TMI Tax Updates - e-Newsletter
April 10, 2013

Case Laws in this Newsletter:

Income Tax Customs Corporate Laws Service Tax Central Excise CST, VAT & Sales Tax

Articles

1. Un-necessary litigation by revenue on issue of set off of unabsorbed depreciation

   By: DEVKUMAR KOTHARI

News

1. Anand Sharma Demands Internal Balance in the Trade Facilitation Proposal Calls for LDC Package as Part of Bali Ministerial Meets Key WTO Ambassadors in Geneva

2. Department Related Parliamentary Standing Committee on Commerce Invites Suggestions on the National Institute of Design Bill, 2013

3. RBI releases 'Quarterly Statistics on Deposits and Credit of Scheduled Commercial Banks: June 2012'

4. Government of India announce the sale of four dated securities for Rs. 15,000 crore on April 12, 2013

Circulars / Instructions / Orders

FEMA

1. 97 - dated 9-4-2013

Exim Bank's Line of Credit of USD 76.50 million to the Government of the Republic of Malawi

Highlights / Catch Notes

Income Tax

• High Court Confirms Set-Off of Speculative Losses u/s 73 Against Business Profits from Loans and Advances.

  Case-Laws - HC : Set off of speculative losses u/s 73 - reassessment - the petitioner is entitled to set off the losses from sale and purchase of the share in the profits of the business of the company from loans and advances - HC
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• High Court Rules DVO Report Insufficient for Reopening Tax Assessment u/s 147 of Income Tax Act.

  Case-Laws - HC : Re-opening of assessment u/s 147 of the Act on the basis of D.V.O.'s report - the opinion of the DVO per se is not an information for the purposes of reopening assessment - HC
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• Firm Re-constitution: Entire Previous Year Must Be Assessed, Date of Change Irrelevant, Per Income Tax Case Law.

  Case-Laws - HC : Assessment of firm - In case of re-constitution of the firm, the assessment has to be made in respect of entire previous year, irrespective of the fact that the firm was re-constituted on 20.10.1977 - HC
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Customs

• Court Grants Stay on Pre-Deposit Waiver Request Amid Alleged Mis-Declaration in EPCG License Acquisition Case.

  Case-Laws - AT : Waiver of pre-deposits - Prima facie the mis-declaration, if any, made by the applicants are not resulting in any short levy of duty or contravention of import policy. - At best there may be contravention of declaration given to the DGFT at the time of obtaining the EPCG licenses - stay granted - AT
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Service Tax

• Appeal and interim stay application delayed due to Bench not being reconstituted, causing process disruption.

  Case-Laws - HC : Pendency of the appeal and the application for interim stay on account of non re-constitution of the Bench - appeal preferred by the petitioner is pen - HC
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• Refund Policy for Technical Testing Services Eased: No Need for Previously Demanded Correlation per Notification No. 17/2009-ST. /2009ST.

  Case-Laws - AT : Refund of service tax - Notification No. 17/2009-ST - technical testing and analysis services - here is no need to insist on the type of co-relation being insisted upon by Revenue. - AT
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Central Excise

• High Court Rules Deemed Cenvat Credit Rights Cannot Be Retrospectively Revoked Without Clear Statutory Language.

  Case-Laws - HC : Deemed Cenvat Credit after withdrawal of Notifiation - a right, which is acquired as a result of a statutory provision, cannot be taken away retrospectively unless the statutory provision so provides or by necessary implication it has the same effect. - HC
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• Notification 56/2002-C.E. Exemption Does Not Cover Education Cess Under Finance Act 2004, Sections 91 and 93.

  Case-Laws - AT : Refund claim - Area based exemption - Notification No. 56/2002-C.E. is not applicable to education cess levied under Section 91 read with Section 93 of Finance Act, 2004. - AT
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• Refund Claim and Unjust Enrichment: Burden of Proof Shifts to Department if Respondent Proves Duty Payment.

  Case-Laws - AT : Refund claim - unjust enrichment - Once evidence is produced by the respondent that they have borne the incidence of duty whose refund is claimed by them, the burden would shift to the department to prove that the respondent’s claim is not correct. - AT
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• Pre-deposit demand dismissed as bagasse emerges without using inputs or chemicals during sugarcane crushing.

  Case-Laws - AT : Waiver of pre-deposit - Cenvat Credit - Since Bagasse emerges at sugarcane crushing stage, there is no possibility of any inputs-chemicals etc. having been used at that stage. - demand set aside - AT
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Case Laws:

• Income Tax

• 2013 (4) TMI 196
  Stay - Petition is directed against the order passed by the Commissioner of Income Tax, whereby the petitioner's application seeking stay of demand for the assessment year 2010-11 has been disposed of by directing the petitioner to deposit 50% out of the balance demand of Rs. 22 crores, after giving adjustments for refunds due and the tax in relation to covered issues. - Held that - the matter should be remitted to the Commissioner of Income Tax for considering the question of stay after examining the decision in Nokia Corporation v. DIT (International Taxation) [2007 (5) TMI 202 - DELHI HIGH COURT] and Maruti Suzuki India Limited v. Deputy Commissioner of Income Tax: [ 2011 (11) TMI 312 - DELHI HIGH COURT] - However, till the Commissioner of Income Tax does not decide the application, no coercive measure be taken by the respondent to recover the amount in question.

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• 2013 (4) TMI 195
  Revision U/s 264 of the Income Tax Act - Counsel for the petitioner could not attend the proceedings - Held that:- The petitioner has not put in appearance for over almost six months in spite of the fact that six notices were sent to the petitioner - The illness in the family is not a ground so as not to put appearance before the Income Tax Officer, who is duty bound to finalise the assessment in a time bound manner. Having failed to appear before the Income Tax Officer during the assessment proceedings and the fact that the Commissioner of Income Tax has taken into consideration all the relevant facts and circumstance - we do not find that the petitioner is entitled to another chance at this stage for production of documents so as to re-open the assessment proceedings - Decided against the assessee.

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• 2013 (4) TMI 194
  Addition U/s 69 - unexplained investment - Assessee had disclosed that it had paid a sum of Rs.41.80 crores, in fact, it had purchased assets worth Rs.64.38 crores - Held that:- Tribunal had gone to the extent of examining the books of the respondent/ assessee and confirming that the opening entries in the books of the assessee after the slump purchase had shown the assets at Rs.64.38 crores as a result of transfer from Dhillon Kool to the respondent/ assessee. The entire extent of Rs.64.38 crores had been accepted both by the Commissioner of Income Tax (Appeals) as also by the Tribunal. These are clear findings of fact and, therefore, cannot be disturbed unless and until some perversity is pointed. - Decided against the revenue.

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• 2013 (4) TMI 193
  Deleting the addition - Re-opening of assessment u/s 147 of the Act on the basis of D.V.O.'s report - Held that:- the Tribunal has rightly placed reliance upon the judgment of the Apex Court in the Case of Assistant Commissioner of Income-tax v. Dhariya Construction Co (2010 (2) TMI 612 - Supreme Court of India). The Department sought reopening of the assessment based on the opinion given by the District Valuation Officer (DVO) - The opinion of the DVO per se is not an information for the purposes of reopening assessment under section 147 of the Income-tax Act, 1961 - The Assessing Officer has to apply his mind to the information, if any, collected and must form a belief thereon - In the circumstances, there is no merit in the civil appeal - The Department was not entitled to reopen the assessment. - Decided against the revenue.

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• 2013 (4) TMI 191
  Provisions of Section 40A - Addition on account of difference in rate of sale as compared to Sister & non-sister concerns - Held that:- The learned Tribunal has found that the sister concerns have paid tax at the rate of 33.6% as compared to 30.6% paid by the assessee - The provisions of Section 40-A of the Act could not have been invoked as no payment has been made to the sister concerns for any item of expenditure, which the assessee might have claimed as revenue expenditure - The Tribunal found that a tax payer can manage his affairs to reduce tax liability within the frame work of law and that the sale of goods at a lesser price to the sister concerns than to the non-sister concerns, does not violate any provision of law. - Decided against the revenue.

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• 2013 (4) TMI 190
  Assessment of firm - reconstitution - Tribunal as well as the First Appellate Tribunal, have placed reliance upon judgment in the case of Commissioner of Income Tax, Lucknow vs. Shiv Shanker Lal Ram Nath; [1974 (10) TMI 12 - ALLAHABAD HIGH COURT] and Full Bench judgment in the case of Badri Narain Kashi Prasad vs. Additional Commissioner of Income Tax; [1978 (5) TMI 32 - ALLAHABAD HIGH COURT] Held that:- the decisions relied upon by the Tribunal are no longer good law in view of the subsequent judgment of a larger Bench of this Court in the case of Vishwanath Seth vs. CIT; [1983 (11) TMI 59 - ALLAHABAD HIGH COURT] - the order of the Tribunal cannot be allowed to stand. - It is in effect a case of re-constitution of the firm and as such, the assessment has to be made in respect of entire previous year, irrespective of the fact that the firm was re-constituted on 20.10.1977 - Decided in favor of revenue.

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• 2013 (4) TMI 189
  Set off of speculative losses u/s 73 - reassessment - Speculative business loss in share trading activities are adjusted towards profits of business of the company - Held that:- In [2012 (6) TMI 38 - ALLAHABAD HIGH COURT], it was held that the petitioner is covered under Explanation to Section-73 of the Act and is entitled to set off the losses from sale and purchase of the share in the profits of the business of the company from loans and advances. As the controversy involved in this writ petition has already been decided by this Court between the parties [2012 (6) TMI 38 - ALLAHABAD HIGH COURT] for another assessment year and it has been held that the petitioner is entitled to set off the losses from sale and purchase of the share in the profits of the business of the company from loans and advances as such there is no justification for reassessment proceedings started by the Assessing Officer for the Assessment Year 1999-2000, on this very ground - The writ petition succeeds and is allowed - The notices U/s 148 of the Act and U/s 142 (1) of the Act, initiating proceedings for re-assessment are quashed - The parties shall bear their own costs.

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• Customs

• 2013 (4) TMI 188
  Valuation dispute – refund claim - Equipments imported by appellant for setting up plant in India appellant had also paid to the supplier, system design and engineering charges. This amount was provisionally included in the assessable value of the imported goods and duty paid accordingly. However, subsequently, the assessee claimed refund of excess duty by submitting that the above charges were not includible in the assessable value as these charges were relatable to equipments indigenously procured by them. Refund claim was rejected by the department. Held that – Tribunal remanded the case to the original authority as gross error of law was committed by both the authorities issue which ought to have been considered by these authorities was whether the design and engineering charges paid by was liable to be included in the assessable value of the imported goods under the Customs Valuation Rules 1963 which were in force during the period of imports.

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• 2013 (4) TMI 187
  Waiver of pre-deposits - The applicants in these stay petitions imported textile machines claiming benefit of Notification No. 103/2009-. After clearance the officers of Revenue received intelligence that there was a manipulation in the description of the machines which was done for availing Technology Up-gradation Fund Scheme (TUF Scheme). Revenue initiated action for confiscating the goods under Customs Act and also denying the concessional rate of duty prescribed in Notification and proposing penalty on the importer and redemption fine in lieu of confiscation has been imposed, since the goods have been already released provisionally to the parties. Held that – Prima facie the mis-declaration, if any, made by the applicants are not resulting in any short levy of duty or contravention of import policy. At best there may be contravention of declaration given to the DGFT at the time of obtaining the EPCG licenses. So far DGFT has not cancelled the licenses. Only Show Cause Notice has been issued. We have not been able to appreciate how the applicants could have availed TUF Scheme because under para 5.8 of the policy to avail that scheme new machines have to be imported. The Show Cause Notice or the adjudication order does not bring out the legal provisions contravened or the undue benefit claimed. It only states that there were misdeclarations of model number and year of make, of the machines. - stay granted in full.

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• Corporate Laws

• 2013 (4) TMI 186
  Offence punishable under Section 138 of the Negotiable Instruments Act - Accused firm had issued Exts.P2 and P3 cheques for in discharge of a debt due - Statutory notice issued to the accused - Held that:- The complainant produced various documents to show that the accused were indebted to the complainant. Except for simply denying the same, there was no definite case for the accused. Except for the self-interested statement, there was no evidence to show that what he stated was true. There is no case for the accused that the particulars in the cheque were filled up by the complainant. - Apart from the above fact, as already noticed by the courts below, if as a matter of fact, the accused found that the cheques were stolen, he would have taken immediate steps to issue at least stop memo to the bank. Even to the statutory notice issued to the accused, he did not respond. Therefore, both the courts below are justified in coming to the respective conclusions. No grounds are made out warranting interference with the orders of the courts below. This revision petition is dismissed.

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• Service Tax

• 2013 (4) TMI 203
  Waiver of pre-deposit - Undue hardship - Business Auxiliary Service - Classification - The operations performed by the appellant on behalf of their buyer viz., HP are liable to be classified under sub-clause (iv) of Clause (19) of Section 65 of the Finance Act 1994 under the category of procurement of goods or service on behalf of the client under Business Auxiliary Service and the charges so collected are liable to service tax - Held that:- It is seen from the materials placed before this court that the appellant had suffered loss during the financial year 2011 -2012. Even though the said material was not placed before the Tribunal, instead of remitting the matter for that purpose and in order to render substantial justice, we deem it fit that the appellant can be directed to deposit 25% of the total tax demanded instead of 50% so that the appeal shall be taken up for hearing on merits without loss of further time. Accordingly, the order of the Tribunal is modified by directing the appellant to deposit 25% of the tax demanded as pre-deposit within a period of eight weeks from the date of receipt of copy of this order - The Civil Miscellaneous Appeal is disposed of accordingly - Consequently, the connected M.P. is closed.

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• 2013 (4) TMI 202
  Pendency of the appeal and the application for interim stay on account of non re-constitution of the Bench - appeal preferred by the petitioner is pending consideration before the CESTAT which has jurisdiction over 3 states ie., Karnataka, Andhra Pradesh, Kerala - Held that:- This petition is allowed in part. A direction is issued to the respondent not to recover the arrears of service tax pursuant to the demand notice, Annex.E and await orders of CESTAT over the application filed along with the appeal by the petitioner for interim stay of the demand impugned therein. A direction is issued to the 1st respondent - Union of India by way of a writ of mandamus to constitute and establish as many number of Benches of CESTAT for the 3 southern states of Karnataka, Andhra Pradesh and Kerala forthwith and file a report with the Registrar General of the High Court by way of compliance, on or before 3/6/2013, failing which the matter would be takes seriously.

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• 2013 (4) TMI 201
  Refund of service tax under the provisions of Notification No. 17/2009-ST dated 7.7.2009 denied - claim of service tax paid on scientific testing services - Held that:- The amount in dispute is only to the extent of 4.14 lakhs in three appeals in respect of scientific testing of their products. The only deficiency is that they are not able to establish the correlation between the samples tested and each consignment that was exported. As find that against item 3 of the table annexed to Notification 17/2009 providing for refund of service tax paid on technical testing and analysis there is no condition imposed in column (4) of the table and that being the case there is no need to insist on the type of co-relation being insisted upon by Revenue. Rail freight issued by CONCOR - Held that:- The goods have been taken to ICD is not disputed. The container numbers are also shown to reasonably establish that the service was in respect of export of goods. In this case refund is authorized as per item 7 in the table to the Notification. A1l what is required is that the invoice issued by the exporter should indicate that the goods were exported through the ICD concerned. There is no case made out that such condition is not met. Thus no reason to deny refund in respect of this service either. CHA service - Held that:- The appellants have submitted a list of shipping bill numbers for which the amounts involved were charged by the CHA. The refund in respect of this service is governed by item 11 in the Table to the Notification. The deficiency is that the bills raised by the CHA do not show the shipping bill numbers and date and the full requirements of the above conditions are not met. The reason given in the impugned order is that copies of shipping bills are not produced. No such condition is prescribed against S. No. 11. The exporter has given a detailed worksheet showing the shipping Bill Numbers to which each bill of CHA relates. The issue appears to be that the CHA has been raising one bill in respect of many shipping bills. There is nothing unusual about it. Since the CHA may not be aware of this requirement of the exporter, such bills were not issued and exporter might not have obtained such bills. This is a curable defect. The appellant may get the worksheet prepared by them countersigned by the concerned CHA and also furnish information as required in the condition as above. Subject to meeting the above requirement the refund in respect of this service also is allowed. Appeal in favour of assessee.

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• Central Excise

• 2013 (4) TMI 185
  Undervaluation of goods - The case of Revenue is that the two distributors SVA and JKA were fictitious firms and the price at which goods were shown to be sold by these firms should be adopted for valuation of the goods. In the case of sale through consignment agent the argument is that the goods were being sold for the first time only by the consignment agent and the price at which consignment agent sold the goods less admissible deductions should be the assessable value rather than the value adopted for stock transfer pursuant to which demand along with interest and penalties u/s 173Q, 11AC of the Act arise. Held that - The adjudicating authority is directed to verify the calculations if any submitted by the appellants within 30 days and re-calculate the liability to ensure that demand corresponds to the quantity of goods cleared from the factory during the relevant period and based on prices at which goods were billed by SVA and JKA taking the prices of SVA and JKA as cum-duty price. In the price at the premises of consignment agent becomes relevant only from 28-09-96 when the definition of place of removal in section 4 of Central Excise Act was amended. The contention of Revenue is that the goods sold through consignment agent was BHC 50% in drum packing and such goods in the same packing was not being sold at the factory gate. I also find that the Show Cause Notice shows that deduction of freight at the rate of Rs. 250 per Metric ton has been allowed. No argument is raised that this deduction is not fair and the actual freight amount is more. So I do not see any merit in the argument of the appellant in this regard. However if there is any benefit that may accrue due to price of goods in different packages being sold the assesse through consignment agents the appellant may submit worksheet showing such difference to the adjudicating authority which shall also be examined by him for appropriate decision. In the matter of penalty of we do not find any reason to interfere. In the case of penalty under section 11AC for the balance period the penalty is reduced to 25% of the duty liability for that period if such penalty is paid within 30 days of receipt of communication showing correct duty liability. If payments are not made within the period laid down penalty equal to duty evaded will be payable. Thus the appeal is allowed partially to the extent indicated above.

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• 2013 (4) TMI 184
  The main dispute in this case is whether Tribunal was correct in allowing transfer of deemed credit to Cenvat Credit account once the notification was rescinded, in absence of any transitional provisions. - Appellant had lodged refund of the accumulated deemed credit which was rejected on the ground that the credit of specified duty can only be allowed in respect of inputs used in the final products cleared for export under Bond whereas in the respondent's case the goods had been cleared under Annexure-I for the manufacture of export goods and also that the goods had been cleared at nil rate of duty the claimant would not be entitled to the credit due to the embargo of the provisions of Rule 6 of Cenvat Credit Rules, 2001. Held that - a right, which is acquired as a result of a statutory provision, cannot be taken away retrospectively unless the statutory provision so provides or by necessary implication it has the same effect. Following the decision in Omkar Textile Mills Pvt. Ltd. [2008 (9) TMI 860 - GUJARAT HIGH COURT] decided in favor of assessee.

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• 2013 (4) TMI 183
  Rectification of mistake u/s 35C(2) of the Central Excise Act - appellant has contended that the order of the Tribunal which has dispelled the view of Department and held that launching trusses are classifiable under heading 7308 and not under 8425 requires rectification as it suffers from error apparent on the face of record It is contended that once the classification mentioned in the show cause notice was rejected, the Tribunal ought to have accepted the appeal and dropped the demand instead of remanding the matter for fresh adjudication. Held that – After interpretation of section 35C and other relevant facts tribunal do not find any error apparent on the face of the record which may call for indulgence of the Tribunal under Section 35C(2) of the Central Excise Act, 1944. This application is nothing but abuse of process of law and it appears to have been moved with mala fide intention to delay the proceedings. Accordingly, the application is dismissed with cost of Rs. 1 Lakh to be deposited with the concerned Commissioner within a month.

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• 2013 (4) TMI 182
  Refund claim - Area based exemption - Notification No. 56/2002-C.E. - The point of dispute is as to whether the education cess levied under Section 91 read with Section 93 of Finance Act, 2004 and Secondary and Higher Education Cess levied under Section 136 read with Section 138 of the Finance Act, 2007 are also covered by this exemption notification for duty exemption. - Held that - The issue involved in this case stands decided against the appellant by a detailed judgment of the Tribunal in the case of CCE, Jammu v. Jindal Drugs Ltd. reported in [2009 (8) TMI 812 - CESTAT, NEW DELHI] wherein the Tribunal relying upon the Apex Court’s judgment in the case of Union of India v. Modi Rubber Ltd. reported in [1986 (8) TMI 60 - SUPREME COURT OF INDIA] had held that Notification No. 56/2002-C.E. is not applicable to education cess levied under Section 91 read with Section 93 of Finance Act, 2004. The appeal is dismissed.

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• 2013 (4) TMI 181
  Refund claim - unjust enrichment - finalization of provisional assessment - the respondent have produced a Chartered Accountant’s certificate certifying that the incidence of excess duty whose refund is claimed by them had not been passed on by them to their customers - M/s. BSNL. Held that - Once evidence is produced by the respondent that they have borne the incidence of duty whose refund is claimed by them, the burden would shift to the department to prove that the respondent’s claim is not correct. In this case, no such evidence has been produced by the department. In view of this, we do not find any infirmity in the impugned orders-in-appeal. The Revenue’s appeals are dismissed. The Cross Objections also stand disposed of as above.

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• 2013 (4) TMI 180
  Waiver of pre-deposit - Cenvat Credit - manufacture of sugar during which bagasse emerges – maintenance of separate account and inventory of the inputs used in or in relation to manufacture of dutiable final and exempted products - Held that - crushing of sugarcane is necessary to extract cane sugar juice which in turn is processed for production of sugar and molasses. - Bagasse is the waste product left after the crushing of sugarcane. Therefore, by no stretch of imagination it can be said that the assessee possibly could have maintained separate accounts for the inputs for production of sugar and molasses (excisable item) and bagasse. Moreover, neither the show cause notice nor the impugned order in appeal mentions as to which common Cenvat credit availed inputs have been used in manufacture of sugar and, molasses (dutiable final product) and bagasse (exempted final product). Since Bagasse emerges at sugarcane crushing stage, there is no possibility of any inputs-chemicals etc. having been used at that stage. - demand set aside - decided in favor of assessee.

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• CST, VAT & Sales Tax

• 2013 (4) TMI 200
  Detention of goods - Demand of security deposit - Department doubted evasion of tax as petitioner purchased purchased various household articles/fittings and such other installations from Bangalore for renovation of its establishment. - Held that - Court finds that the observation made by the detaining authority that there were no supporting documents to prove that the taxable materials were transported for 'own use', may not be true, as the presence of Invoice and form 16 was also available. For that matter, the goods need not be detained any further and that the same can be released to the petitioner on executing a 'simple bond'. It is ordered accordingly. The petitioner shall produce a copy of the judgment along with a copy of the writ petition before the second respondent for further steps. The writ petition is disposed of.

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• 2013 (4) TMI 199
  Arrangement for storage of Oil - Inter State Sale or Not under Central Sales Tax (CST) - reassessment - change of opinion - transfers of HSD and SKO in question from the Lighterage Terminal at Paradeep to outside the State, i.e., Haldia First Factual aspect is regarding whether the the completed assessment has been reopened by mere change of opinion - Held that:- The reassessment proceedings initiated for the self-same year cannot be said to be without jurisdiction on the ground of change of opinion unless and until it is established that the turnover brought to tax in the reassessment was subject matter of earlier assessment and no tax was levied by the assessing officer by taking a particular view. Therefore, the first ground of challenge that the completed assessment has been reopened under Rule 12(8) of the C.S.T (O) Rules by mere change of opinion, fails the same being misconceived. Second is as to whether reasonable opportunity of hearing was afforded to the petitioner - Held that:- The Assessing Officer has extracted the report of Paradeep Port Trust and Ocean Loss Report submitted by the IOCL in reassessment order only for the purpose of better appreciation of the alleged transactions effected by the petitioner dealer which has been informed to the petitioner vide letter dated 30.12.2006 (Annexure-3). The information of Paradeep Port Trust or IOCL has not been utilized by the Assessing Officer against the petitioner-dealer to enhance the turnover alleged to have been escaped from assessment in notice dated 30.12.2006 under Annexure-3. What is taxed in the impugned reassessment order was exactly the same transaction shown in the letter dated 30.12.2006 (Annexure-3) communicated to the petitioner much before passing the impugned order of reassessment. Therefore, it cannot be said that the petitioner was not aware of the materials on the basis of which the reassessment proceeding has been made. Third is as to whether the Assessing Officer has passed the impugned assessment order on the dictate of his higher authority - Held that:- Further perusal of the assessment order passed under Rule 12(8) of the CST (O) Rules also reveals that on receiving report from the Additional Commissioner, the Assessing Officer applied his mind, examined the case of the assessee with reference to the copy of the hospitality arrangement between BPCL and HPCL and the statement of inter-state sale of petroleum products dispatched by HPCL from Lighterage Terminal at Paradeep to other oil companies outside the State filed by the petitioner, documents and previous order of assessment and referring to all the relevant provisions of the CST Act came to the conclusion that there has been evasion of tax by the petitioner-assessee. Fourth is whether notice for reassessment proceeding under Rule 12(8) of the CST(O) Rules has been issued on 29.12.2006 whereas initiation of the reassessment proceeding was made on 30.12.2006 and therefore the entire reassessment proceedings are vitiated in law - Held that:- It reveals that no date is put under signature of the STO. In view of the order sheet entry dated 30.12.2006 and that notice under Rule 10 of CST(O) Rule has been issued on 30.12.2006, it can be safely concluded that the date 29.12.2006 appearing on the left side bottom portion of the notice (Anneuxre-2) is a mistake occurred inadvertently. Therefore, the allegation that opposite party issued notice prior to initiation of proceedings under Rule 12(8) and the entire reassessment proceedings are vitiated, is not sustainable in law. Fifth is as to whether the issue involved in the present case are similar/identical to that of the case of Indian Oil Corporation Limited vs. State of Orissa and Others - Held that:- So far as the present case is concerned, the petitioner has neither disclosed the transactions in question in its return much less furnished any declaration in Form-F to prove that the transfer of goods from Lighterage Terminal at Paradeep to outside the State, i.e., Haldia was otherwise than by way of sale. Sixth is as to whether dispatch is either by way of inter-state sale or branch transfer - Held that:- There was no movement of goods resulting completed sale, system and procedure adopted by BPCL and other Companies cannot be treated as inter-state sale in the process of trade and commerce and based on presumption. In the fact situation, it is open to the petitioner to approach the First Appellate Authority challenging the impugned assessment order (Annexure-5), if so advised, taking all its contentions with regard to alleged transfers of HSD and SKO in question from the Lighterage Terminal at Paradeep to outside the State, i.e., Haldia and that the petitioner is not liable to pay tax under the CST Act. If any such appeal is filed within two weeks from today, the Appellate Authority is directed to adjudicate that issue, after affording opportunity of hearing to the petitioner, and pass order in accordance with law - With the aforesaid observations and directions, the writ petition is dismissed

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• 2013 (4) TMI 198
  Classification - fishing ropes made up of HDPE/PP - the dispute in question is whether any tax is payable in so far as the commodity dealt with by the petitioner. - Held that:- the dispute being one covered under Section 94(1) (d) of the KVAT Act and it is up to the petitioner to make an application to the authority and if such an application is made, it is up to the authority to issue appropriate clarification in the manner as laid down in the Act. It will be open to the petitioner to make such an application and if such application is made within 10 days from today, the authority under Section 94 of the KVAT Act will consider the same in accordance with law and issue appropriate clarifications.

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