TMI Tax Updates - e-Newsletter
June 22, 2013

Case Laws in this Newsletter:

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

Articles

1. APPEAL TO HIGH COURT - INDIRECT TAX MATTERS

   By: DR.MARIAPPAN GOVINDARAJAN

2. Basic of “Principles of Interpretation of Tax laws”: Essential to understand Tax laws for a tax professional

   By: dipsang vadhel

News

1. Licensing of new banks in the private sector - Last date for receipt of applications

Notifications

VAT - Delhi

1. F.7(453)/Policy/VAT/2012/ 298-308 - dated 18-6-2013 - DVAT

Notification Policy VAT 2012 -298-308 dated 18-06-2013

Highlights / Catch Notes

Income Tax

• Bona Fide Belief Exempts Individuals from Penalties for Not Deducting Tax at Source u/s 271C of Income Tax Act.

  Case-Laws - AT : Penalty u/s 271C - whether bonafide belief of the assessee that he is not bound to deduct the tax at source be treated as 'reasonable cause'? - Held yes - AT
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• Small Turnover Companies Ruled Not Comparable for Transfer Pricing Adjustments: Impact on Transfer Pricing Analysis.

  Case-Laws - AT : Transfer Pricing Adjustment - companies with a small turnover of Rs.25 lacs cannot be held to be comparable in this case. - AT
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Customs

• Import License Required for Used Digital Printers After June 5, 2012 Under Revised Customs CIF Rules.

  Case-Laws - AT : Enhancement of CIF value - during the period prior to 05.06.2012, the old and used Digital Multifunction Printing and Photocopying Machines could be import without any licence. - AT
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• Customs Regulation Section 46: No Time Limit for Filing Bill of Entry, Offers Flexibility to Importers for Documentation.

  Case-Laws - HC : Time limit for filing of Bill of Entry - Section 46 - there is no time-limit for filing a bill of entry by an importer upon arrival of goods. - HC
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Service Tax

• Revenue's Error in Order-in-Original Ignored; Rectification Application Rejected, Highlighting Oversight in Decision Process.

  Case-Laws - AT : Rectification of mistake - the mistake on the part of the Revenue to have accepted the order-in-original without thinking of the consequences. - application for rectification rejected. - AT
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• Court Deems Predeposit Order Harsh for Appellants' Technical Violation on Suo Motu Credit.

  Case-Laws - AT : Stay - order of predeposit of the amounts for a technical violation in taking the suo motu credit by the appellants after depositing the cash amount in view of the credit utilized earlier will be harsh. - AT
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Central Excise

• LPG Supplier Wins Refund for Excess Duty Paid Due to Contract Price Revision Clause; No Unjust Enrichment Found.

  Case-Laws - AT : Refund - price revision clause - valuation - Excess payment of duty - supply of LPG Cylinders to IOC Ltd. and HPC Ltd. - Unjust enrichment - refund allowed - AT
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• Tribunal Orders 50% Pre-Deposit in Cenvat Credit Case Over Use of Duplicate Duty Payment Documents.

  Case-Laws - AT : Cenvat Credit - duty payment documents - photocopies or extra copies - appellant directed to make pre deposit of 50%. - AT
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• Court Grants Full Stay on Case Involving Misclassification of Goods in RG-1 Register Under Central Excise Laws.

  Case-Laws - AT : Clandestine removal - issue of mis-classification - goods entered in RG-1 register - full stay granted. - AT
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VAT

• Opium Cultivated by Farmers Taxed Under U.P. Trade Tax Act; Narcotic Department as Assessee.

  Case-Laws - HC : Levy of tax on opium - cultivators are handing over the opium exclusively to the assessee i.e. Narcotic Department. - The opium is taxable item under the U.P. Trade Tax Act. - HC
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Case Laws:

• Income Tax

• 2013 (6) TMI 503
  Application for grant of registration u/s 12AA & exemption under Section 80G(5) denied - Held that:- CIT did not provide reasonable opportunity of hearing in this regard. The ITO (Tech.) has called the details from the assessee. The CIT examined these details only on 07.08.2012 and the order passed at Kanpur which itself appears that the assessee was not provided sufficient opportunity of hearing. The proviso of Section 12AA(1) provides that no order shall be passed unless the society has been given a reasonable opportunity of hearing. Thus send back the issue before CIT to decide denovo, in accordance with law, after providing reasonable opportunity of hearing to the assessee - appeals of the assessee allowed for statistical purposes.

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• 2013 (6) TMI 502
  Addition while completing the assessment on account of 80HHC - reserve which the appellant had transferred to his capital account in the books of his sole proprietary concern M/s Loreto & Co on closure of export business - Held that:- As during the accounting year relevant to assessment year under consideration, the assessee only transferred, reserve created as per provision of Section 80HHC as it existed in the year 1985, to the capital account. By transfer of such reserve to the capital account, there cannot be any income unless the provision of Section 80HHC so provides. Admittedly, there is no provision in Section 80HHC prohibiting the transfer of reserve so created to the capital account. In view of the above, agreeing with the CIT(A) that by transfer of reserve to the capital account, no income is generated. However, merely because there was a debit balance of the assessee in the books of account of M/s Loreto & Company, then also the addition cannot be made to the extent of debit balance. Transfer of reserve to the capital account and debit balance in the capital account are two different things. Therefore, there is no justification for sustaining the addition to the extent of debit balance i.e. Rs.8,14,073/-. In favour of assessee.

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• 2013 (6) TMI 501
  Jurisdiction power u/s 263 by CIT(A) - no adequate enquiry was conducted by the AO with regard to the short term capital gain disclosed by the assessee - Held that:- The finding of the CIT that the assessment was made without requisite enquiry is factually incorrect. His finding that the assessment was made without due application of mind is also factually incorrect because the Assessing Officer made detailed and adequate enquiries and merely because such enquiries and his opinion are not discussed in the assessment order, it cannot be presumed that the assessment was made without application of mind. He examined the transactions entered into by the assessee by calling the brokers account, party-wise trade register, delivery register, bank statements etc. He also asked the assessee to explain why the income is to be assessed as short term capital gain, in response to which, reply of the assessee furnished detailed explanation in which the assessee has pointed out that he has not borrowed any money for investment in the shares/securities. As find that in AY 2006-07, there was a short term capital loss which was disclosed by the assessee as capital loss and a request was made for the carry forward of the same. It was accepted by the Assessing Officer in the order passed under Section 143(3) for AY 2006-07. Thus it is evident that even if two views are possible and the Income Tax Officer has taken the view with which the Commissioner does not agree, it cannot be treated as an erroneous order prejudicial to the interests of the Revenue unless the view taken by the Income Tax Officer is unsustainable in law. In favour of assessee.

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• 2013 (6) TMI 500
  Transfer pricing adjustment - addition as difference in arm's length price - TPO took net operating cost at Rs. 11,54,91,263/- for a revenue of Rs. 12,13,93,695/- as against total revenue cost of Rs. 11,54,91,263/- for a total revenue of Rs. 13,59,91,472/- rectification of mistake application - DRP rejected the appellant's contention of excluding comparables of Wipro Ltd. and Infosys Technology Ltd. & KALS Information System (P) Ltd - Held that:- DRP rejected the appellant's contention without giving cogent reasons. Thus following the case laws, both giant comparables are to be excluded. Wipro Ltd. is into entirely a different business having a turnover of Rs. 8066 crore and Infosys Technology Ltd. is also absolutely un-comparable having a turnover of Rs. 15,648 crore as against a few crore of Rupees turnover of the appellant company. Reliance is placed on Agnity India Technologies Pvt Ltd v. ITO (2010 (11) TMI 852 - ITAT DELHI), DCIT v. Deloitte Consulting India (P.) Ltd. [2011 (7) TMI 583 - ITAT HYDERABAD], Telcordia Technologies India (P.) Ltd. v. ACIT [2012 (6) TMI 388 - ITAT MUMBAI]. As KALS Information System (P) Ltd activities are different hence need to be excluded as relying on Bind View India P. Ltd. vs DCIT [2013 (6) TMI 113 - ITAT PUNE]. Apropos the assessee's contentions about the arithmetical mistakes same have not been controverted and it is find that in the first round the TPO himself agreed to correct the mistake and in second round without pointing out any reason, the same has not been corrected. Since the assessee has been able to demonstrate that though DRP agreed with the assessee's contentions about the software testing services, however, while computing the same has been reduced. Consequently the mistake in this behalf is apparent from the order of the lower authorities. Thus merit in the argument of the assessee in this behalf and these mistakes are directed to be rectified as requested by the assessee. Loss of expenditure incurred on software holding - capital v/s revenue - Held that:- Disallowing of technical consulting fee - Held that:- AO in the preceding years accepted the allowability of deferred revenue expenditure in three years. First instalment of 1/3rd has already been allowed to the assessee. Once the expenditure is treated as revenue in nature, it is to be allowed either in one year or if the AO accepts then on the deferred revenue basis in the agreed years. Therefore, no justification in disallowance of this expenditure which is deleted. If alternate claim of the assessee is accepted in that case the assessee will be entitled to more deduction by way of depreciation if the legal provisions about the WDV and block are strictly applied. In view thereof the corporate addition in respect of 1/3rd expenses is also deleted. Assessee's appeal is allowed

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• 2013 (6) TMI 499
  Transfer Pricing Adjustment - TPO considered only the current financial year data while determining the arm's length price - Held that:- On the issue of the use of current year's data is concerned, TPO's decision is to be accepted & hold that the use of the current year data is as per law. The provisions of Rule 10B(4) of the Income-tax Act, 1961 are unambiguous and it mandates for use of the current year data. The provisions of Rule 10B(4) permit use of preceding year data along with the current year's data only when it is shown that the same has influence on the determination of transfer pricing. Unless it is shown that the earlier years' data has influence on the determination of the transfer price, proviso to Rule 10B(4) cannot be invoked. See cases of Mentor Graphics Noida Pvt Ltd [2007 (11) TMI 339 - ITAT DELHI-H] & Honeywell Ltd [2009 (2) TMI 736 - ITAT PUNE]. Against assessee. TPO ignoring the comparables viz., Capital Trust Limited and Crisil Limited while determining the arm's length price - Held that:- Capital Trust Limited was engaged in the business of automobile sales and service and from this segment, the revenue was of about 80%. The other major segment is hire purchase from which it derives revenue of 18.39% of the revenue. The foreign consultancy segment contributes only 1.7% and total consideration in the segment of foreign consultancy was only Rs. 25 lacs. This company was engaged mainly in the other business activities, hence it cannot be taken as a comparable with assessee company. The company is having a very small turnover in the foreign consultancy segment, therefore, cannot be accepted as comparable. Therefore, companies with a small turnover of Rs. 25 lacs cannot be held to be comparable in this case. In the case of Crisil Limited, DRP held that there is a difference in the financial year. There were also related party transactions of more than 25%. Wherever the related party transactions exceed 25% then also such companies cannot be taken as comparable. Against assessee. Not allowing adjustment on account of the risks and working capital - Held that:- No merits in the taxpayer's claim for risk adjustment as it cannot be allowed as a general rule. It can only be considered when it is demonstrated that comparables had actually undertaken such risk and these are materially affected their margins. Unless it is shown that risk adjustment had changed, the result of each comparable and there are adequate reasons for such adjustment, no adjustment is justified. In absence of any such situation, no adjustment can be allowed. As assessee has not been able to show how this risk, if any, is translated into charging a higher margin in comparable companies. Similarly, the assessee's claim that it has no market risk is also not acceptable. Credit risk was existed in assessee's case as there was no clause in agreement that advance payment shall be made for services. Therefore, this ground of the assessee has no merits. Benefit of ± 5% denied - Held that:- Amendment to Proviso to section 92C by Finance Act, 2009 has made it clear that benefit of ± 5% as provided in section 92C (2) is not a standard deduction. It cannot be made applicable when the price was outside ± 5%. In such situations, only the arithmetical mean shall be taken as the ALP. Against assessee. Inclusion of comparable of TSR Darashaw Limited - Held that:- When the profile of that company for the current year was not comparable to the assessee company then such company cannot be made comparable only on the basis that it has been selected by the assessee itself in its TP study. The change in profile of the company in comparison to the two preceding years makes it non-comparable. Therefore, we find merits in the argument of the assessee and we direct to exclude this company from the comparables. In favour of assessee. Disallowance of entertainment expense - Held that:- There is no scope for disallowing out of club/entertainment expenses debited in the books of account of the company for personal nature, therefore, directed to delete this disallowance. In favour of assessee. Restricting depreciation on computer peripherals - AO's action for allowing depreciation @ 25% only - Held that:- As decided in BSES Rajdhani Powers Ltd [2010 (8) TMI 58 - DELHI HIGH COURT] computer accessories and peripherals are the part of the computer system, they are entitled to depreciation at the higher rate of 60%. In favour of assessee.

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• 2013 (6) TMI 498
  Penalty u/s 271C - Non deduction of TDS u/s 194C - CIT(A) deleted the levy on the basis of claim of the assessee that there was no agreement between the parties and the appellant was of bonafide belief that he is not bound to deduct the tax at source because as per his knowledge and belief tax u/s 194C is always deductible when payment is made by specified person to resident contractor, treating it as squarely covered under the mandate of section 273B - whether bonafide belief of the assessee that he is not bound to deduct the tax at source be treated as 'reasonable cause'? - Held that:- In the case of the assessee i.e Uttarakhand Educational Department there was bona fide belief under which the assessee operated that it was not required to deduct TDS. The explanation of the assessee that it believed that it had no choice but to transfer the funds received in its account and that it had no control over the executing agency to detain its payments has rightly been held as a reasonable cause as the bona fide belief is borne out from the fact that as soon as the said fact was pointed out to the assessee, the position was corrected. Accordingly department's ground is dismissed.

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• 2013 (6) TMI 497
  Undisclosed income for payment of registry charges - Held that:- Perusal of sale deeds placed on record reveals that the seller has paid the expenses for registration. There was thus, document evidencing payment made by Shri Sohan Lal Mali, the seller of the agricultural land on which the aforesaid amount of Rs. 4,63,960/- for stamp registration charges is under consideration. AO has recorded the statement behind the back of the assessee and collected information without allowing cross examination of said Shri Sohan Lal Mali. The said Shri Sohan Lal Mali was a witness of the Income Tax Department. It was, therefore, the duty of the AO to have allowed opportunity to the assessee by way of cross examination even though the assessee had not asked for. Without cross examination, statement as such was of no evidentiary value nor such evidence could have been used against the assessee as decided in Union of India Vrs. T.R. Verma [1957 (9) TMI 41 - SUPREME COURT] and Kishan Chand Chellaram Vs. CIT (1980 (9) TMI 3 - SUPREME Court). In the face of documentary evidence on record, oral evidence is not entitled to any weight as decided in Behari Lal Murarka and Ors. [1977 (11) TMI 130 - SUPREME COURT]. Thus in absence of any conclusive evidence, the document could not have been disbelieved. In favour of assessee. Disallowance for non business use of expenses - repair and maintenance on account of telephone expenses - Held that:- Disallowance of expenses has been made for non business purpose by making a reasonable estimate. Reasonable estimate is permissible for making such disallowances. Finding no merit in grounds raised in appeal. Against assessee. Disallowance of payment made to M.s Girish and Sons (HUF) - Held that:- The appellant has failed to explain the nature of services rendered for which such commission is claimed to have been paid. On being asked he is not even able to show as to whether there is any evidence for work done for such payment of commission claimed as an expenditure. For lack of evidence for services rendered, disallowance of expenses so made is found justified. Against assessee.

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• 2013 (6) TMI 496
  Disallowance u/s.14A r.w.Rule 8D - appellant submits that it has not incurred any expenditure to earn dividend income - Held that:- According to the provisions of section 14A(2) the AO has to first satisfy himself regarding the correctness of the claim of the assessee having regard to the accounts of the assessee and such satisfaction of the AO is required to be objectively arrived at on the basis of those accounts and after considering all relevant facts and circumstances as supported by decision of Godrej & Boyce Mfg. Co. Ltd. vs. DCIT(2010 (8) TMI 77 - BOMBAY HIGH COURT). The submissions made by assessee have not been considered by the AO and it has not been specifically recorded by him that the claim of the assessee that no expenditure has been incurred to earn dividend income is incorrect. Thus this issue be remitted to the file of AO with a direction to re- adjudicate the issue. In favour of assessee for statistical purposes.

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• 2013 (6) TMI 495
  Grant registration under S.12AA denied - Held that:- Unable to accept the reasoning given by the Director of Income-tax(Exemption) while refusing to register the assessee trust. Obviously as stated by the assessee, the Trust was created only on 17th May, 2012 and immediately thereafter, it filed application for registration. Instead of examining the objects of the trust for registration, the Director of Income-tax(Exemption) rejected the registration. See Director of Income- tax(Exemption) V/s. Foundation of Opthalmic & Optometry Research Education Centre [2012 (8) TMI 777 - DELHI HIGH COURT] the statute does not prohibit or enjoin the Commissioner from registering Trust solely based on its objects, without any activity, in the case of a newly registered Trust. The statute does not prescribe a waiting period, for a trust to qualify itself for registration. Appeal of the assessee is consequently allowed, with a direction to the Director of Income-tax(Exemption) to examine the aims and objects of the assessee- trust and grant registration under S.12AA of the Act, since he has not examined the objects, which prima-facie indicate that they are charitable in nature - appeal of the assessee is allowed for statistical purposes.

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• 2013 (6) TMI 494
  Accommodation entries - income from undisclosed sources - CIT (A) deleted the addition - reopening of assessment - Held that:- A.O. has heavily relied upon the statement of Shri Mahesha Batra. The CIT(A) recorded that the statement recorded by Investigation Wing was not provided to the assessee nor opportunity was given to cross-examine Shri Mahesh Batra. In the light of the fact, DR was directed to place on record the statement of Shri Mahesh Batra vide order sheet entry dated 23.05.2012. Thereafter, a number of opportunities were given to the Revenue but copy of statement of Shri Mahesh Batra has not been placed on record even inspite of last opportunity for this purpose given by us vide order sheet dated 07.03.2013 On perusal of reasons recorded, it is found that the reasons recorded are not in accordance with law as it was simply on the basis of assumption of the A.O. In the reasons recorded, it is stated that "share transactions on which long term capital gain has been claimed do not appear to be genuine". This supports to the fact that the reopening has been made on the basis of presumption and not on reasons to believe, thus, no reasons recorded are in accordance with law. The reasons do not reflect that the A.O. has reason to believe that there is an escapement of income. Once it is found that the reasons are not in accordance with law, the reopening is bad in law. In favour of assessee.

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• Customs

• 2013 (6) TMI 493
  Time limit for filing of Bill of Entry - CESTAT found that there is no time-limit prescribed for filing Bill of Entry under Section 46 of the Customs Act, 1962 - held that:- it can be seen that Section 46 nowhere provides for any time-limit for filing a bill of entry by an importer upon arrival of goods. It is, of course, true that Section 48 permits the authorities to sell the goods after following the procedure if within thirty days of unloading the same at the customs station, the same are not cleared for home consumption or warehoused or transshipped. This is entirely different from suggesting that under Section 46 of the Act, there is any time-limit prescribed for filing of bill of entry. Section 117 of the Act would not come in picture since it cannot be stated that the importer breached any provision. - decided in favor of assessee.

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• 2013 (6) TMI 492
  Enhancement of CIF value - import of consignment of old and used Canon Digital Multifunction Printing and copying Machines - ordered confiscation of the goods for import without licence and mis-declaration of the value, with an option to redeem the same on payment of redemption fine - also imposed penalty on the Respondent under section 112(a) - Held that:- As from the Minutes of the Technical Review Committee of Ministry of Environment and Forests held on 16.11.2011 it is clear that Government itself treated Digital Multifunction Printing and Photocopying Machines as different from Photocopying Machines and for this reason only, felt the need to mention the old and used Digital Multifunction Printing and Photocopying Machines in para 2.17 of the Foreign Trade Policy, as items restricted for import and accordingly w.e.f. 05.06.2012 para 2.17 of the Foreign Trade Policy was amended by adding old and used Digital Multifunction Printing and Photocopying Machin, in this para as the item restricted for import. It is, therefore, clear that during the period prior to 05.06.2012, the old and used Digital Multifunction Printing and Photocopying Machines could be import without any licence. See Shivam International case(2013 (3) TMI 408 - CESTAT BANGALORE) and also Anand Impex (2012 (4) TMI 68 - MADRAS HIGH COURT) and Sai Graphic System Vs. Commissioner of Custom (2013 (5) TMI 650 - MADRAS HIGH COURT). In favour of assessee. Incorrect value of the goods - Held that:- Difference between declared value and the value of the goods according to the Department is very small and as such no evidence has been produced by the Department that the declared transaction value is incorrect and or that the Respondent had made additional payment to the supplier over and above declared value the allegation of mis declaration of value is also without any basis. Revenue’s appeal dismissed.

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• Service Tax

• 2013 (6) TMI 514
  Non compliance of stay order - Held that:- the time granted by the Hon’ble High Court has already expired. No stay order from the apex court against the High Court’s judgment has been produced by any of the appellants. - appeal dismissed.

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• 2013 (6) TMI 513
  Condonation of delay - delay of 134 days - it was submitted that file of the present matter was misplaced in the office of the counsel of the appellant due to the mistake on the part of the clerk. - Held that:- it is seen that the applicant did not mention the name of the counsel to whom it was handed over for preparation of the appeal. Further, it is not mentioned when the appeal papers were handed over to the learned counsel. In any event, we find that on the identical facts the Tribunal in the case of Magic Fasteners (P) Ltd. (2009 (5) TMI 633 - CESTAT, NEW DELHI) rejected the condonation of delay application. - Against the assessee.

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• 2013 (6) TMI 512
  Demand of service tax - stay - commissioner (appeals) dismissed the appeal for non compliance of order of pre-deposit - Held that:- Keeping in mind the facts and circumstances of the case, we direct the appellant to deposit an amount of Rs.5 lakhs (Rupees Five Lakhs only) within a period of eight weeks from today and report compliance before the first appellate authority on 25.02.2013. The first appellate authority will ascertain that the appellant has pre-deposited the amount and on such ascertainment, will restore the appeal to its original number in his records and come to conclusion on the merits of the case, after following the principles of natural justice.

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• 2013 (6) TMI 511
  Rectification of mistake - Refund - export of services - Notification No.41/2007-ST - Held that:- It is the submission of the Revenue that the decision of the Tribunal was based on incorrect facts and if the Tribunal was aware about the department having accepted the Order-in-Appeal dated 27/02/2011 which had upheld sanction of refund by Assistant Commissioner, the decision would have been different. It is settled law that for consideration of application for rectification of mistake, error has to be apparent from the record and should not require any detailed discussion. The very fact that the whole history of the case involved in two rounds of litigation up to the level of Commissioner (A) and one round before this Tribunal has to be reproduced and finally it had to be submitted that if the Tribunal was aware of the acceptance of the Order-in-Appeal by Revenue decision would have been different itself and would know their own error apparent from the order or record in this case. It cannot be a mistake on the part of the Tribunal having not been aware of acceptance of Order-in-Appeal, but in fact, the mistake on the part of the Revenue to have accepted the order-in-original without thinking of the consequences. - application for rectification rejected.

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• 2013 (6) TMI 510
  Cenvat Credit - suo moto credit - Taxable service - painting activities in respect of commercial and non-commercial buildings. - Rule 6(3)(c) of the CENVAT Credit Rules, 2004 - Held that:- order of predeposit of the amounts for a technical violation in taking the suo motu credit by the appellants after depositing the cash amount in view of the credit utilized earlier will be harsh. - stay granted.

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• Central Excise

• 2013 (6) TMI 509
  Refund - price revision clause - valuation - Excess payment of duty - supply of LPG Cylinders to IOC Ltd. and HPC Ltd. - Unjust enrichment - Held that:- refund can be granted in such cases as may be seen from the decision in the case of Universal Cylinders (2004 (5) TMI 218 - CESTAT, NEW DELHI) which was affirmed by the Apex Court by dismissing the appeal. So this issue is already decided in favour of the appellant to the extent it relates to claim which is not time-barred. Unjust enrichment - collection of money from the buyer - Held that:- Revenue is relying on the decision of the Apex Court dismissing the appeal against the decision in the case of Sangam Processors (Bhilwara) Ltd. (1993 (2) TMI 211 - CEGAT, NEW DELHI). This was not a case of goods cleared under a price variation clause but was in the context of a Notification issued under Section 11C of Central Excise Act. The decision in the case Grasim Industries [2011 (8) TMI 689 - SUPREME COURT OF INDIA] relies on the decision in the case of Sangam Processors (Bhilwara) Ltd. Since the matter in relation to contracts involving price variation clause and where the buyer adjusted the excess price paid on certain clearances in the price of later clearance has been specifically examined in the case of Universal Cylinders and held in favour of assessee and affirmed by Supreme Court this decision has to be adopted in this case. - Decided in favor of assessee.

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• 2013 (6) TMI 508
  Cenvat Credit - goods supplied to SEZ without payment of duty - Rule 6 of Cenvat Credit Rules. - Held that:- Supplies to SEZ developers/units in the SEZ are deemed exports. Therefore, the appellant is entitled to avail Cenvat credit on inputs/input services used in or in relation to the manufacture of final products supplied to SEZ developers/units. This issue has been considered by this Tribunal in the various decisions - credit allowed - decided in favor of assessee.

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• 2013 (6) TMI 507
  Clandestine removal - stay - Held that:- no prima facie case on merits. - The clandestine removal of the goods using parallel invoices is admitted and it is clearly corroborated by seizure of MS Ingots in two trucks with parallel invoices. There were more than one unused blank book without having serial number. In a few cases it is admitted by the authorized signatory that the goods have been cleared using parallel invoices. - stay granted partly.

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• 2013 (6) TMI 506
  Cenvat Credit - duty payment documents - photocopies or extra copies - stay - Held that:- in respect of these appeals, this is the second round of litigation and in first round of litigation when the matter had come up to the Tribunal, the Tribunal while remanding the matter had directed the appellant to deposit the amounts of Rs. 2,01,711/- and Rs. 67,327/- which had been deposited and are still with the department. In view of this, so far as these appeals are concerned, there is no necessity to require the pre-deposit of any further amount. As regards, the stay application No. E/S/1494/2012 in appeal No. E/1182/2012, prima facie it cannot be said that the appellant have a prima facie case as admittedly the verification regarding receipt of the goods covered by the invoices, on the basis of Cenvat credit had been taken, had not been done. - appellant directed to make pre deposit of 50%.

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• 2013 (6) TMI 505
  Clandestine removal - issue of mis-classification and clearance of goods by availing wrong exemption is the matter involved in separate proceedings - manufacture of Garoil-A, B, C, D, E, F and L - Held that:- Even if the goods were wrongly classified, if they have been accounted for in RG-1 register, whether they can be seized on the presumption that they would also be cleared without payment of duty, may not be correct. Further, sample of goods was sent for testing and whether the dispute in technical in nature or there was a deliberate intention to evade duty, has to be considered. Under these circumstances and in view of the submission that the goods have been used for manufacture of other goods which were cleared on payment of duty, they have been entered in to RG-1 register in the first place, pre deposit waived - full stay granted.

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• CST, VAT & Sales Tax

• 2013 (6) TMI 504
  Levy of tax on opium - according to the assessee, cultivators are handing over the opium exclusively to the assessee i.e. Narcotic Department. So, there is no question of sale or levy of the tax, but the trade tax department has levied the tax as well as charged the interest. - held that:- Hon'ble Supreme Court has observed that the opium grown by the cultivators is taxable item to trade tax. - Decided against the assessee. The opium is taxable item under the U.P. Trade Tax Act. Therefore, the impugned orders passed by the Tribunal are hereby set aside and the orders passed by the A.O. are hereby restored in the revisions in the question. Thus, the revisions filed by the department are allowed. - Decided in favor of assessee.

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