
MODVAT Credits taken in RG 23A Part II Account after expiry of 6 months from the date of document (Bill of Entry) - Whether the Commissioner of Appeals and the Appellate Tribunal are right in allowing the credit when there is a provision under Rule 57G (5) of Central Excise Rules, 1944 stipulating 6 months time limit for taking such credit? - whether the date of endorsement in the Bills of Entry is the date of issuance of the document as contemplated under sub-rule 5 or the date of Bills of Entry is the date of issue of such document? - Held that:- Admittedly, in this case, the endorsement was made by the Customs department on 3.7.2000, after a considerable delay. It is also an admitted fact that on the very same day, the Respondent took credit in RG23A Part II Register. A plain reading of sub-rule 5 may indicate or suggest that the date of the Bills of Entry in this case as the relevant date. But, when we look into the language of the said provision, it would further reveal that the words "date of issuance of the document" should be read with wider meaning so as not to confine with the date of document alone and it can be further extended to the date of issuance of such document. Here, in this case only after the endorsement was made by the Customs department the issuance of such document viz., Bills of entry takes effect in favour of the Respondent. Therefore, the language used in sub-rule 3 that "the inputs are received in the factory under the cover of any of the following documents" shall have to be read to mean and referable to a 'valid document' and not a 'document simplicitor'. Necessarily, the authority should go into the question of validity of each and every document referred to under sub-rule 3 by taking into consideration of the facts and circumstances of each case. Therefore, when the Respondent in this case, admittedly not the importer of the inputs and the same were only supplied to them by the importer viz., M/s. Goodyear India Limited, then the date of endorsement made by the Customs department is to be taken as the date of issuance of such document and consequently, if the Respondent had availed credit within six months from the date of making such endorsement, thus the Respondent is well within the time, as contemplated under sub-rule 5 in claiming the credit under Rule 57G sub-rule 2. The delay in taking the credit is only due to delay in endorsing the Bills of Entry by Customs authorities and therefore, benefit of MODVAT credit cannot be denied to the Respondent. No interference in the order of the Tribunal required -in favour of assessee.
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2013 (3) TMI 300
Determination of date of service of order, against which an appeal is filed - Condonation of delay - - Preliminary objection that the appeal is barred by limitation - Section 37C of the Central Excise Act, 1944 - Held that :- we find that the appellant has sent a letter dated 3-5-2007 on 18-5-2007 to the department for communicating their advocate’s address and their address in USA by Speed Post and a postal receipt of the same is on record. Impugned order dated 31-3-2009 has not been served on the addresses given by the appellant. The appellants cannot take the shelter of provisions of Section 37C of the Central Excise Act as these provisions are only for the Department. In the eyes of law the litigants are on equal footing and there cannot be two parameters for rival sides - Appeal filed held as within time.
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2013 (3) TMI 299
Demand of differential duty, penalty and interest u/s 11AA from Unit I - Assesses claimed rebate of duty from Unit II - Revenue adjusted rebate from Unit II towards interest due from Unit I- Held that:- the rebate cannot be adjusted towards the interest due of the assesses Section 11 of the Central Excise Act, 1944 does not contemplate adjustment of monies due to the assessee towards the amount due to the revenue So after making refund of the amount which is due it is open to the revenue to proceed against the assessee to recover the amounts under the provisions of the Act. Accordingly the appeal is dismissed. However, the dismissal of the appeal will not come in the way of the revenue recovering the amount due if any.
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2013 (3) TMI 298
Refund - Provisional assessment - Unjust enrichment - Consumer welfare Fund - Transactions between the manufacturer and the first stage dealer - Held that: - subsequent act of issuing credit notes cannot amount to not passing on the burden of duty to their customers, party has clearly mentioned the excise duty in the invoices raised under Section 12 of the Central Excise Act and passed on the burden to their customers. The indication of duty amounts in the said invoices prepared in terms of Section 12 of the Central Excise Act is clearly evidence for passing on the credit as held in the case of Dev Bhoomi Spinning & Weaving Mills (supra). So we can say that this reasoning that once credit note is issued, the manufacturer should be deemed to have absorbed the duty burden is to be rejected. The appeal is, therefore rejected.
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CST, VAT & Sales Tax
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2013 (3) TMI 315
Kerosen v/s White Kerosene - 4% v/s 25% - contention of the appellants that up to 20.3.2003 the term 'Kerosene' was not distinguished as Superior Kerosene Oil therefore the Superior Kerosene Oil was taxable only at 4% at first sale and not 25% - Held that:- Coming to know about the use of white Kerosene as a substitute for Diesel Oil, besides causing more pollution and damage to the engines, in order to curb the said practice, it has been decided by the Government to increase the tax rate for white Kerosene from 4% to 25%. But, the tax rate for PDS Kerosene i.e. Blue Kerosene will however continue to remain at 4%. The object of providing such concessional rate of duty on kerosene used for illuminating burning oil lamps i.e., @ 4% was to provide some relief to those economically backward sections of society who use kerosene for illumination and other domestic purposes, and therefore, the benefit of concessional rate of duty was available only on the kerosene meant for PDS. On such consideration only the kerosene which meant for Public Distribution System was continue to remain taxed at 4%, whereas only the white Kerosene which is meant for industrial purpose is taxed at 25%. In a study undertaken by the Southern Region of the Anti-Adulteration Cell it was observed that "unimaginable quantities of white kerosene are being imported for consumption by industrial consumers and by the general public. It was also found that the State Government suffers a heavy loss of revenue on account of sales tax evasion as the sales tax on diesel is around 28 per cent as against 13.8 per cent on SKO. Considering all these factors along with the laudable recommendations made by the Standing Committee and the follow up steps taken by the State Government to curb the misuse of kerosene meant for Public Distribution System, no illegality in imposing tax on white kerosene meant for industrial purpose at 25%.
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2013 (3) TMI 314
Undated notice issued u/s 54(1)(11) of the U.P. VAT Act, 2008 - Notice stating that assessee has without any authority under the Act and the Rules issued tax invoice on which M/s Havells India Ltd. has claimed input tax credit - petitioner seeks a writ in the nature of certiorari quashing the undated notice - Held that:- It is not in dispute that the transfer of right to use the trade mark is liable to tax @ 4% as it is to be treated as 'goods' u/s 4(1)(a) of the U.P. VAT Act, read with Schedule II Entry No. 3. The petitioner had transferred the right to use the trade mark for a consideration during the assessment year 2008-09 to respondent no. 3 under the agreement dated 21.11.2007, filed as annexure 1 to the supplementary affidavit. The petitioner had charged tax @ 4% and had also issued tax invoices. The amount of tax charged by it had been deposited with respondent no. 2. Section 22(1) of the Act empowers the selling dealer to issue tax invoices in respect of taxable goods while effecting it's sale, unless such goods are covered by the payment of composition money u/s 6 of the Act. In the present case it is found that the petitioner is a registered dealer who had effected sale of taxable good. It is not one of the goods for which composition money is to be paid and in fact, the petitioner had realized tax @ 4% and deposited the same with respondent no. 2. Thus, the petitioner was entitled to issue tax invoices. The issuance of the tax invoices by the petitioner does not attract any of the penal provisions of Section 54 of the Act. As in the present writ petition it is not called upon to decide question of input tax credit as it can more appropriately be gone into when the question arise moreso when M/s. Havells India Ltd., the licensee, has not challenged the order rejecting the claim of claiming the benefit of input tax credit. Thus the impugned notice filed is wholly without jurisdiction, as the action of the petitioner in issuing tax invoices did not violate any statutory provisions so as to attract the provisions of Section 54(1)(11) of the U.P. VAT Act. Consequently, the notice is hereby quashed.
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2013 (3) TMI 302
Method of computation of the wastage of Extra Neutral Alcohol, stored in different vats - as per petitioner the contents of all the vats should be taken together for computing the percentage of the wastage whereas as pet dept. contents of each vat should be taken separately - as per assessee after the lapse of 23 years from the date of dismissal of the SLP by the Supreme Court, Ext.P5 demand has been raised on the petitioner on 17.4.2003 - petitioner aggrieved by the demand of interest also the contention that certain amounts due to the petitioner from the State has not been adjusted by the respondents - Held that:- It is submitted that by Exts. P12, P13, P15 and P16, the petitioner has requested for adjustment of certain further amounts against the demand. Thus the petitioner granted an opportunity to adjudicate that issue once again, but only if the petitioner is prepared to pay the demand as per Ext.P9 in the writ petition with further interest as expeditiously as possible, at any rate, within one month. If the petitioner pays the amounts as directed above, the 1st respondent shall consider Exts. P12, P13, P15 and P16 representations filed by the petitioner and if any amounts are found to be further adjustable, adjustment shall be made and if any amounts are found to be refundable to the petitioner on account of such adjustment, the same shall be refunded to the petitioner.
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Indian Laws
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2013 (3) TMI 310
Land Acquisition - She had never been aware of the acquisition proceedings and she was not served with notice She got the information first time that she was in illegal possession she was directed to demolish the structure put up by her - The Court has given liberty to the appellant to move an application for making reference within a period of two weeks from the date of receipt of the order and further directed the Land Acquisition Collector to make a reference, if such an application is filed within a period of four weeks thereafter, and the Court further directed the Tribunal to decide the reference within a period of three months from the date of its receipt. The only question remains for our consideration is as to whether the provisions of notice are mandatory in nature and non-compliance thereof would vitiate the Award and subsequent proceedings - Held that :- we are not in a position to examine the correctness of that submission or making any observation regarding the law of limitation for the purpose of making reference. This question is left open. Thus in accordance with the provision of notice the Collector shall also serve notice to the same effect on the occupier (if any) of such land and on all such persons known or believed to be interested therein, the Writ Court rejected the contentions raised by the appellant after being fully satisfied that the notice under provision of notice was affixed on the part of the land in dispute as the appellant was not available. Similarly Submissions have been made on behalf of the respondents that as the Court lacks competence to extend the period of limitation, direction issued by the High Court giving liberty to the appellant herein to make an application for making reference is without jurisdiction. In the facts and circumstances of the case, the appeal fails and is, accordingly, dismissed as decided in State of Tamil Nadu Vs. Mahalakshmi Ammal & Ors. (1996) 7 SCC 269; and many others.
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