TIOL Team wishes all Netizens a very very Happy New Year!

Posting of recently-promoted ACs: CBEC may make attempt to get Mumbai CAT stay vacated on Jan 9;

Govt decides to delink Pay Commission for Armed Forces;

Private debt jumps to 75% of India's total external debt ;

Economists call for more tax cuts to help growth recoup;

2008 records decline in violence in J&K;

ddt 01 jan.pdf

Duties, functions and responsibilities of Inspectors and Superintendents in the Central Excise Range Offices - Board is still in the Tobacco Era!

cobweb.pdf

Friendly Sheikh Hasina is back but India needs to wait for tangible results on Indo-Bangla borders!

2009-TIOL-01-SC-FEMA.pdf + fera story.pdf

Vinod Solanki Vs UoI (Dated: December 18, 2008)

FERA - Retracted Confession as evidence - burden is on the prosecution to show that the confession is voluntary in nature and not obtained as an outcome of threat, etc. if the same is to be relied upon solely for the purpose of securing a conviction: With a view to arrive at a finding as regards the voluntary nature of statement or otherwise of a confession which has since been retracted, the Court must bear in mind the attending circumstances which would include the time of retraction, the nature thereof, the manner in which such retraction has been made and other relevant factors. Law does not say that the accused has to prove that retraction of confession made by him was because of threat, coercion, etc. but the requirement is that it may appear to the court as such. The question of the appellant's failure to discharge the burden would arise only when the burden was on him. If the burden was on the revenue, it was for it to prove the said fact .:SUPREME COURT RULING;

pc story.pdf

President gives assent to National Investigation Bill today; Multi Agency Centre in IB now obliged to share intelligence with others: Home Minister;

mbuzz1320.pdf

2008 records decline in violence in J&K;

mbuzz1319.pdf

Private debt jumps to 75% of India's total external debt ;

2009-TIOL-05-HC-MUM-IT-IT.pdf + bom hc story.pdf

Mr Balmukund Acharya Vs DCIT (Dated : December 19, 2008)

Provisions of appeal should be read in a reasonable, practical and liberal manner: - It is true that there is no inherent right of appeal to any Assessee and it has to be spelt out from the words of the statute, if any, providing for an appeal. But it is an equally well settled proposition of law that, if there is a provision conferring a right of appeal, it should be read in a reasonable, practical and liberal manner.

Every word in the statute has a definite purpose: It is a presumption of interpretation of statute that the legislature inserted every word and expression in the statute for a definite purpose, and while interpreting a statute no word can be rejected as being inapposite or surplus. Where the language of the statute is clear and unambiguous nothing can be read into it by implication and the intention of the legislature has to be gathered from the language used.

Tax can be collected only as provided under the Act.: - The Apex Court and the various High Courts have ruled that the authorities under the Act are under an obligation to act in accordance with law. Tax can be collected only as provided under the Act. If any assessee, under a mistake, misconceptions or on not being properly instructed is over assessed, the authorities under the Act are required to assist him and ensure that only legitimate taxes due are collected. If particular levy is not permitted under the Act, tax cannot be levied applying the doctrine of estoppel .

It cannot be said that for a particular ground an appeal is maintainable and for another it is not: The CIT( A) entertained appeal in part and rejected in part. If the appeal was not maintainable, it was not maintainable at all. It cannot be said that for a particular ground an appeal is maintainable and for another it is not. Once the appeal is filed and entertained, then, all grounds can be raised by the appellant requiring consideration. If the Revenue was of the view that an appeal itself was not maintainable before CIT (A), in that event, the order of the CIT (A) allowing appeal in part was bad order and that part of the order ought to have been challenged by the Revenue. The Revenue did not challenge the said order believing maintainability of the appeal. The Revenue at this stage cannot be allowed to contend otherwise. They cannot be allowed to blow hot and cold. Thus, taking an overall view of the matter, the Appeal preferred by the Assessee was very much maintainable.: BOMBAY HIGH COURT;

2009-TIOL-04-HC-DEL-IT.pdf

CIT Vs M/s India Crafts (Dated : December 4, 2008 )

Income tax - Penalty u/s 271(1)(c) - AO fails to record satisfaction - Insertion of sub-section 1B in Sec 271 - Deeming fiction created for deemed recording of satisfaction in penalty cases w.e.f 1.4.1989 - Larger Bench decision in M/s Rampur Engineering Co applies to case only prior to 1.4.1989 and since these appeals are related to later period where the Tribunal has not considered the merit of the cases, issues remitted for fresh consideration : DELHI HIGH COURT;

2009-TIOL-03-HC-MUM-IT.pdf

Mrs Vinaben C Parikh Vs U V Shahdadpuri (Dated : November 24, 2008 )

Income tax - Sec 269 UD - Petitioners own a plot - enter into an agreement for lending development rights against certain consideration - file application u/s 37-1 - Appropriate Authority issues notice, alleging undervaluation - Held, since comparables shown by the Revenue are flats located far away from the location of the plot in dispute, and then there are many restrictions imposed by the petitoners in agreement like the height of the buildings, and the area being closer to a slum, the sale consideration agreed upon by the parties is close to fair market value. Since there is no evidence to indicate undervaluation of more than 15%, Revenue has no case : BOMBAY HIGH COURT;

2009-TIOL-02-HC-DEL-IT.pdf

Ranbaxy Laboratories Ltd Vs CIT, Delhi (Dated : December 11, 2008)

Income tax - assessee claims Sec 80IA benefits on duty drawback and profit on sale of REP licences - AO disallows and Tribunal agrees - held, the language used in Sec 80IA and 80IB are identical. This court's decision in the case of Dharampal Prem Chand is applicable in this case and the benefits are allowable - Assessee's appeal allowed : DELHI HIGH COURT;

2009-TIOL-01-HC-P&H-IT.pdf

Shri Gurcharan Singh Vs CIT (Dated : December 5, 2008)

Income tax - Search u/s 132 - Challenge to the jurisdiction of AO - Since assessee only expressed intention and did not quetion the jurisdiction of the AO during assessment proceedings within specified time, there is no leg in the assessee's argument : PUNJAB AND HARYANA HIGH COURT;

CENTRAL EXCISE SECTION

NOTIFICATION

exnt08_50.pdf

CBEC notifies Cenvat Credit (Third Amendment) Rules related to units in SEZs;

etariff08_60.pdf

Cement used in houses for tsunami victims: Govt allows refund of 6% of construction cost with a maximum ceiling of Rs 21500;

instruct.pdf

Duties, functions and responsibilities of Range Officers and Sector Officers- reg.;

CASE LAWS

2009-TIOL-06-HC-AHM-CX.pdf + excise hc story.pdf

CCE & CC, Surat-II Vs M/s Siddharth Petro Products Ltd (Dated : November 13, 2008 )

Central Excise – Department's appeal - Can the Commissioner directed by the Board to file appeal validly authorize the Superintendent to present such appeal and, will the appeal be maintainable? – Matter remanded to decide whether Superintendent filed or presented the appeal: the Tribunal has committed an error in law in not recording the finding as to whether the Commissioner had or had not complied with the requirement of sub-section (1) of Section 35E of the Act by making application himself. The Tribunal has misdirected itself by considering the act of physical presentation of the application as against considering the correct applicant : GUJARAT HIGH COURT;

2009-TIOL-07-CESTAT-AHM.pdf

M/s Jupiter Remedies Pvt Ltd Vs CCE, Vapi (Dated: October 10, 2008)

Central Excise – CENVAT Credit - credit cannot be varied at recipient's end on the ground that the supplier should have paid lesser duty : AHMEDABAD CESTAT;

2009-TIOL-06-CESTAT-AHM.pdf

M/s Garden Silk Mills Ltd Vs CCE, Surat (Dated: November 18, 2008)

Central Excise – CENVAT credit attributable to inputs lying in stock or inputs used in texturized yarn lying in stock as on 01.03.2000 required to be reversed by independent texturizer - Balance credit lying in books as on 01.03.2000 can be utilized for duty payment on finished goods after 01.04.2000 – As the issue involves interpretation of law, no scope for levy of penalty : AHMEDABAD CESTAT;

SERVICE TAX SECTION

2009-TIOL-04-CESTAT-DEL.pdf

M/s Radius Corporation Ltd Vs CCE, Raipur (Dated: October 8, 2008)

ST - assessee enters into contract for constructin of a reservoir and increasing the height of a standing reservoir - Revenue treats it as 'commercial or industrial construction service' and demands tax as construction of ground reservoir also involves erection of civil structure - assessee argues that Sec 65(97) of the Finance Act exempts water bodies from 'site formation service' and their activities are not liable to tax - pre-deposit waiver granted :DELHI CESTAT;

2009-TIOL-03-CESTAT-DEL.pdf

M/s Singh Road Lines Vs CCE, Allahabad (Dated: November 4, 2008)

ST - GTA service - assessee takes registration but pays no tax for one full year nor files ST-3 return - then assessee voluntarily pays tax and files return - since no reasons given for delay and non-payment of tax, penalty upheld :DELHI CESTAT;

2009-TIOL-02-CESTAT-KOL.pdf

M/s National Buildings Construction Corporation Ltd, Aizawl Vs CCE & CST, Shillong (Dated: October 14, 2008)

ST - Consulting Engineer Service - assessee is a PSU - engaged in construction of roads and flyovers - Revenue levies tax on gross amount - assessee pleads only 1.8% of total value represents consulting engineer fee - Matter remanded for fresh examination :KOLKATA CESTAT;

2009-TIOL-01-CESTAT-AHM.pdf

M/s Ferromatik Milacron India Ltd Vs CCE, Ahemadabad (Dated: November 28, 2008)

ST - Cenvat credit - employment of outdoor caterer providing catering services is an input service and credit of the same is admissible : AHMEDABAD CESTAT;

CUSTOMS SECTION

NOTIFICATION

ctariff08_138.pdf

Anti-dumping duty on Flexible Slabstock Polyol extended upto July 23, 2009;

cnt08_141.pdf

CBEC revises tariff value of poppy seeds and brass scraps;

CASE LAWS

2009-TIOL-05-CESTAT-MUM.pdf

CC, Nhava Sheva Vs Indian Farmers Fertilizers Co-Op Ltd (Dated: September 26, 2008)

Commissioner(A) cannot go on a different footing and order denovo assessment which was never an issue - Revenue appeal allowed and o-in-o restored.

Import of parts - while filing bill of Entry full value of machinery shown instead of the parts and duty paid thereon - refund claim filed rejected by Asstt. Commr on the ground that the assessment order since not challenged had become final - Commissioner (A) holding that case falls u/s 149 and 154 of Customs Act, 1962 being a genuine mistake and ordering denovo assessment - Commissioner(A) cannot go on a different footing and order denovo assessment which assessment was never an issue - Revenue appeal allowed and o-in-o restored. :MUMBAI CESTAT;