Final Tally: India gets USD 25 bn FDI last fiscal;

Rice shortage hits many Middle East countries; Saudi Arabia seeks India's help;

2008-TIOL-07-ARA-IT.pdf + Foster Beer story.pdf

Foster's Australia Limited (Dated : May 9, 2008 )

Trade mark location: Irrespective of the fact whether the location of Foster's trade-marks could be traced to the place of domicile of the owner, it can also be said that the trademark/brand I.P. had its location in India as well where it had perceivable impact on the business being carried out in India by Foster's India with the exclusive license granted by the applicant. To use a metaphor, the intellectual property belonging to the applicant had its "tangible presence" in India at the crucial point of time. As a result of transfer, the intangible property that was being used by Foster's India till the date of transfer will now be used and enjoyed by SKOL Breweries. The location had never shifted.

Trade Mark an asset?   No doubt, the registration of trade-mark has no bearing on the ownership. As pointed out by the Supreme Court in CIT vs. Finlay Mills Ltd., the registration of trade-mark does not create an asset. Registration confers statutory remedies for its effective protection. Yet, registration of the applicant's trade-mark in India is one of the relevant factors pointing to the roots it had taken and the recognition it has gained in India . The commercial exploitation of the trade-marks and brand by the applicant, aided by the marketing and advertising efforts of Foster's India thus resulted in creation of valuable intangible asset in India . In the circumstances, it is reasonable to hold that the assets in the form of trade-mark and brand together with the goodwill they generated were situated in India when the transfer in question took place in 2006. SO AAR took the considered view that the Intellectual property in the form of Foster's trademarks and brand which were an integral part of the business of Foster's India that was being carried on with the licence granted by the applicant company together with the goodwill they generated by reason of such user, can be said to be situated in India within the meaning of the Explanation to section 9(1). The situs of these intellectual property assets, should not be traced and confined only to the place where the contract (India S&P Agreement) was entered into and acted upon by the parties. On the relevant date of transfer, they were very much present in India and the transfer of such assets took place concurrent with the transfer of controlling interest in Foster's India to SAB Miller. At best, their location in Australia is only notional or fictional. The fact that the trade-marks and names originated in Australia and initially registered there does not make material difference.

Income from transfer or trade mark taxable: The income arising to the applicant from the transfer of its right, title and interest in and to the trade-marks and Foster's brand Intellectual Property is taxable in India under the Income-tax Act, 1961. As far as income attributable to the grant of perpetual and irrevocable licence in relation to Brewing I.P. is concerned, the same is not liable to be taxed under the Income-tax Act, 1961.

'independent valuation report' : The AAR ruled, “We can only answer this question by observing that 'independent valuation report' can certainly be relied upon by the applicant. It is for the concerned Income-tax Authority to examine whether it represents true and correct value and apply such relevant factors that have material bearing on quantification of the consideration related to the taxable items”.

The Greater Mauritius Scam: No probing - Azadi Bachao Andolan:   The question whether any subterfuge or colourable device was adopted in routing the deal through the media of various group companies of Foster's Group Limited and whether it is legally permissible at all to get behind the smoke screen and unravel the true state of affairs in view of the ruling of the Supreme Court in Union of India vs. Azadi Bachao Andolan case which virtually de-recognized the principle enunciated in McDowell case are larger issues which do not call for an answer in this matter for more than one reason. : ADVANCE RULING AUTHORITY ;

cbdt story.pdf + instruct0805.pdf

Income Tax: CBDT once again revises monetary limits for filing appeals to ITAT & HC;

CENTRAL EXCISE SECTION

2008-TIOL-776-CESTAT-BANG.pdf

M/s CST Ltd Vs CCE, Hyderabad (Dated: February 4, 2008)

Central Excise – Exemption Notification – Benefit of exemption available to sub-contractor when main contractor is entitled to the benefit of Notification No. 06/2002-CE dt. 01.03.2002. (Para 3) : BANGALORE CESTAT;

2008-TIOL-775-CESTAT-BANG.pdf

M/s Crescent Polymers Pvt Ltd Vs CCE, Bangalore (Dated: February 6, 2008)

Central Excise – SSI – Appellant opted for benefit of SSI exemption, but paid higher rate of duty in certain cases. It is not correct to deny the benefit of notification for the entire period. There is no provision for opting out of Notification No. 09/2002. Refund available for the differential duty paid at the insistence of the audit party . (Para 6) : BANGALORE CESTAT;

2008-TIOL-774-CESTAT-DEL.pdf

CCE, Ludhiana Vs M/s Shreyans Industries Ltd (Dated: January 28, 2008)

Old and used Press Felt is not dutiable in view of Tribunal decisions in Nakodar Coprn. Sugar Mills Ltd. 2007-TIOL-1952-CESTAT-DEL , Windals Precisions Pvt. Ltd. 2007-TIOL-1886-CESTAT-MUM Reforms Machine Tools Ltd. 2007-TIOL-1572-CESTAT-MUM . – Revenue Appeal rejected. : DELHI CESTAT;

SERVICE TAX SECTION

2008-TIOL-779-CESTAT-MUM.pdf + stgst.pdf

M/s Kirloskar Oil Engines Ltd Vs CCE, Aurangabad (Dated: April 22, 2008)

Service Tax paid on Repair & Maintenance of company vehicles used for visit to Government authorities etc. & garden maintenance are prima facie eligible for Cenvat Credit

Tribunal decisions in Victor Gaskets, ( 2008-TIOL-409-CESTAT-Mum ) & Force Motors, ( 2008-TIOL-539-CESTAT-Mum ) relied upon : MUMBAI CESTAT;

2008-TIOL-778-CESTAT-DEL.pdf

Shri L N Gupta, Proprietor Vs CCE, Jaipur-I (Dated: February 6, 2008)

ST - Consulting Engineer Service - Failure to deposit tax within time limit - Tax appropriated and depossited before issue of SCN - Adjudicating authority drops penalty under Ss 76 & 77 by invoking powers u/s 80 - Commissioner(A) reduces penalty by 25% under Sec 78 - Commissioner re-imposes penalty under Sections 76 & 77 - Since appellant's accountant had left the job, the assessee was not aware of the non-deposit of the tax - Commissioner's order reimposing the penalty not sustainable : DELHI CESTAT;

CUSTOMS SECTION

2008-TIOL-777-CESTAT-KOL.pdf

M/s Synotex Industries Vs CC, Kolkata (Dated: January 25, 2008)

Appellant acted on the basis of forged, fake and fabricated DEPB scrip– Did not enquire about the genuineness of DEPB from the Customs Authority or DGFT Authority as to its genuineness of the DEPB scrips – Did not ascertain bonafides of the scrips – Held - Duty credit was availed committing breach of law - Fraud nullifies everything - Appellants should surrender the benefit they had enjoyed at the cost of Revenue : KOLKATA CESTAT;

mbuzz623.pdf

Calicut Air Customs seizes 19 kg ketamine heading for Malaysia ;

mbuzz622.pdf

Govt develops e-Gazette system to maintain all Gazette Notifications ;