TMI Tax Updates - e-Newsletter
October 6, 2014
Case Laws in this Newsletter:
Income Tax
Customs
Service Tax
Central Excise
CST, VAT & Sales Tax
Highlights / Catch Notes
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Income Tax:
Deemed dividend u/s 2(22)(e) – Security deposits received from sister concern - colourable device adopted to avoid the incidence of tax or not - Held no - not taxable - HC
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Income Tax:
Claim of damages on fraud – the Authority for Advance Rulings has rendered its ruling based upon the wrong premise that the petitioner had accepted the receipts to be in the nature of revenue receipts - matter remanded back - HC
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Income Tax:
Donation made to Political Party – AO was justified in restricting the admissible deduction u/s.80GGB to the extent of 5% of the average profit of the assessee for the three immediately preceding three years - AT
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Income Tax:
Assessee in default u/s 201(1)/201(1A) r.w.s. 195 – Failure of TDS – maximum time-limit available for assessment of the payee is the maximum time-limit within which the payer can be treated as assessee in default - AT
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Customs:
Confiscation of goods - Redemption fine - Whether the gas oil brought into the shore tank at Mundra and Kandla should be considered as transshipment cargo or not - held no - confiscation and penalty upheld - AT
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Customs:
Seizure of the goods - Provisional release goods - grievance of the petitioner is that the respondents-authorities are deliberately delaying the issuance of show cause notice as the petitioner has deposited the duty amount - revenue to issue SCN within 4 weeks - HC
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Service Tax:
Broadcasting services - activity of selling time slots for advertisements by SIPL on behalf of Star Hong Kong - held as taxable activity - AT
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Service Tax:
Construction of complex service - construction of National Games village - If services are provided to the individuals, it may not amount to residential complex service prior to 01.07.2010 - AT
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Service Tax:
Construction service - appellants do have a point that the adjudicating authority should have categorically mentioned without any ambiguity as to under which taxable service the said component of impugned demand is being confirmed by him. - AT
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Service Tax:
The existing wells, which become un-usable or become dead, have been plugged and the service providers were to explore the possibility of new oil wells by making horizontal drilling from the existing dead wells - Prima facie the activity is not Management, Maintenance or Repair Services - AT
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Central Excise:
Both deslagging spoon and patching formers are necessary items for manufacture of MS ingots and therefore, the inputs used for manufacture of deslagging spoon and patching formers would be eligible for Cenvat credit as inputs - AT
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Central Excise:
SSI Exemption - Merely for non-maintenance of records, the redemption fine of ₹ 2 lakhs and penalty equal to the duty involved on the seized goods is too high. Fine and penalty reduced to ₹ 50,000/- - AT
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Central Excise:
Whether appellant is entitled to CENVAT Credit under CENVAT Credit Rules when the inputs are claimed under an Advance Licence for export of finished goods duty free - Once duty is paid on the inputs CENVAT Credit is admissible if not in contravention of CENVAT Credit Rules - AT
Articles
Circulars / Instructions / Orders
News
Case Laws:
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Income Tax
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2014 (10) TMI 42
Reopening of assessment u/s 147 and 148 – Reasons not communicated by revenue – Held that:- When a notice u/s 148 of the Act was issued, the proper course of action for the assessee was to file a return and if he so desired to seek reasons for issuing the notice - The AO was bound to furnish reasons within a reasonable time to which the assessee had the right to file objections - “escapement of income” should be given a strict construction - Not only should it not be used to justify a change of view it should not be used to reopen an assessment on facts, information, documents which were before the AO or could have been easily found by him while making the assessment - there would be no finality of assessment - It will go on and on and might become a tool in the hands of the department to cause harassment to the assessee – revenue contended that the assessee refused to accept service and the envelope was returned - according to the assessee the reasons were not received by him and that the department is wrongfully trying to assess his income u/s 147 – revenue cannot reassesses the case of the assessee as the initiation of Section 147 proceedings was without jurisdiction – Decided in favour of assessee.
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2014 (10) TMI 41
Deemed dividend u/s 2(22)(e) – Security deposits received from sister concern - colourable device adopted to avoid the incidence of tax or not - The Tribunal rightly held that the amount given by the sister concern to the assessee was not a loan or an advance, but was a security deposit - the amount given by the sister concern to the assessee was given in the course of business and was not given to a shareholder and, the provision of Section 2(22)(e) was not applicable - it has the effect of bringing to tax as dividend where any payment of any sum is made by way of advance or loan to a shareholder in which a shareholder holds a substantial interest or any payment is made on behalf of a shareholder or any payment is made for the individual benefit of a shareholder - the assessee firm was having a business dealing with its sister concern, which was apparent from the books of account of the assessee, which showed various job works being carried out by the sister concern. The borrowing is primarily for the benefit of the borrower although the person, who lends the money, may also stand to gain by earning interest on the amount lent - Another distinction is the obligation to return the money so received - In the case of a deposit, the deposit becomes payable when a demand is made and, in the case of the "loan", the obligation to repay the amount arises immediately on receipt of the loan - the deposit made by the sister concern was a business transaction arising in the normal course of business between the two concerns – thus, the order of the Tribunal is upheld – Decided against revenue.
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2014 (10) TMI 40
Reopening of assessment u/s 147 r.w. 148 - Royalty payments were of a revenue or capital nature - Held that:- The income chargeable to tax which has escaped assessment must be occasioned, by reason of the failure on the part of the assessee to disclose fully and truly all material facts necessary for the assessment, for that assessment year. Mr Syali, the learned senior counsel, appearing on behalf of the petitioner/assessee, this pre-condition has not been met, there has been no failure on the part of the petitioner/assessee to make a full and true disclosure of the material facts necessary for the assessment – The AO had specifically asked in his questionnaire as to the nature of the royalty payments and the assessee was asked to justify the same - the AO considered the aspect of royalty payment and also noted the fact that the petitioner had claimed the same as revenue expenditure - the AO disallowed ₹ 34,63,07,373/- out of the entire claim of ₹ 70,60,25,973/- and made an addition – the condition that the assessee must not have made full and true disclosure of the material facts is not satisfied and the re-opening cannot be permitted - The notice dated 30.03.2009 and all proceedings pursuant thereto including the impugned order dated 23.11.2009 are set aside - validity of assumption of jurisdiction u/s 147/148 and have not examined the merits of the matter as to whether the royalty payments were of a revenue or capital nature – Decided in favour of assessee.
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2014 (10) TMI 39
Cash credit entries - Identity of the creditors established - The Tribunal has confirmed the view of CIT(A) wherein the AO has directed to verified and deleted the addition same - the identity of the creditors was established - The transaction was made through the proper channel, so the genuineness of the transaction was also proved - The assessee has given the PAN number and full address of each creditors - Their assessment was pending with the same AO - verification of credit entries/transactions was very easy for the AO with the available record pertaining to the creditors - But the AO has not verified the same and adopted a shortcut method by making the addition – the addition was deleted by the CIT(A) after obtaining the remand report from the AO - the amount was transferred from Bank of Baroda to Standard Chartered Grindlays Bank Account - the AO verified the transaction and found it to be correct – the order of the Tribunal is upheld – Decided against revenue.
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2014 (10) TMI 38
Claim of shortages disallowed – Invocation of section 145 - Whether the Tribunal was legally correct in confirming the addition on account of driage claimed, ignoring the fact that driage depends upon the quality of sugarcane, climatic conditions and other factors and as such was justified in sustaining the impugned addition on the basis of the case of another Chini mill – Held that:- The assessee has shown the higher driage, as compared to driage shown by another Sugar Mill i.e. M/s. Kisan Sahkari Chini Mill - the comparative chart shows that there is a close similarity in all aspects between the two Chini Mills - similar driage has been accepted by the authorities in the AY 1991-92 is not applicable as in that year no comparison was taken place - every assessment year is an independent assessment year - the assessee has shown a lesser driage - Regarding the production of extra sugar, the AO was directed to restrict the addition to the value of the suppressed stock of the sugarcane for the quantity - AO has made the addition on estimate basis which is a question of fact – thus, there is no reason to interfere in the order of the Tribunal – Decided against assessee.
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2014 (10) TMI 37
Claim of damages on fraud – Advance ruling with regard to transfer of funds from India to US - Whether the amount of the settlement funds which had been transferred from India to USA were chargeable to tax in India - Held that:- The Authority for Advance Rulings had proceeded on the basis that they were revenue receipts and it had so observed on the basis of an alleged submission to this effect made on behalf of the petitioner - the settlement amounts would only go towards reducing the cost of acquisition of the American Depository Shares - the Authority for Advance Rulings has rendered its ruling based upon the wrong premise that the petitioner had accepted the receipts to be in the nature of revenue receipts - the Ruling of the AAR is set aside and the matter is remitted back to the AAR to examine the position – Decided in favour of petitioner.
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2014 (10) TMI 36
Loss on trading of Future & Options - Whether Tribunal is right in allowing the loss on trading of Future & Options incurred in the course of its business as brought on record by the AO which were based on close analysis of the seized material suggesting that there was a collusion by the assessee with connected/interested parties so as to create an artificial loss – Held that:- The AO discussed the entire issue with regard to the Commodity Future Trading and at the end, the AO disallowed the loss on trading of F&O - there was absence of any reasons while disallowing such loss – CIT(A) and Tribunal both of them was of the view that there was no reason for rejection of claim for loss of F&O transaction and that was not justifiable – in absence of any reasons has justified the reversal of disallowance on the part of the CIT(A) - it is not necessary to ingeminate at this stage – Decided against revenue.
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2014 (10) TMI 35
Reopening of assessment u/s 147 r.w. Section 148 – Held that:- Sec. 147 authorises the AO not only to re-assess but to assess any income chargeable to tax which has escaped assessment for any assessment year - The word 'chargeable to tax has escaped assessment' is defined under explanation 2 under sub-clause (b). Sub-clause (b) clearly states that where return has been filed but no assessment has been made and the AO notices that the Assessee has understated the income or has claimed excessive loss, deduction, allowance or relief in the return, it shall be deemed to be a case where income chargeable to tax has escaped assessment - the term 'income chargeable to tax has escaped assessment' was defined u/s 147 prior to 1.4.1989 under explanation 1 to Sec. 147 but that definition was entirely different. No such clause as clause (b) under explanation 2 was there in the deeming provision given under explanation 1 in respect of income escaping assessment under the old section 147. We do not agree that Sec. 147 proceedings could cover only the reassessment. The material which is available with the AO even along with the return at the time of the processing of the return can be the basis for 'reason to believe' as in view of clause (b) of explanation 2 it can be deemed that income chargeable to tax has escaped assessment. Clause (b) of explanation 2 does not require that the assessment must precede before taking any action u/s 147 - Sec. 147 cannot be read in a manner that it can be applied only in a case where the assessment has already been made – following the decision in Assistant Commissioner of Income-Tax Versus Rajesh Jhaveri Stock Brokers P. Limited [2007 (5) TMI 197 - SUPREME Court] - the AO had not made any assessment and had not formed any opinion - the AO in view of explanation 2(b) can take action u/s 147 in a case where the return has been processed u/s 143(1) – thus, the reopening is invalid. Computation of capital gains for brokerage incurred – Held that:- Almost all the area of the land is hilly and rocky, even so much so that there is no easy access to the whole of the property and we had to go through one small rocky way - No agricultural activities or operations being carried out on the land were found - no source of water present for regular agricultural activities even though there is a small nalla in the property flowing downward and the joins the riverlet on the south boundary - This nalla was totally dry and it was explained to us that it is functional only in the rainy season - From the submission of the Assessee it is not denied that there are more than 3500 trees on total land admeasuring 2,18,250 sq. mtrs. The land does not have any cropped area except dry crop. Certificate has been issued by the officer in-charge, land records on 22.7.2006. These dry crops are only on part of the area - Rest of the area, it is apparent, has not been cultivated for the last several years and the land leaving aside the trees which are standing is not cultivable - If the land is not cultivable, no agricultural operations can be carried out. Opportunities were given from time to time but assessee expressed his inability to bring any decision on this issue which supports his case - Neither the Assessee nor the Revenue produced before us the exact measurement of the land on which the trees are standing and out of which dry crop is grown - To the extent the land is actually used for dry crop, the land has to be regarded to be an agricultural land - Since there are approximately 3500 trees standing on the land, which is not denied even by the Revenue and has been accepted assessee, thus, the estimate is to be made for atleast 10 mtrs area is required for one fruit tree and therefore, there are approximately 35000 sq.mtrs area of the land which can be regarded to be cultivable - this portion of the land is held to to be the agricultural land - The balance 4/5th of the land cannot be regarded to be the agricultural land – the order of the CIT(A) is set aside and the AO is directed to treat only 4/5th of the land to be the capital asset and the consideration received to that extent be treated as if said consideration has been received on the transfer of capital asset and the capital gain on the transfer of such land be computed in accordance with the provision of the Income Tax Act to the extent each of the co-owner has the share proportionately the capital gain so computed on 4/5th of the total consideration be assessed in the hands of respective assessee –Decided partly in favour of revenue.
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2014 (10) TMI 34
Admission of additional ground – Held that:- Both on principle and on precedent, there is no reason why the Tribunal must be precluded from handling a point, whether of law or fact which relate to an assessment, which appertains to the assessee's assessment merely because nobody else had handled it before or because it had not occurred either to the assessee or to the Department to raise and urge that point at earlier stages of the proceedings - it is not the case of the revenue that necessary facts for deciding the controversy involved in the additional plea are not available on record - It is also not a case where facts are to be investigated rather it is a pure legal issue that has been raised - merely because the plea in the Additional Ground was not taken by the assessee before the FAA, it could not be a ground to refuse the application for permission to raise an Additional Ground - so, the Additional Ground raised by the assessee is to be admitted. Reference made to DVO u/s 55A –Determination of FMV – Held that:- Section 55A(a) of the Act very clearly at the relevant time provided that a reference could be made to the DVO only when the value adopted by the assessee was less than the fair market value - the value adopted by the assessee of the property was much more than the fair market value of ₹ 6. 68 lakhs even as determined by the DVO - the AO referred the issue of valuation to the DVO only because in his view the valuation of the property as on 1981 as made by the respondent-assessee was higher than the fair market value - the invocation of section 55A(a) of the Act is not justified - The contention of the Revenue that in view of the amendment to section 55A(a) of the Act in 2012 by which the words "is less than its fair market value" is substituted by the words "is at variance with its fair market value" is clarifactory and should be given retrospective effect - the 2012 amendment was made effective only from July 1, 2012 - Parliament has not given retrospective effect to the amendment - the law to be applied in the present case is section 55A(a) of the Act as existing during the period relevant to the AY 2006-07 - very clearly reference could be made to DVO only if the value declared by the assessee is in the opinion of AO less than its fair market value. It is not clear as to whether the reference was made under clause 55A(a) or 55A(b)(ii) of the Act and if it was made u/s 55A(b)(ii) then what were the relevant circumstances for making such reference - Recording of reasons for invoking a particular section of the Act and justification for invoking the specific clause are not available and nor were they brought to our notice. As the value shown by the assessee was not less than the FVM, so, there was no justification for making any reference to the DVO, by the AO in the year - Amendment to the section 55A of the Act is effective from 01. 07. 2012 - the order of the FAA is reversed. Allocation of interest cost – Held that:- The FAA had dealt with the issue of interest apportionment in a single line and it is the part of the same paragraph that deals with apportionment of other expenses - the matter is remitted back to the AO for apportionment of expenses - Following the same, issue of apportioning the interest expenditure is also remitted back to the file of the FAA for passing a speaking order after hearing the assessee – Decided in favour of assessee.
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2014 (10) TMI 33
Genuineness of trading activity – Set off of speculation loss against the other profits u/s 73 - Held that:- The AO has held that the parties from whom the assessee purchased rice and parties to whom the assessee sold the rice did not exists, both purchases and sales are bogus - the authorities below have not been confronted, the material relied by them for rejecting the claim of the assessee which is not justified - It amounts in violation of principles of natural justice – the AO has power u/s.131 of the Act for enforcing the attendance of the person who could not be produced before the AO on behalf of assessee - the stand of the assessee has been that in spite of written requests during the assessment proceedings, the AO did not furnish the assessee any material of non-service of 6 parties - no adverse inference could be drawn that parties do not exists because the AO has option for calling the attendance of parties under the provisions of section 131 of the Act - The observation of authorities below was premature with regard to their finding of non-existence of the above parties because the transaction of assessee was through banking channel - The details of all parties including telephone, PAN, TIN number were available on record – thus, the order of the CIT(A) is set aside and the matter is to be remitted back to the AO for fresh adjudication – Decided in favour of assessee. Donation made to Political Party – Held that:- The word 'contribute' or its grammatical variation used in the section denotes the amount which a company can legally contribute to a political party or trade union - the Explanation to sec.80GGB was intended to restrict the quantum of such contribution eligible for deduction only to the extent that is admissible u/s 293A of the Companies Act - the contention of the assessee that the explanation provided to the said section which refers to Section 293A of the Companies Act, 1956 was limited to the grammatical meaning of the word used in the body of the section 'Contribute' and in no way defines the admissibility of deduction with reference to quantum of the contribution has no merit – the AO was justified in restricting the admissible deduction u/s.80GGB to the extent of 5% of the average profit of the assessee for the three immediately preceding three years – Decided partly in favour of assessee.
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2014 (10) TMI 32
Assessee in default u/s 201(1)/201(1A) r.w.s. 195 – Failure of TDS – Period of limitation - Payment made to Lead Managers/Managers with the services rendered for GDR issue – Held that:- Following the decision in Mahindra And Mahindra Limited. Versus Deputy Commissioner Of Income-Tax [2009 (4) TMI 207 - ITAT BOMBAY-H] - The liability of the person responsible is dependent upon the deductee failing or otherwise to pay such tax directly - Thus the action u/s 201(1) is dependent on the outcome of the assessment of the payee and the time-limit for passing order u/s 201(1) - the person responsible for paying sum chargeable to tax can be treated as assessee in default at any time prior to the assessment of the payee or the time available for the making of the assessment of the payee - If the persons responsible is deemed to be an assessee in default after the assessment of the payee or the time available for making assessment has expired then such amount of tax will be incapable of adjustment against tax liability of the payee and would require return to such person who has been treated as assessee in default - Thus both the initiation of proceedings u/s 201(1) as well as the completion of such proceedings by passing order have to be prior to the time-limit within which the tax can be determined in the hands of the payee - It cannot be beyond such period - If the payee has included the amount received from payer in his total income but the tax has not been paid in full or part then the payer can be treated as assessee in default to the extent of the non-payment of tax on the sum paid to him provided the tax is not recovered from the payee. Thus, there remains no difficulty in answering the question that how much time is available with the revenue for treating the payer as assessee in default u/s 201(1) - The obvious answer is that the maximum time-limit available for assessment of the payee is the maximum time-limit within which the payer can be treated as assessee in default - With the expansion of the scope of section 147, also roping in the cases of assessment apart from reassessment, it is clear that the assessment of payee shall also include assessment made under section 147 - Thus the maximum time-limit for initiating and completing the proceedings under section 201(1) has to be at par with the time-limit available for initiating and completing the reassessment. Logically the person responsible for paying sum chargeable to tax can be treated as assessee in default at any time prior to the assessment of the payee or the time available for making of the assessment of the payee - both the initiation of proceedings u/s 201(1) of the Act as well as the completion of such proceedings by passing order have to be prior to the time limit within which the tax can be determined in the hands of the payee and accordingly the order passed by the A.O. u/s 201(1)/201(1A) of the Act within a period of six years was held to be not barred by time by the Tribunal - the order passed by the AO u/s 201(1)/201(1A) of the Act treating the assessee as in default cannot be sustained as there is no assessment which has been made in the hands of the payee in respect of the amount paid by the assessee and even the time limit for issuing notice u/s 148 for making such assessment has already come to an end – Decided in favour of assesse.
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Customs
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2014 (10) TMI 47
Confiscation of goods - Redemption fine - Misdeclaration of goods - Attempt to export non basmati rice in guise of basmati rice - Held that:- in the guise of basmati rice, attempt has been made to export non-basmati rice adopting a questionable modus operandi. Actually 34 containers were cleared from a port CFS Albatross. It came out that the containers were stuffed in such way that front row contained basmati rice and second row contained non-basmati rice. Samples were manipulated to gain favourable report confirming that the rice being exported was basmati rice. It was only on receipt of information and subsequent test report, questionable modus operandi of appellants, connivance of certain departmental officers as well as laboratory staff of SIIR, New Delhi came to light. Such practice was followed to defraud the revenue. Only one sample in respect of test memo no.45 failed the specification and did not conform to the requirement as laid down by DGFT Notification No. 39/(RE-2008)/2004-2009 dated 16.9.2008 as amended, that is, grain of rice to be exported shall be more than 7 mm of length and ratio of length/breadth of the grain shall be more than 3.6 mm. Confiscation of the goods and imposition of redemption fine of ₹ 68 lakhs in the circumstances of the case is justified. This is exemplary case where higher penalty is warranted and no leniency is deserved. We do not consider it proper to interfere with order of redemption fine as it is appropriate and justified. Similarly, there is no scope for reduction of penalty of ₹ 10 lakh imposed on the appellant as their modus operandi proved that they were consciously involved in the export of non-basmati rice which were prohibited goods. Similarly role of CHA was contrary to the CHALR 2004. Attempt to export non-basmati rice in the guise of Basmati rice would not have been possible without CHA s involvement. Their conduct and contradictory stand by Shri Sunil Bhatia CHA and his manager Shri Sushil Malik regarding physical verification proves their active involvement. Same CHA s name has also come in appellant s other company M/s Vaibhav Overseas where similar modus operandi was noticed. We are convinced that CHA has rightly been imposed penalty. Considering amount of penalty being low but revenue not being in appeal, we do not interfere to the penalty imposed in adjudication and uphold the same. - Decided against assessee.
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2014 (10) TMI 46
Confiscation of goods - Redemption fine - Whether the gas oil brought into the shore tank at Mundra and Kandla should be considered as transshipment cargo or not - Held that:- It is observed from the prevailing import-export policy at the relevant time that Hydrcarbons of Import Export Policy headings 27101111, 27101112, 27101113, 27101119, 27101120, 27101190, 27101930, 2710 1940 were permitted to be imported only through State Trading Enterprises or the canalized agencies. The goods of heading 27101950, 27101960, 27101970, 27101980, 27101990 and Heading 2711, pertaining to certain Hydrocarbon gases, of import export policy, were freely importable. It has been correctly observed by the adjudicating authority that the prospective buyers and the port of destination were not known/declared at the time of export. During the course of hearing on a specific query by the Bench it was submitted that after permissions of export given to the main appellant as a result of High Court’s order, cargo was taken back by the owner of the cargo to Middle East from where one of the consignment was originally procured. In the facts & circumstances of this case, it becomes difficult to appreciate as to why the cargo was brought into territory of India for transshipment when the same was to be taken back to the same place from where the goods originated. At the time of taking cargo out of India also no port of destination was given by the main appellant. From the facts available on record; incomplete description of the cargo given in the cargo declarations, no mention of the port of destination and the name of any prospective buyer and taking of ‘gas oil’ back to the same place from where partly the cargo originated, suggest that crgo was not for transshipment. As per the contents of the letter dt.30.04.2010 written by the main appellant to the Joint Commissioner Customs Kandla, the main appellant and their CHA were well aware that there are earlier examples where transshipments have been granted and certain importers like M/s Adani Enterprises Ltd have already explored the possibility of supply of HSD to EOUs, units in SEZ and as bunkers for internationally sailing vessels, after warehousing the same. Goods ‘gas oil’, subsequently equated to HSD, was not intended for transshipment. Accordingly, the goods were rightly confiscated and redemption fines were correctly imposed along with penalties on the main appellant. - Decided against the assessee. M/s Act Shipping Ltd (CHA) was well aware of various procedures of transshipment and the facts that on similar transshipments permission was granted by the Revenue but the CHA never guided the main appellant to file proper IGMs showing the port of destination etc. at the time of filing IGM, as required under the procedures prescribed by Revenue. Penalties upon the CHA and Shri T.V. Sujan Director of M/s Act Shipping Ltd have thus been correctly imposed. Penalties on custodians - Held that:- It has been correctly argued that they had no knowledge that the goods stored in the shore tanks were not meant for transshipment and were not going to be personally benefited in these proceedings. Therefore, penalties imposed upon the custodians and their employees are set aside.
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2014 (10) TMI 45
Waiver of pre-deposit - Held that:- Commissioner of Customs (Appeals) is directed to rehear and reconsider the said application, upon giving an opportunity of hearing to the petitioner, within three weeks from the date of communication of this order, in accordance with law - order shall not be construed to have been made on the merit of the application, as this Court had no occasion to go into it and the authorities shall be free to decide the same without being influenced by any observation, if any, made herein - Petition disposed of.
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2014 (10) TMI 44
Waiver of pre deposit - Seizure of goods - Held that:- Sale proceeds of the seized goods have been completely confiscated and his difficult financial position, the interest of justice would be served if the appellant is directed to make a total pre-deposit of ₹ 30.00 lacs as against the pre-deposit ordered by the Tribunal at ₹ 40.00 lacs. The appeals are accordingly partly allowed and the impugned final orders of the Tribunal are set aside and on the condition precedent that appellant deposits in an aggregate an amount of ₹ 30.00 lacs in both the appeals. amount already deposited of ₹ 12.00 lacs towards the aforesaid pre-deposit amount being ₹ 7.00 lacs and ₹ 5.00 lacs respectively shall be given credit while computing the amount of ₹ 30 lacs. It is accordingly directed that the appellant shall make two separate deposits in the aggregate of ₹ 20.00 lacs and ₹ 10.00 lacs in the two appeals after taking into account the amounts already deposited.
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2014 (10) TMI 43
Seizure of the goods - Provisional release goods - Held that:- Petitioner’s case is that no duty is payable on the subject goods, as the same were to be used in execution of a Contract with ONGC and the petitioner was also given an Essentiality Certificate (EC) issued by the Director General of Hydrocarbons. Therefore, the subject goods are exempted from payment of Customs duties by virtue of Notification No. 21/2002, dated 1 March, 2002. However, the grievance of the petitioner is that the respondents-authorities are deliberately delaying the issuance of show cause notice as the petitioner has deposited the duty amount as far back as in December, 2011 and February, 2012. It is, therefore, submitted that in view of the gross delay, serious prejudice is being caused to the petitioner as its claim for exemption is being delayed resulting into delay in return of the amounts deposited under protest - request for eight weeks to issue show cause notice is unreasonable. This is so as the petitioner has already deposited the duty amount in December, 2011 and also furnished bank guarantee to the respondent-Revenue to secure its due more than a year ago. - revenue directed to issue a show cause notice to the petitioner within four weeks from today The show cause notice to be adjudicated within six weeks from the date of issuance of the show cause notice.
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Service Tax
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2014 (10) TMI 66
Broadcasting services - activity of selling time slots for advertisements by SIPL on behalf of Star Hong Kong - Star Hon Kong had appointed SIPL as their representative in India to solicit advertisements for the channels telecast by the former and also to collect and remit the advertisement charges - Held that:- SIPL is the independent representative of Star Hong Kong and is engaged in selling time slots for broadcasting or obtaining sponsorships or collecting broadcasting charges on behalf of the latter. It is also not in dispute that whenever advertisement charges are collected in Indian Rupees on behalf of Star Hong Kong, SIPL is discharging service tax liability. Therefore, it does not stand to reason that the service rendered to a person who directly makes payment to Star Hong Kong for broadcasting in India cannot be classified under ‘broadcasting services'. Since SIPL is essentially engaged in selling time slots for broadcasting on behalf of Star Hong Kong in both the situations, service tax would be leviable. It is abundantly clear that so long as the radio or television programme is received in India and intended for listening or viewing by the public in India, such activity shall be taxable service even if the physical activity of broadcasting such as encryption of signals or beaming thereof takes place outside India and any branch office, subsidiary, representative, agent or any person who is appointed by the broadcaster for selling of time slots for broadcasting of any programme or obtaining sponsorships for programme or collecting broadcasting charges on behalf of the broadcaster will be liable to pay service tax. Representative of the Foreign Broadcaster (who undertakes broadcasting in India) engaged in selling time slots or obtaining sponsorships or collecting and remitting charges, on behalf of the broadcaster has to be made liable to service tax in India, which is the express intention of the Legislature while making retrospective amendments to sections 65 (15), 65 (16) and 65 (105) (zk) of the Finance Act, 1994. Therefore, this will of the legislature has to prevail and has to be given effect to. Viewed from this perspective, the argument that such a transaction is not taxable in India has to be rejected in toto and we do so. The responsibility also included delivery of the invoices to the advertisers on a timely basis. Thus the appellant obviously knew the amount charged for the broadcasting services. Section 70 of the Finance Act, 1994, mandated that - “Every person liable to pay the service tax shall himself assess the tax due on the services provided by him and shall furnish to the Superintendent of Central Excise, a return in such form and in such manner and at such frequency as may be prescribed.” Thus the appellant was operating under self-assessment procedure during the impugned period. The appellant has failed to declare in the said return the complete particulars with regard to the services rendered to the foreign advertisers. Therefore, the ratio of the decision of the hon'ble apex court in the case of Madras Petrochem Ltd. (1999 (3) TMI 81 - SUPREME COURT OF INDIA) relied upon by Revenue would squarely apply. Representative of the Foreign Broadcaster (who undertakes broadcasting in India) engaged in selling time slots or obtaining sponsorships or collecting and remitting charges, on behalf of the broadcaster has to be made liable to service tax in India, which is the express intention of the Legislature while making retrospective amendments to sections 65 (15), 65 (16) and 65 (105) (zk) of the Finance Act, 1994. Therefore, this will of the legislature has to prevail and has to be given effect to. Viewed from this perspective, the argument that such a transaction is not taxable in India has to be rejected in toto and we do so. The responsibility also included delivery of the invoices to the advertisers on a timely basis. Thus the appellant obviously knew the amount charged for the broadcasting services. Section 70 of the Finance Act, 1994, mandated that - “Every person liable to pay the service tax shall himself assess the tax due on the services provided by him and shall furnish to the Superintendent of Central Excise, a return in such form and in such manner and at such frequency as may be prescribed.” Thus the appellant was operating under self-assessment procedure during the impugned period. The appellant has failed to declare in the said return the complete particulars with regard to the services rendered to the foreign advertisers. Therefore, the ratio of the decision of the hon'ble apex court in the case of Madras Petrochem Ltd. (supra) relied upon by Revenue would squarely apply. invocation of extended period of time for confirmation of demand is fully justified - Decided against assessee.
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2014 (10) TMI 65
Import of service - reverse charge - Consulting engineer service - Held that:- From the record, it appears that as per Section 68 of the of Finance Act, 1994, the Service Tax is liable and to be paid by the person who is providing taxable service. But the legislature has made an exception in the case of service provided by entities out side India. In such cases by virtue of Section 66A of the Act, the service recipient will have to pay service tax. Section 66A of the Act was introduced by the legislature vide Finance Act, 2006, with effect from 18.4.2006. Prior to Section 66A, the statute had provided no mechanism for recovery of payment from entities outside India. Rule 2(1)(d)(iv) was challenged before the Bombay High in the Case of Indian National Shipowners Association Vs. Union of India, [2008 (12) TMI 41 - BOMBAY HIGH COURT] and the said rule was declared ultra vires. The Hon'ble Supreme Court in the S.L.P., uphold the order of the Bombay High Court in the case of Union of India Vs. Indian National Shipowners Association, [2009 (12) TMI 850 - SUPREME COURT OF INDIA]. Thus, the said verdict has attained finality. In other words, the said rule was declared as ultra vires. Thereafter, the Department has also issued a Circular No.276/8/2009-Cx dated 26.9.2011 by stating that service received from non-resident or person located outside India will not be taxed before 18.4.2006 i.e. before coming into effect of Section 66A of the Finance Act, 1944. No interference with impugned order - Decided against Revenue.
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2014 (10) TMI 64
Commercial training or coaching services - Classification of service - 5 institutes conducted courses such as Post Graduate Diploma in the field of Information Technology, Marketing, Personnel Management, Human Resources Development, etc. which were not recognized by law. - Held that:- it can be easily seen that the services rendered by the appellant through its 5 institutes shall fall clearly within the scope of ‘commercial training or coaching' service as defined in law. In view of the retrospective amendment made in the law by way of explanation to Section 65(105)(zzc), even if the appellant is a charitable trust or society, the appellant would be liable to pay service tax. AICTE approvals for conducting the various courses in Information Technology and Management to Balaji Institute of Modern Management (BIMM), Balaji Institute of Telecom & Management (BITM), Balaji Institute of Management & Human Resource Development (BIMHRD) were given for the academic years 2008-09 onwards in May and October, 2008. In other words, during the period of demand, neither the courses were recognized by law nor the institutes/establishments conducting the courses were approved. Therefore, these institutes clearly fall under the definition of ‘commercial training or coaching centre' as defined in law and the services rendered by them are liable to service tax and we hold accordingly. Appellant had discharged bulk of the service tax demand confirmed (that is ₹ 5.27 Crore (approx.) out of about ₹ 6.59 crore) before the issue of show cause notice. In these circumstances imposition of equivalent amount of penalty under section 78 of the Finance Act, 1994 is not warranted. Accordingly we set aside the penalty imposed under Section 78 on the appellant - Decided partly in favour of assessee.
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2014 (10) TMI 63
Construction of complex service - construction of National Games village - Held that:- If services are provided to the individuals, it may not amount to residential complex service prior to 01.07.2010 as observed in the case of Krishna Homes [2014 (3) TMI 694 - CESTAT AHMEDABAD] of this Tribunal. What is constructed and handed over to individual is an apartment and not a complex. This was the clarification issued by the Board. - appellant has been able to make out a prima facie case to show that the demand for the period prior to 01.07.2010 in respect of construction of complex service, National Games Village is prima facie sustainable - stay granted.
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2014 (10) TMI 62
Construction service - joint venture of NTPC and Reliance Infrastructures Ltd. - construction of guest house building - Held that:- It is however seen that in the concluding lines of the said para it has not been categorically stated as to under which category of service the demand is confirmed although it does give an indication that the adjudicating authority possibly indented to confirm the said demand under the category of commercial or industrial construction service. Even so the appellants do have a point that the adjudicating authority should have categorically mentioned without any ambiguity as to under which taxable service the said component of impugned demand is being confirmed by him. Valuation - inclusion of value of free supplies - Benefit of Notification No. 1/2006-ST dated 1.3.2006 - appellant had paid service tax on 33% of the gross amount - Held that:- adjudicating authority needs to now take into account the judgment of the said CESTAT in case of M/s. Bhayana Builders [2013 (9) TMI 294 - CESTAT NEW DELHI (LB)] to re-adjudicate this component of the demand. While doing so the adjudicating authority will, inter alia, need to consider as to what part, if any, of this component of demand relates to completion or finishing work because in case of completion or finishing services, the benefit of Notification No. 1/2006-ST is not available. Needless to say, at the time de-novo of adjudication the appellants will be at liberty to stake their claim for benefit of Notification No. 12/2003-ST and submit the necessary evidence relating thereto to enable the adjudicating authority to take a view whether in the alternative, they will be eligible for the benefit of the said Notification (i.e. the Notification No.12/2003-ST). - matter remanded back - Decided in favour of assessee.
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2014 (10) TMI 61
Penalty u/s 76 & 78 - Held that:- Case of deliberate default in making the compliance under the provisions of Finance Act, 1994 and the Rules is made out against the appellant, as the appellant have not cared even to file the return or to pay tax even at the belated date, failing the compliance dates - when once the ingredients of section 78 are established and there is no reasonable cause for failure, section 80 is not attracted - the discretion is only confined to impose a penalty above the minimum and less than the maximum provided under the Act - as section s.76 and 78 operate in a mutually exclusive area, the question of imposing penalty under both sections would not arise - penalty u/s 76 is set aside and penalty u/s 78 is confirmed - Decided partly in favour of assessee.
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2014 (10) TMI 60
Import of services - Management, Maintenance or Repair Services - reverse charge - Held that:- Prima-facie, on an analysis of the diagram vis-`-vis the services as mentioned in the respective contract, we find that the existing wells, which become un-usable or become dead, have been plugged and the service providers were to explore the possibility of new oil wells by making horizontal drilling from the existing dead wells. Thus, the services received by the applicant, prima-facie, may not come under the scope of Management, maintenance or repair service. In the result, the Applicant could able to make out a prima-facie case for total waiver of dues adjudged, hence, predeposit of dues adjudged is waived and its recovery stayed during pendency of the appeal. Stay petition is allowed - Stay granted.
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Central Excise
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2014 (10) TMI 57
CENVAT Credit - Input service - Manufacturing activity - Held that:- As explained in the memorandum of appeal and as submitted by the appellant before the lower authorities, deslagging spoons made from MS rounds is required to remove the layers of slag floating over the molten metal in the furnace and removal of which is necessary to avoid an accident on account of busting of the layers of slag due to accumulated gases. As regards the, patching formers it has been explained by the appellant that the same are hollow metal cylinder with both faces open and are made for placing the same inside the induction furnace crucibles after refractory lining to protect the crucibles coils from getting damaged from molten metal. Both deslagging spoon and patching formers are necessary items for manufacture of MS ingots and therefore, the inputs used for manufacture of deslagging spoon and patching formers would be eligible for Cenvat credit as inputs. The order of both the lower authorities are absurd orders passed with zero application of mind. - Decided in favour of assessee.
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2014 (10) TMI 56
SSI Exemption - Non maintenance of Records - Confiscation of goods - Redemption fine and penalty imposed - Held that:- At the time of visit of the officers of the factory, the appellants were availing the SSI exemption and were fully exempted from duty and at that time, the value of their clearances during the financial year was ₹ 45,81,260/-. There is also no dispute at that time of officers visit, the appellants on the basis of value of their clearances upto that date, were neither required to file a declaration with Central Excise department nor were required to obtain Central Excise registration. The only allegation against the appellant is that they were not maintaining any records. Learned Counsel for the appellant herself has conseded even though at the time of officer visit to the factory, they were not required to file any declaration or obtain Central Excise registration, they should have maintained some records of the goods manufactured and cleared by them. However, there is neither allegation against the appellant that they were under reporting the production and clearances nor there in any allegation that the clearances of the appellant’s unit were required to be clubbed with the clearances of some other unit and on that basis, they are not eligible for SSI exemption. Merely for non-maintenance of records, the redemption fine of ₹ 2 lakhs and penalty equal to the duty involved on the seized goods is too high. Fine and penalty reduced to ₹ 50,000/- - Decided partly in favour of assessee.
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2014 (10) TMI 55
Denial of CENVAT Credit - Bogus invoices - Held that:- When the show cause notice itself accepts that certain quantity of steel items have been used for the repair of the mining machinery, the cenvat credit in respect of at-least that much quantity cannot be denied. Moreover, the appellant’s claim backed by the certificate issued by their Chartered Engineer is that entire quantity of the iron and steel items have been used for the repair and maintenance purpose either of the machinery installed in the mines or in the factory but this certificate has not been considered by the lower authorities. The impugned order is vague without giving any specific finding about the user of the steel items in question. In view of this, the impugned order is set aside and the matter is remanded to the original adjudicating authority for de novo adjudication - Decided in favour of assessee.
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2014 (10) TMI 54
CENVAT Credit - Whether appellant is entitled to CENVAT Credit under CENVAT Credit Rules when the inputs are claimed under an Advance Licence for export of finished goods duty free - Held that:- Appellants had taken invalidation letter/ARO. These documents were handed over to the suppliers who in turn would have taken the benefit available to them. These have not been cancelled or withdrawn by the appellants. However, it is also observed from the impugned orders itself that the suppliers have not availed the refund of terminal excise duty. We also find from the documents submitted along with the appeal papers that the suppliers have in the relevant years paid very substantial duty from PLA and, therefore, the Revenue’s contention regarding shifting of credit does not hold water. Notification No.44/2001-CE (NT), dt.26.06.2001 is an optional procedure for getting duty free inputs. This notification is subject to fulfillment of certain conditions. If the appellant has not fulfilled these conditions, then the raw material has to be received on payment of duty. Once duty is paid on the inputs CENVAT Credit is admissible if not in contravention of CENVAT Credit Rules. Further it has been held that by the relied upon case-laws that duty assessed at the suppliers end cannot be questioned at the recipient s end. Accordingly, appeal filed by the appellant is required to be allowed by setting aside the order passed by the first appellate authority - Decided in favour of assessee.
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2014 (10) TMI 53
Disallowance of CENVAT Credit - Credit on capital goods - Held that:- Same have been used for transportation of the raw sugar imported in bulk from the port for the import to the appellant’s factory. Hence, in view of the Tribunal's judgment in the case of J.K. Sugar Ltd. vs. CCE, Meerut - II (2010 (5) TMI 212 - CESTAT, NEW DELHI), the same would not be eligible for Cenvat credit and, as such, the Cenvat credit demand on account of this item is upheld. As regards the Cenvat credit demand in respect of other items namely Welding Electrodes and MS Angles, Channels and Plates, the appellant’s plea is that these items have been used for repair and maintenance of the plant and machinery and for this purpose, the steel has been used for fabrication of the components of the machinery for replacing the worn out parts. Conclusion that the steel items have not used for repair and maintenance of plant and machinery but have been used for supporting structures or foundation of the machinery, is not correct. Since, these items have been used for repair and maintenance, the same would be eligible for Cenvat credit, in view of judgment of Hon’ble Chhattisgarh High Court in the case of Ambuja Cements Eastern Ltd. - [2010 (4) TMI 429 - CHHAITISGARH HIGH COURT] and judgment of Hon’ble Rajasthan High Court in the case of Union of India vs. Hindustan Zinc Ltd. reported in [2006 (5) TMI 44 - HIGH COURT RAJASTHAN]. As regards welding electrodes, there is no dispute that the same have been used for repair and maintenance of plant and machinery. Therefore, the Cenvat credit demand on the basis of denial of Cenvat credit in respect of Welding Electrodes and steel items is not sustainable. while the Cenvat credit demand in respect of steel items and welding electrodes and penalty on this account is set aside, the Cenvat credit demand in respect of PP bags and penalty of equal amount is upheld. - Decided partly in favour of assessee.
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2014 (10) TMI 52
CENVAT Credit - Transfer of company - Associate enterprise amalgamated with assessee - Department intimated about such transfer - Held that:- As on January, 2011 when the merger took place, whatever credit was available in the books of BASFI was transferred to the appellant. I find from the. records that the department was intimated about the merger and availment of credit in the books of BASFI by the appellant in October, 2011 and this has not been objected to. Moreover I also find that Rule 10 of Cenvat Credit Rules, 2004 provided that where the entire assets are taken over by another company and transferred, the credit available in the books of account also get transferred. Therefore the entire exercise undertaken by the Revenue became infructuous because both the companies merged and by the time proceedings were initiated technically from the date of order of the High Court, the merger also has taken place and therefore whatever credit was available in the books of account of BASFI has to be transferred to the appellant in January, 2011 itself. Even though in reality the actual transfer of the credit was made only in October, 2011 - services were utilized in both the units and therefore proportionate credit should have been availed. It was also submitted by the learned counsel that BASFI was also paying excise duty and they were making payment from both PLA and Cenvat credit account. In such a situation it cannot be said that there was an intention to avail wrong credit since BASFI would have also utilized the credit. Since before passing the Order-in-Original the credit had already become part of the credit of appellant and the BASFI ceased to exist - Decided in favour of assessee.
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2014 (10) TMI 51
Exemption of Notification 6/2000-C.E, dated 1st March, 2000 - Sr. No. 164 - Exemption denied on the ground that it only applied to fabrics of cotton, and the fabrics that the applicant dyed were a mixture of cotton. - Held that:- appellants were processing the knitted fabrics containing cotton, viscose and cotton where the polyester predominates. Even appellant is claiming the classification under sub-heading 6002.49 Notification No. 6/2000-C.E., dated 1-3-2000 Sr. No. 164 - Obviously, the Textile Material used by them was of man-made fibre and would therefore not be covered by the said entry and moreover, they were further processing the goods using winches, Jet-dyeing and Tubular Dryer, etc. - Decided against assessee
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2014 (10) TMI 50
Determination of correct demand of duty, interest and levy of penalty - held that:- show-cause notice was issued for demand of duty along with interest and imposition of penalty. The said show-cause notice was dropped by the adjudicating authority. The said order was challenged before the Commissioner (Appeals) who set aside the order of adjudication. In that order, neither he asked the lower authorities to determine the correct demand of duty nor he quantified the demand of duty - net result of the order is not known, therefore, it would be in the interest of justice to stay the operation of the said order - stay granted.
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2014 (10) TMI 49
CENVAT Credit - whether the appellant is entitled to avail the input service credit on after sale services delivered by the dealer - Held that:- following decision of assessee's own previous case [2014 (9) TMI 835 - CESTAT NEW DELHI] - Decided in favour of assessee.
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2014 (10) TMI 48
Valuation of goods - whether the value of scrap arising out of manufacture shall fall from part of assessable value - Held that:- Certainly if the scrap has economic value that cannot be excluded from the assessable value of the job worked goods - Since the matter has involved an interpretation of law, we waive the penalty imposed on the appellant confirming the duty element - Decided partly in favour of assessee.
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CST, VAT & Sales Tax
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2014 (10) TMI 67
Penalty u/s 77(8) - Provisional assessment - Held that:- Tax Board as well as the DC (A) have rightly deleted the penalty imposed by the AO taking into consideration the fact that merely on the basis of provisional assessment, penalty is not leviable. There is no basis for such imposition after all for imposition of penalty Assessing Officer has to come to a definite finding and conclusion and many things have to be proved, imposition of penalty is a serious matter and cannot be imposed in a casual or summary manner like in the present case therefor, on the basis of provisional assessment, oar estimation penalty cannot be levied and it has rightly been deleted. I do not find any illegality, irregularity and perversity, in the orders passed by the Tax Board as well as by the DC(A), as such, no interference is called for by this Court as no question of law is involved - Decided against Revenue.
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2014 (10) TMI 59
Revision of assessment - cross verification of the particulars as found in the returns filed by the petitioner - Held that:- No opportunity was given by the authority to the petitioner to produce necessary documents, the impugned order is liable to be set aside. Accordingly, the impugned order is set aside and the matter is remitted back to the authority concerned for fresh consideration after affording sufficient opportunity to the petitioner to produce all the relevant documents as may be required by the authority - The petitioner shall deposit 25% of the total tax demanded as volunteered on or before 15.08.2014, failing which, the order of the respondent as of today, shall hold good. However, if the petitioner deposits the amount as offered by them, the respondent shall consider the objections/ documents to be produced by the petitioner and pass fresh orders on merits and in accordance with law. - Decided in favour of assessee.
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2014 (10) TMI 58
Claim of sales under section 5 of Tax Free Goods - applicant also claimed turnover of first sales as covered by entry 191 of Notification under section 41 - applicant collected taxes separately on the footing that the food items namely thali is charged separately under the heading thali but without the usual contents thereof - The charge is shown separately for vegetable, farsan and salad - Held that:- Tribunal seems to have proceeded on the footing that the argument of the applicant that the sales of vegetables, curd/milk, papad, salad, farsan are separate from the sale of Thali. There is no evidence on record to show that there is separate order for these items. These items, however, are incapable of deduction from the item of food, Thali and that is how the argument on the second point has been rejected - Tribunal's order on the Appeal as also on the Rectification Application does not answer the issues raised and particularly why the revenue has not been able to collect the taxes or the assessee was justified in arguing that in all the bills the standard thali does not include anything over and above the vegetables and other ingredients. The charge is separately levied for farsan, salad, papad and curd - In these circumstances, whether the Tribunal's approach can be said to be justified is something which this Court will have to consider in depth and in details - Matter remanded back - Decided in favour of assessee.
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