TMI Tax Updates - e-Newsletter
June 20, 2013

Case Laws in this Newsletter:

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

Articles

1. RECOURSE TO SECTION 226(3) OF INCOME TAX ACT, 1961 WHILE STAY PETITION IS PENDING

   By: DR.MARIAPPAN GOVINDARAJAN

2. Case deserving clarification for Cause: Applicability of Service Tax – not on freight but yes on Demurrage

   By: dipsang vadhel

News

1. Share Sale to Employees of CPSEs Post-OFS

2. Exchange Rate for Import & Export of Goods

3. RBI Reference Rate for US $ and Euro

4. Key Indicators of Household Consumer Expenditure in India, 2011-12

5. Key Indicators of Employment and Unemployment in India, 2011-12

Notifications

Customs

1. 63/2013 - dated 20-6-2013 - Cus (NT)

Rate of exchange of conversion of each of the foreign currency with effect from June 21, 2013

Income Tax

2. 46/2013 - dated 19-6-2013 - IT

Commodities Transaction Tax Rules, 2013

3. 45/2013 - dated 19-6-2013 - IT

The Central Government hereby appoints Finance Act, 2013 (17 of 2013) the 1st day of July, 2013

Highlights / Catch Notes

Income Tax

• Section 50C: No Additional Tax for Buyer Without Evidence of Excess Sale Consideration Received.

  Case-Laws - AT : Addition u/s 50C - No addition u/s.50C can be made in the hands of purchaser. - No record to show that the appellant had received over and above the sale consideration shown. - AT
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• Commissioner of Income Tax can revise untouched parts of an assessment order u/s 263.

  Case-Laws - AT : Jurisdiction power u/s 263 by CIT(A) - only the untouched parts of the assessment order, which did not fall for consideration before the CIT(A) are still open to the CIT to revise u/s 263. - AT
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• Dispute Over Tax Authorities' Addition of Excess AMP Expenditures Deemed Unjustified; 1% Brand Development Fee Challenged.

  Case-Laws - AT : TP - Only addition could be made was by considering the excess AMP spends, and the addition done by the lower authorities considering 1% of sales, as brand development fee was not justified. - AT
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• Car Parking, Telecom, and Rental Fees Taxable as Income from Other Sources, Not Business Income.

  Case-Laws - AT : Car parking charges, communication electrical charges, electrical room rent, other rental income, rental two wheeler parking, rent for usage area, telecom room rent and usage of cable duct(trench) - there are taxable under the head income from other sources and not as business income - AT
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• Assessing Officer's disallowance for alleged fund diversion to sister concerns unsupported by evidence, cannot be upheld.

  Case-Laws - AT : Disallowance made by the AO on allegation of diverting borrowed funds to the sister concerns is not borne out from record, hence, cannot be accepted. - AT
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Customs

• High Court Dismisses Writ Petition on Anti-Dumping Duty Due to Lack of Territorial Jurisdiction Cause of Action.

  Case-Laws - HC : Imposing anti dumping duty - writ petition - no cause of action had arisen within the territorial jurisdiction of this Court to entertain the writ petitions. - HC
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Service Tax

• Court Rules Goods Value Must Be Deducted from Gross Value in Works Contract for Service Tax; Stay Granted.

  Case-Laws - AT : Works contract service - supply and installation of 'Electronic Security and Safety Systems' - value of goods supplied to be reduced from gross value - stay granted - AT
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• Cenvat Credit Approved for Fumigation Expenses, Recognized as Packing Costs Under Input Services.

  Case-Laws - AT : Cenvat Credit - input services - fumigation expenses incurred are in the nature of packing expenses. - credit allowed - AT
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• Cenvat Credit Denial: Good Pass Services Unrelated to Business Activities, No Credit Allowed for Input Services.

  Case-Laws - AT : Cenvat Credit - input services - ood Pass Services has no nexus with the business of assessee - credit denied - AT
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• CESTAT dismisses Revenue's appeal over Rs. 2,52,146 dispute in customs, excise, and service tax case.

  Case-Laws - AT : Appeal by Revenue before CESTAT - In the present case the amount involved in this appeal is only Rs. 2,52,146/- - Appeal filed by revenue dismissed. - AT
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Central Excise

• Multigrain Bread Concentrate not classified as flour preparation under Chapter 11 or 19; affects excise tax categorization.

  Case-Laws - AT : Classification - Multigrain Bread Concentrate - Chapter 11 or Chapter 19 - - prima facie Multigrain Bread Concentrate cannot be considered as flour preparation. - AT
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• Larger Bench rules in favor of assessee: Use transaction value, not MRP, for wholesale packing valuation in Roys Industries case.

  Case-Laws - AT : Valuation - whole sale packing - MRP Based or Transaction value - The majority decision of the Larger Bench in the case of Roys Industries [2010 (9) TMI 257] cannot be followed - Decided in favor of assessee. - AT
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Case Laws:

• Income Tax

• 2013 (6) TMI 464
  Penalty u/s. 271(1)(c) - disallowance u/s. 14A - Held that:- Addition on account of disallowance u/s. 14A amounting to Rs. 8,21,690/-. However, the penalty was imposed on the total disallowance amounting to Rs. 10,38,677/-. Thus, the penalty levied was arrived at Rs. 3,53,047/-. However, if the penalty is levied correctly on the actual disallowance by the AO the penalty will fall under a sum of Rs. 3 lacs being the limit fixed by the CBDT for filing the Appeal before the Tribunal, thus the total tax effect of the deletion made by the CIT(A), will fall under the sum of Rs. 3 lacs. In that situation, the Appeal by the Revenue before the Tribunal cannot be made, as per necessary CBDT Circular in this regard. The penalty in this case has been levied on account of disallowance made in accordance with Rule 8D read with section 14A. There has been no concealment or furnishing of inaccurate particulars by the assessee in this case. The disallowance has been made by computing the sums which were duly disclosed in the return and accounts of the assessee. See Hindustan Steel vs. State of Orissa [1969 (8) TMI 31 - SUPREME Court] & CIT vs. Reliance Petro Products Ltd. [2010 (3) TMI 80 - SUPREME COURT] wherein held that mere submitting a claim which is incorrect in law would not amount to giving inaccurate particulars of the income of the assessee. In favour of assessee.

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• 2013 (6) TMI 463
  Addition u/s 50C - CIT(A's) applied the rate as per the Stamp Duty u/s 69B - Held that:- No addition u/s.50C can be made in the hands of purchaser. The A.O. had analyzed the circumstance evidences and estimated the price @ 800/sq.mtr. which was reduced by the CIT(A) 400 sq. mtr. on the basis of show cause notice issued by the A.O. CIT(A) also relied upon the Consumer Price Index and Wholesale Price Index between 1981 and 2005 which was increased five times, but no comparable case has been considered by the ld. CIT(A). The lower authorities had not brought on record any material to show that the appellant had received over and above the sale consideration shown. Thus respectfully following the decision in case of DCIT vs. Shri Virjibhai Kalyanbhai & Smt. Pinkyben B. Chokhawala vs.ITO (2012 (10) TMI 791 - ITAT AHMEDABAD) in absence of any evidence of extra money appeal of the assessee allowed. Rectification application allowed by CIT(A) - CIT(A)-V, Surat had confirmed the addition of Rs.400/- per sq.mtr. against the addition of Rs.800/- per sq.mtr. by the A.O - Held that:- CIT(A) was wrong as there is no apparent mistake in the order of the CIT(A) order dated 30.11.2009. The issue is debatable and the Revenue as well as assessee had filed the appeal before the ITAT and doctrine of merger is applied in assessee's case filed on 22.01.2010 and Revenue's appeal filed on 23.02.2010. Therefore, CIT(A) was not justified in rectifying the order of the CIT(A) u/s.154. Thus, Revenue's appeal is allowed.

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• 2013 (6) TMI 462
  Deduction u/s. 80IB(10) disallowed - Held that:- As the assessee had fulfilled all the conditions of Section 80IB(10) and amendment made in Clause (d) as held in case of Mannan Corpn. Vs. ACIT (2012 (9) TMI 700 - Gujarat High Court) is not applicable on the project approved by the competent authority before 01.04.2005 by which certain riders for deduction has been imposed by the legislature. As ssessee's project was approved in 2001 and in March, 2004 therefore assessee is fully entitled for deduction u/s. 80IB(10) - In favour of assessee.

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• 2013 (6) TMI 461
  Jurisdiction power u/s 263 by CIT(A) - doctrine of merger - specific direction to AO to consider the entire sale consideration for determining the long term capital gain in the assessment year under dispute - Held that:- As decided in CIT V/s. Shri Arbuda Mills Ltd. [1996 (1) TMI 11 - SUPREME Court] the power u/s 263 shall extend and shall be deemed always to have extended to such matters as had not been considered and decided in an appeal. Following the aforesaid decision supra the Hon'ble AP High Court in case of CIT V/s. New Srinivasa Construction Co. [1998 (8) TMI 71 - ANDHRA PRADESH High Court] has laid down the principle that only the untouched parts of the assessment order, which did not fall for consideration before the CIT(A) are still open to the CIT to revise u/s 263. Thus, considered in the light of the ratio laid down as aforesaid, the assessment order so far as relating to the capital gain arising out of the sale consideration having merged with the order passed by the first appellate authority is no longer available to be subjected to the proceeding u/s 263. In the aforesaid view of the matter, the order passed u/s 263 is legally unsustainable and therefore liable to be set aside. So far as the merits of the issue is concerned, it is very much clear from the facts on record that the assessee has only transferred 50% of the land to the developer under the development agreement in-lieu of 50% of the constructed area to be received by her. Therefore, the assessee retained 50% share in the land. At the time of sale of flats the assessee not only transferred the constructed are but along with it her undivided share in the land. Therefore, the CIT was completely wrong in considering the entire amount of Rs. 1,79,00,000/- as sale consideration of flats only without reducing the cost of land there from while computing the 'short term capital gain'. Thus order passed u/s 263 cannot be sustained.In favour of assessee.

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• 2013 (6) TMI 460
  Disallowance was made u/s 40(a)(ia) - short deduction of TDS - 194C v/s 194I - Held that:- This issue is no more res integra in view of several orders passed by various benches of the Tribunal holding that short-deduction of tax at source cannot lead to disallowance u/s 40(a)(ia). See U.E. Trade Corporation (India) Ltd. Vs. DCIT (2012 (8) TMI 700 - ITAT DELHI) and DCIT Vs. Tekriwal (2011 (10) TMI 10 - ITAT, KOLKATA) upheld by the Hon'ble Calcutta High Court in [2012 (12) TMI 873 - CALCUTTA HIGH COURT] to held that provision of section 40(a)(ia) do not apply in case of short fall in the deduction of tax at source. In favour of assessee. Non deduction of TDS - Held that:- The nature of payments made are in the category of professional and technical services. The assessee has placed no material on record to prove that these were small time employees engaged on temporary basis & no complete identification of these three persons before the authorities below. There is no denying the fact that the assessee did not deduct any tax at source from these payments u/s 194J, the act of the assessee in making these payments without deduction of tax at source, clearly brought this case within the mischief of section 40(a)(ia). Against assessee. Payment of location expenses & property hire charges - CIT(A) deleted the addition - Held that:- These amounts were paid by the assessee after deduction of tax at source but at lower than the eligible rate. Thus considering ground 1 no disallowance u/s 40(a)(ia) do not apply in case of short fall in the deduction of tax at source. In favour of assessee. Payment made of Set Construction Expenses - CIT(A) deleted the addition admitting fresh evidence - Held that:- The impugned order that the CIT(A) did not call for any remand report from the AO before admission of this additional evidence. In our considered opinion, the ends of justice would meet adequately if the impugned order on this issue is set aside and the matter is restored to the file of AO for making a proper verification in this regard. In favour of revenue for statistical purposes.

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• 2013 (6) TMI 459
  Entitlement to deduction u/s 80-IB(10) on interest received - Held that:- There is no dispute about the fact that the interest in question relates to the amounts payable by the flat buyers in connection with the purchase of the flats from the assessee. Thus perusing the order of the CIT (A) the relief granted to the assessee relying on the judgment of CIT Vs. Bhansali Engineering Polymers Ltd ( 2008 (4) TMI 236 - BOMBAY HIGH COURT). Also as decided in Vidyut Corporation (2010 (4) TMI 229 - BOMBAY HIGH COURT) and find that the same is relevant for the proposition that the interest on belated payment of sales price of goods sold is an allowable deduction u/s 80-IB. The interest received by the assessee in connection with the delay payment of sales proceeds of the traded goods ie flats in this instant case, constitute part of the sales proceeds. Allowability of deduction u/s 80IB(10) in respect of such sales proceeds is not hit adversely by the cited judgment in the case of Liberty India (2009 (8) TMI 63 - SUPREME COURT). Thus order of the CIT (A) does not call for any interference. In favour of assessee.

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• 2013 (6) TMI 458
  Transfer pricing adjustment - Whether there can be two separate elements comprised in the promotion of the brand for which separate valuation has to be done? - Held that:- The amount on one side of Bright Line, was the amount on AMP expenditure incurred on normal business of the assessee, whereas the balance amount represented expenses incurred for and on behalf of FMC for creating and maintaining its marketing intangible which was the "Ford" logo. Only addition could be made was by considering the excess AMP spends, and the addition done by the lower authorities considering 1% of sales, as brand development fee was not justified. There was indeed a duplication in measuring the brand development fee for working out the ALP. Only the excess AMP expenditure incurred over and above the average of such expenditure as a percentage of sales of comparable entities - in favour of assessee. ALP of brand building activity - Held that:- Agreement between assessee and FMC, was not exclusive, in that it did not preclude either party from going solo or having other arrangements. There was a remote possibility of FMC giving the knowhow to any other company or person in India and they could also market products carrying "Ford" logo through any other person in India. Thus, there was an international transaction for creating and improving the marketing intangible comprised in the logo "Ford" by the assessee for and on behalf of FMC. FMC was a non-resident and such transaction was of the nature of "provision of service" as held in the case of L.G. Electronic s case (2013 (6) TMI 217 - ITAT DELHI). Thus no fault of revenue for treating the transaction of brand building as an international transaction - in favour of Revenue. Suo motu cognizance of a transaction for ALP analysis by TPO - Held that:- Once there was no reporting of an international transaction by the assessee, as held in L.G. Electronics India Pvt. Ltd. (2013 (6) TMI 217 - ITAT DELHI) it was well within the power of the TPO to consider such transaction also, whether or not it was referred by Assessing Officer to him, under sub-section (1) of Section 92CA - in favour of the Revenue. Whether Bright Line test applied for determination of ALP of AMP fit into any one of the methods allowed u/s 92C(1) r.w.r. 10B of Income-tax Rules - Held that:- As held in L.G. Electronics India Pvt. Ltd. [2013 (6) TMI 217 - ITAT DELHI] steps mentioned in Rule 10B(1)(c) have necessarily to be followed while working out arm s length price. Non-following of the steps in a given methodology can at the best be a lacuna in applying a procedural provision, in the sense that ALP was not computed strictly as per the force of the prescribed method. Therefore, BL test applied by the TPO did fall within the method prescribed under Section 92C and the lacuna was only in not following the steps mentioned in the Rule 10B(1)(c) in the manner prescribed. Selling expenses - whether be excluded from AMP while making a comparative study? -Held that:- As said in L.G. Electronics India Pvt. Ltd. (2013 (6) TMI 217 - ITAT DELHI) AMP referred only to advertisement, marketing and publicity expenses. A divider had to be placed between expenditure for promotion of sales on one hand and expenditure in connection with sales on the other. These expenses have to be treated differently. Thus sales expenditure, which had no connection with the building of the logo "Ford", but which were directly in connection with sales, had to be excluded - in favour of the assessee. Selection of comparables - Held that:- Comparable domestic cases not using foreign brand alone can be considered. Whatever may be the comparison attempted, it is cardinal that the selected entities were having uncontrolled comparable transactions. The selected entities should not be doing any piggybacking on or of a foreign brand owned by an Associate Enterprise abroad. Thus, while holding that comparables selected by the TPO might not have been appropriate, we also reject the comparables selected by the assessee. A.O./TPO has to identify a different set of comparables and they can even consider the same entities selected earlier with proper adjustments carried out on the figures for making good the deficiencies noted in such comparables in the case of Maruti Suzuki s case (2010 (7) TMI 84 - DELHI HIGH COURT). Disallowance of product design expenditure - Held that:- As both the assessee as well as FMC had benefitted from the product development expenditure incurred. Fruits of the improvement, which was better engineered cars, was enjoyed by the assessee whereas ownership was with M/s FMC. Assessee had an economic advantage derived out of such product development expenditure. Therefore, it cannot be said that the expenditure was incurred solely for the benefit of FMC. As long as FMC and assessee were separate legal entities having separate legal existence, it cannot be said that expenditure incurred by the latter was wholly for the benefit of former, when specific economic advantage was derived by the assessee as well. Thus 50% of the advantage derived on account of product development spendings ensued to the assessee and the balance 50% to FMC - partly in favour of assessee. Provision made for bad and doubtful debts disallowed - Held that:- Facts apropos are that assessee had made a provision towards doubtful advances and claimed it stating that such money could not be recovered from its suppliers, since it represented value of rejected parts. However, nothing was shown before us to prove that there was any actual write-off. A mere provision in the account will not be equivalent to a write-off. At the best be considered as a provision for unascertained liability. Nothing was brought on record to show that correspondingly debtors accounts were reduced. Thus the addition was rightly made by the AO. No interference is required. Disallowance of penalty paid under Central Excise s failure to lift the whole of the ordered quantity, since it had stopped manufacture of certain models. Thus such compensation given for failure to honour the commitment for purchasing agreed quantities, could never be considered capital outgo. What was contemplated for purchase was only raw material, which was to become a part of the running stock of the assessee. Such compensation, was only in revenue field - disallowance was not called for & be deleted. Subsidy of Rs. 1 Crore received under Mega Projects Scheme of Tamil Nadu Government - whether be considered as revenue receipt? - Held that:- The subsidy scheme clearly mentions that it was being given as a special incentive for boosting mega investments in the State of Tamil Nadu & if the investments were between Rs. 200 Crores and Rs. 300 Crores, an industry would be eligible for capital subsidy. Thus the amount received by the assessee could only be considered as capital receipt and not a revenue receipt. In Shree Balaji Alloys (2011 (1) TMI 394 - Jammu and Kashmir High Court) even subsidy in the nature Excise duty refund, interest subsidy and insurance subsidy were held to be capital receipts and not revenue receipts after considering the decision of Sahney Steel & Press Works Ltd. v. CIT (1997 (9) TMI 3 - SUPREME Court) and CIT v. Ponni Sugars & Chemicals Ltd. (2008 (9) TMI 14 - SUPREME COURT). Thus subsidy cannot be considered as revenue receipt. The addition stands deleted.

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• 2013 (6) TMI 457
  Entitlement to the deduction u/s. 36(1)(viia) - Held that:- Perusal of order of CIT(A) shows that he has considered the provisions of section 36(1)(viia) as was available at its introduction by the Finance Act, 1979. As the assessee is a co- operative bank and is doing the business of banking as has been recognized in the assessment order by the AO and as the assessment year involved is AY 2009-10 and as a co-operative bank such as the assessee is being introduced in the provisions of section 36(1)(viia) w.e.f. 01.04.2007 by the Finance Act, 2007 the assessee is entitled to the deduction of 7½% of its total income as provided in the said section. This ground of appeal of assessee stands allowed. Provision for leave salary and provision against the standard asset - Held that:- As it is noticed that the assessee is asking for deduction in respect of provisions which are not allowable as an expenditure when computing the taxable income under the I. T. Act & perusing decision of Southern Technologies Ltd. [2010 (1) TMI 5 - SUPREME COURT OF INDIA] the disclosures norms of the Reserve Bank of India would not affect the computation of taxable income under the I. T. Act. Thus considering all as also on the ground that a provision is not a permissible deduction under the I. T. Act issue decided against assessee.

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• 2013 (6) TMI 456
  Deduction under section 80IA - AO rejected the assessee's claim of deduction by holding that the receipts in question had risen from various rent/lease agreements, they would give rise to income under the head 'house property' instead of 'business' income - Held that:- The assessee has developed a software park by the name of ' Tidel Information Technology Park'; wherein, it has leased out its modules and other facilities to various clients in lieu of lease/rent in question. Its total rental income is Rs 54,19,88,282/-. The receipts from letting out the modules are Rs 51,98,81,901/. The balance amount of Rs 1,91,60,582/- has arisen from car parking charges, communication, electrical charges etc. It is also evident from the case file and paper book on record that in 1999, the assessee had applied to Government of India,(department of industries), for setting up an industrial park u/s 80IA. On 24.04.2009, it stood approved subject to various terms and conditions enumerated under rule 18(3) sub rule (2) of Income Tax Rules. Thereafter, the Central Board of Direct Taxes, vide its notification dated 26.12.1999, has also notified the industrial park under section 80IA(4)(iii). It is to be seen from both the above documents that the deduction under section 80IA has not been granted in perpetuity, but it is liable to be withdrawn if the assessee violates the conditions specified therein. However, till date no such withdrawal has come. So, the assessee enjoys the status of an eligible undertaking under section 80IA (4) (iii). Thus uphold the CIT(A)'s order that the assessee is eligible for claiming deduction u/s 80IA (4)(iii) qua the lease income in question. Depreciation for electrical items - CIT(A) directed the AO to grant claim - Held that:- On perusal of the CIT(A) order, it is found that qua this issue, he has relied upon his predecessor's order dated 16.01.2007 as well as tribunal 's order dated 08.08.2008 for assessment year 2003-2004 directing the AO that substance should prevail over the nomenclature and decide it afresh. As no material has been placed on record as how the issue has been decided by the AO CIT(A) has righty remitted the issue back to the file of the AO and find no reason to interfere. Car parking charges, communication electrical charges, electrical room rent, other rental income, rental two wheeler parking, rent for usage area, telecom room rent and usage of cable duct(trench) - treated as 'business' income OR 'other' sources - Held that:- As decided in South India Shipping Corporation Ltd Vs. CIT [1998 (2) TMI 43 - MADRAS High Court] interest received by a company which carried on business, from bank deposits and loans could only be taxable as in come from other sources and not as business income. On the anvil of this, the exclusion of interest from deposits for the purpose of computation of deduction u/s 80IA is liable to be confirmed. The miscellaneous income represents various miscellaneous items like water charges, insurance claims, STD booth and PCO, sale of tender documents etc., The rental income represents income from parking space, mobile phone network towers and other facilities etc. Lower authorities have held that this cannot be stated to be derived form the business of developing, operating and maintaining the infrastructure of the STP under consideration. See CIT Vs. Sterling Foods [1999 (4) TMI 1 - SUPREME Court] & CIT Vs. Raja Bahadur Kamakhaya Narayan Singh & Others [1948 (7) TMI 1 - Privy Council]. Thus the other receipts of operation and maintenance etc are held as income from 'other' sources.

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• 2013 (6) TMI 455
  Proportional disallowance of interest on advance given to sister concerns - CIT(A) deleted the addition - AY 2004-05 - Held that:- From the material on record it is quite evident that the assessee has not only given advances to its sister concerns but has also received advances from them. From the account of one of the sister concern i.e., Kedia Vanaspati Ltd., it can be seen that there is a credit balance of Rs.3,28,02,809/- with the assessee. It further reveals that the assessee had regular business transaction with its sister concern. In the aforesaid factual situation the disallowance made by the AO on allegation of diverting borrowed funds to the sister concerns is not borne out from record, hence, cannot be accepted. The assessee has business connection with its sister concerns is also suggestive of the fact that they are in the nature of trade advances only, hence cannot be considered as loans. Also contention of DR that the CIT (A) has considered additional evidence in violation of Rule 46A are irrelevant as it is evident from the order of the CIT (A) that in course of the appeal proceeding the CIT (A) in fact had sought the comments of the AO on the issue but the AO did not respond to it - Against revenue. Direction of the CIT(A) not to add disallowable interest while computing MAT - AY 2006-07 - Held that:- A reading of the provision contained u/s 115JB makes it clear that the basis for computation of book profit is the net profit as shown in the profit and loss account and which maybe increased by the items prescribed in item (a) to (i) and reduced by items (i) to (viii). Therefore any of the items which are to be added for arriving at the book profit must fall within the items specified under the explanation. Sec. 115JB being a self contained provision, one has to go strictly by the provision contained therein. Since the additions made by the AO to arrive at the book profit are outside the purview of items enumerated under explanation I to section 115JB, the computation made by the AO is legally unsustainable. Accordingly uphold the order of the CIT (A) and dismiss the grounds raised by the department.

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• Customs

• 2013 (6) TMI 454
  Import of Beternuts - increase in floor price - during the continuance of the contract, a notification was issued by the Customs Authorities, raising the floor price, which is higher than the price transaction value in terms of the contract. - Held that:- writ petition allowed by granting leave to the petitioner-firm, to clear the consignment of Betelnuts at the enhanced rate, as per the Assessment Order dated 13th February, 2013, without prejudice to its rights and contentions in the appeal pending before the Customs Excise & Service Tax Appellate Tribunal [CESTAT].

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• 2013 (6) TMI 453
  Imposing anti dumping duty - writ petition - territorial jurisdiction under Article 226 of the Constitution of India - principles of natural justice - Held that:- it is clear that Anti-Dumping duty is payable when the concerned goods are cleared through the Chennai Port i.e., assessment of duties upon clearnace of the subject goods exported by the petitioner takes place at Chennai. So, the issue is whether the assessment and payment of Anti-Dumping duty on the goods that is going to take place constitute a material, essential or integral part of the cause of action. It certainly does not constitute cause of action. An anticipatory event will not give cause of action. A cause of action must exist and it is a condition precedent before initiation. By no means, the above factor constitute material, essential or integral part of cause of action. It is also pertinent to note that the petitioner is a Non-Resident Company and represented by its Power of Attorney holder, who resides at New Delhi. The second respondent office, who passed the impugned order is also situated at New Delhi. It is also stated that in the export questionnaire, the petitioner had given its address for communication at New Delhi. Moreover, the appellate authority is also in Delhi. Taking into consideration the principles enunciated in the judgments of the Supreme Court in the case of (i) Alchemist Ltd and Another v. State Bank of Sikkim and Others [2007 (3) TMI 382 - SUPREME COURT OF INDIA] and (ii) Kusum Ingots Alloys Ltd. v. Union of India (UOI) and Another [2004 (4) TMI 342 - SUPREME COURT OF INDIA], this Court is of the view that no cause of action had arisen within the territorial jurisdiction of this Court to entertain the writ petitions. Therefore, the writ petitions are not maintainable. - writ petition dismissed.

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• Service Tax

• 2013 (6) TMI 468
  Works contract service - supply and installation of 'Electronic Security and Safety Systems' - The department wanted to treat the entire transaction as "Works contract" and levy service tax accordingly from the appellant. - Held that:- The assessable value of the goods manufactured by the appellants, on which duty of excise was paid by them, was also included in the gross amount for the purpose of demand of service tax under 'Works Contract' service whereas Rule 2 A of the Service Tax (Determination of Value) Rules 2006 as amended provides that the value of taxable service in relation to services involved in the execution of works contract shall be determined to be the gross amount charged for the works contract less the transfer of property involved in the execution of the works contract. The department has no case that no transfer of property in goods was involved in the execution of the purchase orders. Apparently, the appellant sold both manufactured goods and bought-out goods to their customers as evidenced by the relevant invoices. If that be so, the entire value will have to be kept out of the taxable value of "Works Contract "service, in which event nothing would be left to be taxed for levy of service tax. Nevertheless, in respect of installation of the bought-out components of the systems, the appellant admittedly paid service tax under the appropriate head. The appellant has made out a good case for waiver and stay. - Stay granted.

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• 2013 (6) TMI 467
  Cenvat Credit - input services - fumigation services - Held that:- fumigation expenses incurred are in the nature of packing expenses. As packing expenses are allowable and input tax paid on it is allowable under the CENVAT Credit Rules. Input tax paid by the appelalnt for fumigation services is Cenvatable and allowable as input tax. - Decided in favor of assessee.

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• 2013 (6) TMI 466
  Cenvat Credit - input services - Advertising Services, Food Pass Services, Security Services etc - Held that:- In respect of most of the input services except in the case of food pass, the services are necessary for acquiring and utilizing their business assets namely people and computers - credit allowed. Food pass services - Held that:- as the manner in which these food passes are utilized is not a matter which can be clearly established - Without such information it is not possible to come to a conclusion that there was a nexus between the food passes and the business process of the respondent. Moreover this is essentially in the nature of a payment of a perk to the employee rather than as an input service for business - credit denied.

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• 2013 (6) TMI 465
  Appeal by Revenue before CESTAT - maintainability - Held that:- an identical issue was before the Hon'ble High Court of Gujarat in the case of Stovec Industries Limited [2013 (1) TMI 72 - GUJARAT HIGH COURT], wherein the Hon'ble High Court vide judgment dated 10.7.2012 applied the Circular dated 17.08.2011 for the issue which was decided by the Tribunal [2011 (3) TMI 1099 - CESTAT, AHEMDABAD] and against which the Revenue had filed appeal before issuance of Circular. In the present case the amount involved in this appeal is only Rs. 2,52,146/- - Appeal filed by revenue dismissed.

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• Central Excise

• 2013 (6) TMI 452
  Cenvat Credit - GTA Service - Outward transportation - Held that:- The period of dispute in the present case is prior to 01/04/2008, the date on which a significant amendment was brought to Rule 2(l)(ii) of the CCR. The Hon’ble High Court in CCE & ST, Bangalore vs ABB Ltd. [2011 (3) TMI 248 - KARNATAKA HIGH COURT] held that, notwithstanding the Boar’s clarification in Circular No.97/8/2007-ST dt. 23/08/2007, transportation of final products from the place of removal stood within the ambit of the definition of input service prior to 01/04/2008. The benefit of the High Court’s decision is available to the appellant and therefore the impugned order is set aside and this appeal is allowed.

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• 2013 (6) TMI 451
  Exemption - goods supplied to the Defence Research and Development Organization (DRDO) - Notification No.10/97-CE dt. 01/03/1997 - Held that:- the benefit of exemption thereunder was available to the assessee in respect of the goods supplied to DRDO for weapon-related research. [See. 2011 (7) TMI 749 - CESTAT, BANGALORE] - Decided in favor of assessee.

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• 2013 (6) TMI 450
  Classification - Multigrain Bread Concentrate - Chapter 11 or Chapter 19 - Held that:- the Multigrain Bread Concentrate is a mixed cereal in different proportion with additives of flour improver. The Multigrain Bread Concentrate is produced in a usable condition and the additives have been used for producing bread by Bakery industry. - prima facie Multigrain Bread Concentrate cannot be considered as flour preparation. - stay granted.

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• 2013 (6) TMI 449
  Valuation - inclusion of freight - transportation of explosives - assessee was issuing separate commercial invoices charging for the freight of the goods from place of removal to the place of delivery and also for the return charges of the special vehicle from the place of delivery to the place of removal. - Held that:- It is already decided by the Apex Court in the case of Escorts JCB (2002 (10) TMI 96 - SUPREME COURT OF INDIA) that in this type of situation the place of removal is the factory gate or depot and not the place of delivery to the buyer. The issue that cost of transportation from place of removal to the place of delivery will not form part of assessable value is also decided in the said case and many other decisions. - Decided in favor of assessee.

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• 2013 (6) TMI 448
  Valuation - whole sale packing - MRP Based valuation u/s 4A or Transaction value u/s 4 - Sugar confectionery - Penalty - Held that:- The Larger Bench which considered the issues referred to by this Bench in the case of M/s. Roys Industries Ltd. [2010 (9) TMI 257 - CESTAT, BANGALORE] rendered a split verdict. The minority view, which is in favour of the assessee, is to the effect that, with the dismissal of Civil Appeal No. 7559/2008 (which was filed by the Commissioner of Central Excise, Mangalore against the Tribunal’s decision in the case of Central Arecanut and Cocoa Marketing and Processing Cooperative Ltd. v. Commissioner - 2008 (2) TMI 103 - CSTAT CHENNAI) by the Supreme Court, the issue stands settled in favour of the assessees. The majority view is based on the Supreme Court’s judgment in CCE v. Kraftech Products coupled with the Tribunal’s Larger Bench decision in the case of Commissioner v. Uricson Cosmetics Ltd. and the same is to the effect that, as the total weight of “multi-piece retail package” (pet jar/polybag) is more than 20 grams, the exemption under Rule 34(b) is not available and consequently the goods must be assessed to duty on the basis of MRP in terms of Section 4A. Placed as we are between the split verdict of the Larger Bench and the judgments of the Apex Court, we have got to identify the binding case law. The majority decision of the Larger Bench in the case of Roys Industries [2010 (9) TMI 257 - CESTAT, BANGALORE] cannot be followed as a precedent inasmuch as the binding judgments of the Apex Court in the cases of Swan Sweets Pvt. Ltd. [2010 (9) TMI 10 - SUPREME COURT] and Central Arecanut and Cocoa Marketing and Processing Cooperative Ltd. exist in favour of the assessees. Decided in favor of assessee.

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• CST, VAT & Sales Tax

• 2013 (6) TMI 469
  Re opening of assessment under the Trade Tax Act as well as under the Entry Tax Act - suppressed sale of raw material for manufacture of Gutkha - survey conducted upon unregistered dealers by the Central Excise Department from whom, it is said that petitioner used to purchase raw material for manufacturing Gutka and on the basis of the report so submitted by the Central Excise Department, proceedings for reopening and reassessment under Section 21 (2) of the Trade Tax Act have been initiated on the ground that certain turn over has escaped from the assessment - Held that:- Regarding writ petition No.4287 (MB) of 2013 the assessee has not cooperated as mentioned in the report submitted by the Central Excise Department. At the time of survey, and thereafter, opportunity was given to the petitioner to submit his reply. Prima-facie, there is suppressed sale of raw material for manufacture of Gutkha though which is not taxable but its raw material is taxable, which was purchased by the petitioner from unregistered dealers. When it is so, then we are of the view that matter needs further inquiry by the A.O. The petitioner is at liberty to put its defence before the A.O. We hope that petitioner will cooperate with the A.O. at least this time. Thus no reason to interfere with the impugned order passed by the competent authority to grant the permission under section 21 (2) of the Trade Tax Act for reopening the assessment for the assessment year 2006-07. In its defence, the assessee will get another chance at the time of reassessment proceedings. So, the writ petition dismissed. As regards writ petition No. 4300 (MB) of 2013 it may be noted that there is no dispute in the fact that the petitioner is manufacturer of Gutka. The final product in the form of Gutka has been manufactured for the first time and the same was sold within the local area. Therefore, in view of provisions of Section 2 (C), there is no liability for payment of Entry Tax by the manufacturer, who by no stretch of imagination can be said to be a dealer in terms of Section 2 (b) of the Entry Tax Act, 2007. In the instant case, the assessment order for Entry Tax was already passed. Further, the order was also passed by the first appellate authority. Thus, the assessment order has already merged in the first appellate order, as agreed by both the parties. When it is so, then no reassessment can be made pertaining to Entry Tax and no proceedings under Section-21 can be legally initiated. Hence, set aside the impugned order pertaining to the Entry Tax Act only. The petitioner will get the relief accordingly.

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