TMI Tax Updates - e-Newsletter
July 3, 2013

Case Laws in this Newsletter:

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

Articles

1. CENVAT CREDIT ON INPUT – RECENT JUDICIAL DECISIONS

   By: DR.MARIAPPAN GOVINDARAJAN

News

1. Disinvestment of 4.01% Government of India Shareholding in HCL through OFS Method; Approximate Gross Receipts would be Rs. 260 Crore.

2. RBI Reference Rate for US $ and Euro

3. Government Approves Eight (8) Proposals of Foreign Direct Investment Amounting to about Rs.1311.54 Crore

4. Anand Sharma Leaves for Mauritius to Attend IOR-ARC Economic and Business Conference

5. Services Provided to Special Economic Zone (SEZ) Authorised Operations Exempted From Service Tax

Circulars / Instructions / Orders

VAT - Delhi

1. VAT AUDIT/HQ/2013-14/2406-2413 - dated 2-7-2013

Regarding file audit report in Form-AR-1

Income Tax

2. HRD/CM/102/3/2009-10/(Pt)/1094 - dated 2-7-2013

Implementation of the Cadre Restructuring proposals in Income Tax Department : Constitution of Sub-committee No.1: Jurisdiction & Deployment of Posts

3. HRD/CM/102/3/2009-10/(Pt)/1095 - dated 2-7-2013

Implementation of the Cadre Restructuring proposals in Income Tax Department : Constitution of Sub-committee No. 2: DPCs

4. HRD/CM/102/3/2009-10/(Pt)/1097 - dated 2-7-2013

Implementation of the Cadre Restructuring proposals in Income Tax Department : Constitution of Sub-committee No.4: Recruitment of Group B & C Cadres and Training Needs

5. HRD/CM/102/3/2009-10/(Pt)/1099 - dated 2-7-2013

Implementation of Cadre Restructuring proposals Income Tax Department : Constitution of Sub-committee No.5 : IRS Recruitment Rules

6. HRD/CM/102/3/2009-10/(Pt)/1098 - dated 2-7-2013

Implementation of Cadre Restructuring in Income Tax Department : Constitution of Sub-committee No.6 : Recruitment Rules for Group B & C Cadres

7. HRD/CM/102/3/2009-10/(Pt)/1100 - dated 2-7-2013

Implementation of Cadre Restructuring in the Income Tax Department : Constitution of Sub-committee No.7: Infrastructure Requirements

8. HRD/CM/102/3/2009-10/(Pt)/1096 - dated 2-7-2013

Implementation of Cadre Restructuring in Income Tax Department : Constitution of Sub-committee No.3: Restructuring of Directorates

DGFT

9. 04/2013 - dated 2-7-2013

Non-requirement of Registration Certificates for export of non-basmati rice and wheat [except for export to Bangladesh & Nepal through non-EDI Land Custom Stations (LCS)].

10. A-12025/01 /2010/HRD-II - dated 28-6-2013

Filling up of the post of Console Operator in the Directorate General of Foreign Trade (DGFT), Department of Commerce

Highlights / Catch Notes

Income Tax

• Interest u/s 234B Applies for Assessments u/ss 147 and 143(3), Considered Regular Assessments.

  Case-Laws - HC : Interest u/s 234B - When the assessment was made for the first time u/s 147 read with Section 143(3), the said assessment is a regular assessment attracting Section 234B(1) and not 234B(3) - HC
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• Assessment Order Demands Are Independent Proceedings; No Stay by CIT u/s 263, Appeals Possible.

  Case-Laws - AT : Recovery - AO giving rise to a demand constitutes independent proceedings which may lead to appellate or further appellate proceedings arising therefrom - No stay of order passed by the CIT u/s 263 - AT
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• Indian Branch Office's Income from Services to US Head Office Taxable in India Under Local Laws.

  Case-Laws - AT : Services being provided by the branch office in India to the Head Office in USA - income earned by the assessee from the activities carried on by it is taxable in India - AT
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• Branch Office Profits Must Be Calculated Independently from Head Office Losses for Accurate Assessment.

  Case-Laws - AT : The contention that the head office has suffered loss and hence there cannot be any profit to the branch office, the same is not acceptable as profit of the branch office has to be computed as per the income earned by it - AT
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• AO Mistakes Temporary Business Lull for Cessation, Expenditure During This Period Allowed.

  Case-Laws - AT : Allowance of expenditure – AO ignored the very fact that there was a temporary lull in the business of the assessee and it was not a cessation of business of activity - expenditure allowed - AT
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• CIT Cannot Direct Assessing Officer to Start Proceedings u/s 201(1A), Exceeding Authority u/s 263.

  Case-Laws - AT : Revision u/s 263 - Validity of proceedings – CIT has no jurisdiction to direct the Assessing Officer to initiate proceedings u/s 201(1A) - AT
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• Cricket earnings for 1992-94 deemed non-taxable; individual not classified as professional cricketer, tax exemption granted.

  Case-Laws - AT : Taxability of Earning from Cricket - No justification to hold that during accounting year relevant to AY 1992-93 and 1993-94, Shri Kapil Dev was professional cricketer - Exemption allowed - AT
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• Political Party's Unaccounted Sales Match Appellant's Records; No Additional Tax Imposed.

  Case-Laws - AT : Unaccounted sales – Details and copies of accounts submitted by Bahujan Samaj Party exactly match with details submitted by appellant - No addition - AT
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• Reopening of Tax Assessment Invalidated Due to Lack of Joint Commissioner Approval, Improperly Authorized by Commissioner of Income Tax.

  Case-Laws - AT : Reopening of assessment – Approval not granted by Joint Commissioner, instead taken from Commissioner of Income- tax – Reopening of assessment invalid therefore quashed - AT
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• Assessing Officer's Capital Gain Action Valid Under Income Tax Act's Section 50C, as Confirmed by District Valuation Officer.

  Case-Laws - AT : Computation of capital gain – Matter referred to DVO – Action of Assessing Officer perfectly in accordance with law in view of provisions of Section 50C - AT
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Customs

• Tribunal Division Bench Must Clearly State Opinion Differences; Cannot Question Appeal Outcomes on Rejection or Remand.

  Case-Laws - HC : Difference of opinion - exact differences has to be formulated by members of the Division Bench of the Tribunal and it is not open to them to formulate a question as to whether the appeal is to be rejected or remanded for a fresh decision for determination of duty, confiscation and penalty etc. - HC
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Service Tax

• Centralized Registration Must Include Both Service Providers and Recipients, Not Just Providers, Says Ruling.

  Case-Laws - AT : Facility of centralized registration – the contention that only service providers are eligible for centralized registration and not service recipients is not acceptable - AT
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• Appeal Against Rejection of Centralized Registration Facility Deemed Maintainable Under Service Tax Regulations.

  Case-Laws - AT : Facility of centralized registration – intimation of Rejection - appeal against such communication should be maintainable as the same - AT
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Central Excise

• No Duty on Metal Scrap from Scrapped Capital Goods, Court Rules: Exemption Applies Beyond Manufacturing Process.

  Case-Laws - HC : Levy of duty on Scrap - metal scrap were generated out of scrapping of the capital goods (Machinery and components) -when the scrap had not arisen out of manufacture, no duty - HC
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• Exemption on Waste or Scrap: Marketability Not a Factor Under Notification 89/95-CE for Gums, Waxes, and Oils.

  Case-Laws - AT : Duty on waste / scrap - exemption under notification 89/95-CE - Gums/waxes and Recovered Oil/Fatty Acids - the test of marketability of waste is no reason to deny the exemption - AT
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• Penalty Imposed for Default in Excise Duty Payment; CENVAT Credit Usage Restricted u/r 25 of Central Excise Rules, 2002.

  Case-Laws - AT : Default in payment of duty of excise - restriction on utilization of cenvt credit - imposition of penalty under Rule 25 of the Central Excise Rules, 2002 has been correctly made upon the appellant - AT
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VAT

• High Court Declares Entry Tax Act Unconstitutional Due to Lack of Disclosure on Benefits and Proportionality.

  Case-Laws - HC : Entry of Goods - There being no disclosure of the quantifiable benefits or the proportionality of the levy to the quantifiable benefits, either in the impugned Act or by way of affidavit, the tax does not meet the test of compensatory tax - Entry Tax Act is ultra vires to the constitution - HC
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Case Laws:

• Income Tax

• 2013 (7) TMI 67
  Penalty u/s 271(1)(c) - Tribunal upheld order of Commissioner of Income Tax (Appeals), cancelling the penalty levied under Section 271(1)(c) - Held that:- Mere fact that the assessee had given up the plea of mutuality, one cannot immediately draw an inference that the assessee was lacking in bona fides in the matter of its claim - Following the decision of CIT v. Reliance Petroproducts P. Ltd. [2010 (3) TMI 80 - SUPREME COURT] and Union of India Vs. Rajasthan Spinning & Weaving Mills [2009 (5) TMI 15 - SUPREME COURT OF INDIA] - Decided against the revenue.

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• 2013 (7) TMI 66
  Application of Section 234B - Levy of interest u/s 234B(1) or 234B(3) - Tribunal initiated proceedings for levy of interest against Assessee - Held that:- Assessee returned an original assessment under Section 143(1) of the Income Tax Act - Therefore, assessment was completed under Section 147 read with Section 143(3) of the Income Tax Act, computing the total income of the assessee - When the assessment in the assessee's case was admittedly made for the first time under Section 147 read with Section 143(3) of the Income Tax Act, the said assessment is a regular assessment attracting sub section (1) of Section 234B - Decided against the assessee.

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• 2013 (7) TMI 65
  Proceedings u/s 12AA - Validity of notice - High Court has dismissed the challenge of the petitioner on the legality and validity of notice issued under Section 148 (2013 (6) TMI 67 - ALLAHABAD HIGH COURT) - Held that:- High Court, a direction has also been given to the Commissioner of Income Tax to pass fresh reasoned order under Section 12AA(3) of the Act, though the proceedings under Section 12AA(3) of the Act had already been dropped by the Commissioner of Income Tax and this was not an issue before the High Court in the writ petition. - Commissioner directed to pass a fresh reasoned order under Section 12AA(3) of the Act.

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• 2013 (7) TMI 64
  Recovery - Stay of operation of order u/s 263 - CIT passed order u/s 263 pertaining to assessment year 2006-07 - Held that:- apparent that no demand by itself arises out of the order passed u/s 263 of the Act until and unless a consequential order is passed by the Assessing Officer and a demand notice is issued u/s 156 of the Act raising the demand - after consequential order was passed and demand was raised u/s 156 of the Act, granting stay of operation of the order passed u/s 263 of the Act becomes inconsequential as the Assessing Officer has already taken action by raising a demand in pursuance to such order - order passed by the Assessing Officer giving rise to a demand constitutes independent proceedings which may lead to appellate or further appellate proceedings arising therefrom - present Stay Application filed by the assessee for stay operation of the order passed by the CIT u/s 263 of the Act has become infructuous - Decided against the assessee.

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• 2013 (7) TMI 63
  Determination of total income – Article 7 of DTAA between India and USA - CIT included receipt arising on account of the services to the Head Office in USA – Held that:- Assessee company opened a branch in Hyderabad after obtaining permission from RBI – No doubt that the assessee company has a permanent establishment in India – Branch office is also rendering services of commercial nature which has been outsourced by the Head office – Assessee is only carrying out the normal commercial activities of the Head Office – No infirmity in the order of the CIT (A) in holding that the income earned by the assessee from the activities carried on by it is taxable in India – Following the decision of ABN Amro Bank NV vs. Asst. DIT [2005 (8) TMI 294 - ITAT CALCUTTA-E] and Mitsri Banking Corpn. Vs. DDIT [2012 (8) TMI 450 - ITAT, MUMBAI] – Decided against the assessee. Estimation of profit - held that:- it is seen from the facts on record that the assessee has not at all provided any basis for computing the profit. Therefore, the Assessing Officer estimated the profit in terms with Article 7(2) of Indo-US DTAA and Rule 10 of Income- tax Rules by estimating the income @ cost plus 15% mark up. The CIT (A) reduced the profit to 10% on considering the fact that the estimation of profit by the Assessing Officer is not based on any specific information and data. - The view of CIT(A) appears to be reasonable. So far as the assessee s contention that the head office has suffered loss and hence there cannot be any profit to the branch office, the same is not acceptable as profit of the branch office has to be computed as per the income earned by it. - Decided against the assessee.

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• 2013 (7) TMI 62
  Allowance of expenditure – cessation of business of activity - CIT allowed allowance of expenditure to assessee – Held that:- Assessing Officer ignored the very fact that there was a temporary lull in the business of the assessee and it was not a cessation of business of activity – Assessing Officer wrongly disallowed the expenses and made addition to the income of the assesse which was rightly deleted by the Commissioner of Income Tax(A) by passing the impugned order – Following the decision of L. VE. Vairavan Chettiar Versus Commissioner of Income-Tax, Madras [1965 (4) TMI 6 - MADRAS High Court] and Commissioner of Income Tax vs Anita Jain [2009 (1) TMI 774 - DELHI HIGH COURT]– Appeal dismissed.

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• 2013 (7) TMI 61
  Revision u/s 263 - Validity of proceedings – non initiation of proceedings u/s 201(1A) - Held that:- On a perusal of the assessment order, it becomes absolutely clear that the Assessing Officer has not at all examined the various issues on the basis of which action u/s 263 was initiated – It is the primary duty of the Assessing Officer to cross check whether the credit amount appearing in the balance sheet of the assessee was genuine or not – Other issues on which the CIT has held the assessment order to be erroneous and prejudicial to the interests of revenue, have not at all been examined by the Assessing Officer – Initiation proceedings u/s 263 cannot be said to be invalid and without jurisdiction – Decided against the assessee. Non disclosure of sub contract payment – CIT order addition of amount on basis of balance sheet – Held that:- CIT was not correct in straight away directing the Assessing Officer to add the amount without affording an opportunity to the assessee to reconcile the figures by producing books of accounts and supporting evidences – Decided in favor of assessee. Initiating proceedings u/s 201(1A) – CIT directed the Assessing Officer to initiate proceedings u/s 201(1A) – Held that:- Assessee deducted tax but had defaulted in remitting the same into government account – Proceedings for assessment and proceedings for levy of interest u/s 201(1A) are distinct and separate proceedings – Assessment order passed u/s 143(3) cannot be held to be erroneous and prejudicial to the interest of revenue because of non initiation of proceedings u/s 201(1A) – CIT has no jurisdiction to direct the Assessing Officer to initiate proceedings u/s 201(1A) – Decided in favor of assessee.

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• 2013 (7) TMI 60
  Reopening of assessment – Taxability of Earning from Cricket - condonation of delay in filing of cross objections – Held that:- No original assessment in present case – Once there was no original assessment, no opinion expressed by Assessing Officer – Therefore reopening of assessment not due to change of opinion by Assessing Officer – For assessment years 1992-93 & 1993-94, original assessment not completed under Section 143(3) – Therefore, proviso to Section 147 not applicable – CIT(A) not justified in quashing reopening of assessment as well as annulling impugned assessment orders – reopening justified - Decided in favor of revenue. Condonation of delay – Appeal memo not served upon assessee – Held that:- No evidence of service of appeal memo and grounds of appeal upon assessee – Assessee had no occasion to file cross-objections after filing of appeals by Revenue – Following decision of N.Balakrishnan Vs. M. Krishnamurthy [1998 (9) TMI 602 - SUPREME COURT OF INDIA] and Auto Centre Vs. State of Uttar Pradesh and Others [2005 (5) TMI 53 - ALLAHABAD High Court] – Delay condoned - decided in favor of assessee. Taxability of Earning from Cricket - professional cricketer or amateur cricketer - Benefit of CBDT's Circular No.447 – Assessing Officers denied exemptions – Held that:- In all subsequent years, in order passed under Section 143(3), Assessing Officer himself accepted that assessee to be amateur cricketer and not professional cricketer – No justification to hold that during accounting year relevant to AY 1992-93 and 1993-94, assessee was professional cricketer – Exemption allowed to assessee which is available as per Board's Circulars to amateur cricketers – Decided in favor of assessee.

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• 2013 (7) TMI 59
  Unaccounted sales – Assessing Officer made addition to assessee’s income – CIT allowed deletion of amount – Held that:- Commissioner of Income Tax(A) took right approach to verify details submitted by assessee during assessment proceedings – Details and copies of accounts submitted by Bahujan Samaj Party exactly match with details submitted by appellant – No infirmity, perversity or any other valid reason to interfere with impugned order – Decided against the revenue.

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• 2013 (7) TMI 58
  Reopening of assessment – Commissioner of Income Tax ordered reopening of assessment without approval of Joint Commissioner – Held that:- as per proviso to Section 151(2), approval of Joint Commissioner required – Approval not granted by Joint Commissioner, instead taken from Commissioner of Income- tax – Reopening of assessment invalid therefore quashed – Following decision of CIT Vs. SPL's Siddhartha Ltd [2011 (9) TMI 640 - DELHI HIGH COURT] – Decided in favor of assessee.

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• 2013 (7) TMI 57
  Computation of capital gain – Matter referred to DVO – Held that:- as per sub-section (2), if the assessee claims before the Assessing Officer that the stamp duty valuation exceeds the fair market value of the property, then, the Assessing Officer is bound to refer the matter to the valuation officer. Section 50C is deeming provision wherein for purpose of computing capital gain, stamp duty valuation of property to be substituted against actual consideration for purpose of levy of capital gain under Section 48 of Income-tax Act – Assessing Officer required to compute capital gain as per valuation report of DVO except where valuation exceeds stamp duty valuation – In such circumstances, capital gain to be computed as per stamp duty valuation – Action of Assessing Officer perfectly in accordance with law in view of provisions of Section 50C of Income-tax Act read with Section 16A of Wealth-tax Act – Decided against the assessee.

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• Customs

• 2013 (7) TMI 56
  Suspension of CHA license - filing of false and incorrect declaration in respect of imports made by one importer M/s. White Lotus International who cleared the restricted goods against license issued for some other goods - Held that:- Said ground of wrong importation by M/s. White Lotus International is no more available with the Revenue in view of the clear finding of the Commissioner that he was not a party to such declaration. Another import made by one M/s. Sunshine Enterprises, which were declared as plastic and wooden hangers on examination the said goods were found to be concealing memory cards inside wooden hangers - CHA did not got the KYC form filed from the appellant - Held that:- Penal proceedings in the Customs Act are different than the proceedings in the CHA licensing Regulation Act. As already observed there is not even iota of evidence reflecting upon any knowledge on the part of CHA as regards concealment of memory cards in the wooden hangers or any evidence to show that he was aiding or abetting the said importer or was aware of his misdeeds. The importer has nowhere implicated the CHA in his various statements recorded on various dates. Further the statement of CHA is also exculpatory statement. As such, no reason to uphold the impugned order of suspension - allow the appeal with consequential relief to the appellant.

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• 2013 (7) TMI 55
  Appeal against the majority decision of CESTAT - two members differ on the issue - held that:- Once the learned third member found that point of difference of opinion has not been formulated by the two Members of the Bench then the learned third Member was required to send the matter back to the Division Bench for formulating the point of difference of opinion and only after the point of difference of opinion was formulated, decide that question. The learned third member could not say that though difference of opinion has not been framed, he has to agree or disagree with the Member and accordingly he has agreed with the judicial Member. In Colourtex v. Union of India [2006 (1) TMI 139 - HIGH COURT OF GUJARAT] it was held that exact differences has to be formulated by members of the Division Bench of the Tribunal and it is not open to them to formulate a question as to whether the appeal is to be rejected or remanded for a fresh decision for determination of duty, confiscation and penalty etc. Matter remanded back to the differing Member of the Tribunal to formulate point of difference in a manner required under the law and thereafter refer the matter to learned third member for decision.

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• Corporate Laws

• 2013 (7) TMI 54
  Arbitral Award of a Sole Arbitrator declined - Counter Claim for Variation in Custom Duty - Held that:- As it is evident that the Appellant informed the Arbitrator that the exact amount could not be worked out in the absence of documentation for imported components. There is no dispute about the fact that the Appellant chose to lead no evidence in respect of its Counter Claim. The burden lay on the Appellant to establish, by leading cogent evidence, that there was a variation in the rate of customs duty and that as a result of a reduction in the rate of customs duty, the Appellant was entitled to the benefit thereof. The Counter Claim could not have been allowed merely on a hypothetical basis or on the basis of a generalised submission or conjecture absent documentary evidence. Thus the Appellant clearly, failed to discharge the burden of doing so. In these circumstances, the rejection of the Counter Claim cannot be faulted.

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• Service Tax

• 2013 (7) TMI 71
  Facility of centralized registration – The revenue contented that the respondent's request for centralized registration was rejected and is not an appealable order – Held that:- The impugned order determines the right of the party or is likely to affect its rights,communication thereof cannot be said to be a communication simplicitor” and appeal against such communication should be maintainable as the same has been decided in BHAGWATI GASES LTD. V. COMMISSIONER OF C. EX., JAIPUR-I (2008 (1) TMI 712 - CESTAT, NEW DELHI). Eligibility for registration – The revenue contented that as per rule 4(2) of the Service Tax Rules, 1994, only service providers are eligible for centralized registration subject to certain conditions and not service recipients – Held that:- The argument is meaningless and defeats the objective of registration - The purpose of registration in indirect tax laws is to identify the tax payer – here the tax payer or the person liable to pay tax is the receiver of the service – contention of revenue cannot be accepted otherwise there will be no benefit of centralized registration – Decided against the revenue.

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• 2013 (7) TMI 70
  Early hearing of appeals - Whether the rebate claim application to be heard out of turn – Held that:- no justification for hearing the appeal out of turn – appeal rejected.

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• 2013 (7) TMI 69
  Import of services Section 66A - Demand of Service tax- 'Consulting Engineers Service' - Section 65(31) - various services like design, drawing, technical knowledge, technical assistance etc. from various companies – payments were made in abroad - Whether the demand of service tax rendered to services before enactment of Section 66A is valid - Held that:– As the services were being provided by the foreign companies , services received by the respondent prior to the enactment of Section 66A will not be liable to pay service tax – as Held in Indian National Ship owners Association vs. UOI (2008 (12) TMI 41 - HIGH COURT OF BOMBAY)- Decided against the revenue.

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• 2013 (7) TMI 68
  Import of services Section 66A – consulting engineers services - Demand of Service tax - Whether the demand of service tax for the period from March 2003 to March 2005 is valid - Held that: – the respondent is not liable to pay service tax as rendering the services before the enactment of Section 66A is not covered - as decided in Indian National Ship owners Association vs. UOI (2008 (12) TMI 41 - HIGH COURT OF BOMBAY)– Decided in favor of assessee.

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• Central Excise

• 2013 (7) TMI 53
  Levy of duty on Scrap - Due to mechanical working – metal scrap were generated out of scrapping of the capital goods (Machinery and components) - Held that - when the scrap had not arisen out of manufacture, but arising on account of wear and tear in the absence of specific provision for such waste and scrap in the relevant rules, duty could not be demanded - Decided against the revenue.

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• 2013 (7) TMI 52
  Refund on export of goods - manufacturer of bulk drugs and export of final product viz. Ethambutol. As per Adjudicating Authority two grounds for rejection of refund claim - Appellant has not produced any basic documents to indicate that they have exported the goods and another ground is that the exported goods cannot be cleared under bond/LUT. - Held that:- Lower Authorities have not considered the decisions in the case of Tuffropes Pvt. Ltd. – [2008 (9) TMI 631 - CESTAT, AHMEDABAD] and in the case of Well Known Polyesters Ltd. – [2011(1)TMI 664-CESTAT, AHMEDABAD] - Lower Authorities have not appreciated the factual position which needs to be considered by them in correct perspective as also the decisions of the Tribunal cited earlier and the judgment of Hon'ble High Court of Bombay in the case of Repro India Ltd. – [2007 (12) TMI 209 - BOMBAY HIGH COURT]. - Matter is remanded to adjudicating authority to reconsider the issue afresh after following the principles of natural justice and also all the documents which are produced and will be produced by the appellant in support of his refund claim.

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• 2013 (7) TMI 51
  Duty on waste / scrap - exemption under notification 89/95-CE - Gums/waxes and Recovered Oil/Fatty Acids - The ground taken by the Department in the Show-cause notices to deny the benefit was that, the said goods are neither waste nor scrap in as much as the said goods have marketability & the said goods have been sold to the manufacturer of washing soap. - Held that – The impugned goods are waste for the purpose of benefit of Notification No. 89/95 can not be decided on the basis of markebality. This is for the simple reason that exemption pre-supposes excisability which, in its turn, pre-supposes marketability. Non-marketability cannot, therefore, be the test for deciding whether the goods in question satisfy of the definition of "waste" for the purposes of Notn 89/95-CE. Else, the exemption itself would become redundant and futile. Also word "waste" has to be read as being similar character to the words "Scrap and parings are marketable and having the value in commercial trade. Conflicting decisions by the Courts of co-equal Benches and Co- ordinate benches – As per The State of Gujarat Versus Raipur manufacturing co. Ltd. [1966 (9) TMI 82 - SUPREME COURT OF INDIA] - the judgment which states the law accurately has to be followed and mere incidence of time whether the judgments of co-equal benches are earlier or later is hardly relevant. - Decided in favor of assessee. Decision in A G Flats (2011 (7) TMI 968 - CESTAT, NEW DELHI) distinguished wherein it was held that, the spent earth arising in course of refining of oil, being of no value, is not a new product or a by-product.

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• 2013 (7) TMI 50
  Pre-Deposit – SSI Exemption - power driven pump - certification from Bureau of Indian Standards. Held that - Held that:- appellant is unable to justify why he has bought BIS certification for two of their products while the other products he has got for which there is a claim for benefit of SSI exemption. - prima facie case is against the assessee - stay granted partly.

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• 2013 (7) TMI 49
  Penalty under Rule 25 or Rule 27 of Central Excise Rules,2002 - Provisions of Rule 8(3A), as amended by Notification No.13/2006-CE (NT) dated 01.6.2006 - Default in payment of duty of excise - restriction on utilization of cenvt credit - Held that:- In the event of any failure to follow the procedure, the goods cleared will be deemed to have been cleared without payment of duty and the consequence and penalties as provided in the Central Excise Rules shall follow. - Ratio of the judgment in the case of PEE DEE Polymers vs. Commissioner of Central Excise [2011 (9) TMI 642 - CESTAT, AHMEDABAD] is more appropriately applicable to the facts and circumstances of this case. Accordingly, it is held that imposition of penalty under Rule 25 of the Central Excise Rules, 2002 has been correctly made upon the appellant – In favour of Revenue.

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• CST, VAT & Sales Tax

• 2013 (7) TMI 72
  Validity of West Bengal Tax on Entry of Goods into Local Areas Act, 2012 questioned - whether the purpose for which the proceeds of Entry Tax was sought be spent could be treated as compensatory in nature? - Held that:- Utilization of the proceeds of Entry Tax under the impugned Entry Tax Act for the purpose specified in Sub-clause (g) of creating, developing and maintaining pollution free atmosphere in the concerned areas has remote connection, if not, no connection with developing and facilitating trade and commerce, even though the same might improve the quality of life for citizens. In view of the law laid down by in Atiabari Tea Company Ltd. (1960 (9) TMI 94 - SUPREME COURT), the impugned Entry Tax must be held to restrict the right to free trade, commerce and intercourse, throughout the territory of India, even though the restriction is reasonable and in public interest.There can be no doubt that the State Legislature has exclusive power to enact legislation imposing a tax on the entry of goods into a local area, for consumption use or sale therein by virtue of Entry 52 of List II of the Seventh Schedule to the Constitution of India. However, this power is subject to the limitations imposed by the Constitution itself, particularly Part XIII thereof. The imposition of a compensatory tax, being a judicially devised exception to the restrictions of Articles 301 and 303 of the Constitution of India, the tests judicially enunciated in Jindal Stainless Ltd. (2010 (4) TMI 849 - SUPREME COURT OF INDIA) to examine whether the impugned tax on movement of goods from one area to another is, in effect and substance, a compensatory tax, must strictly be applied before the validity of an enactment imposing the impugned tax can be upheld, notwithstanding non-compliance of the requisites of Article 304(b) of the Constitution of India. What distinguishes a compensatory tax is that a compensatory tax is imposed for a specific purpose or a few specific identifiable purposes, to pay for expenses in connection with specific projects, whether completed, in progress or in contemplation, which provide specific, tangible, measurable benefits to the tax payers as a class and is based on the ‘principle of equivalence’ and/or ‘quid pro quo’ and/or ‘pay for value’. A tax on the other hand generates revenue, but not necessarily for any specific identifiable purpose. To clear the test of compensatory tax, the onus lies on the State to show the exact purpose or purposes for which the levy is imposed, which should be identifiable, measurable, directly beneficial to the tax payers as a class, who in the instant case, would primarily be the traders and manufacturers of the local area, who import goods from outside the State and/or outside the country. The State has failed to disclose details of projects in contemplation, projects in progress and/or completed projects, providing facilities to the trading community, which the levy would pay for, and show that the expected proceeds of such levy are more or less equivalent to the estimated expenditure on such projects. To qualify as a compensatory tax, the Statute imposing the tax must facially indicate that the tax is a recompense for identifiable, measurable benefits to the class of tax payers as a whole on the principle of equivalence. If the statute does not contain particulars of the corresponding benefits in return for the tax, details may be disclosed by affidavit. It is reiterated that a compensatory tax would not cease to be a compensatory tax, only because of some excess collection, which may have to be diverted towards the revenue of the State. However, imposition of the tax would necessarily have to be preceded by the exercise of ascertaining the approximate financial requirements for specific and/or earmarked projects and balancing the same with the targeted tax receipts. The State should be able to justify the basis on which the rate of tax has been determined. The impugned Entry Tax Act does not indicate the quantifiable or measurable benefits to be provided in lieu of the levy. The data on the basis of which the compensatory tax is sought to be levied is neither disclosed in the impugned Entry Tax Act or the Affidavit-in-Opposition filed by the State. There being no disclosure of the quantifiable benefits or the proportionality of the levy to the quantifiable benefits, either in the impugned Act or by way of affidavit, the tax does not meet the test of compensatory tax, even though the tax imposed by the impugned Act may be in public interest, and perhaps reasonable too. The previous sanction of the President of India not having been obtained, before enactment of the impugned Entry Tax Act, this court is constrained to hold that the impugned Entry Tax Act is ultra vires Section 304(b) of the Constitution of India - writ petitions are disposed of accordingly.

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