TMI Tax Updates - e-Newsletter
August 7, 2013
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:
Since the building was constructed on the land given by the assessee, naturally the cost of the building has to be estimated in the hands of the M/s. Lumbini Constructions alone and proportionate share of the assessee therein, will have to be considered as price for surrendering the land. - AT
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Income Tax:
Rectification of mistake - Since no claim of deduction of exempt income has been made in the return of income and A.O. accepted the return of income filed by assessee as it is, therefore, there was no mistake apparent on record of the Revenue Department. Thus, the rectification application under Section 154 was not maintainable - AT
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Income Tax:
Accrual of income - income by way of cash incentive accrued to the assessee at the time of filing of the claim in its respect - assessee has not stated any factual reason/s with regard to the uncertainty that is stated to exist with regard to the claim for VAT refund. - additions confirmed - AT
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Income Tax:
Charging of interest u/s 234D - To claim that the date of receipt of refund should be reckoned as a starting point instead of the date of grant of refund would amount to doing violence to the unambiguous language of the provision. - AT
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Income Tax:
Profit on sale of shares and securities - The high number of transactions shown in the statement is misleading because these are computer-split transactions and not independent transactions - taxable as capital gains and STCG - AT
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Customs:
Refund of 4% of Special Additional Duty (ADC/SAD) - CA’s certificate produced by the appellant fulfills the requirements and is sufficient to come to the conclusion that appellants are eligible for the refund - AT
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Customs:
Refund - Bar of limitation - As per the provisions of notification No. 6/2008 refund of SAD has to be made within a period of one year from the date of payment of duty - AT
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Customs:
CVD - The effective rate of excise duties for a unit located in the specified area mentioned in 50/2003-C.E. is Nil and it is this rate alone which can be applied for the purpose of calculating CVD - HC
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Service Tax:
Classification of Services – Site Formation and Clearance, Earth Moving and Demolition or Cargo Handling - Contention regarding classification has not been raised before the adjudicating authority. - Besides, overburden and wastage for removal cannot be considered as cargo. - AT
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Service Tax:
Valuation - gross value - reimbursement of expenses - Contention of the appellants that no service tax is payable on reimbursable expenses borne by the appellants is not tenable and accordingly rejected - AT
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Service Tax:
Validity of order of adjudicating authority – the preliminary objection of no finding given by the revisionary authority on the issues raised in revisionary show cause notice is upheld. - Revenue directed to refund the amount deposited by the appellant’s during the investigation stage - AT
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Central Excise:
Cenvat credit - Service Tax paid on rent a cab service - merely because these services are not expressly mentioned in the definition of input service it cannot be said that they do not constitute input service and the assessee is not entitled to the benefit of CENVAT credit - AT
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Central Excise:
Interest chargeable under Section 11AB on differential duty due to price escalation clause - demand of interest confirmed - AT
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Central Excise:
If the concerned Range officer had checked the returns, the short payment would have been immediately detected - The assessee cannot be penalized by invoking extended period u/s 11A(1) for demand of duty and penal provisions for indolence on the part of the jurisdictional Central Excise officers - AT
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Central Excise:
Assessable value in case of job-worker - allowing deduction towards loss of the person supplying raw material to determine assessable value in the hands of the person undertaking manufacturing activity is not warranted - AT
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Central Excise:
Extended period of Limitation u/s 11A- Nowhere does this provision refer to the period of service of notice after fraud, collusion, wilful misstatement or suppression, etc. comes to the knowledge of the Department. In simple terms, the Department could recover unpaid duty up to a period of five years anterior to the date of service of notice - HC
Articles
Notifications
Circulars / Instructions / Orders
News
Case Laws:
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Income Tax
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2013 (8) TMI 183
Trust v/s Association Of Persons (AOPs) - provisions of section 161(1A)invoked enhancing total income chargeable to tax at the maximum margin rate - whether assessee has a prima-facie case for grant of stay? - Held that:- As decided in one of the beneficiaries' case i.e., UIT Mutual Funds [2013 (3) TMI 350 - BOMBAY HIGH COURT] that on these facts and circumstances, the assessee has a prima-facie case for grant of stay of the demand and there are various issues which warrant adjudiction and in such a situation, stay should be granted. The observations of the Hon'ble Jurisdictional High Court as given in case of UTI Mutual Fund (supra) and also in the similar W.P., [2012 (3) TMI 333 - BOMBAY HIGH COURT] are still applicable and relevant in case of the assessee even after passing of the Commissioner (Appeals)'s order. Therefore, in the interest of justice this is a fit case for grant of stay. The Registry is directed to fix the appeal on out-of-turn basis on 26th June 2013, for hearing of appeals on merit.
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2013 (8) TMI 182
Deduction towards self- supervision allowed in the hands of the assessee - whether assessee eligible for the same when the assessee has not supervised the construction? - Held that:- There is no merit in the revenue's appeal as the building is constructed by a builder and the assessee obtained 60% share in the said building constructed, in lieu of surrender of the land for development. Therefore, whatever is cost incurred by the builder can only be the basis for arriving at the capital gains. Further, whenever the matter was referred to the DVO, allowed 7.5% towards self-supervision to the builder and arrived at the entire value of the building. There is no dispute with reference to the estimation made by the DVO, which is more or less the same as the cost incurred by the builder, as returned by the assessee. It is not the assessee's building which is being valued, but the building constructed by the developer in which assessee got 60% share. Since the building was constructed on the land given by the assessee, naturally the cost of the building has to be estimated in the hands of the M/s. Lumbini Constructions alone and proportionate share of the assessee therein, will have to be considered as price for surrendering the land. As informed that no action has been taken in the hands of M/s. Lumbini Constructions no merit in the Revenue's appeal. Capital gains - assessment arise in the year in which the assessee entered into agreement or in which the assessee took possession of the developed property - Held that:- CIT(A) considered the term 'transfer' with respect to capital asset under S.2(47) and also provisions of S.53A of Transfer of Property Act, held that there is only one transaction which took place with reference to the capital gains and that is the sale of 40% of the land in the financial year relevant to assessment year 2007-08 and the sale consideration in respect thereof was worked out at Rs.6.30 crores at Rs.997 per sq. ft. towards 63226 sq. ft. of built up area surrendered in the building constructed. Therefore, the CIT(A) held that there is no transfer which took place in assessment year 2004-05 and capital gains arose only in assessment year 2007-08. This order of the CIT(A) was accepted by the Revenue, and there is no second appeal. Since the order of the CIT(A) became final for assessment year 2007-08, respectfully following the same, CIT(A) deleted the addition made in this year. Since the order of the CIT(A) for assessment year 2007-08, giving rise to the reopening of the assessment for the assessment year 2004-05, has become final, there is no merit in the Revenue's contentions for contesting the impugned order of the CIT(A) for this assessment year, in which simply the findings of the CIT(A) for assessment year 2007-08, which attained finality, are followed.
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2013 (8) TMI 181
Rectification of mistake - application rejected - whether were there are two opinions, the rectification u/s 154 can be done? - as per assessee in column no.24 (Part B- computation of total income) has been left blank although information of exempted income has been shown in Schedule -F3(ii)/F3(ix) of the return - Held that:- It is a case of omission to claim exemption of income in the return of income, therefore, the case of the assessee does not fall in the definition of "incorrect claim" as is mentioned in Section 143(1)(a) of the Act read with its explanation. Further the assessee claimed that in Schedule-F-3(ix) though exempt income is mentioned but no claim is made in computation of total income could not be accepted because there is no authenticity of Schedule-F under the law because the computation of total income in Part-B shall be subjected to verification which assessee has verified to be correct income. When the assessee has verified the total taxable income at ₹ 3,41,73,652/- to be correct and complete, there is no question of making any withdrawal from such statement. Schedule-F is not subject to any verification therefore, as against unverified statement in Schedule-F, the preference to verified statement on oath shall have to be given precedents and preference. Therefore, the claim of the learned counsel for assessee that assessee made a claim of exempt income in Schedule-F cannot be accepted. The assessee has made claim in application under Section 154 of the I.T. Act that the taxable income of the assessee should be revised and the A.O. should hold that the entire income of the assessee to be exempt, however, the A.O. has no such power to make the claim of the assessee acceptable by making a long drawn process of reasoning. Since no claim of deduction of exempt income has been made in the return of income and A.O. accepted the return of income filed by assessee as it is, therefore, there was no mistake apparent on record of the Revenue Department. Thus, the rectification application under Section 154 was not maintainable - appeal of the assessee dismissed.
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2013 (8) TMI 180
Re opening of assessment - excise duty on finished goods not cleared as per factory and custom duty on stock lying at port estimated at ₹ 46.5 lacs was not provided for in the books and was also not considered in the valuation of Inventories - Held that:- As decided in Asian Tubes Ltd. case [2013 (6) TMI 115 - ITAT AHMEDABAD] as relying ACIT Vs Narmada Chematur Petrochemicals Ltd. [2010 (8) TMI 263 - Gujarat High Court] Tribunal was justified in excluding the excise duty at the time of valuation of the closing stock of finished goods as no deduction for the liability had been claimed by the assessee. The excise duty payable on the finished goods lying in the closing stock at the end of the relevant accounting period had been paid in the subsequent year before the due date of filing of the return of income and that was how the amount was available considering the fact that the assessment had been framed and the show-cause notice was issued much after the close of the accounting year. The assessment year being 1997-98 the provisions of section 145A inserted by the Finance (No. 2) Act, 1998 with effect from April 1, 1999 could not be invoked - In favour of assessee.
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2013 (8) TMI 179
Unexplained cash credit - CIT(A) deleted the addition - Held that:- CIT(A) has correctly appreciated the facts of the case as AO made additions merely on certain surmises and apprehensions. The AO has ignored the entries which were made in the cash book maintained by the assessee. Rather, he has proceeded on the premise that it was not normal for the assessee to redeposit the cash which was earlier withdrawn from the same bank without giving any reason. It is not the case of the Revenue that the cash, which was time and again, withdrawn by the assessee from the bank was otherwise utilized for some other purposes, therefore, the cash was not available with the assessee. Thus it was not justified on the part of the AO to presume that the cash, which was withdrawn earlier was not the same cash, which was re- deposited by the assessee. Against revenue. Unexplained investment - CIT(A) deleted the addition - Held that:- No cogent or satisfactory reason has been given by the learned CIT(A) while granting relief to the assessee. In fact there was an adverse noting by the AO that the capital introduced in the "capital account" of the assessee in the books of the firm, source of which was not explained by the assessee, therefore, the impugned addition was made. As a part of the deposits belonged to the firm, then it is expected from the assessee to place on record the final outcome of those amounts in the hands of the firm, whether duly disclosed or not. It is also expected from the assessee to explain to the AO the availability of cash of Rs.1,15,000/- stated to be deposited out of the personal cash. Because of these two reasons, restore this ground back to the stage of the AO to be decided de novo - in favour of revenue for statistical purpose. Profit from sale of Terrace - Assessment on protective basis - CIT(A) deleted the addition - Held that:- CIT(A) has judiciously appreciated all the evidences, through which it was established that the amount in question was in fact belonged to the firm, M/s. Amardeep Associates. It could be possible that while completing the assessment of the assessee, the return of the firm was not made available to the AO, but established factual position was that a return of income was filed, and in the return the assessee has furnished the details of the sale of the terrace and also furnished the connected accounts. Presumably, that was the reason that the AO has also not made a substantive addition in the hands of the assessee, merely to safeguard the interest of the Revenue, it might have been thought, proper to assess the impugned amount only on protective basis. Thus CIT(A) has rightly deleted the addition. Against revenue.
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2013 (8) TMI 178
Jurisdiction power u/s 263 by CIT(A) - receipt method of accounting in respect of the refund of VAT - refund pertaining to AYs. 2005-06 & 2006-07 received during the relevant year was credited in its accounts and duly returned as income for the current year - as per CIT the assessee following mercantile method of accounting, the refund of VAT, which for the current year was omitted to be accounted for by the assessee for the current year thus, there was an escapement of income to that extent - Held that:- As it is impermissible for the assessee to follow cash method of accounting in respect of the sales tax/VAT refund due to it, it admittedly following mercantile method of accounting. As such, in terms of s. 5 r/w s. 145, income becomes chargeable to tax when the assessee acquires the right to receive such income. In fact, apart from the auditor’s report, to which reference has been made by the CIT, the notes to the assessee’s accounts itself state that the sales-tax (VAT) paid on purchases are included in the cost of the purchases, is, though refundable from the Sales Tax Department, not taken as income as the same is subject to acceptance by the Sales Tax Authority. The assessee has throughout completely failed to exhibit the uncertainty that it claims to have prevailed, and which weighed with it in deferring the recognition of the said income, i.e., in its accounts. The assessee is rather, it is apparent, following the same, i.e., the said procedure, as a matter of course, regularly accounting for the VAT refund only upon receipt, and which, as explained, cannot hold in view of section 145 proscribing (w.e.f. A.Y. 1997-98) a mixed method of accounting in preference to a pure, i.e., either cash or mercantile, method of accounting; As decided in CIT vs. Punjab Bone Mills [2001 (7) TMI 114 - SUPREME Court] that income by way of cash incentive accrued to the assessee at the time of filing of the claim in its respect (with the concerned authority). Thus as noted that the assessee has not stated any factual reason/s with regard to the uncertainty that is stated to exist with regard to the claim for VAT refund. In fact, where the difference in income followed a consistent though incorrect method of valuation of closing stock, so that its effect neutralized in the succeeding year, the argument was found not valid. The direction by the CIT, therefore, for including the amount of VAT refund accrued to it is to be upheld. On the second aspect, the fact that the assessee has been before the AO able to exhibit that no difference to its returned income arises when reckoned in terms of section 145A, would not in any manner undermine the jurisdiction or the validity of the revisionary order on that score. The CIT could have examined the said issue himself, and it is quite within his competence to direct the AO to examine the assessee’s case, as stands done by him. In fact, all his order shows is that the issue had not been verified at the time of the assessment proceedings and, accordingly, directs the AO to pass a fresh order upon due verification and in accordance with the law. As such, on the merits of both the objections, it is find the revisionary order as sustainable in law. Against assessee.
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2013 (8) TMI 177
Disallowance of Wages - whether disallowance of 10% of the expenditure under wages is not excessive - survey in the premises of the assessee proposing to assess the assessee company at 4% of net work completed - Held that:- Rule 3(2)(m) of Karnataka Value Added Tax Rules permits allowance of 30% towards labour and like charges in case of Works Contract as permissible deduction even in a case where books of accounts are not maintained or not reliable in arriving the taxable turnover under the said Act. In the instant case, the total expenditure claimed towards labour/wages is Rs.4,27,42,817/- on a gross contract turnover of Rs.19,00,15,348/-, which is below 30% of the labour and like charges permitted as allowable in absence of books of accounts and supporting documents. The assessee's books of account were audited u/s 44AB. The estimation of 10% for the purposes of disallowance is not made on any materials or comparative cases or there is any evidence that expenditure is not genuine, on the other hand, disallowance is made on adhoc basis. Thus AO is not justified in disallowing on an adhoc basis 10% of the total wages and the CIT(A) in sustaining the same. Therefore reversing the orders of the Income Tax authorities and direct that disallowance of 10% of total wages is uncalled for. In favour of assessee.
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2013 (8) TMI 176
Condonation of delay - Addition on account of unproved sundry creditors - during the pendency of appeal assessee has taken additional ground against the dismissal of appeal by the CIT(A) being barred by limitation - Held that:- It may be observed that in the authorities relied upon by the assessee, it has been held that the delay may be condoned by the courts when the same is non deliberate and when there is no gross negligence, inaction or want of due diligence or bona fide on the part of the assessee or his representative, but the case in hand, as observed is of gross negligence, inaction, want of due diligence and even no bona fides are attributable on the conduct of the assessee and as such the facts of the present case are quite distinguishable and the law cited by the assessee is not applicable in the present case. Rather the law otherwise is against the assessee as assessee has to suffer for not filing appeal within the period of limitation when it was not prevented from any sufficient cause, as the substantive right accrued in favour of the other party cannot be taken away without any reasonable ground. CIT(A) has rightly dismissed the application for condonation of delay and thereby appeal of the assessee being barred by limitation. The finding of the learned CIT(A) in respect of the matter is hereby upheld. Since the order of the CIT(A) on limitation point upheld it is not necessary to adjudicate on other issue on merit as the same is rendered academic - appeal of the assessee is hereby dismissed.
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2013 (8) TMI 175
Deduction of Staff costs and Specific expenses incurred by the head office on behalf of the assessee - whether such expenses were not covered by the expenses mentioned u/s 44C? - Held that:- These amounts ought to have been included in the overall Head office expenses deductible u/s 44C as canvassed on behalf of the Revenue is not acceptable as section 44C does not cover exclusive expenses incurred by the Head office for a particular branch. Rather, it embraces the allocation of common head office expenses defined in Explanation (iv) to section 44C amongst various branches. See CIT VS. Emirates Commercial Bank Ltd. (2003 (4) TMI 2 - BOMBAY HIGH COURT ), Addtl. DIT (IT) Vs. Bank of Bahrain & Kuwait (2011 (1) TMI 923 - ITAT, MUMBAI ) and JCIT VS. American Express Bank Ltd. (2012 (8) TMI 371 - ITAT MUMBAI). Since the claim of the assessee in the present case expenses were incurred by the head office exclusively for the Indian branch, could not be controverted on behalf of the Revenue, thus theses expenses have been rightly held to be allowable in full without being covered under head office expenses as provided for in section 44C. Against assessee. Exemption u/s 10 in respect of tax free bonds - Departmental appeal against allowing exemption - Held that:- As the investment in tax free bonds was made in an earlier year and there is no current fresh investment in any bonds fetching exempt income no interest can be disallowed u/s 14A. In so far as the disallowance of Operating expenses made by the A.O. is concerned, the AO made it on a proportionate basis by taking the figure of operating expenses from Profit and loss account and then apportioning it in the ratio of total interest earned as to interest of 9.5% tax free bonds. This does not appear to be a correct basis for apportionment. At the same time, it is noticed that the CIT(A) has also not given any reasons for deleting such disallowance. As in the case of Credit Lyonnais (2012 (12) TMI 640 - ITAT MUMBAI ), the tribunal has directed to curtail the disallowance for operating expenses at the rate of 2% of the exempt income. Following the precedent, AO directed to restrict the disallowance accordingly. Addition on account of transfer pricing adjustment - Revenue's appeal is against the deletion of addition - Held that:- Each LIBOR contributor panel bank formulates its own rate for a day which is put into the application which links directly to a rate setting team at Thomson Reuters. LIBOR is not a rate in itself which is charged or paid for the user of inter bank deposits. It is only an average' of the rates submitted by various panel banks, after exclusion of four each of highest and lowest responses, which is daily reported at 11:30 a.m.. It is required to be considered as arithmetical mean of such prices, thereby making available the option of plus minus 5% variation to the assessee. As the present addition of Rs.50,476 made by the AO was the outcome of not allowing plus minus 5% cushion, which is richly due to the assessee CIT(A) was justified in deleting this addition. Allowance of deduction of head office expenses - Held that:- As there is sufficient material justifying the payment made to head office to the tune of Rs.2.12 crore attributed by the head office to the Indian branch, against which the assessee claimed deduction to the permissible extent u/s 44C of Rs.98.98 lakh, we are of the considered opinion that no interference is warranted in the impugned order on this issue. Charging of interest u/s 234D - selection of date from which it will be charged - Held that:- Legislature cannot be considered as oblivious of the fine distinction between "the date of grant of refund" and "the date of receipt of refund" as the first refers to the date on which refund is issued, the second refers to the date on which it is actually received by the assessee. The legislature in its wisdom has employed the expression "date of receipt" in several sections, such as section 155(8A) before its omission and certain sections providing exemption under the head Capital gains'. To claim that the date of receipt of refund should be reckoned as a starting point instead of the date of grant of refund would amount to doing violence to the unambiguous language of the provision. As it is the expression date of grant of refund' which has been employed u/s 234D, which in the present case is 29.10.2004, the interest has been rightly charged from this date. This ground is, therefore, not allowed.
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2013 (8) TMI 174
Profit on sale of shares and securities - capital gain/loss v/s business income - Held that:- It is pertinent to mention that it is not disputed that the assessee has purchased the shares out of its own funds. As regards the LTCG claimed by the assessee on account of sale of shares of TCS and Infosys Tec, the perusal of the details of sale and purchase clearly indicates that the holding period of the shares is more than one year and the entire LTCG is on account of these two scripts only. The perusal of volume of trade and frequency also clearly suggests that the impugned activity of the assessee is in the nature of investor and not as a trader. As regards the STCG it is relevant to note that the assessee has made the investments through Port-folio Management Scheme (PMS). As decided in ITO Vs Radha Birju Patel [2010 (11) TMI 145 - ITAT MUMBAI] the transactions carried out via Portfolio Management Scheme are clearly in the nature of transactions meant for maximization of wealth rather encashing the profits on appreciation in value of shares. Where the assessee is engaged in systematic activities of holding portfolio through a PMS Manager, it cannot, by any stretch of imagination, be said that the main object of holding the portfolio is to make profit by sale of shares during the course of maintaining the portfolio investment over the period. The high number of transactions shown in the statement is misleading because these are computer-split transactions and not independent transactions - relying on the decision of CIT Versus Gopal Purohit [2010 (1) TMI 7 - BOMBAY HIGH COURT] said profits on the sale of shares necessarily qualify for the treatment as investment and consequently a STCG - appeal filed by the Revenue is dismissed.
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Customs
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2013 (8) TMI 166
Eligibility for refund – stay application - assesses were contesting the issue on merit as eligible for refund under SEZ – they had deposited the entire amount of duty liability confirmed by the lower authorities - but had not deposited the amount of interest – Held that:- Assesses had deposited entire amount of duty liability - the said amounts to be considered as enough deposit for hearing and disposing the appeal – stay petition for waiver of pre deposit of valance amount waived off – decided in favor of assessee.
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2013 (8) TMI 165
Refund of 4% of Special Additional Duty (ADC/SAD) - assessee filed refund in terms of Notification No.102/2007 – department rejected the claim on the ground that assessee failed to prove that they had not passed on the incidence of duty to the customers or any other person and also they have not furnished the required documents in relation to refund claims – Commissioner (Appeals) passed order in favour of assessee – revenue filed the appeal - Held that:- CA’s certificate produced by the appellant fulfills the requirements and is sufficient to come to the conclusion that appellants are eligible for the refund - the very purpose of requiring a certificate to be produced by a professional CA and insisting on the fact that the Chartered Accountant should be one who was responsible for auditing the companies accounts either statutorily was to ensure that the CA was familiar with the accounts of the company - their practices and also would be knowing and would be in a position to verify the accounts and such certificates shall be accepted – decided against revenue.
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2013 (8) TMI 164
Confiscation of goods – imposition of penalty and fine - Request was made by the appellant for allowing them to change the amount – but the department made the order for confiscation of the goods - Held that:- appellant themselves had informed the department vide their letter that value per piece in the Bill of Entry has been shown on the lower side by mistake – liability were imposed upon the appellants but the amount of fine and penalty was reduced – in the Bill of Entry value was not correctly declared by the importer attracting the violation of Section 111(m) of the Customs Act – appeal decided partly in favour of assessee.
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2013 (8) TMI 163
Refund - Bar of limitation - whether the date of actual payment of duty is relevant or the date of banks stamp on the TR 6 challan is relevant for the purpose of deciding the limitation – Held that:- refund having been filed beyond the period of limitation of one year is barred by limitation - As per the provisions of notification No. 6/2008 refund of SAD has to be made within a period of one year from the date of payment of duty - We cannot change the said relevant date prescribed in the notification and cannot step into shoes of legislation – in this case where the duty was deposited on 10.12.07 and 4.12.07 and the bank has wrongly stamped the challans with the date stamp of 14.12.07 and 19.12.07 - duties were actually paid on 10th and 4th December of 2007 – appeal decided against the assessee.
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2013 (8) TMI 162
Confiscation of goods - Department confiscated the goods u/s 111(d) – Held that:- The goods were confiscated by the Original Authority and were ordered to be re-exported on payment of fine and penalty - The goods have residual shelf life less than 60% and in terms of Rule 31 of Drugs & Cosmetics Rules - the import of any drug having less than 60% residual shelf life was prohibited – court upheld the order – appeal decided against the assesssee.
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2013 (8) TMI 161
CVD - Benefit of Area based exemption to the 100%EOU - determination of Additional Duty of Customs (CVD) - Extending benefits of Area base Central Excise notification to the petitioners may create disparity vis-ŕ-vis other manufacturers who are not 100% ‘EOU’, it may be seen that when the benefits are provided under Foreign Trade Policy to the 100% ‘EOU’, can bring raw material and capital goods without payment of Customs and excise duty– Held that:- Benefit granted under FTP, a 100% ‘EOU’/the petitioner unit is accountable for the earning of net foreign exchange (NFE) for the country unlike other manufacturers. Moreover, the petitioners are paying basic Customs duty under Section 12 of the Customs Act, 1962, whereas, other manufacturers while functioning in the State of H.P. though are claiming benefits of area base exemption but are not paying such Customs duty – Central Government intentionally provided the tax incentive benefit including 100% excise duty exemption to the special category State of Himachal Pradesh, as such, any disparity with other manufacturer of India, located in different parts, shall not be created. Additional Duty of Customs (CVD), chargeable under Section 3 of the Customs Tariff Act, 1975 and applicability of exemption Notification No. 50/2003-C.E.- Held that:- Issue has already been settled by Hon’ble Supreme Court in Hyderabad Industries Ltd. [1999 (5) TMI 29 - SUPREME COURT OF INDIA]by following and affirming its earlier verdict in Thermax Pvt. Ltd.[ 1992 (8) TMI 156 - SUPREME COURT OF INDIA], wherein it has been held that section 3(1) of the Customs Tariff Act “Specifically mandates that the CVD will be equal to the Excise -Duty for the time being leviable on a like article if produced or manufactured in India. In other words, we have to forget that the goods are imported, imagine that the importer had manufactured the goods in India and determine the amount of Excise Duty that he would have been called upon to pay in that event.” - The explanation to Section 3 has two limbs. The first limb clarifies that the duty chargeable under sub-section (1) would be the excise duty for the time being leviable on a like article if produced or manufactured in India. The condition precedent for levy of additional duty thus contemplated by the explanation is that the article is produced or manufactured in India. The second limb to the explanation deals with a situation where “a like article is not so produced or manufactured” - The use of word “so” implies that the production or manufacture referred to in the second limb is relatable to the use of that expression in the first limb which is of a like article being produced or manufactured in India - While calculating CVD it has to be assumed that the goods were manufactured in India and the applicable rate of duty to such manufactured goods has to be applied to the imported goods. The effective rate of excise duties for a unit located in the specified area mentioned in 50/2003-C.E. is Nil and it is this rate alone which can be applied for the purpose of calculating ‘CVD’ in terms of the observations of the Hon’ble Supreme Court. Order dated 17-3-2011 passed by ‘DGEP’/i.e. respondent No. 3 is set aside and writ of mandamus is being issued directing the respondents to allow benefit of exemption Notification No. 50/2003-C.E., dated 10-6-2003 to be given to the petitioners and further direction is being issued not to demand differential excise duty from the petitioners consequent upon setting aside the order dated 17-3-2011 of ‘DGEP’ and all connecting proceedings initiated against the petitioners shall also stand set aside. As such, the petitioners are entitled to the benefit of exemption Notification No. 50/2003-C.E., dated 10-6-2003 and also entitled for making goods by way of DTA clearances from the petitioner unit in reference to the aforesaid exemption notification - Decided in favor of Assessee.
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Service Tax
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2013 (8) TMI 172
Demurrage & Wharfage charges – Service tax liability - Whether assesses had not paid service tax on all the amounts collected from their customers - Whether assesses were liable to pay service tax on ‘Demurrage & Wharfage’ charges and the claim of the assesses that they act as pure agents can be accepted –assesses had made a claim that the service tax entirety had been paid it would be adequate for the purpose of consideration of eligibility of the assesses for waiver of pre-deposit and stay - Held that:- Assesses had not been able to convince that the demand was totally wrong and at the same time without considering the issue in detail in the light of statutory provisions, standard accounting principles and the difference between demurrage and wharfage and the reasons for the difference between the actual practice and the agreement and as to why the customer agreed to pay for the delay caused by the assesses. Waiver of pre deposit – Stay application – 30 Lakhs were ordered to be submitted – on such submission stay would be allowed - assesses had paid substantial portion of the amounts and entire amount of service tax in the case of rental income and some other aspects – Decided partly in favor of assesse.
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2013 (8) TMI 171
Classification of Services – Instead of “Site Formation and Clearance, Earth Moving and Demolition” service, it should be classified as ‘Cargo Handling Service' and he relies on the decision of this Tribunal in the case of Gangadhar Bulk Movers Pvt. Ltd. vs. Commissioner of Central Excise, Nagpur [ 2011 (11) TMI 358 - CESTAT, MUMBAI ] – Held that:- Contention regarding classification has not been raised before the adjudicating authority. Besides, overburden and wastage for removal cannot be considered as cargo. Cargo usually refers to goods or freight carried by a ship or vessel - Prima facie this contention is not convincing – Decided against the Assessee. Eligibility of Cenvat Credit - Excise duty on the tippers had been discharged under Chapter 87 by the manufacturer of the vehicles – Held that:- Appellant cannot claim and seek to change the classification from Chapter 87 to Chapter 84 based on the Tribunal decision in the case of Dipco Metal Fabricators Pvt. Ltd. [2006 (1) TMI 313 - CESTAT, MUMBAI] - In the said decision, the only reason given for classification of the tippers under Chapter 84 is that, similarly placed manufacturers in the Mysore Commissionerate has classified the goods under Chapter 84 and therefore, the items should be classified under Chapter 84 - Inasmuch as classification of a product cannot be decided by reference to classification elsewhere but in accordance with the description given in the tariff, the section notes, chapter notes and Rules of Interpretation – Decided against the Assessee. Extension of limitation period – Held that:- There is a huge variation in the amount of consideration received by the appellant as declared in the ST-3 returns and as certified by the recipient themselves. While the figures of actual receipt are Rs. 36,80,16,556/- vis-ŕ-vis Rs. 23,83,30,290/- as declared in the ST-3 returns for the period 2008-09 to 2010-11 (upto June 2011) - Appellants has mis-declared the consideration received for the services rendered – Extension of limitation period applicable – Decided against the Assessee. Held that:- Appellant is directed to make a pre-deposit of Rs. 2.8 crores within a period of eight weeks which is approximately the amount of ineligible credit availed by the appellant.
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2013 (8) TMI 170
Valuation - gross value - reimbursement of expenses, liable to service tax - Expenses incurred by the appellants on behalf of I.B.P/IOC like Tea/Coffee/Consumable salary of employees, handling losses generator set expenditure, Bank Charges, Electricity Charges, are reimbursed by the I.B.P/IOC – Held that:- As per Section 67 of the Act, value of any taxable service shall be gross amount charged by the service provider for such service provided or to be provided. It does not provide for any deduction from the gross value for providing the service - Contention of the appellants that no service tax is payable on reimbursable expenses borne by the appellants is not tenable and accordingly rejected – Decided against the Assessee. Commission Agent are exempted for levy of Service Tax under Notification 13/2003 dated 20.06.2013 – Held that:- This exemption is applicable to Commission Agent only - On going through agreement entered into by the appellants with I.B.P/IOC, it has been seen that appellants are providing various services to the appellants and are covered under Clause (i), (iii) & (iv) of the definition of Business Auxiliary Service apart from being Commission Agent. Therefore the benefit of Notification 13/2003 has rightly been denied to appellant – Decided against the Assessee. Limitation – Held that:- Time bar was not raised by the appellant before lower authority - Appellant did not pay service tax and did not file any return - Figures for various charges received by, was given by I.B.P/IOC and not by the appellant - Extended period is applicable to fact of this case and accordingly penalty is also imposable on the appellants – Decided against the Assessee.
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2013 (8) TMI 169
Stay application – Waiver of pre-deposit - Unjust-enrichment under Section 11B of the Central Excise Act, 1944 - The appellant undertook activities of Galvanising work on job work basis for which they were paying service tax under Business Support Services during the period 2009-10 and 2010-11. Appellant was regularly filing ST-3 returns and also paid the service tax of Rs. 7,02,131/- during the above period. During the course of EA-2000 audit of the appellant’s unit, the officer pointed out that the activity of galvanising carried out by the appellant amounts to manufacture and they were required to pay Central Excise duty. Accordingly, the appellant paid Central Excise duty of Rs. 9,25,975/- and filed refund claim of service tax paid earlier – Held that:- Relying upon the Mafatlal Industries Limited vs. UOI case [2004 (6) TMI 139 - CESTAT, MUMBAI], appellant would not be entitled to refund in terms of law settled by this case - Not only the doctrine of unjust enrichment is required to satisfy as per Section 11B of the Central Excise Act, 1944 but the time-bar aspect specified in the Section is also reqruied to be fulfilled - Prima-facie, the limitation and unjust-enrichment grounds will be applicable in the present case - Appellant has, therefore, not made out a prima facie case for the complete waiver of Rs. 7,01,680/- - Appellant directed to deposit an amount of Rs. 1,00,000/- (Rupees one lakh only) within eight weeks.
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2013 (8) TMI 168
Stay application – Waiver of pre-deposit - Works taken up by the assessee is in nature of ‘erection work’ with procurement of material certain scope within the appellant’s contract – Impugned order artificially bifurcated the services into erection, installation and commissioning services and man power supply services without considering the issue of classification and in terms of Section 65A of Finance Act, 1994 - Activity undertaken by the appellant are under Works Contract and substantial supply of materials are made by them in the course of execution of composite work of construction and in order to undertake that work, the appellant procured and used consumables like sand, paint, misc. iron and steel items; billed the same under works contract and discharged the sales tax as per prevalent VAT laws - Appellant being a sub-contractor, during the relevant period, was not required to pay any Service Tax, as the main contractor has paid such tax in totality - Adjudicating authority had erred in denying the abatement benefit to the appellant – Held that:- Issue raised by the appellant needs deeper consideration, which can be done only at the time of final disposal of appeal as it requires appreciation of the law and factual matrix - Appellant has already deposited an amount of Rs.14.46 lakhs, as we find that the issue is arguable one, appellant directed to deposit further an amount of Rs.5 lakhs (Rupees Five Lakhs only) within a period of eight weeks.
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2013 (8) TMI 167
Show cause notice for revising the order of adjudicating authority – commercial coaching and training - vocational training - Assessee a charitable institution and is covered by the definition in terms of Section 65 (27) - Exemption under the Notification No. 24/04-ST dated 10.09.04 – Held that:- Even when this issue was raised by the appellant in reply to the revision show cause notice and during the personal hearing also, no finding is given by the revisionary authority on this issue. This is fatal to the proceedings because the finding that they were eligible for the exemption under notification 24/04-ST had become final and there was no proposal for revising the finding in the show cause notice and here is no finding in the order and no reasoning has been given on this issue - Not going into merits of this issue whether the appellants were running a commercial institute or whether the training was really a vocational training or the question whether extended period of time would be invoked in the original show cause notice, the preliminary objection of no finding given by the revisionary authority on the issues raised in revisionary show cause notice is upheld. Revenue directed to refund the amount deposited by the appellant’s during the investigation stage. – Decided in favor of Assessee.
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2013 (8) TMI 159
Interest on Cenvat credit - cenvat credit availed on service tax paid on the commission - Held that:- availment of cenvat credit of the service tax paid on the commission paid to the foreign national, was in line of his business and hence availment of cenvat credit on such payment of service tax seems to be correct as it is not disputed by the department - having filed the refund claim, the appellant had reversed the cenvat credit even before the refund was sanctioned to him - Decided in favour of assessee.
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Central Excise
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2013 (8) TMI 160
Removal of processed fabrics - Interest on unpaid duty - Held that:- appellant is required to pay the interest on the amount of the duty liability which has been confirmed on them. To that extent, appellant’s appeal for non-imposition of penalty is liable to be rejected and is rejected - Decided against assessee. Penalty u/s 11AC - Held that:- Since the appellant has paid the amount of duty liability and is ready to pay the interest liability, therefore, appellant is liable for imposition of penalty under Section 11AC of the Central Excise Act, 1944, at the same time, he is liable to get the benefit of 25% of the amount of duty liability confirmed subject to the condition that he pays the amount of interest and the penalty within thirty days on receipt of this order - Following decision of COMMISSIONER OF CENTRAL EXCISE, AHMEDABAD Versus AKASH FASHION PRINTS PVT. LTD. [2009 (1) TMI 113 - GUJARAT HIGH COURT] - Decided against assessee.
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2013 (8) TMI 158
Cenvat credit - Service Tax paid on rent a cab service - Commissioner granted credit - Held that:- If the credit is availed by the manufacturer, then the said service should have been utilized by the manufacturer directly or indirectly in or in relation to the manufacture of final products or used in relation to activities relating to business - merely because these services are not expressly mentioned in the definition of input service it cannot be said that they do not constitute input service and the assessee is not entitled to the benefit of CENVAT credit - Following decision of Commissioner of Central Excise, Bangalore-III, Commissionerate Versus Stanzen Toyotetsu India (P.) Ltd. [2011 (4) TMI 201 - KARNATAKA HIGH COURT] and Commissioner of Central Excise Versus M/s Federal Mogul Goetze (India) Ltd. [2011 (9) TMI 120 - PUNJAB AND HARYANA HIGH COURT] - Decided against Revenue.
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2013 (8) TMI 157
Rule 6(3) and Rule 6(2) of Cenvat Credit Rules, 2004 - Appellants are manufacturers of sugar and molasses. In the course of manufacture of sugar at the stage of crushing of sugar cane Bagasse arises and subsequently at the stage of cleaning of cane juice impurities in the form of mud called press mud arises – Since the separate account and inventory of inputs/input services used in manufacture of dutiable and exempts goods has not been maintained as per the provisions of Rule 6(2) of Cenvat Credit Rules, 2004 in respect of clearances of Press mud and bagasse and amount at the rate of 5% of their sale value would be chargeable in terms of Rule 6 (3) of Cenvat credit Rules, 2004 – Held that:- Relying upon the decision in the case of Indian Potash [2012 (12) TMI 347 - CESTAT, NEW DELHI]as in the case of Uttam Sugar Mills Ltd. Vs. CCE, Meerut I[ 2006 (2) TMI 546 - CESTAT, NEW DELHI] has held that Rule 6(3) of Cenvat Credit Rules is not applicable in the case of clearance of bagasse and press mud that same view has been taken by the Tribunal in the case of appellants own case reported in [2013 (4) TMI 180 - CESTAT NEW DELHI] – Appeal allowed – Decided in favor of Assessee.
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2013 (8) TMI 156
Interest chargeable under Section 11AB - Appellants had supplied finished goods to their customers under contract with price escalation clause - on finalization of price, the same was revised upwards from back date and on receipt of differential amount on account of price escalation, the appellant paid the Central excise duty chargeable on the same - Appellant did not pay the interest on this duty paid under supplementary invoices – Held that:- Relying upon the Apex Court judgment in the case of CCE Pune vs. S K F Bearings Ltd. reported in [2009 (7) TMI 6 - SUPREME COURT], it was held that interest is payable under section 11AB – Decided against the Assessee.
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2013 (8) TMI 155
Rule 3(7)(a) of the Cenvat credit Rules – Mistake in application of formula under Rule 3(7)(a) of the Cenvat Credit Rules – Held that:- This is not a case where the appellant have availed Cenvat credit of entire amount of duty paid by the 100% EOU in respect of DTA clearance without applying the conversion formula prescribed in Rule 3(7)(a) - The appellant in this case had calculated the admissible Cenvat credit by applying the prescribed formula but according to the department their method of calculation is incorrect - when in respect of another period, the Commissioner (Appeals) has held there was no suppression, Penalty can not be imposed - Decided in favor of Assessee.
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2013 (8) TMI 154
Cenvat Credit on Input Service - input service - credit of service tax paid on rent, security and maintenance - inward / outward transportation goods - nexus of input services with manufacture – Held that:- As per the Hon’ble High Court of Bombay in the case of Deepak Fertilizers and Petrochemicals Corporation Ltd.[ 2013 (4) TMI 44 - BOMBAY HIGH COURT], it is held that as a matter of first principle on a plain and literal construction of Rule 3(1) it is not justified in holding that the appellant would not be entitled to avail of CENVAT credit in respect of services utilized in relation to ammonia storage tanks on the ground that they were situated outside the factory of production - The definition of the expression 'input service' covers any services used by the manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products - Whereas Rule 3(1) allows a manufacturer of final products to take credit of excise duty and service tax among others paid on any input or capital goods received in the factory of manufacture of the final product, insofar as any input service is concerned, the only stipulation is that it should be received by the manufacturer of the final product - The input services in the present case were used by the Appellant whether directly or indirectly, in or in relation to the manufacture of final products – Appellant manufactures dutiable final products and the storage and use of ammonia is an intrinsic part of that process – Decided against the Revenue.
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2013 (8) TMI 153
Extended period of limitation - The appellant having their unit in Industrial Area, U.P., SIDCO, Sikandrabad, Distt. Bulandshahar manufacture MS tanks and radiators for transformers. They are a unit of Accurate Transformers Ltd. (ATL), Ghaziabad which manufactures transformers. The MS tanks and radiators manufactured by the appellant are transferred by them to Ghaziabad Unit of the ATL for its use in the manufacture of transformers - During the period of dispute i.e. during period from 2002-2003 to 2005-2006, in respect of clearances of MS tanks and radiators to their own unit in Ghaziabad for use in the manufacture of transformers, the duty was being paid on the price which was much less than 110%/115% of the cost of production, which was the value on which the duty was required to be paid in terms of Rule 8 of the Central Excise Valuation Rules – Held that:- As per circular No. 818/15/05-CX dated 15/5/05 issued by CBEC under Rule 12 (3) of Central Excise Rules, 2002 prescribing two stage scrutiny of ER-1 and ER-3 returns - Regarding scrutiny of ER-1 returns, it is clear that the returns filed by an assessee are required to be subjected to detailed scrutiny in course of which the concerned officer can call for the documents from the assessee wherever necessary for scrutiny. Therefore in this case, if the concerned Range officer/Assistant/Deputy Commissioner or concerned Additional Commissioner had checked the returns, the short payment would have been immediately detected as, as observed by the Commissioner in para 4.5 of the impugned order, even the registration certificate of the appellant mentioned them as a unit of Accurate Transformers Ltd., and in all the documents of the appellant, the transfer of goods from the appellant to Accurate Transformer Ltd. had been reflected as inter unit transfer. Neither there is any allegation nor evidence to prove that there was some collusion between the appellant and the Jurisdictional Central Excise officers - The assessee cannot be penalized by invoking extended period under proviso to Section 11 A (1) for demand of duty and penal provisions of Section 11AC for indolence on the part of the jurisdictional Central Excise officers – Decided in favor of Assessee. Revenue Neutral Exercise - Held that:- As per the decision in the case of Jay Yuhshin Ltd. vs. CCE, New Delhi [2000 (7) TMI 105 - CEGAT, COURT NO. I, NEW DELHI], when Revenue neutral situation comes about in relation to the credit available to an assessee himself in respect of the duty paid by him and not by the way of availability of the credit to the buyer of the assessee’s manufactured goods, the assessee cannot be accused of having contravened the rules with intent to evade the payment of duty and extended period under proviso to Section 11A (1) would not be invokable - Entire duty paid by the appellant in respect of clearances of MS tanks and radiators to their transformer unit, was available to the transformer unit as Cenvat credit - Unit of the appellant in Bulandshahar Distt. and the transformer unit of M/s Accurate Transformers Ltd. at Ghaziabad are owned by the same person – Therefore, extended limitation period is not invokable and, as such, the entire duty demand is time barred – Decided in favor of Assessee.
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2013 (8) TMI 152
Assessable value in case of job-worker - Respondents acted as job-workers for M/s KODAC India Ltd, Chennai (‘KODAC’ for short), for manufacture of Unexposed Cinematography Colour Polyester Positive Films. The raw material was supplied by KODAC and KODAC also paid job-work charges to the respondent - KODAC furnished a cost construction certificate w.e.f 19-09-2000 showing an assessable value of Rs. 5.69 per linear meter of the film after deducting a loss of 0.27 per liner meter toward loss incurred by M/s KODAC and respondent was paying duty based on assessable value of Rs. 5.69 per meter – Revenue is of the view that excise duty should be paid on the cost of manufacture of the film by respondent and not based on the selling price of KODAC which involves a loss of Rs. 0.27 per linear meter – Held that:- Relying upon the decision of the Apex court in the case of Ujagar Prints Etc Vs. UOI [1989 (1) TMI 124 – SUPREME COURT OF INDIA], it is held that for determining the assessable value in the hands of job-worker only the value of the raw materials plus the value of the job work done plus the manufacturing profit and the manufacturing expenses but not any other subsequent profit or expenses. Just as traders profit cannot form part of the assessable value traders loss cannot result in reduction in assessable value of the goods in the hands of the job-worker - Further the Apex Court in the case of Fiat India Ltd [2012 (8) TMI 791 - SUPREME COURT] did not find it proper to give deduction from cost of manufacture incurred by the actual who incurs cost of material and does the manufacturing activity by himself. So allowing deduction towards loss of the person supplying raw material to determine assessable value in the hands of the person undertaking manufacturing activity is not warranted – Appeal allowed – Decided in favor of Revenue.
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2013 (8) TMI 151
Extended period of Limitation - clandestine removal of goods - textile articles - The contention of the appellant was that once the alleged clandestine removal of goods came to the notice of the Department, notice for recovery of duty ought to have been issued within one year from such knowledge – Held that:- Upon reading the relevant provisions contained in Section 11A of the Act, it becomes clear that in case of duty which has not been levied or paid, or has been short-levied or short-paid or erroneously refunded by reason of fraud, collusion, wilful misstatement, suppression of facts, etc., period of service of notice on the person chargeable with such duty would be five years instead of one year provided in normal circumstances. Nowhere does this provision refer to the period of service of notice after fraud, collusion, wilful misstatement or suppression, etc. comes to the knowledge of the Department. In simple terms, the Department could recover unpaid duty up to a period of five years anterior to the date of service of notice when the case falls under proviso to sub-section (1) and such omission is on account of fraud, collusion, wilful misstatement, etc - Decided against the Assessee.
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CST, VAT & Sales Tax
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2013 (8) TMI 173
Demand of security - Goods other than those declared transit form seized - Tribunal upheld demand of security - Held that:- Representation has been made by the driver of the vehicle himself; Transit Declaration Form relating to the vehicle in question was not accompanied with the goods; no documents relating to Battery Plates was found and vehicle has been intercepted on the route other than disclosed in the Transit Declaration Form - No illegality or infirmity in the impugned order - Decided against Assessee.
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