TMI Tax Updates - e-Newsletter
April 25, 2013
Case Laws in this Newsletter:
Income Tax
Customs
Corporate Laws
Service Tax
Central Excise
CST, VAT & Sales Tax
Indian Laws
Highlights / Catch Notes
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Income Tax:
Interpretation of section 153C – A.O. has recorded his satisfaction and after recording the satisfaction, handed over the books of accounts and seized material. - against revenue. - HC
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Income Tax:
Reopening of Assessment u/s 147 - From the facts on record, it was not possible for the AO to ascertain that received interest was higher than the normal rate of interest - against assessee - HC
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Income Tax:
Interest-free loans to its wholly owned subsidiary - fact noticed by AO would establish a direct nexus with the borrowings made by the assessee and loans granted by the assessee. - Addition confirmed. - HC
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Income Tax:
TDS - Distribution of software product - payment made by the assessee to nonresident companies would amount to royalty within the meaning of Article 12 of the DTAA - TDS liable to be deducted - AT
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Income Tax:
TDS - Import of software – Royalty - meaning given in the DTAA as well as in the IT Act 1961 is one and the same. - TDS liable to be deducted - AT
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Customs:
Misdeclaration – confiscation/penalty – when the DNA testing was brought to appellant’s knowledge he also requested for taking the goods back to the town as the export orders have also been cancelled, which should have been considered by the adjudicating authority. - AT
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Corporate Law:
Infringement of trademark can only be attributed to those marks which are registered. - But this does not preclude a person from protecting his unregistered trademark under the act of passing off. - HC
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Indian Laws:
RTI application - scrutiny guidelines by CBDT - here is no reason, why the respondents should keep it away from the public at large. - HC
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Service Tax:
Valuation - exclusion of cost of goods – Notification No. 12/2003-ST - The exemption notification is clear and admits of no restrictive clauses. - the assessee is entitled to relief. - AT
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Service Tax:
Refund claim of Cenvat Credit in respect of unutilized Cenvat Credit - the supplies made to SEZ cannot be treated as export for the purpose of Rule 5 of the Cenvat Credit Rules - AT
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Service Tax:
Refund claim - notification No. 17/09-ST - receipt issued by Courier Agency shall specify the import-export number of exporter. As this condition is not fulfilled, refund was rightly rejected - AT
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Central Excise:
MRP based valuation u/s 4A - The packages in which the assessee clears the goods namely mono-carton and shipper bags cannot be treated as multi-piece packs but only as wholesale packs. - AT
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Central Excise:
Classification Under Central Excise Act - the rubberized tyre cord fabric is classifiable under Chapter Heading 59.06 of the Tariff. - AT
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Central Excise:
Cenvat Credit - appellant have paid duty @ 16% adv. on exempted goods - demand of 10% in terms of rule 6(3)(i) set aside. - AT
Articles
Notifications
Circulars / Instructions / Orders
News
Case Laws:
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Income Tax
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2013 (4) TMI 521
Rectification/recall of the order of this Tribunal allowed as there was a mistake in noting the appearance for the assessee at the time of hearing on the appeals, inasmuch the name of one 'P.V.Ramachandra Rao' was mentioned whereas the name 'Shri N.Purnachandra Rao' should have been mentioned - in favour of assessee. Rectification/recall of the order of this Tribunal - as per the assessee the letter issued by the Andhra Bank reflecting the property bearing No.8-2-293/82/NL/61A, included in the list of properties against which credit limits were sanctioned, was submitted as per the directions of the Tribunal for substantial cause under Rule 29 of the ITAT Rules and not as an additional evidence thus there is mistake in the order of the Tribunal - Held that:- Tribunal has decided the issue on various counts and non-admission of the evidence in the form of bank's letter filed by the the assessee, did not clinch the issue against the assessee. That being the case, even admission of the said letter, would not have made any change to the conclusion arrived at by the Tribunal. Therefore, there is no mistake apparent from record in the order of the Tribunal in its decision on this issue. In any event, the decisions/observations of the Tribunal to treat the letter of the Andhra Bank filed by the assessee as additional evidence, not to admit the said additional evidence and the consequential findings even if the said additional evidence is admitted and considered are conscious ones, and all that the assessee is seeking by the present applications is a mere review of those decisions/ observations, which is not permissible in these proceedings under S.254(2), the scope of which is confined to mere rectification of mistakes apparent from record. Against assessee.
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2013 (4) TMI 520
Interpretation of section 153C – block assessment - search was conducted at various business premises of the assessees. Books of accounts were handed-over to the AO to pass assessment orders. The assessment orders were passed u/s 153 C /143 (3) of the Act. - Aggrieved with the assessment orders, the assessees have filed appeals before the CIT (A) who quashed the orders. Revenue filed these appeals. Held that - In the case of Manish Maheshwari vs. Assistant Commissioner of Income Tax and another [2007 (2) TMI 148 SC] he Hon'ble Supreme Court observed that in case of block assessment, the A.O. had to (i) record his satisfaction that any undisclosed income belonged to the company; and (ii) hand over the books of account other documents and assets seized to the Assessing Officer having jurisdiction against the company. In the instant case, the A.O. has recorded his satisfaction and after recording the satisfaction, handed over the books of accounts and seized material. Thus, the facts of both the cases are quite different. In the light of above discussion and by considering the totality of the facts and circumstances of the case, we find no reason to sustain the order passed by the Tribunal. Hence, we set aside the impugned order passed and remanded the matter back. The answer to the Substantial Question of law , which are interlinked, is against the assessee and in favour of the revenue
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2013 (4) TMI 519
Reopening of Assessment u/s 147 of the Act - deduction U/S 80IA are not proper - disclosure of information - Held that - It is an admitted position that in the return filed, the assessee did not indicate whether the entire interest or part thereof was received from Aditya Medisales. Further, there is no indication that from Aditya Medisales, which was a sister concern, the assessee had received interest at the rate of 24% on the outstanding amounts. Counsel for the petitioner, however, submitted that in the tax audit report, the petitioner had disclosed that the petitioner company and Aditya Medisales are closely associated. In our opinion, this would not be a sufficient disclosure. From the facts on record, it was not possible for the Assessing Officer to ascertain that the petitioner received interest from Aditya Medisales which was higher than the normal rate of interest. Three essential facts, namely, that the petitioner received interest on overdue payments from Aditya Medisales, that Aditya Medisales was a sister concern of the petitioner Company and that such interest was charged at the rate of 24% per annum, were not discernible from the record at all. - Decided against the assessee.
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2013 (4) TMI 518
Discrepancies and shortage in stock during survey u/s 133A - CIT(A) restricted the addition - CIT(A) observed that, the assessee had declared gross profit of 10.27% during the year, and applying the same rate of gross profit, the profit of the appellant on the lesser stock of the CRC would work-out to Rs. 61,917/- on the basis of 10.27% gross profit to the shortfall figure of Rs. 6,02,883/-. The assessee had admitted excess stock of Rs. 14,000/- on account of steel cupboard. Accordingly, the CIT (A) restricted the addition the total of Rs. 75,916/- (Rs. 61916/- plus Rs. 14,000/). - ITAT confirmed the action of CIT(A) - held that:- The aforesaid findings by the Tribunal and by the CIT(A) are the concurrent findings of fact. The Tribunal while confirming the order of CIT(A), has appreciated the relevant facts, figures and material relating to the issue, which were before it. - Decided against the revenue. Genuineness of unsecured loans - ddition made on account of undisclosed cash deposit in bank - CIT(A) has reduced the addition - ITAT uphold the decision of CIT(A) - held that:- Tribunal did not commit any error in law in dismissing the appeal. - Decided against the revenue.
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2013 (4) TMI 517
Interest-free loans to its wholly owned subsidiary - disallowances were made to the extent of the interest that would have accrued on the loans given to subsidiary companies. - Held that - it is not the case of the assessee that it had sufficient funds in its account to maintain interest-free loans to its subsidiaries. The assessee would, taking into account the total profits or rather receipts of the business of the year, contend that such receipts being more than the loans granted to the subsidiaries, it can only be assumed that the loans to the subsidiaries were from its own funds. The facts noticed by us regarding borrowings made immediately before the loans to subsidiaries were granted distinguishes the instant case on facts from the cases cited above. This fact noticed by the Assessing Officer would establish a direct nexus with the borrowings made by the assessee and loans granted by the assessee. - following the decision in decision in K.Somasundaram's case [1998 (8) TMI 59 - MADRAS High Court] decided against the assessee. Deduction u/s 80HHC - export business being a loss - restriction in section 80AB - held that:- The second issue is no more res integra in view of the binding authoritative pronouncements of the Hon'ble Supreme Court in ITO v. Induflex Products P.Ltd. [2005 (12) TMI 49 - SUPREME COURT] and A.M.Moosa v. CIT [2007 (9) TMI 24 - SUPREME COURT]. - The result of consolidated export activity of manufactured goods and trading goods are to be taken into account for claiming relief under Section 80HHC read with Section 80AB. - Decided in favor of revenue.
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2013 (4) TMI 516
Whether The Appellate Tribunal is right in law and on facts in Directing the assessing officer to exclude excise duty and sales tax for the purpose of calculating deduction u/s.80HHC and (ii) Whether The Appellate Tribunal is right in law and on facts in holding that excise duty refund falls within the purview of provisions of Explanation (baa) to section 80HHC Held that - The observations and the consequential remand of the matter restoring it to the files of Appellate Commissioner. The appellate authority would be reconsidering the issue on the basis of the directions and observations of the Tribunal and would pass a reasoned in accordance with law. Such order does not raise any substantial question of law. Accordingly, the appeal fails on both the questions proposed as substantial questions of law by the Revenue.
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2013 (4) TMI 515
Deduction of tax at source - DTAA - distribution of software product - royalty - authorized distributor - non-exclusive non-transferable right to market, sell, distribute and support BEA products in its territory - ‘Shrink wrapped software’ constituted royalty payment. - Held that - Hon’ble jurisdictional High Court in Commissioner of Income-tax Versus Samsung Electronics Co. Ltd. & Others [2011 (10) TMI 195 - KARNATAKA HIGH COURT] held that payment made by the assessee to nonresident companies would amount to royalty within the meaning of Article 12 of the DTAA with the respective countries and there was obligation on the part of the assessee to deduct tax at source u/s. 195 of the I.T. Act. We therefore do not see any infirmity in the order of the ld. CIT(A), as such we do not find any merit in this appeal of the assessee. Since facts in the present case are same with that of the earlier assessment year, following the decision of the Tribunal, we do not see any merit in the grounds of appeal of the assessee and accordingly dismiss the same. - Decided against the assessee. Deletion of nterest levied u/s 234B - Held that - This view has also been upheld by the Honorable Delhi High Court in the case of DIT vs. Jacabs Civil Incorporated [2010 (8) TMI 37 - Delhi High Court] Respectfully following the above judicial pronouncements, the Assessing Officer is directed to delete the interest charged u/s 234B of the Income tax Act. we do not find any infirmity in the order of the first appellate authority and as such we uphold the same for the reasons stated therein. The grounds of appeal of the revenue are dismissed. In the result, both the appeal of the assessee and the appeal of the revenue are dismissed.
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2013 (4) TMI 514
TDS - Import of software – Royalty - Revenue came to the conclusion that the payments made by the assessee was for procurement of the software and is thus ‘royalty’ and the assessee was liable to deduct tax at source u/s 195 of the IT Act 1961. He, therefore, made disallowance u/s 40a(i) and 40a(ia) of the IT Act 1961. The assessee submitted that the assessee was not required to deduct tax at source as the assessee was only purchasing software on behalf of its client customers who are ultimately given the license to operate the software and the assessee was not the end user. Held that - The learned counsel for the assessee’s placeing reliance on the decision of the Tribunal in the case of M/s Bodhi Professional Solutions Pvt. Ltd., [2013 (4) TMI 513 - ITAT BANGALORE] is misplaced. In the case of M/s Bodhi Professional Solutions Pvt. Ltd., this Bench (both of us are signatory to the said order) while upholding the findings that payments for the purchase of Shrink wrap or off the shelf software would amount to royalty, has remanded the issue to the file of the AO with a direction to reconsider and verify the issue as to whether the payment for hardware and services would be regarded as royalty because in the case, along with purchase of software, the assessee had also imported hardware and payments were also made for services which were also considered as royalty. Further, in the said case, neither the AO nor the CIT(A) had considered the definition of ‘royalty’ in terms of the DTAA and, therefore, the Tribunal deemed it fit and proper to remand the issue for fresh consideration. However, in the case before us, the AO has already considered the definition of ‘royalty’ in DTAA as well as in the IT Act 1961 and has found that the meaning given in the DTAA as well as in the IT Act 1961 is one and the same. In view of the same, the decision of the Tribunal in the case of M/s Bodhi Professional Solutions Pvt. Ltd., [2013 (4) TMI 513 - ITAT BANGALORE] is not applicable to the facts of the case of the assessee. Respectfully following the decision of the Hon’ble Jurisdictional High Court in the case of Samsung Electronics (2011 (10) TMI 195 - KARNATAKA HIGH COURT), we dismiss the appeal of the assessee. - Decided in favor of revenue.
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2013 (4) TMI 513
TDS - royalty - import of software and hardware and payment for services - held that:- Even though the figures of import of hardware and payment for services are on record, we are of the opinion that the Assessing Officer is required to examine the details of import of hardware, software and payment for services. It is also seen that the Assessing Officer has not properly examined provisions of the Treaties in deciding whether the impugned payments constitute 'royalty'. In view of the foregoing, we are of the considered opinion that unless the facts of the case are clearly examined by the Assessing Officer, the quantum and to whether payment for imports of software amounts to 'royalty' cannot be decided.
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2013 (4) TMI 512
Disallowance of deduction u/s 80IA – assessee engaged in the business of civil engineering works and construction of national highways, filed its return of income and claiming deduction – A.O. observed that the deduction u/s 80IA would not be available to a person who executes a works contract entered into with an undertaking or enterprise as the case may be. As the assessee has undertaken the sub-contract works with the j.v of M/s ECSB-JSR Construction Private Limited, he held that the assessee company is not eligible to claim deduction u/s 80IA. – CIT(A) gives the relief to assessee subsequently revenue file this appeal. Held that - We find that the assessee has filed sufficient evidence before the CIT(A) to prove his case that it is party to the consortium, which was engaged in the business of civil construction and was also awarded the contract by the NHAI. Thus, we are satisfied that the assessee has itself carried on the works contract and was not a sub-contractor carrying on the works contract. Further, as rightly held by the CIT(A), every year the assessee cannot be expected to enter into a new contract for the reason that the infrastructure project are by the very nature carried on over a period of time and cannot be completed within a year. Thus, the CIT(A) has properly appreciated the evidence before allowing the claim of the assessee and there is no reason to interfere with the same. Revenue is dismissed.
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Customs
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2013 (4) TMI 511
Misdeclaration – confiscation/penalty – As per revenue the goods attempted to be exported were of the prohibited nature and therefore, fine and penalties have been correctly imposed upon all the three appellants. – held that - As per DGFT Notification No. 55/RE-2008-2011 only Basmati Rice of certain specifications are permitted to be exported as per Serial No.55A of the above notification. Non-basmati Rice is specified under serial No. 45A of the above notification has been prohibited. In the present case appellant No. 1 had Agmark certificates in their favour and thus had no knowledge that the rice brought for export was a category of non basmati rice. However, when the DNA testing was brought to appellant’s knowledge he also requested for taking the goods back to the town as the export orders have also been cancelled, which should have been considered by the adjudicating authority. The ratio laid down by the CESTAT in the case of Sachdeva & Sons [1986 (12) TMI 215] is squarely applicable in this case and no confiscation/ penalty is imposable upon the appellant No.1. So far as the penalties imposed upon appellant No.2 are concerned, he also had no knowledge, so no penalties can be imposed upon him. Imposition of penalty upon appellant No.3 is concerned, the ratio of Tribunal in the case of M/s. Anchor Logistics vs. Commissioner of Customs Kandla [2010 (8) TMI 781] is squarely applicable as till the DNA testing was done, CHA was having no knowledge of prohibited nature of the export cargo. Therefore, penalty cannot be imposed.
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2013 (4) TMI 510
Condonation of delay - assessee submits that there is a delay in filing the appeal as they had moved the Hon’ble Madras High Court and the Hon’ble Supreme Court against the impugned order, which may be condoned - Held that:- As per Section 129A every appeal under this section shall be filed within three months from the date on which the order sought to be appealed against is communicated to the party preferring the appeal. In this case, the applicant received the order on 2.8.2010 and filed writ petition in the same month as claimed by the learned Advocate. By judgment dated 25.11.2010, the Hon’ble Division Bench of Madras High Court directed that if the applicant so prefers the appeal, the time spent in the proceeding before the Hon’ble High Court shall be excluded for calculating the period of limitation. Even to calculate the three months from the date of the Hon’ble High Court’s decision then the applicant should have filed the appeal on or before 24.2.2011. But the applicant had not filed the appeal within the limitation as per direction of the Hon’ble High Court and it has filed on 23.6.2011. It is beyond the period of three months as provided under Section 129A of the Customs Act, 1962. The submission of the learned counsel that the order of the Hon’ble Supreme Court has merged with the order of the Hon’ble High Court is not acceptable for the reason that the Division Bench of the High Court has given a specific direction that if the applicant so prefers, the appeal time spent in these proceedings (i.e. writ petition) shall be excluded for calculating the period of limitation, which was not complied with by the applicant. Accordingly, the COD application is rejected.
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2013 (4) TMI 509
Condonation of delay - The deponent states due to medical conditions the appeal could not be filed within the statutory period of limitation – Held that - No satisfactory explanation of the heavy delay involved in the filing of the appeal. No medical certificate on record to show any such illness of the father for the said period. The available records are a miscellany which has not been interpreted or explained to us. The COD application is dismissed as devoid of merits.
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Corporate Laws
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2013 (4) TMI 508
Scheme of amalgamation - Petitions u/s 391 and 394 of the Companies Act, 1956 – as contention raised by the one of the equity shareholder of the Company for stay or the cancellation of the meetings of the shareholders for sanctioning scheme - as that during the inspection of the books of account and record of both companies had been conducted in 2008 and various violations of the Act were observed - the said application was disposed of noting that the meetings of the shareholders had already been held on 12th May 2011. Equity shareholder was given the opportunity to raise objections at the second motion stage and also forward his objections to the Regional Director ('RD') as well as the Registrar of Companies ('ROC') so that they could consider his objections while filing their replies at the second motion stage. Held that – As no material records are found to be placed by Mr. H.K. Chadha to substantiate the plea this Court finds that apart from the objections of Mr. H.K. Chadha, the holder of 8 equity shares, which objections have been found to be without merit, there is no other objection to the sanctioning of the Scheme. Consequently this Court accords its sanction to the Scheme which is at Annexure V to the petition. As pointed out by the RD, upon the sanctioning of the Scheme, in terms of Sections 391 and 394 of the Act, all the properties, rights and powers of BSMCL will be transferred to and will vest in PSPL without any further act or deed. BSMCL will be taken to be dissolved without winding up and without any formal petition being filed for that purpose. The necessary intimation will be filed with the ROC within 21 days. However, this order will not be construed as an order from making exemption from payment of stamp duty or taxes or any charges, if payable in accordance with law or any permission required under any other law, or permission/compliance with any other requirement which may be specifically required under any law. The learned Senior counsel for BSMCL has stated voluntarily that upon the Scheme being sanctioned, it would deposit a sum of Rs. 1 lakh with the Common Pool Fund of the OL. The said statement is taken on record. The amount be deposited with the said fund of the OL within three weeks. The petitions are allowed in the above terms, but in the circumstances, with no order as to costs.
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2013 (4) TMI 507
Due to various breaches on the part of the petitioner the work could be completed after a delay of 1435 days - Held that:- While deciding the claim(s) the learned Arbitrator has given reasons for his finding and adjudication. As time was not the essence of the contract, as it was set at large through unilateral extensions, as per law if time is not the essence of the contract, notice under Section 55 of Contract Act, 1872 is not required. This fact is clear from the second para of Section 55 of the Contract Act, 1872. M/s. Hind Construction Contractors by its sole proprietor Bhikamchand Mulchand Jain (Dead) by L.R.’s Vs. State of Maharashtra, AIR 1979 Supreme Court 720. Relevant para 9 reads as under - Having regard to the aforesaid material on record, particularly the clause in the agreement pertaining to imposition of penalty and extension of time it seems to us clear that time (12 months period) was never intended by the parties to be of the essence of the contract. Further from the correspondence on the record particularly, the letter (Ex. 78) by which the contract was rescinded it does appear that the stipulation of 12 months’ period was waived, the contractor having been allowed to do some more work after the expiry of the period, albeit at his risk, by making the recision effective from August 16, 1956. It is evident that the arbitrator has rightly awarded 12% interest as even the Nationalized banks are charging more than 12% on clean loans for commercial activities - Reference to invocation of clause 3-A is irrelevant - The learned Arbitrator has rightly awarded the cost of arbitration in favour of the respondent - Under these circumstances the objection filed by the petitioner are liable to be dismissed.
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2013 (4) TMI 506
Use of the trademarks KIDO and KIDCO by the defendants is in an identical fashion and used for the same class of goods - Whether the plaintiffs are the registered proprietors and owners of the trademarks KIDO and KIDCO -Held that:- It is seen that the originals of two trademark certificates have been placed on record - Both the above mentioned certificates are for the registration of the trademark KIDO. Thus, it is amply clear that the plaintiff is the registered proprietor and owner of the trademark KIDO. Whether, the defendants‟ claim of having registered the trademark KIDCO in Pakistan results in a trans-border reputation - Held that:- the defendants have contended this submission in their written statement, they have not proved the same. For want of proof, this issue stands decided against the defendants. Whether the acts of the defendants constitute infringement and passing off - Held that:- Owing to the fact that the class of goods is confectionery, the majority of customers would be children. There can be no doubt that there would be confusion in their minds especially when both trademarks look exactly similar. Further the plaintiffs have been able to prove that they have attained good reputation in the market. Thus, with regard to the trademark KIDCO, I find that the defendants‟ acts constitute passing off - This provision makes it very clear that infringement of trademark can only be attributed to those marks which are registered. But this does not preclude a person from protecting his unregistered trademark under the act of passing off. Thus, since the mark KIDCO has not been registered as yet, I do not find the defendants‟ acts to be one of infringement. Order of permanent injunction passed, restraining the defendants from importing their products under the trademark KIDCO and from selling and manufacturing their products under the same mark within the territory of India.
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Service Tax
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2013 (4) TMI 527
Valuation - exclusion of cost of goods – Board’s circular dated 20.06.2003 – Notification No. 12/2003-ST - question in this appeal is whether the entire value of the services provided by the appellant herein (including the value of course material supplied) is to be included in the gross value of the service provided by the appellant and also whether the Government has exempted the whole of the value of goods and material sold, from the gross value of taxable service, vide the Notification issued under Section 93(1). - Held that: - The exemption notification is clear and admits of no restrictive clauses. Consequently, the assessee is entitled to relief. - Decided in favor of assessee.
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2013 (4) TMI 526
Refund claim of Cenvat Credit in respect of unutilized Cenvat Credit of duty/service tax paid on input/input service used in export of final product - period 01.10.2009 to 31.03.2010 denied - The respondent claimed refund of accumulated CENVAT Credit Rule 5 of the CENVAT Credit Rules, 2004 - whether such supply of goods to SEZ units was an export - Held that:- The definition of export given under the Customs Act has been traditionally adopted for purposes for the Central Excise Act and the Rules thereunder. Therefore, in the absence of a definition of export under the Central Excise Act, the Central Excise Rules or the CENVAT Credit Rules, 2004, thus for purposes of the CENVAT Credit Rules, 2004, one should look for its definition given under the Customs Act. The fictionalized definition of export under Section 2 (m) (ii) of the SEZ Act cannot be looked for as it purports only to make the SEZ unit an exporter. The term export used in Rule 5 of the CENVAT Credit Rules, 2004 stands for export, which is physical export out of the country, envisaged under the Customs Act. Thus taking this view because, as already indicated, anybody other than SEZ unit cannot be allowed to claim any benefit under the SEZ Act/Rules. Viewed from this angle, the respondent cannot be held to be entitled to refund of accumulated CENVET Credit on the inputs used in our in relation to the manufacture of the Pre-fabricated buildings supplied by them to the SEZ units. Thus the supplies made to SEZ cannot be treated as export for the purpose of Rule 5 of the Cenvat Credit Rules and accordingly appellant is not entitled to refund of Cenvat Credit in respect of inputs/inputs services used in the manufacture of final products supplied to SEZ unit.
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2013 (4) TMI 525
Goods Transport Agency - under-disclosure of service tax liability on GTA services - demand of service tax, education cess, interest and penalty u/s 75,78 and penalty under section u/s 76 waived, under Section 80 - Held that:- Once the conditions enumerated in Section 11AC and failure to remit the amount of duty under the first proviso and the amount of penalty determined under the second proviso to the said provision are established, the liability to remit 100% of the penalty is statutorily enjoined and no discretion inheres in any authority to avoid the legislative mandate as to the quantum of penalty. In the light of the judgment of Castrol India Limited [2012 (6) TMI 697 - BOMBAY HIGH COURT] the contention of the assessee does not commend acceptance by this Tribunal. The appeal is dismissed in the above circumstances, but without costs.
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2013 (4) TMI 524
Short payment of service tax - Held that:- This is undisputed fact that in ST-3 Return receipt of Rs. 3,79,04,175 is shown by the respondent & the Commissioner (Appeal) in the impugned order has not made any observation on this figure of 3,79,04,175/- shown in ST-3 Returns and allowed the respondent’s appeal relying on Chartered Accountant’s certificate, Income Tax provisions and principles of accounting in preparing balance sheet. Therefore set aside the impugned order and remand the case back to Commissioner (Appeal) for deciding the matter afresh after considering the figures shown in ST-3 Returns for the year 2007-2008 and after giving an opportunity of hearing to both sides. Appeal is allowed by way of remand.
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2013 (4) TMI 523
Refund claim in terms of notification No. 17/09-ST dated 07.07.2009 claim for the quarter April 2010 to June 2010 denied on the ground of non-mentioning of I.E.C code on Courier Agency Invoice - Held that:- Refund is claimed by the appellant under provisions of Notification No. 17/09-ST. Courier Agency service is specified at Sl. No. 10 of the table provided in the Notification. Exemption is available subject to the condition that receipt issued by Courier Agency shall specify the import-export number of exporter. As this condition is not fulfilled by the appellant Commissioner (Appeal) has rightly rejected their appeal.
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Central Excise
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2013 (4) TMI 505
MRP based valuation u/s 4A of the Act - 'wholesale packs' or ‘Multi-piece Package’ - It was alleged that with an intention to evade payment of duty, the appellant-assessee along with the others mis - declared the outer as a wholesale pack though it was actually meant for retail sale to their ultimate consumer. Appellant’s claim that their products were sold in sachets, and not in mono-cartons, to the ultimate consumers. The mono-cartons were only intended to be used by the retailer as a convenient receptacle for the sachets to be sold in retail. Held that - The goods in the form of liquid packed in sachets though may be sold in numbers, it cannot be said that they are not being sold by weight or volume as each sachet contains pre¬determined quantity of the liquid by weight as well as by volume. The intention of the manufacturer as revealed by details printed on the sachets manufactured by them and the marketing pattern followed by AMWAY indicate that the goods are meant for retail sale to the ultimate consumers. Under the circumstances, the packages under which the impugned products are sold by the appellants clearly fall within the exemption provided under Rule 34(1)(b) of the PC Rules. Though, the commodity is notified under Section 4A, there is no statutory requirement under the law for declaring the MRP on the packages cleared by the manufacturer. The packages in which the assessee clears the goods namely mono-carton and shipper bags cannot be treated as multi-piece packs but only as wholesale packs. Therefore, the assessment under Section 4 is in order. In view of the above, the impugned order is set aside and all the appeals are allowed with consequential relief as per law.
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2013 (4) TMI 504
Classification Under Central Excise Act - Held that:- We find that the Hon'ble Supreme Court in the case of CCE, Goa and Chennai vs. MRF Ltd. (2005 (1) TMI 110 - SUPREME COURT OF INDIA) held that the rubberized tyre cord fabric is classifiable under Chapter Heading 59.06 of the Tariff. - The controversy regarding classifiability of Rubberised Tyre Cord Fabric is no more res integra. The said product is classifiable under Chapter Heading 59.06. We do not find any infirmity in the impugned judgment of the Tribunal on this point - The appeal is dismissed.
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2013 (4) TMI 503
Waiver of pre-deposit under Rule 6(3) of Cenvat Credit Rules, 2001 - Interest and penalty under Rule 5 - Demand under Rule 6(3) along with interest and penalty - Held that:- Even if the department's plea that iron ore fines is an excisable goods fully exempted from duty and, hence, covered by the definition of "exempted goods" as given in Cenvat Credit Rules and on this basis the provisions of Rule 6(3) would be applicable is accepted, in view of the retrospective amendment of the provisions of Rule 6(3) by Section 73 of proportionate credit for which a formula is prescribed in this sub-rule as the appellant have used common input services, GTA services and clearing & forwarding agent's services in receipt of iron ore lumps in respect of which Cenvat Credit has been availed and which have been used in the manufacture of dutiable as well as exempted final product. According to the ld. Counsel for the appellant, total Cenvat Credit in respect of common services is around Rs. 3 lakhs and the amount to be reversed cannot be more than Rs. 3 Lakhs. In view of this, the applicant are directed to deposit an amount of Rs. 3 lakhs within a period of four weeks from date of this order - Compliance to be reported on 23.04.12 - On deposit of the above amount within the stipulated period, the requirement of pre-deposit of balance amount demanded under Rule 6(3), interest on this amount and penalty, shall stands waived and recovery thereof stayed till the disposal of the appeal.
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2013 (4) TMI 502
Claim the refund of amount of deemed credit - Notification. No. 29/96-C.E. (N.T.) - Held that:- AR-4s does indicate debit of 50% of the amount of basic excise duty payable by the assessee in the bond and balance in the deemed credit register. Since the appellant-assessee has utilized the amount of deemed credit which is eligible to them, the refund claims which has been filed by him and rejected by the adjudicating authority seems to be in accordance with the law - the orders in original rejecting the refund claims filed by the assessee are correct and hence the orders of the first appellate authority rejecting the orders in original are liable to be set-aside
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2013 (4) TMI 501
Waiver of pre-deposit of duty & Interest - Demanding duty equivalent to Customs Tariff - The applicant is a 100% EOU. During the period in dispute applicants cleared to “Bihar Public Tube-Well Project”, against the International Competitive Bidding without, payment of duty treating the same as physical export - Held that:- The projects under International Competitive Bidding (ICB) or similar procedure are to be treated as deemed export. Applicant also relied upon the decision of Hon’ble Supreme Court in the case of Virlon Textile Mills Ltd. v. Commissioner of Central Excise, Mumbai (2007 (4) TMI 6 - SUPREME COURT OF INDIA) In these circumstances, as the goods are to be treated as deemed export which were cleared to the International Competitive Bidding and financed by the International Development Association - Prima facie - we find that the amount already deposited by the applicant is sufficient for hearing of the appeal and pre-deposit of remaining dues are waived for hearing of the appeal - Applicants are directed to keep the Bank Guarantee of Rs. 1 crore alive during the pendency of the appeal - Stay petition is allowed as indicated above.
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2013 (4) TMI 500
Cenvat Credit - manufacture of dutiable and exempted goods - Rule 6 - demand of amount @10% on exempted goods - held that:- There is no dispute about the fact that in respect of clearances of plastic granules to their Halol unit, the appellant have paid duty @ 16% adv. Even if the Revenue’s contention is accepted and the goods are treated as fully exempt from duty under Notification No. 4/2006-C.E. (Sl. No. 78) and, hence, ‘exempted goods’ within the meaning of this term as defined under Rule 2(d) of Cenvat Credit Rules, 2004 and on this basis an amount equal to 10% of the value of the exempted goods is held as payable in respect of clearances of the reprocessed granules, this amount would be adjustable against the amount already paid towards duty, which is much more than the amount demanded under Rule 6(3)(i) of the Cenvat Credit Rules, 2004. Tribunal in the case of CCE v. Yamuna Gases & Chemicals Ltd. (2011 (7) TMI 984 - CESTAT, NEW DELHI) has held that such adjustment is permissible. - Stay granted.
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CST, VAT & Sales Tax
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2013 (4) TMI 530
Determination of tax liability - power supply devices - trade tax paid by the petitioner on the sale of Inverters, UPSSs and batteries at the rate of 4%. For the Assessment Year 2003-04, the A.O assessed the tax liability on these goods at the rate of 10%. Commissioner of Trade Tax U.P. has issued a Circular dated 02.09.2000 in which it has been held that Inverters, and UPSSs work as 'power supply devices' and trade tax at the rate of 4% was payable on it. Held that - The Circular of the Commissioner Trade Tax dated 02.09.2000 has been superseded by the Circular dated 03.09.2003. A bare perusal of the Circular dated 03.09.2003 does not show that the Commissioner Trade Tax U.P. has considered the various factors before deciding that Inverter and UPSS are electrical goods. Following the judgement of Apex Court in State of Goa and others Vs. Leukoplast (India) Ltd.,[1997 (2) TMI 124 (SC)] the matter is remanded back to the A.O. Writ petition is disposed off.
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2013 (4) TMI 529
Claim of exemption on consignment sales disallowed - non maintenance of all the records as required under Rule 4(3-A) of Central Sales Tax (Tamil Nadu) Rules - Whether the Tribunal was correct in restoring the order of the assessing authority who has disallowed the claim of exemption on consignment sales & in respect of rate of tax adopted at 10.05% - Held that:- As per the decisions of Tata Engineering and Locomotive Co. Ltd. Versus Assistant Commissioner of Commercial Taxes, Jamshedpur and Another [1970 (3) TMI 104 - SUPREME COURT OF INDIA] AO has not examined individual transactions. Assessing Authority referred to few instances and drew inference that the entire transactions were inter-State sale. It is not known whether the Assessee filed the statutory declaration and whether any enquiry was held in respect of individual transaction. The Assessing Authority came to the conclusion on the basis that the entire goods sent as consignment were sold as one lot within a couple of days which cannot be done unless or otherwise there is a pre-existing order for the goods and that loads have been moved upon specific orders only. Thus without examining the individual transactions, the entire transactions was treated as inter-State sale falling under Rule 4(3-A) of CST (TN) Rules. Tribunal has referred to number of decisions and extensively extracted the decisions. But the Tribunal has not examined the facts in the light of the principles laid down by the Hon'ble Supreme Court in various decisions. Tribunal being final authority of facts, it ought to have considered the facts in the light of the findings of the Assessing Authority and the contra view taken by the Appellate Authority and therefore, the order of the Tribunal cannot be sustained. The assessment order shows that Assessing Authority has not held an enquiry as to individual transactions. Applying the ratio of the above decisions of the Hon'ble Supreme Court, the assessment order cannot be sustained and the matter is remitted back to the Assessing Authority for fresh consideration based on decisions of the ASHOK LEYLAND LIMITED V. STATE OF TAMIL NADU AND ANOTHER [(1) TMI 365 - SUPREME COURT OF INDIA]. Tax Case (Revision) is allowed. The order of Tribunal set aside and the matter is remitted back to the Assessing Authority.
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2013 (4) TMI 528
Notices of revision of assessment issued u/s 27 of the Tamil Nadu Value Added Tax Act calling upon assessee to file their objections within 15 days of receipt of the notices - The legality of the impugned notices, has been called in question on the ground by the assessee that the Enforcement Wing Officer cannot act as an AO and frame the revision of assessment, and therefore, the D-3 proposals cannot be simply adopted by the respondent without application of mind - Held that:- In the present case, the petitioner-Company has not availed of the opportunity given to them by filing objections to the impugned notices. The grievance of the petitioner is in respect of levying higher rate of tax at 12.5% instead of 4%, which is a matter to be adjudicated before the authority concerned. The approach of the petitioner in rushing to this Court by filing these Writ Petitions, challenging the notices 'simpliciter', without even filing the objections before the respondent, cannot be sustained. Therefore, the impugned proposal of the respondent for revision of assessment, is subject to the consideration of the objections to be filed by the petitioner, and only after receipt of the objections, the respondent could form any opinion in accordance with law. The claim of the petitioner that the Enforcement Wing Officer's report cannot form the basis for the impugned revision of assessment and he has no role to act as Assessing Officer and the respondent cannot simply adopt the D-3 proposal, which is a matter for concern before the respondent on filing the objections by the petitioner. Writ Petitions disposed of, with a direction to the petitioner-Company to file their objections to the impugned revision notices, before the respondent, within a period of two weeks from the date of receipt of a copy of this order & the respondent shall consider the same, afford an opportunity of hearing, bear in mind the provision of law and thereafter take a decision uninfluenced by the report of the Enforcement Wing Officer and pass appropriate orders, on merits.
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Indian Laws
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2013 (4) TMI 522
RTI application - writ of mandamus sought directing the respondents to supply the copy of CBDT circular/ instruction dated 19.06.2009 - whether the information with regard to scrutiny guidelines has all along been in public domain? - Held that:- The expression, economic interest, takes within its sweep matters which operate at a macro level and not at an individual, i.e., micro level. Thus by no stretch of imagination can scrutiny guidelines impact economic interest of the country. These guidelines are issued to prevent harassment to assessees generally. It is not as if, de hors the scrutiny guidelines, the I.T. Department cannot take up a case for scrutiny, if otherwise, invested with jurisdiction, in that behalf. This is an information which has always been in public realm, and therefore, there is no reason, why the respondents should keep it away from the public at large. Thus, provisions of Section 8(1)(a) of the RTI Act would have no applicability in the instant case. There is nothing stated in the operative part which would seem to indicate that the CIC has come to the conclusion which it has, is based on the fact that, the economic interest of the country, will get effected. The CIC, in the operative part has merely recorded what has been conveyed to it vis-a-vis the procedure for selection of cases for scrutiny. In view of the above, the impugned order is set aside. The respondents shall supply the relevant scrutiny guidelines to the petitioner for the financial year 2009-10. The respondents shall hereafter upload the guidelines with regard to scrutiny on their website.
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