Service tax collections grow by 18% in September;

No trimming of petro prices unless OMCs stop making losses: PM;

Posts of Member in CBDT & CBEC in 2009-10: Revenue (Hqs) invites applications for empanelment;

Notification for appointment of Chief Commissioners - yet another Departmental Appeal dismissed in Kolkata CESTAT (See 'DDT')

India's exports growth hit hard by recession; October growth dips to 15.6%

Pruning cost: Media Cos decide to stop carriage fee payments to cable firms ;

ddt 11 nov.pdf

Export Duty – Valuation – Cum Duty till the year end – What thereafter? - CBEC Clarifies

2008-TIOL-207-SC-CT.pdf + sc ct story.pdf

Sami Ullaha Vs Suptd, NCB (Dated: November 7, 2008)

NDPS – Bail - A person's liberty is protected in terms of Article 21 of the Constitution of India. When two views are possible, the view which leans in favour of an accused must be favoured. It is easier to reject a bail application in a non-bailable case than to cancel a bail granted in such a case. Decisions on bail are intrinsically within the domain of the judiciary. At the very least that means that historically decisions on bail were regarded as judicial. Rejection of bail when bail is applied for is one thing; cancellation of bail already granted is quite another. It is easier to reject a bail application in a non-bailable case than to cancel a bail granted in such a case. Cancellation of bail necessarily involves the review of a decision already made and can by and large be permitted only if, by reason of supervening circumstances, it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial. The fact that prosecution witnesses have turned hostile cannot by itself justify the inference that the accused has won them over.: SUPREME COURT;

rbi08cir035.pdf

Remittance related to Commodity Derivative Contract Issuance of Standby Letter of Credit / Bank Guarantee;

rbi08cir034.pdf

Foreign Exchange Management (Deposit) Regulations, 2000 - Credit to Non Resident (External) Rupee Accounts - Clarification ;

RBI Notifi For Advances Against Gold.pdf

Advances against pledge of Gold / Silver Ornaments;

mbuzz1152.pdf

Excessive water extraction a major threat to River Ganga ;

mbuzz1151.pdf

Govt to launch National Urban Sanitation Policy tomorrow;

mbuzz1150.pdf

Loans against pledging of gold ornaments by banks: RBI prescribes detailed guidelines;

cbdt_member_vacancy.pdf

Empanelment for Member-Posts;

2008-TIOL-209-SC-IT-LB.pdf + jk story.pdf

CIT, Kanpur Vs J K Charitable Trust (Dated: November 7, 2008)

Appeal by Revenue when no appeal had been filed in another case - If the assessee takes the stand that the Revenue acted mala fide in not preferring appeal in one case and filing the appeal in other case, it has to establish mala fides . Where different High Courts have taken different views and some of the High Courts have decided in favour of the revenue, same is a just cause for the revenue to prefer an appeal. : If the assessee takes the stand that the Revenue acted mala fide in not preferring appeal in one case and filing the appeal in other case, it has to establish mala fides . As a matter of fact, as rightly contended by the learned counsel for the revenue, there may be certain cases where because of the small amount of revenue involved, no appeal is filed. Policy decisions have been taken not to prefer appeal where the revenue involved is below a certain amount. Similarly, where the effect of the decision is revenue neutral there may not be any need for preferring the appeal. All these certainly provide the foundation for making a departure. : SUPREME COURT(Larger Bench );

2008-TIOL-208-SC-NDPS.pdf + ndps story.pdf

Sami Ullaha Vs Suptd, NCB (Dated: November 7, 2008)

NDPS – Bail - A person's liberty is protected in terms of Article 21 of the Constitution of India. When two views are possible, the view which leans in favour of an accused must be favoured. It is easier to reject a bail application in a non-bailable case than to cancel a bail granted in such a case. Decisions on bail are intrinsically within the domain of the judiciary. At the very least that means that historically decisions on bail were regarded as judicial. Rejection of bail when bail is applied for is one thing; cancellation of bail already granted is quite another. It is easier to reject a bail application in a non-bailable case than to cancel a bail granted in such a case. Cancellation of bail necessarily involves the review of a decision already made and can by and large be permitted only if, by reason of supervening circumstances, it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial. The fact that prosecution witnesses have turned hostile cannot by itself justify the inference that the accused has won them over.: SUPREME COURT;

2008-TIOL-550-HC-MUM-IT.pdf

Prashanth Projects Ltd Vs CIT (Dated: October 16, 2008)

Income tax - Reassessment - Notice u/s 148 - Assessee challenges assessment cannot be reopened without giving a copy of recorded reasons for doing so - Tribunal upholds AO's action of orally informing the assessee about the reasons - held, it is mandatory for the AO to record reasons before issuing notice for re-opening the assessment u/s 148(2) - Assessee's appeal allowed : BOMBAY HIGH COURT ;

2008-TIOL-547-ITAT-MUM.pdf

DDIT, Mumbai Vs M/s Delmas Shipping South Africa (Pty) Ltd ( Dated : October 27, 2008 )

Income tax - India-South Africa tax treaty - assessee is non-resident company, engaged in shipping business through its agent - declares it gross receipts from business of shipping in international traffic as well as cargo transported by feeder vessels owned by other shipping lines having slot charter arrangement with the assessee - AO allows DTAA benefits for cargo shipped in international traffic but not the one transported by feeder vessels - also holds that the incomne from inland haulage charge is taxable in India as the assessee has a PE - CIT(A) sets aside the AO's order by considering the OECD commentary - Held, in view of the Tribunal's decision in DDIT Vs Balaji shipping UK Ltd ( 2008-TIOL-403-ITAT-MUM ), income arising from transportation of cargo by feeder vessels is not taxable as the term ''operation of ships'' is not defined in the treaty. The inland haulage charges are also not taxable as it is incidental to the carrying on of the main activity of operation of ships - Revenue's appeal dismissed : MUMBAI ITAT;

2008-TIOL-546-ITAT-MAD.pdf

M/s Wilson & Co Ltd Vs ACIT, Chennai ( Dated : August 20, 2008 )

Income tax - agricultural income - Assessee-company takes tea estate on lease from holding company - declares agricultural income after netting expenses - AO disallows on the ground that the assessee did not carry out primary agricultural operations - CIT(A) agrees - Held, it is true that basic agricultural activities are a necessary condition but it need not be done the assessee itself. Though primary activities were done by the holding company before giving the same on lease but even secondary operations are eligible for claiming the exemption for agricultrual income. In reference to SC decision in the case of Raja Benoy Kumar Sahas Roy this case is distinguishable on the ground that the SC decision applies only for spontaneous growth - Revenue's appeal dismissed : CHENNAI ITAT;

2008-TIOL-545-ITAT-MUM.pdf

India Infoline Securities Pvt Ltd Vs ACIT ( Dated : July 30, 2008 )

Income Tax Act - Section 36(1)(vii) and sections 28(i) - Bad debts - Assessee, a stock broker, claimed deduction on account of bad debt - AO negated assessee's claim on ground that assessee had not been following regulations of SEBI and loss had allegedly been suffered was on account of violation of rules and regulations of SEBI – Held, assessee had undertaken transactions on behalf of clients and carried on all reasonable steps in recovering amounts by adjusting margin money and selling of shares in question, before amount was written off – Further held, that the amounts written off were not taken into account in computing assessee's income and neither did it represent money lent in ordinary course of business of banking or money lending thus conditions stipulated in section 36(2) were not fulfilled – Held, therefore deduction claimed u/s 36(1)(vii) could not be allowed – However held, that assessee could claim deduction of said amount as business loss under section 28(i) and therefore, matter remanded back. : DELHI ITAT;

cbec_member_vacancy.pdf

Empanelment for Member-Posts;

CENTRAL EXCISE SECTION

2008-TIOL-208-SC-NDPS.pdf + ndps story.pdf

Sami Ullaha Vs Suptd, NCB (Dated: November 7, 2008)

NDPS – Bail - A person's liberty is protected in terms of Article 21 of the Constitution of India. When two views are possible, the view which leans in favour of an accused must be favoured. It is easier to reject a bail application in a non-bailable case than to cancel a bail granted in such a case. Decisions on bail are intrinsically within the domain of the judiciary. At the very least that means that historically decisions on bail were regarded as judicial. Rejection of bail when bail is applied for is one thing; cancellation of bail already granted is quite another. It is easier to reject a bail application in a non-bailable case than to cancel a bail granted in such a case. Cancellation of bail necessarily involves the review of a decision already made and can by and large be permitted only if, by reason of supervening circumstances, it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial. The fact that prosecution witnesses have turned hostile cannot by itself justify the inference that the accused has won them over.: SUPREME COURT;

2008-TIOL-549-HC-MAD-CX.pdf

M/s Sterlite Industries Ltd Vs CESTAT (Dated: October 21, 2008)

Central Excise – appeals _ pre-deposit: Waiver of pre-deposit of Rs. 15 Crores – while writ was pending in High Court, assessee got a refund of Rs. 44 Crores – no ground for waiver: The position of the company financially being better since the matter was pending before the CEGAT , it having received further amount of Rs.44 Crores by way of refund in view of interim order passed in this appeal, being in advantageous position, it cannot claim for waiver of amount in terms with the proviso to Section 35-F of the Central Excise Act, 1944. :MADRAS HIGH COURT ;

2008-TIOL-1843-CESTAT-MAD-LB.pdf + LB story.pdf

M/s Lucas TVS Ltd Vs CCE, Chennai (Dated: October 29, 2008)

Central Excise – valuation – interest on duty paid on supplementary invoices – interest is payable under Section 11 AB on the differential duty paid on price escalation – in view of conflict of views, matter referred to five member Bench.

Transaction value - Any amount received from the buyer on account of price revision is also part of ‘the amount charged as price' and will form part of the transaction value and duty has to be paid on such transaction value at the time of removal of goods.

Section 11 D - The expression “ duty assessed and paid” found in Section 11D(1) covers not only the duty assessed and paid at the time of removal of the goods but also the differential duty assessed and paid later - Sections 11D and 11DD are not applicable to the price escalation cases.

Provisional assessment vis-à-vis supplementary invoices - If the differential duty which is found payable on finalization of provisional assessment under Rule 7 is a duty which ought to have been paid at the time of removal of the goods, so is the differential duty which is found payable on ascertainment under sub-section (2B) of Section 11A.

Recovery of interest – interest can be recovered under Rule 8(4) of the Central Excise Rules read with Section 11 of the Central Excise Act. : BANGALORE CESTAT (Larger Bench );

2008-TIOL-1842-CESTAT-BANG.pdf

Shri Philip Abraham Vs CCE, Cochin (Dated: June 18, 2008)

Central Excise – Repacking of formic acid from bulk to retail packs – No dispute that the appellant's unit is located in rural area and not a dummy unit of the bulk material supplier – SSI Exemption not deniable – Impugned orders set aside : BANGALORE CESTAT;

2008-TIOL-1841-CESTAT-AHM.pdf

M/s Royal Cushion Vinyl Products Ltd Vs CCE, Vadodara (Dated: August 19, 2008)

Central Excise - Classification - PVC (MF) Laminated Sheet is classifiable under Tariff Heading 6807.90, but not under CETH 3918.10. : AHMEDABAD CESTAT;

2008-TIOL-1840-CESTAT-BANG.pdf

CCE, Bangalore Vs M/s Jindal Aluminium Ltd (Dated: June 17, 2008)

Central Excise – Refund – Issue of Credit notes to customers will not insulate the refund claim from provisions of unjust enrichment – No evidence to show that incidence of duty is not passed onto customers – Refund not available – Order passed by Commr (A) allowing refund not legal and proper : BANGALORE CESTAT;

SERVICE TAX SECTION

2008-TIOL-1838-CESTAT-DEL.pdf + stgst.pdf

M/s Delux Colour Lab Pvt Ltd Vs CCE, Jaipur (Dated: October 22, 2008)

Service Tax – valuation - Photography service is works contract - it involves both sale and service, and the sale portion cannot be included in the taxable value of service: the decision in BSNL case lays down the law that works contract (and also catering contract) involves the element of both sale and service contract and that the service and sale elements can be split up. That being so, the Tribunal did not find any merit in the submission of the Revenue that the decision in BSNL case cannot be treated as an authority on the issue of service tax.

If the photography service is a 'works contract', it would follow that it involves the element of both sale and service, and the sale portion of the activity or transaction cannot be included in the taxable value of service. There cannot be any doubt, in view of sub-clause (b) of clause (29-A) of Article 366, that deemed sale of the materials takes place in the rendering of photography service and, therefore, the value of the materials cannot be included while computing the value of the service. 'Sale' and 'Service' cannot stand in the same box. Sale cannot be treated as service and vice versa. :DELHI CESTAT ;

2008-TIOL-1837-CESTAT-KOL

CCE & ST,Jamshedpur Vs M/s TRF Ltd (Dated: September 16, 2008)

Department to lose all appeals in Kolkata – appeal dismissed for want of gazette notification for appointment of Chief Commissioner:- in the absence of any Gazette Notification appointing the two signatories to the impugned Review Order as Chief Commissioner of Central Excise, following our earlier order in the case of M/ s.Nafar Chandra Jute Mills [ 2008-TIOL-1805-CESTAT-KOL ]we have no option but to hold that the direction to file the present Appeal has been issued without having the necessary statutory power and jurisdiction and the same is, therefore, non- est in the eyes of law. Consequently, the appeal filed pursuant to such direction is not maintainable and the same is rejected at the threshold without going into the merits of the case. : KOLKATA CESTAT ;

2008-TIOL-1836-CESTAT-DEL.pdf

Shri Bhagwan Singh Gulati Vs CCE, Bhopal (Dated: June 20, 2008)

ST - Tour operator service - assessee has contract carriage permit and ferries employees of factories - Revenue raises demand - Since the assessee has no tourist permit, they are not liable to tax - Assessee's appeal allowed : DELHI CESTAT ;

CUSTOMS SECTION

NOTIFICATION

dgft08pn106.pdf

DGFT adds 18 more commodities to existing list of 22 items notified vid PN No 289, 1997;

dgft08pn105.pdf

DGFT amends list of export promotion councils and products falling in their jurisdiction;

CASE LAWS

2008-TIOL-208-SC-NDPS.pdf + ndps story.pdf

Sami Ullaha Vs Suptd, NCB (Dated: November 7, 2008)

NDPS – Bail - A person's liberty is protected in terms of Article 21 of the Constitution of India. When two views are possible, the view which leans in favour of an accused must be favoured. It is easier to reject a bail application in a non-bailable case than to cancel a bail granted in such a case. Decisions on bail are intrinsically within the domain of the judiciary. At the very least that means that historically decisions on bail were regarded as judicial. Rejection of bail when bail is applied for is one thing; cancellation of bail already granted is quite another. It is easier to reject a bail application in a non-bailable case than to cancel a bail granted in such a case. Cancellation of bail necessarily involves the review of a decision already made and can by and large be permitted only if, by reason of supervening circumstances, it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial. The fact that prosecution witnesses have turned hostile cannot by itself justify the inference that the accused has won them over.: SUPREME COURT;

2008-TIOL-1839-CESTAT-MUM.pdf

M/s United Spirit Ltd Vs CC, Nhava Sheva (Dated: May 19, 2008)

Customs – Import of goods – Amount deposited pursuant to High Court Order to furnish security for release of seized goods – Tribunal ordered refund of this amount after finally deciding the case in favour of appellant – Refund denied on the ground of unjust enrichment - Doctrine of unjust enrichment applicable to all cases of refund irrespective of whether the amount to be refunded is duty or redemption fine or penalty – In the absence of evidence to prove the contrary order passed by the lower authority denying refund claim upheld :CHENNAI CESTAT;