TMI Tax Updates - e-Newsletter
July 12, 2013

Case Laws in this Newsletter:

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

Articles

1. RENTING OF IMMOVABLE PROPERTY-SERVICE TAX IMPLICATIONS

   By: RENGARAJ R.K

News

1. Quick Estimates of Index of Industrial Production and Use-Based Index for the Month of May, 2013 (Base 2004-05=100)

2. Anand Sharma Meets USTR Michael Froman

3. India’s Foreign Trade: June, 2013

4. RBI Reference Rate for US $ and Euro

5. Finance Minister Meets Members of House of Representatives During his Ongoing US Visit; Discussion Covered the Gamut of Indo-US Relations Including Compulsory Licensing, Patent Protection, Preferential Market Access

6. Draft XBRL Taxonomies for Insurance Companies

Notifications

Customs

1. 74/2013 - dated 12-7-2013 - Cus (NT)

Seeks to notify Tiruchirappalli Airport for courier import and export operations

2. 73/2013 - dated 12-7-2013 - Cus (NT)

Appointment of Common Adjudicating Authority

3. 72/2013 - dated 12-7-2013 - Cus (NT)

Appointment of Common Adjudicating Authority

Circulars / Instructions / Orders

FEMA

1. 08 - dated 11-7-2013

Overseas Investments – Shares of SWIFT

2. 09 - dated 11-7-2013

Trade Credits for Imports into India – Review of all-in-cost ceiling

3. 10 - dated 11-7-2013

External Commercial Borrowings (ECB) Policy – Refinancing / Rescheduling of ECB

4. 11 - dated 11-7-2013

External Commercial Borrowings (ECB) Policy – Review of all-in-cost ceiling

DGFT

5. 18 (RE: 2013)/2009-2014 - dated 10-7-2013

Modification of the description of the export product under SION bearing Nos. A-3530 and A-3529

Customs

6. F. No. 437/38/2013-Cus-IV - dated 12-7-2013

Appointment of Common Adjudicating Authority

7. F. No. 437/40/2013-Cus-IV - dated 12-7-2013

Appointment of Common Adjudicating Authority

8. F. No. 437/22/2013-Cus-IV - dated 12-7-2013

Appointment of Common Adjudicating Authority

9. F. No. 437/34/2013-Cus-IV - dated 12-7-2013

Appointment of Common Adjudicating Authority

10. F. No. 437/35/2013-Cus-IV - dated 12-7-2013

Appointment of Common Adjudicating Authority

11. F. No. 437/37/2013-Cus-IV - dated 12-7-2013

Appointment of Common Adjudicating Authority

12. F. No. 437/44/2013-Cus-IV - dated 12-7-2013

Appointment of Common Adjudicating Authority

13. F. No. 437/48/2013-Cus-IV - dated 12-7-2013

Appointment of Common Adjudicating Authority

14. F. No. 437/49/2013-Cus-IV - dated 12-7-2013

Appointment of Common Adjudicating Authority

15. F. No. 437/79/2012-Cus-IV - dated 12-7-2013

Appointment of Common Adjudicating Authority

Highlights / Catch Notes

Income Tax

• Engineered Floor Board Manufacturer Secures Tax Deduction u/s 80IB for Significant Raw Material Transformation.

  Case-Laws - AT : Deduction u/s 80IB - manufacturing of Engineered Floor Board - it is found that raw material has under gone a major change and value addition - deduction allowed - AT
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• Court Rules Two-Way Traffic Not Needed for STPI Unit's Section 10A Exemption on Foreign Exchange Adjustments.

  Case-Laws - AT : Exemption u/s 10A - STPI unit - Adjustment of payable in foreign exchange with sale proceeds - a two-way traffic is unnecessary - exemption allowed - AT
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Corporate Law

• Court Rules Revaluation Funds Exclusion in Regulation 2(1)(s) for Investment Schemes is Lawful and Not Arbitrary.

  Case-Laws - HC : Collective Investment Schemes - The exclusion of funds created out of revaluation in terms of the definition of Regulation 2(1)(s), cannot be said to be arbitrary or an artificial definition. - HC
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Service Tax

• Cricket board infrastructure and support services not taxable; stay granted under current legal framework.

  Case-Laws - AT : Providing infrastructure facility to BCCI - business support services & infrastructural support services - Prima facie not taxable - stay granted. - AT
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Central Excise

• Tribunal rules appeal papers must be returned, not transferred, in non-maintainable cases; decision supports revenue authority.

  Case-Laws - HC : When an appeal is found not maintainable with the Tribunal, proper course would be to return the papers and not to direct its transfer. - decided in favor of revenue. - HC
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VAT

• Sprinkler Systems Not VAT Exempt: Must Be Animal-Driven or Manual for Exemption Eligibility.

  Case-Laws - HC : Exemption from VAT - Agricultural implement - Sprinkler - it is an agricultural implement not animal driven or manually operated - not eligible for exemption - HC
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• High Court Rules Equipment Installation as Intra-State Sale; Impacts VAT and Sales Tax Under CST Framework.

  Case-Laws - HC : Local sale or Inter-State sale - CST - Installation of equipment in another State - The transaction in question is intra- State and not inter-State sale - HC
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• Court Rules Petitioner Not Liable for Entry Tax; Section 12(5) Penalty Notice Deemed Unsustainable Under U.P. Act 2007.

  Case-Laws - HC : Penalty u/s 12(5) - U.P Tax on Entry of Goods into Local Areas Act, 2007 - petitioner is not liable to pay any entry tax - penalty notice is unsustainable under the law - HC
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Case Laws:

• Income Tax

• 2013 (7) TMI 293
  Deduction u/s 80IB(10) - housing projects - legal relationship between the assessee and the end user of the units was that of ‘work contract’? - Held that:- Following the decision of Commissioner of Income-Tax Vs. Radhe Developers [2011 (12) TMI 248 - GUJARAT HIGH COURT] - Decided against Revenue.

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• 2013 (7) TMI 292
  Cessation of liability - addition u/s 41(1) - Held that:- The question raised by the Revenue in this appeal essentially and predominantly is based on the facts and when CIT and Tribunal found from the material on record absence of remission or cessation of liability as contemplated under section 41 of the Income-tax Act as also absence of material to indicate deriving of any benefit in cash or otherwise by the assessee, no question of law arises for our consideration - Decided in favour of Assessee.

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• 2013 (7) TMI 291
  Deduction u/s 80-IB(10) - housing project - Deduction on account of increased profit due to disallowance u/s 40(a)(ia) - Held that:- Even if a certain expenditure which was incurred by the assessee for the purpose of developing housing project was not allowable by virtue of section 40(a)(ia) of the Act, since the assessee had not deducted the tax at source as required under law, it cannot be denied that such disallowance would ultimately go to increase the assessee s profit from the business of developing housing project. Whatever be the ultimate profit of the assessee as computed even after making disallowance under section 40(a)(ia) of the Act, would qualify for deduction as provided under the law - Decided in favour of Assessee.

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• 2013 (7) TMI 290
  Penalty under section 271(1)(c) - Held that:- Income-tax Appellate Tribunal has deleted the penalty on the ground that the additions made on account of disallowance was neither due to the failure on the part of the assessee to furnish accurate particulars nor on account of furnishing inaccurate particulars. We see no infirmity in the order of the Income-tax Appellate Tribunal - Decided in favour of Revenue.

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• 2013 (7) TMI 289
  Deduction u/s 80IB - Held that:- interest paid by debtors for late payment of sale proceeds would form part of the eligible income for the purpose of computing relief under section 80-I - Following decision of NIRMA INDUSTRIES LTD vs. DY. C.I.T [GUJ] [2006 (2) TMI 92 - GUJARAT High Court] - Decided against Revenue. Deduction on sale of wastage/scrap - Tribunal allowed - Held that:- tax-effect is less than Rs.2 lakh, in view of instructions No. 5 of 2008 dated 15th May 2008 issued by the Central Board of Direct Taxes, the appeal, only on the above point at the instance of the Revenue is not maintainable.

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• 2013 (7) TMI 288
  Penalty u/s 201(1A) - TDS not deducted on prize money - Held that:- ssessee herein was allotted a Contessa car as the first prize under the National Savings Scheme. The Assessing Officer treated it as winnings from lotteries within the meaning of section 2(24)(ix) of the Income-tax Act, 1961, subject to the special rates envisaged under section 115BB of the Act. The appeal before the Commissioner (Appeals) failed. Hence, a further appeal was taken before the Tribunal, which allowed the appeal holding that the prize won by the assessee was not covered by section 2(24)(ix) of the Act - Following decision of CIT v. Deputy Director of Small Savings [2003 (12) TMI 34 - MADRAS High Court] order of ITAT confirmed. - Decided against the revenue.

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• 2013 (7) TMI 287
  Quashing of assessment - Search on premises resulted in addition undisclosed income - only item seized was jewellery belonging to the family members, for which, there was no addition. - Held that:- there was no evidence found and there were no materials found showing undisclosed income - on the very basis on which the assessment so framed not being available, the entire assessment could not be sustained - Decided in favour of assessee.

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• 2013 (7) TMI 286
  Deduction u/s 80IB - manufacture - profits earned on manufacturing of Engineered Floor Board at industrial unit at Silvasa - Held that:- The decisions relied upon by the revenue to disallow the claim are distinguishable on facts as the case of Lucky Matemat (1996 (2) TMI 26 - RAJASTHAN High Court) wherein assessee was mining lime stone and selling it, there was neither any manufacturing activity nor any processing involved. Hence, the case is distinguishable on acts. Also the decision of Gem India [2000 (12) TMI 7 - SUPREME Court] also has now been rendered inapplicable because, the legislature has introduced the definition of manufacture in the statute book, which was earlier not there. Though the meaning is for the purposes of section 10B, but explanation 4 introduced from 01.04.2004, it says, "for the purpose of this section, "Manufacture or produce" shall include the cutting and polishing of precious and semi- precious stones". This, in effect has rendered the decision of Gem India ineffective. Since the raw material purchased by the assessee & the finished product marketed by it as brought by the assessee for examination it is found that raw material has under gone a major change and value addition and a distinct marketable product assessee is eligible for the claim of deduction under section 80IB. In favour of assessee.

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• 2013 (7) TMI 285
  Sale consideration on sale of Land - disallowance while calculating the Capital Gains - whether CIT(A) has erred in holing that the action of the Valuation Officer and its consequent adoption by the ITO before indexation being the value of the property as on 1-4-1981 is not in accordance with law - Held that:- The fact that the AO resorted to section 50C, it gave the assessee, reason to object to it and pray for valuation report. It is undisputed that the AO sought the valuation report and the DVO sent a preliminary report, which remained unconfronted. This itself brought in the infirmity in the order. As held in Tin Box Co. vs CIT [2001 (2) TMI 13 - SUPREME Court] wherein it has been held that in absence of proper opportunity of being heard, the order lacs sanctify. This is apparent from the fact that preliminary report was received by the AO on 26.12.2007 and he passes the assessment order on 27.12.2007. This, itself shows that the assessee did not get proper and adequate opportunity to rebut the preliminary valuation report. Since both the appeals, are founded on the factum of sale of property, while admiting the additional evidence, as filed by the assessee, alongwith the Affidavit and consequentially, in the interest of justice to both the sides, restore the issue of sale of property and its consequential effects to the file of the AO.

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• 2013 (7) TMI 284
  Disallowance of claim of bad debt - Held that:- As complete details of party was available on record but the AO had not brought on record any material to show that the write off entry was not genuine. The assessee also gave the reasons for non recovery of the amounts as the party was going through the bad times. Since, the recovery had not been made from a long time the assessee thought it prudent to write off the amount and start fresh business relations with the party. No material has been placed on record to dispute the claim of the assessee. Considering the facts and circumstances of the case and the judgment of TRF Ltd. (2010 (2) TMI 211 - SUPREME COURT) wherein held that w.e.f. 01.04.1989, in order to obtain a deduction in relation to bad debts, it is not necessary for the assessee to establish that the debt, in fact has become irrecoverable. It is enough of the bad debt is written off as irrecoverable in the accounts of the assessee. In favour of assessee.

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• 2013 (7) TMI 283
  Revision order passed u/s 263 - addition made with regard to disallowance of Rs.50 lac on account of advance written off - Held that:- It is manifest from the query raised by the AO and reply submitted by the assessee that the AO conducted an enquiry and after considering the reply of the assessee has accepted the claim. Though in the assessment order passed u/s 143 (3) the AO has not discussed this issue however, once specific query was raised and the assessee submitted the reply and after considering the assessee's reply, AO has accepted the claim of the assessee then it cannot be said that there was no enquiry at all on this issue. There must be a distinction between a lack of enquiry and inadequate enquiry in a case the AO has made an enquiry and took a possible view under the law then even if the view taken by the AO is not acceptable to the Commissioner it cannot render the assessment order as erroneous and prejudicial to the interest of revenue as to empower the Commissioner to invoke the provisions of Section 263. The Hon'ble High Court in DG HOUSING PROJECTS LTD case [2012 (3) TMI 227 - DELHI HIGH COURT] has clearly made out distinction between the orders where no enquiry has been made by AO from the cases of inadequate enquiry. Therefore, where the AO had made an enquiry and taken a possible/ permissible view then the said order cannot be treated as erroneous and prejudicial to the interest of the revenue unless the view taken by the AO is unsustainable in law - Since the order passed u/s 263 disallowed therefore, consequential disallowance made in the order passed in pursuant is not sustainable - appeals of the assessee allowed.

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• 2013 (7) TMI 282
  Exemption u/s 10A - STPI unit - Adjustment of payable in foreign exchange with sale proceeds - Held that:- Considering the situation involved as the assessee exported some material and against which the amount was receivable the assessee has also purchased certain goods from foreign parties and the payments were made to them in convertible foreign exchange. The assessee adjusted payable amount against receivable amount with the permission of Reserve Bank of India. Therefore, the payment receivable by the assessee has to be treated as received. The Hon'ble Supreme Court in J. B. Boda And Company Private Limited case [1996 (10) TMI 70 - SUPREME Court] has rightly observed that, 'a two-way traffic" is unnecessary i.e. first receive the amount and thereafter pay the amount. If the assessee has adjusted the receivable amount against payable amount, then the two-way traffic is avoided and the assessee has done this exercise, which is correct. Thus the assessee is entitled for deduction under Section 10A on the amount which was adjusted against the payable amount by the assessee. In favour of assessee. Disallowance debited to profit and loss account on account of donation - Held that:- No infirmity in the finding of the CIT(A) as nothing has been brought on record then how these expenses/deduction are allowable. Against assessee. Allowance of expenditure on stamp duty - Held that:- No infirmity in the finding of the CIT(A), who allowed the issue in favour of the assessee by ascertaining the factual matrix of the case and considered various case laws relied upon by the AR before him. In favour of assessee

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• Customs

• 2013 (7) TMI 281
  Demand of duty - 1500 kilo grams duty free gold bars imported - confiscation of 925 kgs gold bars - exemption under the Customs Notification was denied in respect of 925 kgs of gold. - Tribunal set aside the demand, interest and penalty - Held that:- the question involved in this appeal is the determination of duty payable and interpretation of notification granting exemption and consequential validity to pay duty and exemption of penalty - Matter to be decided by Apex court - Following decision of Commissioner of Customs V/s M/s Motorala India Ltd. [2011 (4) TMI 1014 - KARNATAKA HIGH COURT]. - Decided against the revenue.

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• 2013 (7) TMI 280
  Matter referred to Larger Bench - Difference of opinion - Issue of levy of duty - Held that:- adjudicating authority had finalised the assessment under Notification No.94/96-Cus. treating the amount of duty leviable as basic customs duty and not additional duty of customs - Commisioner confirmed order and held that special additional duty of customs is leviable on imported goods and no interest is to be charged on duty paid by debiting to the DEPB licence - Issue referred for consideration by the Larger Bench, does not fall for consideration - Since the issue referred does not arise in the factual matrix of the appeal, we decline to answer the reference.

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• Corporate Laws

• 2013 (7) TMI 279
  Regulation 2(1)(s) of SEBI Regulations, 1999 - Collective Investment Schemes - Computation of net worth - whether Article 14 ultra vires insofar as it excludes the funds created for revaluation while determining the 'net worth' of the company and other reliefs - Held that:- Contentions put forth on Article 14 are unacceptable. The Regulations are made in exercise of the powers conferred under Section 30, read with Sections 11 and 19 of the Securities and Exchange Board of India Act, 1992. It is in pursuance of the objects sought to be achieved, that the regulations prescribe, the conditions for eligibility for a certificate, wherein the applicant should have a 'net worth' of not less than Rs.5 crores. The exclusion of funds created out of revaluation in terms of the definition of Regulation 2(1)(s), cannot be said to be arbitrary or an artificial definition. The object sought to be achieved in defining 'net worth' to exclude the funds created out of revaluation, is to protect the interest of the investors. The protection of the interests of the investors is sought to be achieved by defining 'net worth', which means the aggregate capital and free reserves and excluding the funds created out of revaluation. The funds created on revaluation would at times amount to an artificial valuation and not the true value. That the interest of the investors would necessarily be affected if 'net worth' includes such revaluation. Therefore, 'net worth' has been defined to exclude such a revaluation. Hence, the contention of arbitrariness by offending Article 14 or the right to do business under Article-19(l)(g) is unsustainable. Appeal dismissed.

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• Service Tax

• 2013 (7) TMI 299
  Man power supply agency - The appellant is a co-operative society, manufacturing sugar – the farmers of the area, after cultivating the crop of sugarcane, are supplying the said sugar cane to the appellant's factory for producing sugar – whether the said activity would constitute the man power supply agency supply - Held that:- The appellant has arranged only for cutting of sugarcane crop from the field of farmers who are their members – further the appellant is charging lumsum amount for the help provided by them for cutting, loading and unloading of sugarcane from the fields of farmers – thus the lumsum amount which has been charged by the appellant as for services rendered cannot be classified as man power supply agency as the same has been decided in K. Damodarareddy (supra) and Ritesh Enterprises (2009 (9) TMI 386 - CESTAT, BANGALORE). - Prima facie case is in favor of assessee – Stay granted.

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• 2013 (7) TMI 298
  Waiver of pre-deposit of service tax – commercial or industrial service - Held that:- As per the definition, construction of new building or civil structure or part thereof is covered under the scope of taxable service - the applicant had only undertaken interior renovation of the part of the building - Renovation as a ‘part thereof' is not mentioned in the definition under section 90(d) - pre-deposit of the dues waived – recovery stayed - stay petition allowed.

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• 2013 (7) TMI 297
  Stay petition – Business Support Service – Whether supply of chilled water fall under the Business Support Service or not – appellant is supplying chilled water, which is manufactured/produced in his factory premises - chilled water is consumed by the appellant in his premises and is also transferring the said chilled water to their own sister concern in neighbouring plant - Held that:- question is arguable one and needs to be dealt into detail at the final disposal of the appeal - waiver of pre-deposit of balance amounts to be allowed and recovery thereof stayed till the disposal – Application allowed.

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• 2013 (7) TMI 296
  Stay application – Whether the Service tax on the commission received from the foreign companies whose products are marketed would be liable to pay service tax on commissions received – appellants received the amount in foreign exchange - promoting or procuring orders and also doing demonstration, installation and training the customers in India for the use of machinery as supplied by the foreign manufacturer - the question of discharge of service tax on the commission - Held that:- strong prima facie case for the waiver of the pre-deposit of the amounts involved - Application for the waiver of pre-deposit of the amounts involved is allowed - recovery also stayed till the disposal of appeal as held in ABS India Ltd. (2008 (8) TMI 53 - CESTAT ) – Application allowed.

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• 2013 (7) TMI 295
  Providing infrastructure facility to BCCI - Promotion of cricket or giving the cricket stadium for conducting cricket matches – business support services & infrastructural support services - Section 65(104c) - Held that:- There is no evidence led by the Revenue to show that the services have been rendered in relation to business or commerce - Section has to be understood and construed by following the principles of ejusdem generies - Promotion of cricket or giving the cricket stadium for conducting cricket matches the transaction involved in the present case is not similar to any of the activities specified in the section. - Prima facie case is in favor of assessee - stay granted.

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• Central Excise

• 2013 (7) TMI 278
  Refund - SSI exemption was withdrawn and restored after some time - unjust enrichment - cum-duty-price - Assessee obtained a supply order for the supply of Carrier Breech Block Assembly. The assessee quoted the price of Rs.621/- per piece inclusive of Excise Duty - During Budget 2001, as the chapter 93.05 was taken out of SSI exemption purview, vide Notification No.8/2001 dated 01.03.2001 - Carrier and Breech Block Assembly falling under Chapter 93.05 was brought into Excise Net. It is not disputed by the Revenue that the exemption withdrawn was restored vide Notification No.47/01 dated 01.10.2001 by incorporating the said chapter under the SSI Exemption. Held that:- The price Rs.621/- per piece is inclusive of excise duty, thus, there being no liability, there could be no passing of a liability to the customer - If the assessee had charged Rs.470.46 apart from what has been charged as duty and paid it, the question of refund has to be considered based on the facts as to whether the assessee had passed on the liability to the purchaser. If the amount had been paid by the assessee and not been passed on to the purchaser, then the question of rejection of refund does not arise. - The matter remanded back to the Assessing Officer for working out as to whether the claim can be considered for the period after 01.10.2001. Decided in favor of Revenue.

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• 2013 (7) TMI 277
  Appellate Forum - Whether CESTAT in the facts and circumstances of the case right in ordering transfer of the respondent's appeal to the Joint Secretary, Government of India when it was found that such appeal was not maintainable before the Tribunal – Held that:- Powers of the Appellate Tribunal in an appeal before itself are quite wide. In addition to confirming, modifying or annulling the decision under appeal, the Tribunal may even remand the proceedings before the lower authority for fresh adjudication - Such powers can be exercised by the Tribunal only in an appeal which is maintainable - In terms of clause (c) to the proviso to sub-section [1] of Section 129A of the Act, the Tribunal had no jurisdiction to entertain the appeal of the respondent, the Tribunal could not have exercised any of the powers specified in sub-section (1) of section 129-B of the Act. The only option before the Tribunal had was to reject such an appeal as being not maintainable or return the papers back to the appellant for presentation before appropriate forum. Merely because, as pointed out by the learned counsel for the respondent that there is practice before the Tribunal to transfer such proceedings when found not maintainable, would not permit us to take a different view. A certain trend or practice howsoever old would not change the legal position. Such convention, unless backed up statutory provisions and powers available with the Tribunal, cannot be saved only on the ground that the same has lasted sufficiently long. When an appeal is found not maintainable with the Tribunal, proper course would be to return the papers and not to direct its transfer. - Order of CESTAT set aside - decided in favor of revenue.

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• 2013 (7) TMI 276
  CENVAT Credit of Central Excise duty paid on MS bars, plate, beam, angles, HR coils etc - These items will not fall under the category of capital goods – Held that:- Credit not allowed on the abovesaid items relying upon the decision in the case of Vandana Globals Ltd [2010 (4) TMI 133 - CESTAT, NEW DELHI (LB)] – Decided against the Assessee. Limitation – Extension of period - Appellant had filed ER-1 returns during the relevant period with the authorities – Held that:- Extended period cannot be invoked taking a view that the appellant has mis-declared, suppressed for availing CENVAT Credit of duty – Decided in favor of Assessee.

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• 2013 (7) TMI 275
  CENVAT Credit of Excise duty paid on batteries which supplied free of cost along with film roll - Appellant is re-packing and re-labelling the final product cleared by them i.e. film rolls along with the battery inside the pack of film roll. This particular activity as per the Chapter Note to Tariff Heading No.3702 would amount to manufacture – Held that:- Rule 3(1) of the Rules says that a manufacturer or producer of final product or a provider of taxable service shall be allowed to take credit of items mentioned therein - The word input is defined in Rule 2(k) which also includes accessories of the final products cleared along with final product – Decided in favor of Assessee. Manufacture as defined under Section 2(f) of the Central Excise Act – Held that:- Any process in relation to the goods specified in the Third Schedule, which includes packing or re-packing of such goods in a unit container amounts to manufacture - Assessee would be entitled to claim cenvat credit on such input – Decided in favor of Assessee.

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• 2013 (7) TMI 274
  Stay Application - 100% EOU - Duty applicable on the waste and scrap cleared to the Domestic Tariff Area - Eligiblity for exemption for basic Custom duty under notification No. 21/2002-Cus dated 1.3.2002 – Held that:- Melting scrap of Iron & steel is exempted on S. No. 200 of the Notification. - There is no condition in the Notification for availing the exemption. Exemption from (SAD) under Notification No. 23/2003-CE Dated 31.03.2003 – Held that:- Under Para 6.8(e) of the Foreign Trade Policy waste and Scrap arising out of the manufacture can be sold in the domestic policy area as per standard Input Output norm notified under duty exemption scheme and in respect of items not covered by the norms Development Commissioner may fix ad-hoc norms for the period for six months - Applicant has applied for fixation of ad-hoc norms to the Development Commissioners on 04.07.2009 where as the applicant was selling their scrap to DTA since 29.03.2008 - prior to 04.07.2009 the applicant is not eligible for the benefit of exemption from SAD - Directed the applicant to deposit an amount of Rs. 10 lakhs as pre-deposit – stay granted partly.

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• 2013 (7) TMI 273
  Drawback of customs portion only and rebate claims for Central Excise duty paid on the goods removed for export - Claimed drawback under All Industry Rate only of Customs portion and no drawback in respect of Central Excise Duty allocation under the All Industry Rate of Drawback has been claimed. - Held that:- As per CBEC Circular No. 83/2000-Cus., dated 16-10-2000, wherein it is clarified that “where only customs portion of duties is claimed as per the All Industry Rate of Drawback, Rule 57F(14) does not come in the way of admitting refund of unutilized credit of Central Excise/Countervailing Duty paid on inputs used in the products exported” - allowing rebate of duty paid on finished exported goods and drawback of customs portion will not amount to double benefit - sanctioned rebate claims to the applicant-party as per the case of Benny Impex Pvt. Ltd. [2003 (1) TMI 134 - GOVERNMENT OF INDIA]. Decided in favor of Assessee.

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• 2013 (7) TMI 272
  Refund u/s 11B of the Central Excise Act, 1944 – in cash or through Cenvat Credit - On verification of the documents it was noticed that the exports are made against Advance Licence Scheme under Notification 43/2001-C.E. (N.T.), dated 26-6-2001 under which the inputs required for the manufacture of the said exported goods were procured duty free - applicants contrary to the provisions of the Act, have discharged the duty on export of goods and claimed the same as rebate - not correct. Held that:- Duty paid without authority of law cannot be treated a duty but it has to be treated as deposit made with Government on his own volition - As per the case of M/s. Nahar Industries Enterprises Ltd. v. UOI reported a [2008 (9) TMI 176 - PUNJAB AND HARYANA HIGH COURT], “Petitioner paid lesser duty on domestic product and higher duty on export product which was not payable - Assessee not entitled to refund thereof in cash regardless of mode of payment of said higher excise duty - Petitioner is entitled to cash refund only of the portion deposited by it by actual credit and for remaining portion, refund by way of credit is appropriate.” - refund in cash of higher duty paid on export product which was not payable, is not admissible and refund of said excess paid duty/amount in Cenvat Credit is appropriate. As such the excess paid amount/duty is required to be returned to the respondent in the manner in which it was paid by him initially - Applicants may be allowed to take re-credit of said amount in their Cenvat credit account. Decided against the Assessee.

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• CST, VAT & Sales Tax

• 2013 (7) TMI 301
  Local sale or Inter-State sale - CST - Installation of equipment in another State - Whether installation of irrigation system including sprinkler to the farmers of Himachal Pradesh from Haryana is inter-state or intra-state sale - Held that:- The analysis of documents no doubt reveal that the petitioner-Company has brought the goods from Gurgaon (Haryana) to Mandi Branch, in the name of Sub Divisional Soil Conservation Officers Agriculture Department and then supplied / installed the irrigation systems in the fields of different farmers/beneficiaries under the ‘Yojna’ and the petitioner - Company received 80% cost of material as subsidy from the department of Agriculture and 20% cost from farmers / beneficiaries. The petitioner-Company has found to have been charged local taxes from the farmers, as evident from the invoices, which has been issued inclusive of all taxes from the branch office, Mandi. Thus, the petitioner for all purposes is said to have made intra-State sales which is liable to payment of VAT - The transaction in question is intra- State and not inter-State sale - Decided against assessee. Exemption from VAT - Agricultural implement - Manually operated or animal driven - Held that:- through the definition of device, it is an instrument designed to carry out a particular or specific purpose. Sprinkler serves the purpose of sprinkling water so it is a device in that sense - if the hairline difference between the two is ignored then it can be regarded implement & also if it is linked with the purpose it serves i.e. agricultural process - it has a direct nexus with the irrigation process. So it is an agricultural implement - the ‘sprinkler’ is not an agricultural implement nor it is driven manually or by animal - No eligible for exemption - Following decisions of Bharat Engineering & Foundry Works Vs. The U.P. Government [962 (10) TMI 45 - ALLAHABAD HIGH COURT] and Delta Engineering Co. Pvt. Ltd. Vs. Commissioner Income Tax [1963 (4) TMI 49 - ALLAHABAD HIGH COURT] - Decided against assessee. Whether Term and Condition No. 17 of Annexure PC relating to construction of Poly Houses and Installation of Micro Irrigation Systems of Part-A and Part-B of the Pandit Deen Dayal Kisan Bagwan Samridhi Yojana is mandatory or directory - Held that:- petitioner Company itself has entered into the contract with the State Government vide Annexure-PC and has also agreed to obey the terms and conditions of the agreement, moreso, as per condition No.17, the petitioner was not allowed to raise any bill from out of the State. Nothing has been brought on record to show how this condition was directory only. As the petitioner’s allocation of the work of installation of micro irrigation systems under Yojna was subject to such condition. This is mandatory condition. Nothing has been argued or brought on record to show how the petitioner’s right under Article 14, 19(1)(g) and Article 301 of the Constitution is infringed whereas the petitioner Company is legally obliged to make the payment to the State Government - Following decision of Grid Corporation of Orissa Limited & Others versus Eastern Metals and Alloys & Others [2010 (8) TMI 787 - SUPREME COURT] - Decided against assessee.

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• 2013 (7) TMI 300
  Penalty u/s 12(5) - U.P Tax on Entry of Goods into Local Areas Act, 2007 - Pan Masala containing tobacco - High Court held that petitioner is not liable to pay any entry tax - Held that:- It was not disputed that it has been ultimately held that the petitioner is not liable to pay any entry tax - perusal of penalty notice would show that it has been issued simply on the premises that the petitioner has made certain sales to unregistered dealers and has failed to collect entry tax at source - There is no averment, nor there is any indication in the penalty notice that the petitioner has affected sales outside the local area - Impugned penalty notice is unsustainable under the law - Following decision of Mawana Sugars Ltd. vs. Deputy Commissioner, Commercial Tax and others [2013 (6) TMI 28 - ALLAHABAD HIGH COURT] - Decided in favour of assessee.

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• Indian Laws

• 2013 (7) TMI 294
  Non furnishment of information - Defence taken under RTI ACT - Held that:- CPIO has not complied with the directions of the FAA and his contention that the appellant has not approached him, establishes his casual approach towards RTI matters. The CPIO is supposed to take cognizance of the FAA’s directions. He is cautioned to be more careful in future while dealing with RTI matters - CPIO directed to allow inspection of the files within prescribed time limit - Decided in favour of petitioner.

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