2009 Nobel Prize for Medicine goes to trio of E H Blackburn, C W Greider and J W Szostak for their research on chromosomes ;

Air Travel on official account: Air India offers special package;

FM-Bengal FM Talk on GST: Meet postponed to Oct 28;

Saptharishi Iyer passes away - TIOL pays tributes with his well wishers;

Interpol's global meet launches Online IP Crime Investigators College;

Khurshid asks officials to work with corporate sector with sense of partnership;

Climate change - world has less than 10 years to avert catastrophe: UN Chief;

Unique Identification Authority looking for deputationists;

TIOL COMMENTARY

ddt 05 oct.pdf

Services used for exports – Exemption/Refund;

tiol special guest.pdf

Feed opium to The Dragon!

guest column.pdf

Cheating cases in India: Law and its Administration;

special column.pdf

Doctrine of approbate and reprobate;

CASE LAW + ANALYSIS

2009-TIOL-522-HC-DEL-MISC .pdf + sukh ram story.pdf

Sukh Ram Vs CBI (Dated: September 24, 2009)

Sukh Ram's conviction in corruption case - What can be said to be a decision that is not in ‘public interest‘? - When can a decision be said to constitute an 'abuse' of official position? - Single Judge refers the matter to a Larger Bench:DELHI HIGH COURT;

MIXED BUZZ

mbuzz0909.pdf

Interpol's global meet launches Online IP Crime Investigators College;

mbuzz0908.pdf

Khurshid asks officials to work with corporate sector with sense of partnership;

mbuzz0907.pdf

Climate change - world has less than 10 years to avert catastrophe: UN Chief;

2009-TIOL-24-ARA-IT.pdf + ara_story.pdf

Gearbulk AG (Dated: September 30, 2009)

Income tax - Sec 172 - Indo-Swiss DTAA - Articles 7, 8 & 22 - Assessee is a Swiss company, enters into shipping contracts for the transportation of cargo worldwide - taxability of profits from transportation of cargo from Indian ports to China - claims that in absence of a PE, the same is covered under Article 22 of DTAA - whether profits from shipping business is covered under the DTAA or can be taxed as per provisions of Sec 172 of the Income Tax Act.: ADVANCE RULING AUTHORITY;

2009-TIOL-525-HC-MAD-IT.pdf + iocl story.pdf

N Meenakshi Vs ACIT, Chennai (Dated: September 11, 2009)

Income Tax – Property sold to IOCL for Rs. 99 Lakhs – Registration value Rs. 3.92 Crores – AO passes order before getting Valuation Officer's Report - the right of an assessee conferred under Section 50C of the Act is a valuable statutory right: Alternative remedy cannot be a bar for writ where fundamental right is breached or there is violation of the statutory provisions:MADRAS HIGH COURT;

2009-TIOL-524-HC-MAD-IT.pdf

CIT, Chennai Vs M/s TVS Motor Company Ltd (Dated: August 4, 2009)

Income tax - Sec 147 - Assessee claims deduction for excise duty on stock in bonded warehouse u/s 43B from excise duty on closing stock - reopening of assessment after four years - AO disallows on the ground that the bonded goods were not cleared during the relevant FY - CIT(A) and Tribunal allow appeal - held, since the assessee had disclosed all the information in its return, no fault can be found with the return - since no concealment can be alleged, reassessment after four years is bad in law - Tribunal's decision upheld - Revenue's appeal dismissed:MADRAS HIGH COURT;

2009-TIOL-602-ITAT-MUM.pdf

ADIT, Mumbai Vs M/s Reliance Infocomm Ltd (Dated: September 9, 2009)

Income tax - Sec 195, 244A - Assessee enters into a contract with a non-resident company from Israel for purchase of telecom software - approaches Revenue for no TDS certificate - AO treats the payment as royalty, liable to tax in India - TDS deducted u/s 195(2) and deposited - Appeal filed - CIT(A) finds non-resident recipient of payments is not taxable in India - directs AO to refund the tax deposited - also holds that the assessee is entitled to refund with interest u/s 244A - held, issue is no longer res integra as it has been settled by the Tribunal that the order u/s 195(2) is appealable u/s 248, and once an appeal is filed and the decision favours the assessee, refund u/s 244A with interest is admissible - Revenue's appeal dismissed:MUMBAI ITAT;

2009-TIOL-601-ITAT-DEL-TM.pdf

M/s KRBL Ltd Vs DCIT, New Delhi (Dated: July 20, 2009)

Income Tax - Section 263, 80IA and 80HHC -  whether deduction u/s 80IA is to be reduced while computing the deduction u/s 80HHC - CIT in exercise of his revision jurisdiction u/s 263 forms an opinion otherwise and directs the AO to reduce 80IA deduction while computing deduction u/s 80HHC because of the provisions contained in section 80IA (9) - JM holds that the order passed u/s 263 for all the three assessment years under consideration cannot be justified in law because the orders of the AO cannot be treated erroneous in law and prejudicial to the interests of revenue - AM holds that action u/s 263 has been correctly taken on the facts of this case and deduction u/s 80IA and 80HHC would have to be recomputed in terms of the decision of the Special Bench in case of Rogini Garments - Held, what is to be seen to enable the CIT to exercise jurisdiction u/s 263 is whether the matter at the time of exercising that jurisdiction was free from doubt and if yes, then he can exercise the jurisdiction but where there are conflicting views available of the Tribunal or High Courts, the CIT would not be legally in a position to exercise jurisdiction u/s 263 in view of the Apex Court decisions, CIT order liable to be quashed - Assessee's appeal allowed:DELHI ITAT (THIRD MEMBER);

deputation.pdf

Appointment of Officers at the level of Deputy Director Generals and Assistant Director Generals in the Unique Identification Authority of India;

Air Travel on Official account.pdf

Air Travel on official account - both domestic and international;

Rate of Dearness Allowance.pdf

Rates of Dearness Allowance applicable w.e.f. 1.7.2009 to the employee of Central Government and Central Autonomous Bodies continuing to draw their pay in the pre-revised scale as per 5th CPC;

SERVICE TAX SECTION

2009-TIOL-523-HC-P&H-ST.pdf

CCE, Jalandhar Vs M/s Ess Ess Kay Engg Co Ltd (Dated: September 9, 2009)

ST - penalty under Sec 77 - Assessee is a dealer - avails services of GTOs between 1997 and 1998 - fails to pay tax under the impression that service recipient was not liable to pay tax - Commissioner (A) sets aside penalty on the ground that there was a reasonable cause for failure to deposit tax - Tribunal upholds the Commissioner(A) order - held, since the tax effect of the appeal is meagre and a reasonable cause existed for the failure to pay tax, Commissioner(A) rightly invoked Sec 80 in this case - Revenue's appeal dismissed :PUNJAB AND HARYANA HIGH COURT;

2009-TIOL-1566-CESTAT-DEL.pdf

M/s Punjab Ex-Servicemen Coprn Vs CCE, Chandigarh (Dated: May 4, 2009)

ST - Security agency service - Assessee provides security service - Revenue reclassifies it as manpower supply service and raises demand - Assessee for grant of stay - Commissioner(A) insists on pre-deposit - held, since the initial deposit made has been appropriated by the Revenue, Commissioner(A) needs to decide the issue on merit and pass a speaking order:DELHI CESTAT;

2009-TIOL-1565-CESTAT-DEL.pdf

M/s Jaypee Rewa Plant Vs CCE, Bhopal (Dated: July 28, 2009)

ST - Cenvat credit - Assessee is a cement manufacturer - claims credit on various input services - Revenue disallows for lack of evidence - held, credit is allowable on telephone services and mandap keeper service uitilised for business purposes - case remanded to the Commissioner to examine evidence relating to air travel agent services, repair and maintenance and rent-a-cab services:DELHI CESTAT;

2009-TIOL-1563-CESTAT-DEL.pdf

M/s Korea Plant Service & Engineering CO LTD Vs CCE & ST, Jaipur-II (Dated: August 13, 2009)

ST - Cenvat Credit - Repair & Maintenance Service - Hindustan Zinc Ltd outsources its captive power plant to the assessee for operation and maintenance - Revenue levies tax on the gross payments - assessee claims cenvat credit on various services like mobile, coal unloading, GTA, advertisement, vehicle rent, equipment rent, group insurance and security - Revenue partly disallows credit on the plea that some of the services were availed only for the operation of the plant - held, since the Revenue has classified the entire operation as a composite service of repair and maintenance and levies tax on the gross sum paid to the assessee, it cannot now split up the input services for allowing credit - Assessee's appeal allowed:DELHI CESTAT;

CENTRAL EXCISE SECTION

2009-TIOL-1569-CESTAT-MUM.pdf + removal story.pdf

M/s ICCONOL Petroleums Pvt Ltd Vs CCE, Raigad (Dated: August 11, 2009)

Clandestine removal – pre-deposit ordered by Commissioner(A) not paid, hence appeal rejected - CESTAT asks appellant to make deposit of Rs. 20,00,000/- and furnish bank guarantee of Rs.5,00,000/- and orders that upon compliance matter would be re-adjudicated by the original authority.:MUMBAI CESTAT;

M/s Unichem Laboratories Ltd Vs CCE, Raigad (Dated: August 10, 2009)

Letter by Superintendent conveying the order passed by the Commissioner – Appeal lies before the Tribunal and not Commissioner(Appeals) – CESTAT:MUMBAI CESTAT;

2009-TIOL-1567-CESTAT-DEL.pdf

M/s Escorts Construction Equipment Ltd Vs CCE, Delhi-IV (Dated: May 14, 2009)

Central Excise - Exemption Notification - Stay /dispensation of pre-deposit - The certificate produced on record apparently indicates that the purchaser of the goods to be contractor, it prima facie discloses that supply was to the contractor and not to the project. In order to avail the exemption under Notification 108/95-CE, the supply of goods has necessarily to be to the project specified in the said notification. Apparently, the exemption is available to the goods which are meant exclusively for the project. The goods which are obtained by the contractor in his own name cannot be construed to be the goods exclusively for the project because such goods have ownership of the contractor and can be used for any other work and at any other site at sweet will of the contractor. There cannot be any exclusive control over the goods by the agency having controlling authority over such project. Prima facie, therefore, no case has been made for grant of stay of the impugned order or to exercise discretion for waiver of the duty demanded under the impugned order. (Para 6 & 8)

Principles for grant of stay - Stay application or relief of waiver of pre-deposit can not be granted as a matter of course or in a routine manner. Merely because, in another matter involving similar issue the stay was granted or the waiver of pre-deposit was granted, that by itself cannot be a ground for grant of stay in another case involving similar issue, particularly when either the facts of the latter case differ or the distinguishing factors of the latter case are brought to the notice of the Tribunal. A stay order in one matter, neither lays down the binding ratio, nor the principle of res judicata is attracted. No stay order can be passed which cannot be sustained on the touchstone of fairness, legality and public interest. If on a cursory glance it is apparent that the demand raised has no leg to stand, certainly, it would be undesirable to require the assessee to deposit full or even substantial part of the demand. However, a waiver of pre-deposit, which admittedly relates to the payment of excise duty is sought on the basis of exemption notification, then the assessee has to make out a prima facie case regarding the same, besides establishing financial hardship. (Para 10, 11 & 12) :DELHI CESTAT;

2009-TIOL-1562-CESTAT-BANG.pdf

Analogics Tech India Ltd Vs CC & CCE, Hyderabad-II (Dated: March 4, 2009)

Central Excise - P ayment of 8% or 10% not required when credit on inputs used in exempted goods is paid or reversed – LB decision in Nicholas Piramal 2008-TIOL-1877-CESTAT-MUM-LB and Gujarat High Court decision in Maize Products 2008-TIOL-596-HC-AHM-CX followed – No merit in impugned order, liable to be set aside:BANGALORE CESTAT;

CUSTOMS SECTION

2009-TIOL-1564-CESTAT-MUM.pdf

M/s Videocon International Ltd Vs CC, Mumbai (Dated: August 13, 2009)

Violation of principles of natural justice- Entire case of DRI based on the panel reports of experts, various panchanamas and statements of various persons – it is imperative on the part of the Commissioner to have considered the Appellants request for cross examination and inspection of relied upon documents – Order set aside and directions issued to decide the case within six months in accordance with law and after hearing the appellants.:MUMBAI CESTAT;