CVC launches prosecution against seven officers in CBDT; Major penalty against four in CBEC in July;

Issue of TRA: Customs to do it at port of import; DGFT amends policy ;

New DG, DRI: Finance Minister seeks Panel of good officers from CBEC; sends back Board recommendation;

Steel consumption likely to scale up 10% growth rate soon: Steel Secretary;

PM to address CBI, ACBx meet on corruption on Wednesday;

Sugar crisis: Govt imposes stock-holding limits on bulk consumers;

PM gives nod to National Mission on Enhanced Energy Efficiency;

Import of paper and paper board: CBEC clarifies on implementation of certain provisions of Hazardous Waste Rules;

Pak-based terrorist outfits fanning out agents in different cities in India; LeT suspect held at New Delhi Rly Station today;

TIOL COMMENTARY

ddt 25 Aug.pdf

Service Tax exemption on GTA service utilized for Export of Goods – Exporters troubled by lack of foresight of Board;

MIXED BUZZ

mbuzz0786.pdf

CVC launches prosecution against seven officers in CBDT; Major penalty against four in CBEC in July;

mbuzz0785.pdf

NELP Roadshow: 50 companies participate at Calgary;

2009-TIOL-97-SC-IT.pdf + sc story.pdf

CIT, Delhi Vs Atul Mohan Bindal (Dated: August 24, 2009)

Income Tax – Penalty - The penalty under Section 271 (c) is a civil liability. Wilful concealment is not an essential ingredient for attracting civil liability - The object behind the enactment of Section 271(1)(c) read with Explanations indicates that the Section has been enacted to provide for a remedy for loss of revenue. The penalty under that provision is a civil liability. Insofar as the present case is concerned, the High Court relied upon its earlier decision in Ram Commercial Enterprises which is said to have been approved by Supreme Court in Dililp N. Shroff . However, Dillip N. Shroff has been held to be not laying down good law in Dharamendra Textiles. Dharamendra Textiles is explained by Supreme Court in Rajasthan Spinning and Weaving Mills . The matter needs to be reconsidered by the High Court in the light of the decisions of Supreme Court in Dharamendra Textiles and Rajasthan Spinning and Weaving Mills.:SUPREME COURT;

2009-TIOL-429-HC-P&H-IT.pdf

CIT, Chandigarh Vs Punjab State Cooperative Federation Of Housing Building Societies Ltd (Dated: August 12, 2009)

Income tax - remand - Assessee revises return - AO considers it invalid u/s 139(5) as it was filed beyond one year period - CIT(A) agrees with the AO - Tribunal simply remands the case to the AO - held, since the Tribunal remands the issue without recording any reasons, it is perverse and unsustainable in law - Tribunal's order set aside and remanded for fresh order:PUNJAB AND HARYANA HIGH COURT;

2009-TIOL-428-HC-DEL-IT.pdf

Vipin Malik (HUF) Vs CIT (Dated: August 7, 2009)

Income tax - Sec 54F - Assessee sells an agricultural property - makes capital gains - claims Sec 54F benefits on purchase of a flat - AO disallows and Tribunal confirms the same - held, since the payments for the flat booked in a cooperative housing society were made much before one year period before the sale of agricultural land and also the fact that no construction was done for two years after the sale as envisaged under the pertinent Section and also the fact that although the land was sold by the HUF but the flat was purchased by an individual and his mother, no benefit can be allowed - Assessee's appeal disallowed:DELHI HIGH COURT;

2009-TIOL-427-HC-DEL-IT.pdf

CIT Vs Yamaha Motor India Pvt Ltd (Dated: August 19, 2009)

Income tax - Sec 32 - assessee is a manufacturer - installs machineries - claims depreciation - after some years, discards the machineries and claims depreciation - Since the machineries were not used in the relevant previous year, the AO disallows - Tribunal allows the appeal - held, the only harmonious meaning of the expression ''used for the purpose of business' is that the discarded machinery is used for the purpose of the business in the earlier years for which depreciation has been allowed. No infirmity in Tribunal's order allowing depreciation after deducting value of scrap from the written down value of assets - Revenue's appeal dismissed:DELHI HIGH COURT;

2009-TIOL-532-ITAT-MUM-SB.pdf + vsnl story.pdf

Tata Communications Limited Vs JCIT, Mumbai (Dated: July 10, 2009)

I-T Act - Section 254(2) - Mistake apparent from the order of the Tribunal - Whether separate orders by the members can be passed in case of multiple member benches - whether the order was passed after due discussion and joint conference - whether separate reasons need to be recorded when one member agrees with another - Whether Tribunal can entertain new ground not agitated before the lower authorities.

Against the order of the Special Bench of the Tribunal in the case of VSNL (2007-TIOL-261-ITAT-MUM-SB) , the assessee files a miscellaneous petition on the ground that there were mistakes apparent from record.

Held, dismissing the petition that in case two Members agree on a draft, it is not at all necessary for the second Member to give his separate reasons.

Held, Joint conference and discussion are integral and significant parts of the decision making process in the multiple member benches. It is essentially a decision of the Members constituting the Special Bench as to whether or not joint conference is necessary before draft can be finalized.

Held, once the Tribunal is called upon to examine as to whether or not the assessee is entitled to a claim of deduction, there is no escape from its duty to ensure that the requirements of the section are fully complied with and the Tribunal cannot shun away from its duty to examine all the eligible conditions merely on the ground that some of these conditions are not specifically rejected by the authorities below.

Held, question of law having been admitted by the High Court, Tribunal is functus officio.: MUMBAI ITAT (SPECIAL BENCH);

SERVICE TAX SECTION

2009-TIOL-1325-CESTAT-DEL.pdf + stgst story.pdf

M/s Microsoft Corpn (I) Pvt Ltd Vs CST, New Delhi (Dated: July 31, 2009 )

Service Tax – Stay / Dispensation of pre-deposit - Export of Services – Provision of marketing support services on behalf of client outside India not regarded as export of service if the said services are consumed in India by ultimate clients/consumers located in India – End user of service being located in India and need of such consumers being met by appellant for and on behalf of its foreign principal, services appear to have been provided in India, cannot be regarded as “export of service” – “Export of service” means outcome of service should have been consumed outside India – Service Tax being destination based consumption tax, interpretation given in Board's Circular dated 24.02.2009 contrary to law expounded by Supreme Court in All India Fedn. Of Tax Practitioners vs. UOI 2007-TIOL-149-SC-ST – Pre-deposit of Rs 70 Crores ordered:DELHI CESTAT;

2009-TIOL-1324-CESTAT-DEL.pdf

M/s Samsung India Electronics Pvt Ltd Vs CCE, Noida (Dated: July 3, 2009 )

ST - Assessee enters into agreement with foreign manufacturer for providing a host of services - Revenue raises demand for repair and maintenance service - Assessee also undertakes market promotion activity besides repair service during warranty period - since repair and maintenance service was provided by the assessee's service centres which had also discharged tax liability, assessee claims cenvat credit be allowed - held, going by the details of the agreement it cannot be said that repair and maintenace is the predominant character of the agreement and since service centres have paid taxes on service provided during the warranty period, it is a fit case for waiver of pre-deposit - stay granted - Assessee's appeal allowed :DELHI CESTAT;

2009-TIOL-1323-CESTAT-DEL.pdf

State Bank Of Bikaner & Jaipur Vs CCE, Jaipur-I (Dated: May 25, 2009 )

ST - assessee is a bank - deals in foreign exchange - Revenue demands tax on profit earned on forex business - held, tax on profit arising from forex business is not the intention of the legislature - waiver from pre-deposit granted:DELHI CESTAT;

2009-TIOL-1322-CESTAT-AHM.pdf

M/s Saurin Investments Pvt Ltd Vs CST, Ahmedabad (Dated: July 16, 2009 )

ST - stock brokering service - deduction of NSDL or CDSL fee collected from customers and paid to depositors - Commissioner (A) denies deduction despite the Baord Circular on the ground that only actual fee is to be allowed as deduction - held, even fixed fee is also actual fee and the demand is also barred by limitation - Assessee's appeal allowed:AHMEDABAD CESTAT;

CENTRAL EXCISE SECTION

2009-TIOL-1321-CESTAT-MUM.pdf + pam pac story.pdf

Pam Pac Machines P Ltd Vs CCE, Pune I (Dated: July 7, 2009 )

Appellant to be given one more chance by the appellate authority to present sufficient cause for condonation of delay in filing appeal – CESTAT:MUMBAI CESTAT;

2009-TIOL-1320-CESTAT-BANG.pdf

M/s Southern Plywoods Vs CCE, Cochin (Dated: February 19, 2009 )

Central Excise – Allegation of clandestine removal of goods through two other units – Existence of two other manufacturing entities independently with plant & machinery and manufacturing activity not in doubt based on evidences adduced – Not issuing SCNs to other units alleged to have complicity in clandestine removal is fatal – Submissions of appellants not being considered violates principles of natural justice – Appellants claim for exemption as job worker and records of raw material supplier for the purpose of job work also not considered at all – No merits in impugned order demanding duty and imposing penalty – Liable to be set aside:BANGALORE CESTAT;

2009-TIOL-1319-CESTAT-AHM.pdf

M/s Ultratech Cement Co Ltd Vs CCE, Surat-I (Dated: July 22, 2009)

Central Excise – When inputs written off in balance sheet are in stock duty itself is not recoverable – Duty paid thereon is not contested hence the same is confirmed as not contested – Demand of interest set aside:AHMEDABAD CESTAT;

CUSTOMS SECTION

NOTIFICATION

dgft08pn195.pdf

CASE LAWS

2009-TIOL-430-HC-MAD-CUS.pdf

S Ram Kumar Vs UoI (Dated: August 4, 2009)

Customs – Intellectual property case – Inventor of Plurality of Subscriber Identity Module ( SIM ) files writ against Customs Order – Writ not maintainable when facts are disputed and efficacious appellate mechanism is available: It is well settled in law that the disputed facts cannot be decided in a writ petition under Article 226 of the Constitution of India Whether the High Court is entitled to go into the disputed questions of fact in a writ petition filed under Article 226 of the Constitution of India, is already decided by the Honourable Supreme Court. In Arya Vyasa Sabha and Others v.The Commissioner of Hindu Charitable and Religious Institutions & Endowments, Hyderabad and Others the view taken by the High Court that disputed questions of fact are to be left open to be decided before the Civil Court was upheld by the Supreme Court. When appealable order is passed, particularly when the facts are in dispute, writ petition filed under Article 226 of the Constitution of India without availing the alternate remedy is not maintainable is the consistent view taken by the Supreme Court and by this High Court. :MADRAS HIGH COURT;

2009-TIOL-1318-CESTAT-MAD.pdf

M/s S P Apparels Vs CC, Chennai (Dated: April 1, 2009)

Customs – Drawback – denial of drawback on the ground that the exported garments were made out of fabric processed in a 100% EOU – the vice of note 2 of the drawback notification 31/99 Cus dated 20.5.1999 is not attracted as in the present case the export commodity namely knitted garments were not manufactured either partly or wholly in a warehouse.:CHENNAI CESTAT;