Obama talks to PM on hotline and resolves to work together on terror;

PM allocates portfolios for 6 Ministers- Pranab Mukherjee gets Finance + P Chidambaram gets Home + Railways goes to Mamta Banerjee + Defence is back with Antony + SM krishna gets Foreign Ministry + Sharad Pawar is happy with Agriculture;

Cabinet decides Parliament Session to commence from June 1 + Speaker to be elected on June 3 + President to address on June 4 + Session to conclude on June 9;

Bureaucratic procedures are particularly hard for smaller companies;

PM holding first cabinet meeting at residence;

UN Chief visits Sri Lanka to assess Post-Conflict Situation;

UN Chief calls for donation for strife-torn Pak;

TIOL COMMENTARY

saturday story.pdf

Bureaucratic procedures are particularly hard for smaller companies;

MIXED BUZZ

mbuzz0508.pdf

Memory cards worth Rs.2.32 Crores smuggled by post parcel route seized by AIU;

mbuzz0507.pdf

UN Chief visits Sri Lanka to assess Post-Conflict Situation;

mbuzz0506.pdf

UN Chief calls for donation for strife-torn Pak;

mbuzz0505.pdf

India to host 'Green Customs' Meet on May 25;

2009-TIOL-312-ITAT-DEL.pdf

M/s Vinod Raj & Company Vs ACIT, New Delhi (Dated: January 30, 2009)

Income Tax - On the basis of search and seizure AO estimates the income of the assessee by adopting the G.P. rate of 4.4% being the average of last three years and computes the income of the assessee for different assessment years  and  also adds a sum on account of purchases recorded in the diary which are not in the books of account - CIT (A) observes that the working of the profit could be done on the seized material which, according to him, is 2.392% then there is no justification for the AO to adopt a rate of 4.4%. - CIT(A) gives some relief to the assessee. As regards, unaccounted purchases CIT(A) deletes the addition - Held, on assessee's appeal for not allowing proportionate expenses to earn income for the assessment year 2000-01, no merit is in the claim of the assessee because no such expenditure has been substantiated either from the seized material or any other material and, therefore, on assumption basis, no relief can be allowed to the assessee. As regards the peak addition, no  merit found in assessee's appeal because this is the cash peak computed by the assessee on the basis of the seized material and in absence of any explanation for the same, the CIT (A) is  justified in upholding the same.:DELHI ITAT;

2009-TIOL-311-ITAT-DEL.pdf

Shri Sanjay Sharma Vs DCIT, New Delhi (Dated: February 27, 2009)

Income Tax - During a search conducted at assessee's premises u/s 132, documents related to different concerns were found in which the assessee alledged to be the accountant—AO held the concerns as benami concerns and treated the income of various concerns as assessee's undisclosed income - CIT(A) allowed certain reliefs - Held, AO did not bring on record sufficient material to treat assessee as benami owner of two concerns—Held, since the assessee returned the agricultural income much before the search took place, it was for AO to show that claim of agricultural income set up by the assessee was wrong - Assessee's appeal partly allowed.:DELHI ITAT;

SERVICE TAX SECTION

2009-TIOL-798-CESTAT-DEL.pdf

M/s Moriroku Ut India (P) Ltd Vs CCE, Noida (Dated: March 26, 2009)

ST - Condonation of delay - Assessee files appeal beyond a period of 90 days - Commissioner (A) rejects it - held, since the assessee was under bona fide belief that no intimation of any defect in appeal was received, there was nothing wrong and its appeal was admitted - delay condoned and remanded for deciding the matter on merit:DELHI CESTAT;

2009-TIOL-796-CESTAT-DEL.pdf

CCE, Kanpur Vs M/s Taj Tours & Travels (Dated: January 28, 2009)

ST - Tour Operator Service - Assessee organises tour booked by principal agent and also provides services like ticket-booking and local monument visists - deducts value of tickets from the gross value of services - Revenue alleges short payment of tax - Commissioner(A) sets aside demand and penalty after scrutiny of documets - held, since the Revenue has examined all the relevant documents and ST-3 files by the assessee, wilful suppression cannot be alleged and no infirmity in Commissioner (A) order - Revenue's appeal disallowed:DELHI CESTAT;

CENTRAL EXCISE SECTION

2009-TIOL-800-CESTAT-MUM.pdf + Planet Electronics Story.pdf

M/s Planet Electronics Pvt Ltd Vs CCE, Mumbai-II (Dated: April 2, 2009)

Grant of Stay of an order can arise only when it is an executable order – in the absence of any executable order, the question of grant of stay does not arise

Tribunal's observations -

It is elementary rule of law that the question of grant of stay of an order can arise only when it is an executable order. In the absence of any executable order, the question of grant of stay does not arise. The order dated 12.01.2009, which is the subject matter of challenge in the appeal ex-facie discloses that it is an order rejecting the application for modification of the earlier order. By no stretch of imagination, it can be said to be an executable order. Therefore, on this ground itself, the question of grant of stay of the impugned order would not arise.

Whether Tribunal had powers to modify the order of the Commissioner(A) passed in the matter of pre-deposit –

The application which is contemplated under Sec. 35F is to be adjudicated by the lower Appellate Authority or by the higher authority on the point of liability of the appellant to deposit of the amount demanded by the lower authority. The main issue in such an application to be decided is whether the applicants are entitled to be heard on merits of the case without compelling the applicants to deposit the entire amount demanded by the lower authority.

The perusal of the records discloses that what is challenged before the Tribunal is an order passed by lower authority, refusing to modify its earlier order . The concept of modification of the order implies exercise of the power in the nature of power of review of its earlier order. As rightly submitted by the Ld. DR, the law on this aspect is well settled by the decision of the Division Bench of the Bombay High Court in the case of Baron International Ltd . [ 2004-TIOL-03-HC-MUM-CESTAT ] and the Karnataka High Court decision in Mc Dowell & Co. Ltd . [ 2005-TIOL-72-HC-KAR-CX ] inasmuch as after having exercised jurisdiction for the purposes of passing an order for waiver of pre-deposit under proviso to Sec. 35F of the Central Excise Act, 1944 the authority cannot modify that order subsequently like an appellate authority, nor can keep tinkering with such an order as and when applications for modification of the order are filed.

Thus, the law on the point as to whether the lower quasi judicial authority has any power to review its order is well settled and in fact, they do not have any such power.

Prima facie there is no substance found in the appeal which has been filed against the order of the Commissioner(Appeals) refusing to modify its earlier order.

Since no case of any financial hardship as such had been made out and bearing in mind the Revenue interest, there is no justification for grant of stay or reduction in regard to the pre-deposit .

On the suggestion of the appellant to refer the matter to the Larger Bench - the occasion for referring the matter to a Larger Bench can arise when on a point of law conflicting views are taken by different Benches of the Tribunal and which is not the case in hand.

Applications dismissed. Pre-deposit to be made within four weeks and compliance reported on 08.05.2009. : MUMBAI CESTAT;

2009-TIOL-799-CESTAT-AHM.pdf

CCE & CC, Vadodara-I Vs M/s Lakshya Enterprises Pvt Ltd (Dated: February 24, 2009)

Central Excise - refund of duty paid on Di Ethyl Phthalate used for denaturing Ethyl Alcohol - no infirmity in the order of Commissioner (Appeals) in extending the benefit of Notification 214/86 CE and allowing refund.: AHMEDABAD CESTAT;

2009-TIOL-797-CESTAT-DEL.pdf

CCE, Kanpur Vs M/s Shivraj Tobacco Co Pvt Ltd (Dated: February 5, 2009) .

Central Excise – Chaman bahar powder and pono cream classifiable under 20.01 and not under 2107.91 as proposed by Revenue –Use of fruits, vegetables and parts of plants by assessee for manufacture of finished goods not disputed – Classification considering only two items as fruits and vegetables and ignoring the nature of rest of the ingredients not justified – Perfumery added to preparation does not effect characteristic of goods – Impugned order of Appellate Commissioner upheld:DELHI CESTAT;

CUSTOMS SECTION

2009-TIOL-262-HC-MUM-CUS.pdf + deposit story.pdf

Arviva Industries (India) Ltd Vs UoI (Dated: April 23, 2009)

Deposit made prior to Show Cause Notice – does not amount to payment of duty – KVVS applicable; as on the date of the show cause notice, neither was the duty ascertained nor was the amount adjusted. In the absence of the amount of deposit having been adjusted the question whether the deposit was voluntary or not is immaterial. Under Section 87(m )( ii) (5) of the Scheme, the application could have been rejected. Though the amount of duty was specified in the notice, the amount specified had remained unpaid on the date of making a declaration under Section 88 as the show cause notice itself set out as to why the deposit should not be adjusted. The respondent therefore, acted without jurisdiction in rejecting the application by its order dated 11.2.1999.:BOMBAY HIGH COURT ;