TMI Tax Updates - e-Newsletter
May 5, 2012

Case Laws in this Newsletter:

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

Articles

1. Lump sum sales tax on brick klin owners on the basis of production capacity is unconstitutional

   By: AMIT BAJAJ ADVOCATE

2. PROCESS AMOUNTING TO MANUFACTURE OR PRODUCTION OF GOODS

   By: Dr. Sanjiv Agarwal

News

1. Text of FM’s Address to First Business Session of ADB Annual Meeting in Manila.

2. Widening Interest Rates in India and United States.

3. Linking of GPF Interest Rates With EPFO.

4. Use of Existing Infrastructure for Banking Services.

5. Loans to Companies/ Industrial Houses.

6. Functioning of Cooperative Banks.

7. Exemption of Customs Duty.

8. Soft Loans to Poultry Farmers.

9. Cooperative Credit System.

10. Subscribers to NPS to Now have Choice of Annuity Service Providers; PFRDA takes Important Step towards Providing an Exit Route to the Subscribers.

11. Future Implementation of XBRL.

12. Advisory Group for International Taxation and Transfer Pricing Constituted.

Notifications

Customs

1. F.No. 437/27/2011-Cus. IV - dated 3-5-2012 - Cus (NT)

Corrigendum to earlier office order regarding appointment of Common Adjudicating Authority.

VAT - Delhi

2. F.3(27)/Fin(Rev-I)/2011-12/DSIII/353 - dated 25-4-2012 - DVAT

Amendment in Delhi Value Added Tax Rules, 2005.

Circulars / Instructions / Orders

FEMA

1. 115 - dated 4-5-2012

Exim Bank's Line of Credit of USD 70 million to the Government of the Republic of Congo.

DGFT

2. 109 (RE2010)/2009-14 - dated 3-5-2012

Amendments in Appendix 37A & Appendix 37D of Handbook of Procedure, Vol.I.

3. 108/2009-2014 (RE-2010) - dated 2-5-2012

Amendment in Appendix 1 of Handbook of Procedure Vol. I (Appendices and Aayat Niryat Forms), 2009-2014.

4. 107 (RE-2010)/2009-14 - dated 30-4-2012

Amendment of Standard Input Output Norms (SION) of Food Products (Product Code: ‘E’) in the Handbook of Procedures V.2 (2009-14) : Re-numbering of SION E - 1A as E - 131.

5. 106 (RE-2010)/2009-14 - dated 30-4-2012

Amendment of Standard Input Output Norms (SION) of Food Products (Product Code: ‘E’)in the Handbook of Procedures V.2 (2009-14) : Re-numbering of SION E - 129A as E - 130.

Highlights / Catch Notes

Income Tax

• High Court Reviews Depreciation Claim on Assets in Leaseback Financing Transactions; Assessee Seeks 100% Depreciation Benefit.

  Case-Laws - HC : Claim of depreciation in respect of assets allegedly leased - financing transactions - assessee purchased assets and leased back to the same company claiming 100% depreciation - HC
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• Tribunal Approves Partner Remuneration Payment, Highlights Importance of Partnership Deed Terms u/s 40(b) Income Tax Act.

  Case-Laws - HC : Payment of Remuneration Working partner allowed by Tribunal - Manner of quantification in the partnership deed - Section 40(b) - HC
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• Waiver of Pre-Deposit Possible When Initial Examination Shows Demand is Baseless, Avoiding Unnecessary Taxpayer Payments.

  Case-Laws - HC : Waiver of pre-deposit - if on a cursory glance it appears that the demand raised has no leg to stand, it would be undesirable to require the assessee to pay full or substantive part of the demand - HC
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• Penalty Imposed for Late e-TDS Returns Filing u/s 272A(2)(k) of Income Tax Act Highlights Compliance Importance.

  Case-Laws - AT : Penalty levied u/s 272A(2)(k) – delayed filing of e-TDS returns- AT
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• High Court Rules Reassessment Valid Despite 4.5-Month Delay in Assessing Officer's Recorded Reasons to Petitioner.

  Case-Laws - HC : Re-assessment proceedings - only a delay of 4 ½ months in supplying the reasons recorded by the AO to the petitioner cannot invalidate the reassessment proceedings - HC
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• Court Evaluates Tax Classification of Power Station Repair Costs: Revenue vs. Capital Expenditure for Tax Purposes.

  Case-Laws - HC : Expenditure on current repair, maintenance and replacement on the leased Thermal power station - revenue expenditure or capital expenditure - HC
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• Income from services rendered abroad not taxable in India u/ss 6 and 9(1)(ii) of Income Tax Act.

  Case-Laws - HC : Profit in lieu of salary for services rendered outside India - said income did not accrue or arise in India in terms of Section 6 and Section 9(1) (ii) - HC
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• High Court Examines Legitimacy of Reassessment Proceedings Based on Information from Director of Investigation on Bogus Entries.

  Case-Laws - HC : Reassessment proceedings after information received from Director of Investigation regarding bogus/accommodation entries - HC
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• High Court clarifies whether surrendered income qualifies for export deduction u/s 80HHC of the Income Tax Act.

  Case-Laws - HC : Nature of surrendered income - Claim of deduction under Section 80HHC on account of export - HC
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DGFT

• DGFT updates Handbook of Procedure with amendments to Appendix 37A and 37D to streamline trade processes.

  Circulars : Amendments in Appendix 37A & Appendix 37D of Handbook of Procedure, Vol.I. - Cir. No. 109 (RE2010)/2009-14 Dated: May 3, 2012
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• DGFT Amends Appendix 1 of Handbook of Procedure Vol. I (2009-2014) via Circular No. 108/2009-2014.

  Circulars : Amendment in Appendix 1 of Handbook of Procedure Vol. I (Appendices and Aayat Niryat Forms), 2009-2014. - Cir. No. 108/2009-2014 (RE-2010) Dated: May 2, 2012
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• SION for Food Products Updated: E-129A Renumbered to E-130 in Handbook of Procedures V.2 (2009-14.

  Circulars : Amendment of Standard Input Output Norms (SION) of Food Products (Product Code: ‘E’)in the Handbook of Procedures V.2 (2009-14) : Re-numbering of SION E - 129A as E - 130. - Cir. No. 106 (RE-2010)/2009-14 Dated: April 30, 2012
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• SION for Food Products Renumbered: E-1A is Now E-131 in Handbook of Procedures V.2 (2009-14) per DGFT Circular.

  Circulars : Amendment of Standard Input Output Norms (SION) of Food Products (Product Code: ‘E’) in the Handbook of Procedures V.2 (2009-14) : Re-numbering of SION E - 1A as E - 131. - Cir. No. 107 (RE-2010)/2009-14 Dated: April 30, 2012
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FEMA

• Exim Bank Extends $70 Million Credit Line to Republic of Congo for Trade and Economic Cooperation (Circular No. 115.

  Circulars : Exim Bank's Line of Credit of USD 70 million to the Government of the Republic of Congo. - Cir. No. 115 Dated: May 4, 2012
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Indian Laws

• Court Rules Lump Sum Sales Tax on Brick Kilns Unconstitutional, Calls for Fair and Equitable Taxation Practices.

  Articles : Lump sum sales tax on brick klin owners on the basis of production capacity is unconstitutional - Article
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Service Tax

• Court Examines Cenvat Credit Eligibility for Insurance of Retiring Workers and Export Goods Under Service Tax Rules.

  Case-Laws - AT : Cenvat credit - insurance of workers retiring under voluntary retirement scheme and insurance of export goods and insurance abroad for the sale in case - AT
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• Service Tax Demand Issued for Convention; Delegate Fees Used for Event Arrangements Under Scrutiny.

  Case-Laws - AT : Demand of service tax against holding a convention - money collected from the delegates made arrangement for the mutual benefit of delegates in the conference - AT
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• Unregistered Head Office Risks Legal Issues Over Invoice Misstatements in Service Tax Compliance Under ISD Rules.

  Case-Laws - AT : ISD (input service distributor) - Suppression or mis-statement - the invoices are in the name of head office, who was not registered as ISD - AT
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Central Excise

• Claimants Must Prove Eligibility for Tax Exemptions Under Notification 64/95-CE Dated 16.03.1995 to Avoid Liability.

  Case-Laws - AT : Notification no. 64/95-CE dated 16.03.1995 - A person invoking an exception or exemption provision to relieve him of the tax liability must establish clearly that he is covered by the said provision.- AT
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• Are Polystyrene Sheets Marketable? Examining Excisability and Duty Demand on Intermediate Products in Manufacturing.

  Case-Laws - AT : Excisability - demand of duty - intermediate product - captively consumed – marketability – polystyrene sheets arising in the course of manufacture of the final products - AT
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• Dismissal on Limitation Grounds Doesn't Merge with Original Decision: Doctrine of Merger Explained.

  Case-Laws - SC : Doctrine of merger - If for any reason an appeal is dismissed on the ground of limitation and not on merits that order would not merge with the orders passed by the first appellate authority - SC
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VAT

• Delhi VAT Rules Amended: Key Updates on Sales Tax Regulations for Businesses Under Notification No. F.3(27)/Fin(Rev-I)/2011-12/DSIII/353.

  Notifications : Amendment in Delhi Value Added Tax Rules, 2005. - Ntf. No. F.3(27)/Fin(Rev-I)/2011-12/DSIII/353 Dated: April 25, 2012
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Case Laws:

• Income Tax

• 2012 (5) TMI 59
  Claim of depreciation in respect of assets allegedly leased - assessee purchased assets and leased back to the same company claiming 100% depreciation as a lessor - ITAT deleted addition made by the AO - Held that:- The appellants are carrying on the business of financiers, they are not dealing in motor-vehicles and the motor-vehicle purchased by the customer is registered in the name of the customer - letter taken from the customer agreeing to keep the vehicle insured recited that the vehicle has been given as security for the loan advanced by the appellants - right of the appellants may be extinguished by payment of the amount due to them under the terms of the hire-purchase agreement even before the dates fixed for payment - the intention of the appellants in obtaining the hire-purchase and the allied agreements was to secure the return of loans advanced to their customers and no real sale of the vehicle was intended – considered merely financing transactions -The matter has not been examined and considered by the tribunal from the right perspective as the real issue and controversy has not been examined - An order of remand directing the tribunal to examine the controversy afresh - in favour of the Revenue

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• 2012 (5) TMI 58
  Royalty income - assessee-company computed tax on royalty in respect of 'Marketing Royalty Agreement’ and royalty on sale of software to third parties @ 10.455% as per section 115A as against the rate of 15% as per Article 12 of the DTAA between India and USA – royalty towards ESW the tax was computed @ 15% as per Article 12 of the DTAA between India - USA as against the tax rate of 20% as per section 115A - Held that:- It is a settled position that as per section 90(2), the provisions of the Act or the provisions of the Treaty, whichever is beneficial, apply to the assessee - royalty income in respect of the agreement entered into before 1.6.2005 are from one 'source' and royalty income in respect of agreements entered into on or after 1.6.2005 are from a different 'source' , the contracts or agreements being the source of income have been entered into on different dates and the statute recognizes such time differentiation and provides separate tax rates for each such stream - the assessee is justified in comparing the rate of 10% and 20% (as per section 115A) separately and independently with the rate of 15% (as per Article 12 of the India-USA DTAA Treaty - where a provision in the taxing statute is capable of two reasonable interpretations, the view favorable to the assessee is to be preferred – in favour of assessee. Charging of interest u/s.234B – Revenue submitted that since the rate for advance tax at 15% is more than the TDS rate under section 115A @10%, the assessee is liable to be charged interest under section 234B Held that:- Foreign company is not liable for internet u/s. 234B - the computation of tax by the assessee at the rates specified in the Treaty and section 115A is correct - that the rate of tax for payment of advance tax and TDS being different, their ratio is not applicable - assessee is therefore not liable to be charged interest u/s. 234B – in favour of assessee.

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• 2012 (5) TMI 57
  Writ petition - directing the petitioner to remit 50% of the amount in five equated monthly installments - Held that:- AS a strong prima facie case has been made out by the petitioner,petitioner to remit 25% of the demand raised in two equated monthly installments - on such payment recovery of the balance tax due under Ext.P1 will stand stayed and the Appeal will be heard without any delay.

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• 2012 (5) TMI 56
  Remuneration payable to Working partner allowed by Tribunal - Revenue appeal that the amount of remuneration has not been quantified in the partnership deed – Held that:- Section 40(b) (v) specifies that remuneration is to be authorized by partnership deed to a working partner, the working partner has been defined in explanation 4 opportunity Section 40(b), Clause 8 of the partnership deed relates to the entitlement of remuneration to the to the partners - It is mentioned in clause 8 of the partnership deed that remuneration will be payable as per norms fixed by the relevant provisions of the Income-tax Act, thus the quantification of the remuneration is apparent from the clause 8 - the requirement in law is that remuneration should have been authorized and the amount of remuneration shall not exceed the amount as mentioned in sub-clause (v) of Section 40 (b)- the remuneration receivable by the partners is taxable in their hands and it is not the case of the Revenue that the assessee has claimed remuneration to the working partners to avoid tax – against revenue.

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• 2012 (5) TMI 55
  Set off of short term capital loss on transaction Security Transaction Tax had been paid against short term capital gain arising from non STT transactions - Held that:- Under the provisions of section 70(2), short term capital loss arising from any asset can be set off against short term capital gain arising from any other asset under a similar computation made - merely because the two set of transactions are liable for different rate of tax it cannot be said that income from these transactions does not arise from similar computation made as computation in both the cases has to be made in similar manner under the same provisions – in favour of assessee

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• 2012 (5) TMI 54
  Levy of penalty under section 271(1)(c) - assessee contested that a similar addition made for A.Y. 2003-04 stands deleted by the Ld. CIT(A) in first appeal – Held that:- Such collection towards share deposit account was not in the nature of revenue receipt and hence was not taxable - the claim of the assessee was on bona fide belief of past accounting practice and legal interpretation - the assessee has disclosed the complete facts in the books of accounts and return of income - it is duty of the AO to compute total income in accordance with law on the basis of particulars filed by the assessee - there is no finding that the explanation furnished by the assessee was false - the AO himself did not disallow such amount in earlier years as well as in subsequent years - penalty under section 271(1)(c) is not leviable -The order of CIT(A) is confirmed.- in favour of assessee.

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• 2012 (5) TMI 53
  Business of retail trade in liquor purchases from the Andhra Pradesh Beverages Corporation Ltd - AO computed the turnover by adopting the profit margin as 27% as per the GOMS No. 184 dated 7.2.2005 of the Govt. of AP and added the difference to the income as suppressed turnover - assessee was unable to produce sale bills - Tribunal directed AO to estimate the net profit at 3% of the purchases or stock put for sale during the year – Held that:- the entire understatement of sales cannot be treated as undisclosed income for the year under consideration - it is well settled law that the best guide for estimation of income after rejecting the books of accounts is either past history of the assessee or any other comparable cases - since the assessee's net profit in the past is between 0.12% to 0.28% of sales the estimation of the net profit at 3% is reasonable – against revenue. Levying interest u/s 234B – assessee contested that the entire purchases are subject to TCS and no advance tax is payable – Held that:- The rate of tax collectible may or may not be equivalent to tax which is ultimately payable by the purchaser,the purchaser has to pay advance tax to make up for this difference - Hence as per the provisions of Section 209 r.w.s. 234B the CIT(A) rightly directed the AO to give credit to the tax collectible u/s.206C, from the tax on the assessed income and compute the short fall in payment of advance tax - against assessee.

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• 2012 (5) TMI 52
  Confirmation of foreign travel expenses – Held that:- As copies of affidavits were not filed before lower authorities and there is no application having been filed before Ld.CIT(A) or before this bench for admission of such material, hence it is ignored - the assessee has failed to establish that foreign travel expenses as claimed have actually been incurred for business purposes or were even incidental to business of the assessee – against assessee. Dis - allowing the claim of bad debt - Held that:- Decided in TRF Ltd. vs. CIT( 2010 - TMI - 76626 - SUPREME COURT ) that if the amount has been written off from the books of account, it is allowable - as the amount has actually been written off in this year as admitted by the assessee and not rebutted by Revenue no justification in making the impugned dis allowance of claim - in favour of assessee.

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• 2012 (5) TMI 50
  Penalty levied u/s 272A(2)(k) – delayed filing of e-TDS returns - Held that :- There was only a technical and venial breach to the provisions contained in Rules 31A (2) of the Income Tax Rules, 1962 r.w.s. 200(3) requiring the assessee to submit quarterly returns on due date - as regards the delay in submitting TDS returns, it was explained by the assessee that due to non-furnishing of PAN numbers, the TDS certificate could not be filed in time, but the tax was deducted in time and deposited with the government account - it is clear that the assessee was prevented by sufficient case from filing the returns within the statutory period - assessee did not derive any benefit whatsoever by not filing the e-TDS returns in time, as the amount of TDS was duly deposited in the government treasury within prescribed time – in favour of assessee.

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• 2012 (5) TMI 45
  Addition made consequent to a transfer pricing adjustment to international transaction - interest free loan given to one its AE – TPO determined the arm's length interest at the rate of 10 percent per annum based on the rate of interest charged by the taxpayer on Euro denominated loan granted to its German AE – Held that:- Assessee confirmed the transfer pricing adjustment - once the transaction between the assessee and the AE is in foreign currency and the transaction is an international transaction the domestic prime lending rate would have no applicability and the international rate fixed being LIBOR would come into play - the average of the LIBOR rate for period in question is 4.42% and the assessee has charged interest at 6% which is higher than the LIBOR rate no addition on this count is liable to be made in the hands of the assessee – Appeal partly allowed.

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• 2012 (5) TMI 44
  Re-assessment proceedings - return of income declaring loss – assessee contested against the re- assessment proceedings as notice u/s 148 has been issued beyond the period of 4 years from the end of the assessment year – Held that:- Sanction for the proposal to reopen the assessment was accorded by the ACIT on 9.3.2011, notice to reopen the assessment was issued on 15.3.2011 and reasons for reopening the assessment had been recorded on 9.3.2011. These were however supplied to the petitioner only on 30.8.2011 - There is no requirement in Section 147 or Section 148 or Section 149 that the reasons recorded should also accompany the notice issued under Section 148 and served on the assessee before the period of limitation - only a delay of 4 ½ months in supplying the reasons recorded by the AO to the petitioner cannot invalidate the reassessment proceedings - against assessee.

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• 2012 (5) TMI 43
  Expenditure on current repair, maintenance and replacement on the leased Thermal power station - ITAT treated it as revenue expenditure and not a capital expenditure – Held that:- The basic test to find out as to what would constitute current repairs is that the expenditure must have been incurred to “preserve and maintain” an already existing asset, and the object of the expenditure must not be to bring a new asset into existence or to obtain a new advantage ”- No new asset came into existence and the expenditure was incurred to make the plant operational and functional - the clause of lease agreement conveys that what the assessee is entitled on the expiry of lease is only written down value of the additions and alterations to the building, station or additional machinery and none of the items represents addition or alteration to the building, station or additional machinery – against revenue.

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• 2012 (5) TMI 42
  Profit in lieu of salary for services rendered outside India - ITAT deleted the addition made by the AO – Held that:- Payment in question was received towards retirement benefit/severance/vacation engagement from the erstwhile employer on termination of employment in November, 1999 - employer was based in USA and services were rendered to the erstwhile employer in USA - the said amount cannot be taxed in India as the status of the assessee during the year in question was that of “not ordinary resident” - said income did not accrue or arise in India in terms of Section 6 and Section 9(1) (ii) - in favour of the assessee.

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• 2012 (5) TMI 41
  Reassessment proceedings after information received from Director of Investigation regarding bogus/accommodation entries - question arose whether the share application money received was a genuine transaction - Held that:- Assessee's reliance on the judgment of Hon ble Supreme Court in the case of CIT Vs. Lovely Exports Pvt. Ltd.(2008 (1) TMI 575 - SUPREME COURT OF INDIA)is not applicable to this case as summons issued by the AO could not be served in the address of such share applicants by the postal authorities as none of them was found in the said address, thus it cannot be said that the AO has not brought on record any evidence to show that applicants were mere paper entities - it is also to be noted that share were not allotted to these parties in the immediate future - the orders of the authorities below are required to be set aside on the impugned issues and the matter remitted back to the file of the Assessing Officer for re-adjudicating -the Assessing Officer should pass a fresh order as per law after giving the assessee adequate opportunity of being heard.

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• 2012 (5) TMI 40
  Notice of hearing sent to the assessee at the address given in Form No. 36 returned back unserved - no intimation given by departmental representative for effective service on the respondent assessee - Held that:- Since notice of hearing was handed over to the DR well in advance of the date of hearing and was unable to say whether service had been effected or not the appeal of the Revenue could not be heard on merit in absence of service of notice upon assessee - revenue has not provided proper address of assessee - opportunity of hearing is essential before adjudicating appeal for which service of notice is condition precedent - once revenue is not able to get exact address of assessee, how it will follow the same, in case matter is decided in favour of revenue – against revenue.

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• 2012 (5) TMI 39
  Nature of surrendered income - Claim of deduction under Section 80HHC - the assessee had taken the surrendered value of stock of bullion lying with karigarsas as business profits – Held that:- Deduction under Section 80HHC could be claimed only on showing facts which make an assessee eligible for the deduction - there was no presumption that the surrender made was on account of unexplained stocks representing the export income - burden to prove to said facts was on the assessee and not on the Revenue - there cannot be any presumption that the surrender made represents income from exports – against assessee.

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• Customs

• 2012 (5) TMI 38
  Penalty on Seven traders - held to be trading in Chinese silk cloth and unstitched cloth illegally imported - Customs duty was not paid on the said import – Held that:- Tribunal was not right in disposing of the appeal without specifically dealing and examining the contentions and issues raised - The contentions and issues raised by the appellants e.g., in the case of Mahender Jain (Appearance for Assessee)it was submitted that his statement under Section 108 of the Act does not bring out or support the Revenue’s allegation; does not show his involvement in the smuggled goods was ignored – Non speaking and unreasoned order was passed ignoring the evidence and material relied upon by the parties - remit back the issue to the tribunal to re-hear the arguments and thereafter pass a reasoned and speaking order - in favour of the assessee .

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• 2012 (5) TMI 37
  Levy and demand of interest under Section 28AB (now Section 28AA) r.w.s 28(2) for belated payment of customs duty for the goods imported through the Cochin Customs – Held that:- Decided in ICI INDIA LIMITED VS. COMMISSIONER OF CUSTOMS PORT (2004 (9) TMI 127 - HIGH COURT AT CALCUTTA) that interest is sustained as assessee also produced forged DEPB credit and the fraud perpetuated in a transaction of this type should automatically lead to demand of duty and interest – the mistake committed by the Customs on not verifying the genuineness of the Telegraphic Release Advice produced on the DEPB credit cannot be encased by the appellant by avoiding statutory interest which is mandatory and payable at the prescribed rate for delay in payment of customs duty – against assessee.

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• Corporate Laws

• 2012 (5) TMI 49
  Sanction of a scheme of arrangement - whether the North Mill was transferred to the petitioner, the transferee company? - Held that:- The surrounding circumstances made it obvious that such property had passed to the applicant under the sanctioning order - The order on the request under Section 11 of the 1996 Act may then have been without prejudice to the applicant's contention that the order sanctioning the scheme was mistaken or left unaffected the applicant's right to urge such ground at a subsequent stage, only then would the present application and the plea urged by the applicant have been maintainable despite the rejection of the request under Section - once the applicant had asserted its right to the North Mill on the basis of the order sanctioning the scheme as drawn up, and failed; it was no longer open to it to claim that the order was erroneously drawn up in the North Mill not being included in the schedule thereto - a mistake of court in an order may be corrected at the instance of any person demonstrating to be prejudiced but the right of such person may not be recognized any longer if he has stood by and allowed a previous opportunity to pass when he ought to have asserted the mistake and attempted to have it rectified – against applicant.

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• 2012 (5) TMI 36
  Application filed under Section 543(1) by Official Liquidator alleging misfeasance on the part of the Directors of the Company-in-liquidation – Held that:- As per the scope of Section 543 of the Act and having noticed the fact that within the period of one year between the two balance sheets dated 31.03.1995 and 31.03.1996, the respondents have made efforts and have recovered the major portion of the amount –for unrecovered portion, a satisfactory explanation has been provided as to why the Directors could not recover the said amount - with regard to the adjustments made by the bankers and the landlord from the deposits which were available in the bank the Directors cannot be held directly responsible of the acts in adjusting the amount available with them and the Directors in no way could have prevented the same - with regard to the loans and advances the witness (PW-1) has admitted that these are the statutory deposits and are recoverable and it can still be recovered in accordance with law and the same cannot be considered as an act of misfeasance to hold that the respondents are guilty – against Official Liquidator

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• Service Tax

• 2012 (5) TMI 64
  Application for stay - The appellants have submitted a few job orders and invoices relating to the work done to demonstrate the nature of work - Held that: Commissioner (Appeals) has dismissed their appeal for non-compliance with the provisions of Section 35-F of Central Excise Act. The counsel submits that in the first place, the impugned services are not classifiable under Erection and Commissioning - the appellant should be given an opportunity of hearing. - Decided in favor of the assessee by way of remand to Adjudicating authority

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• 2012 (5) TMI 63
  Refund - Notification No.17/09-ST dated 7.7.09 - Revenue felt that the claim was not filed within the time limit prescribed, Revenue issued a show cause notice for rejecting the refund - Held that: the claim was filed within one year from the date of payment of service tax to the service provider has been found to be false as per the finding in order in appeal in para 5.4. At any rate, since the notification contains both the conditions that is proviso (e) of Clause 1 and proviso (f) of clause 2, the actual requirement is that the exporter should have paid service tax to the service provider and thereafter made a claim within one year from the date of export - Appeal is rejected

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• 2012 (5) TMI 62
  Waiver of pre-deposit - Business Auxiliary Services - Franchisee Service - Revenue was of the view that the appellants should have paid service tax on the opportunity cost charged by the Appellants in the first type of sales and on the price differential charged in the second type of sale of goods under the head for "Franchisee Service" under clause 65 (105) ( zze ) of Finance Act, 1994 - Held that: the manufacturers are not acting as representatives of the appellant in such transactions. They submit that the appellants have not given representational rights to the manufacturers for such sales - the relationship between the manufacturers and the appellants as per the contract would give the activities and nature of franchisee services as defined by the above provisions and there is a relationship as franchisor and franchisee between the two - One difference that we see is that the excise duty is being paid on the value at which goods are sold by the appellants to the customers. In fact this factor is in favour of the case made out by the Appellants - pre deposit waived.

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• 2012 (5) TMI 61
  Cenvat credit - insurance of workers retiring under voluntary retirement scheme and insurance of export goods and insurance abroad for the sale in case - Held that: in the case of Toyota Kirloskar Motor P. Ltd. (2011 - TMI - 210974 - KARNATAKA HIGH COURT - Service Tax) the Hon'ble High Court of Karnataka has widened the scope of input service as defined under Rule 2L of the CENVAT Credit Rules, 2004 and the service received by the applicant are covered under input services - Decided in favor of the assessee

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• 2012 (5) TMI 47
  Demand of service tax against holding a convention - Held that: the delegates who had attended the conference were not clients of the appellant. It is the appellant, who out of the money collected from the delegates made arrangement for the mutual benefit of delegates in the conference - Decided in favor of the assessee

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• 2012 (5) TMI 46
  Delay of 17 days in filing the refund claim -services received from persons located abroad paying service tax as per the proviso of section 66A - claim of refund as per Notification No. 9/09-ST dated 3.3.09 superceded by another notification No.17/11-ST dated 1.3.11 – Held that:- Do not agree with the argument that the time limit under Notification dated 1.3.11 cannot be made applicable to the claims filed before that date and pending on that date - the Deputy Commissioner had power to condone the delay - the delay involved was only 17 days and when a public authority is given any power he is expected to exercise it unless there is a reason for not exercising such power - should have considered the claim as per the proviso of Notification 17/2011 ST dated 1.3.11 which was in force on the date when Order was issued - claims are not time barred and the matter is remanded to the adjudicating authority to decide the case afresh, on the merits of the claim.

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• Central Excise

• 2012 (5) TMI 48
  Demand of duty and penalty - Time limitation - appellant are engaged in the manufacture of Lacquered Metalised Polyester Film as well as Imitation Zari. The appellants were clearing Lacquered Metalised Polyester film on payment of appropriate duty - The case of the Revenue is that the appellants were clearing their final product i.e Lacquered Metalised Polyester film without payment of duty to the job worker and therefore it cannot be said that the same is semi-finished processing to the job worker - Held that: as the appellant are registered with the Revenue in the manufacture of two products, one is dutiable and the other is exempted. The appellants were captively consuming part of the Lacquered Metalised Polyester film is used in the manufacture of zari i.e exempted goods. Therefore, it cannot be said that Lacquered Metalised Polyester film is their final product which is liable to duty at the time of clearance to the job worker - Appeal is allowed

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• 2012 (5) TMI 35
  Doctrine of merger - Disallowed the MODVAT credit availed by it and penalty under Rule 173Q - delay in filing the appeal - First Appellate authority having no powers to condone the delay beyond the prescribed period rejected the appeal - application for rectification of the judgment and orders requesting the Tribunal to first condone the delay and next to decide the appeal on merits Held that:- If for any reason an appeal is dismissed on the ground of limitation and not on merits that order would not merge with the orders passed by the first appellate authority - High Court was justified in rejecting the request made by the assessee for directing the revenue to state the case and also the question of law for its consideration and decision against assessee.

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• 2012 (5) TMI 34
  Application for stay - Waiver of pre-deposit - Time limitation - It was found that the applicants manufactured the goods as per the drawings and designs supplied by their customers free of cost and the applicants have not included the money value of drawings and designs supplied by their customers free of cost in the assessable value of the goods cleared by them to their customers - Held that: in the case of International Auto Ltd. Vs. Commissioner of Central Excise, Bihar reported in (2005 (3) TMI 132 - SUPREME COURT OF INDIA), the Hon'ble Apex Court has held that the assessee is not liable to pay duty on the inputs supplied by the final product manufacture, since it had not taken credit for Modvat in respect of inputs - the issue is debatable and the applicants have paid the duty demand along with interest for the normal period of limitation and the same is sufficient for compliance of the provisions of Section 35F.

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• 2012 (5) TMI 33
  Waiver of pre-deposit - Demand is confirmed after denying credit of service tax paid in respect of services availed by the applicant for setting up of storage tanks at the port - The applicant in reply to the contention raised by the Revenue such as per Rule 6(5) of the Cenvat Credit Rules, 2004 credit availed on the service tax paid in respect of Consulting Engineering Services, technology and software services and erection, commissioning and installation of services is admissible even these are used in or in relation to the manufacture of exempted final product - Held that: the service tax paid on input services which are used in or in relation with setting up, modernization, renovation or repairs is admissible. The applicant is engaged in manufacture of excisable goods and the inputs were imported which are being stored at the port and subsequently transported to the factory for use with the manufacture of the final product - pre-deposit waived.

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• CST, VAT & Sales Tax

• 2012 (5) TMI 65
  Demand of lump sum tax determined on the basis of the capacity of brick kiln as per proviso of notification dated 30.06.1993 – Punjab General Sales Tax Act, 1948 - Held that:- Sub Section (4) of Section 5 of the Act is declared as ultra vires of the Article 246 read with Entry 54, List-II-State List of Seventh Schedule - in the absence of an element of sale or purchase, it is not possible to accept that the State Legislature would be competent to impose tax on the capacity to produce brick kilns by brick kiln owners - The incidence of tax is the sale not the production, therefore, the provisions of sub Section 4 of Section 5 are beyond the competence of the State Legislature - quashing the notification dated 30.06.1993 (P-1) which incorporated Section 5(4) of the Act – in favour of assessee.

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• Indian Laws

• 2012 (5) TMI 60
  Delay in Consent to prosecute - offences under Sections 3, 4, 5 and 6 of the Explosive Substances Act, 1908. - consent of central government for prosecution under Section 7 of the Explosive Substances Act, 1908 – Counsel for the appellant submitted that the courts below erred in allowing the application filed by the prosecution after a delay of about three years. He submitted that it was not open to the prosecution to make repeated attempts to get sanction from the competent authority. Counsel submitted that by passing order under Section 311 of the Code, the trial court has subjected the appellant to the ordeal of a trial for the offences under the said Act after a period of three years. This has resulted in miscarriage of justice. Counsel submitted that since the prosecution had deliberately delayed obtaining sanction, it cannot be now allowed to fill in the lacuna. Such a course will result in abuse of process of court. - Held that:- in the facts of this case, where innocent persons lost their lives and several persons were severely injured due to the mishandling and ignorance of assessee which took place in the appellant’s shop, three years period cannot be termed as delay – against assessee.

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