CBEC imposes 20% safeguard duty on import of Soda Ash;

CAT Meet decides to urge Govt to allow direct appeal against its orders in SC;

Sec 11C benefits granted to for specified period on spcified produce of Village Industries under KVIC;

CBEC Member (L&J) goes on three weeks leave; Addl charge goes to Member (Excise);

Govt disburses Rs 66275 Cr for upgradation of technology in textiles sector;

Mr Durgesh Shankar, IRS of 1973 batch, joins as new CBDT Member today;

Delhi is first State to release Action Plan on Climate Change;

CBEC clarifies on applicability of indirect taxes on packaged software;

Chennai DRI seizes 300 kg Ketamine worth Rs 30 Cr from transporter's godown;

TIOL COMMENTARY

ddt 06 nov.pdf

Windows 7 may now pass through Customs – Board issues important instructions;

spl down.pdf

Exempted, but still not exempted!

MIXED BUZZ

mbuzz1005.pdf

CAT Meet decides to urge Govt to allow direct appeal against its orders in SC;

mbuzz1004.pdf

Govt disburses Rs 66275 Cr for upgradation of technology in textiles sector;

mbuzz1003.pdf

Delhi is first State to release Action Plan on Climate Change;

cbdtorder316_2009.pdf

Mr Durgesh Shankar, IRS of 1973 batch, joins as new CBDT Member;

CASE LAWS

2009-TIOL-692-ITAT-MUM-LB.pdf + lb story.pdf

M/s B T Patil & Sons Belgaum Construction Pvt Ltd Vs ACIT, Kolhapur (Dated: October 26, 2009)

Tribunal has to decide an issue on the basis of the law as it stands on the day of the passing of the order: Tribunal is not empowered but duty bound to apply such retrospective amendment made to the relevant section after allowing chance to the aggrieved party to address on such retrospective amendment concerning the dispute in question: MUMBAI ITAT (LARGER BENCH) ;

2009-TIOL-691-ITAT-DEL-SB.pdf + spl story.pdf

M/s Kailash Nath & Associates Vs ITO, New Delhi (Dated: October 16, 2009)

Assessee returns an income of Rs. 300 – AO adds Rs. 2.85 Crores; On appeal, tribunal finds that addition should have been 9.5 Crores; Assessee makes a quick retreat and concedes. To protect at least part of the Revenue, AO's order upheld: The assessee has clear surplus of over Rs.9.50 crores . The assessing officer has not even examined the tax implications of these issues but confined himself as to the taxability in respect of Rs.2.85 crores as part of revenue receipt. The assessing officer could have brought all sums to tax. Even on the reasoning that the amounts became accrued as a result of project completion method itself. Tribunal cannot go into this issue because it was not the case of the assessing officer. The assessee is fairly conscious of these implications and has wisely conceded the appeal in favour of the revenue . Without going to the merits of the matter, the order of the Assessing Officer confirmed. This exercise is just to protect the interest of the revenue to the extent the assessing officer has made the computation of income, as the Tribunal has no power to make enhancement: DELHI ITAT (SPECIAL BENCH) ;

2009-TIOL-597-HC-DEL-IT.pdf

ONGC Videsh Limited Vs DCIT, New Delhi (Dated: October 21, 2009)

Income tax - Stay of penalty u/s 271(1)(c) - Assessee is a subsidiary of ONGC - engaged in oil exploration outside India - AO disallows additions and makes substantial additions - also initiates penalty proceedings - CIT(A) grants partial relief - Tribunal concludes hearing but reserves the order - meanwhile, the AO passes the penalty order - Assessee seeks stay - interim stay granted but further petition for extension of stay denied without assigning any reason - held, Revenue restrained from taking coercive steps till petition made to Addl CIT is decided - CIT(A) also directed to expeditiously decide the penalty case - If Addl CIT decides the case, assessee to be given 15 days to further seek remedy - Assessee's appeal allowed:DELHI HIGH COURT;

2009-TIOL-596-HC-DEL-IT.pdf

CIT Vs Tadashi Murakami (Dated: October 22, 2009)

Income tax - Sec 195A - Assessee is an employee - gets salary in Indian currency as well as in foreign currency - tax is paid for the employee by the employer - AO adds the tax amount by treating it to be a monetary perk - applying provisions of Sec 195A the AO grosses up tax liability - Assessee pleads before the CIT(A) that since advance tax was paid by the assessee, grossing up cannot be done - CIT(A) deletes the addition - Tribunal dismissed Revenue's petition - held, while grossing up tax liability under Section 195A, the AO did not furnish any reason. He has not even stated as to what is other amount of tax paid by the employer. It may be inferred that the grossing up was done keeping in view the payment of advance tax by the employer which is factually incorrect. Since the advance tax was paid by the employee, the grossing up by the AO is unsustainable - Since the tax effect of the addition made is less than Rs four lakh, Revenue's appeal dismissed: DELHI HIGH COURT;

2009-TIOL-595-HC-KAR-IT.pdf

CIT, Davangere Vs M/s Gurunath Talkies (Dated: July 7, 2009)

Income tax - Sec 45 - Assessee is a partnership firm, engaged in the business of maintaining a cinema theatre - there are four partners of the firm - reconstitution of the firm - two new partners join the firm and contribute to the capital fund - the firm again reconstituted and the erstwhile partners retire with their own shares - new partners take control of the firm - Return filed - Sec 147 - AO holds that the assessee has not declared income attributable to the transfer of capital assets resulting in capital gains - also takes the view that the assessee applies colourable device to conceal capital gains and applies provision of Sec 45(4) to tax the capital gains - Tribunal allows the assessee's appeal - held, the Tribunal did not examine the sub-section 3 & 4 of Sec 45 which were inserted again vide Finance Act, 1987 and going by the facts of the case, there was a transfer of capital asset attracting the capital gain transaction in terms of Section 45(4) of the Act - Revenue's appeal allowed: KARNATAKA HIGH COURT;

SERVICE TAX SECTION

2009-TIOL-1805-CESTAT-BANG.pdf + bio story.pdf

M/s Bio Campus Gvk Bio Sciences (P) Ltd Vs CCE, Hyderabad (Dated: August 13, 2009)

Service Tax – Training in biotechnology and pharmacy through software - vocational training – matter remanded: The Tribunal found that the claim for exemption classifying the appellants as “vocational training institute” under Notification No.9/2003 dated 20.6.2003 is canvassed before it for the first time in the proceedings. Such a claim was not made before the lower authorities. In the circumstances, Tribunal was inclined to remand the matter for fresh adjudication by the original authority. It would be open to the appellants to canvass their case, if necessary by producing evidence of certificate holders who passed out of the institute and have obtained employment on the strength of their having undergone the course successfully. Tribunal was in agreement with the SDR that the exemption is extended only to such institutes which impart skills which enable the trainees to obtain employment or undertake self-employment like in the case of a typewriting institute: BANGALORE CESTAT;

2009-TIOL-1804-CESTAT-MUM.pdf

M/s Punjab State Container & Warehousing Corpn Ltd Vs CCE, Mumbai - II (Dated: August 10, 2009)

from Committee of Disputes while filing appeal as per Apex Court's decision in ONGC Ltd. [ 2002-TIOL-196-SC-CX ] , however since no committee formed, no clearance required and matter taken up for disposal – Amount paid is sufficient as pre-deposit – Stay ordered: MUMBAI CESTAT;

2009-TIOL-1803-CESTAT-MAD.pdf

M/s Needle Industries (I) Pvt Ltd Vs CCE, Salem (Dated: August 20, 2009)

Service Tax – Services provided from outside India – liability is only with effect from 18.4.2006 – the appellants paid Service Tax from 16.6.2005 – tax liability has to be re-quantified from 18.4.06 – plea of bonafide belief acceptable in view of the CBEC circular dated 08.10.2001– Penalties under Section 76 & 78 set aside: CHENNAI CESTAT;

2009-TIOL-1802-CESTAT-DEL.pdf

National Construction Co Vs CCE, Jaipur-II (Dated: July 17, 2009)

Service Tax - Cargo handling Services - Site Formation - Mining Services - Stay / Dispensation of pre-deposit - As per scope of work and Special condition of the contract the principal activity required to be carried out by the appellant is excavation and digging. As appellant has already pre-deposited Rs.30 lakh and matter requires detailed examination, stay granted. (Para 4): DELHI CESTAT;

CENTRAL EXCISE SECTION

NOTIFICATION

exnt09_25.pdf

Sec 11C benefits granted to for specified period on spcified produce of Village Industries under KVIC;

CIRCULAR

excircular905.pdf

Issuance of Licenses to manufacture cigarettes by Central Excise Department – reg (Sending you this Circular again with Office Memorandum issued by Dept of Industrial Policy & Promotion);

CASE LAWS

2009-TIOL-1798-CESTAT-MAD.pdf

Sargam Metals Pvt Ltd Vs CCE, Chennai (Dated: September 1, 2009)

Central Excise – non-payment of 8%-10% amount on exempted goods – non inclusion of general administrative overheads in case of goods transferred to their own unit – the appellants paid the duty along with interest and have been filing periodical returns – penalty set aside: CHENNAI CESTAT;

2009-TIOL-1797-CESTAT-MAD.pdf

POS Hyundai Steel Manufacturing (I) Ltd Vs CCE, Chennai (Dated: August 25, 2009)

Central Excise – inputs removed as such - duty paid on transaction value instead of amount equal to credit availed – no case for imposing penalty under Section 11AC as the appellants have not suppressed any material facts: CHENNAI CESTAT;

2009-TIOL-1796-CESTAT-AHM.pdf

CCE, Ahmedabad Vs M/s Bajaj Processors Pvt Ltd (Dated: June 17, 2009)

Central Excise – Accumulated deemed credit lying unutilized does not lapse in absence of specific provision in Notification No. 29/96-CE – Eligible for re-utilization even after withdrawal of compounded levy scheme as credit is earned lawfully – No infirmity in Appellate Commissioners order:AHMEDABAD CESTAT;

CUSTOMS SECTION

NOTIFICATION

ctariff09_122.pdf

CBEC imposes 20% safeguard duty on import of Soda Ash;

CASE LAWS

2009-TIOL-1801-CESTAT-DEL.pdf + siddharth story.pdf

M/Siddharth Polymer Ltd Vs CC, New Delhi (Dated: July 2, 2009)

Customs – Allegation of mis-declaration and undervaluation of imported polycarbonate sheets used in signage/advertising – Member (Technical) allows appeal on the ground that revenues evidences are inadequate to substantiate mis-declaration and undervaluation –

Member (Judicial) disagrees with Member (Technical) and remands matter to adjudicating authority to draw samples of virgin materials or of brands originating from supplier's country for test to resolve the dispute

Difference of opinion between two Members – Matter referred to President for resolution of difference of opinion:DELHI CESTAT;

2009-TIOL-1800-CESTAT-AHM.pdf

M/s Saurashtra Cement Ltd Vs CC, Jamnagar (Dated: July 2, 2009)

Customs – Diversion of goods imported under conditional exemption notification – Filing of Bill of Entry and finalizing assessment are not essential factors to be looked for considering whether goods are liable for confiscation or not – Huge volume of transaction cannot happen without knowledge of MD of importer-company – Imposition of penalty justified but reduced to Rs. 5 lakhs since equal penalty already imposed on importer-company – Buyer not aware of status of imported goods since high sea sale agreement was cancelled and amount paid for imported goods also included duty element, penalty on buyers set aside:AHMEDABAD CESTAT;

2009-TIOL-1799-CESTAT-MUM.pdf

CC, Mumbai Vs M/s Umax Enterprises (Dated: August 24, 2009)

Customs - Refund claim of redemption fine and penalty – Whether hit by bar of unjust enrichment - Bombay High Court decision in United Spirits Ltd. Vs CC(Import) Mumbai - 2009-TIOL-316-HC-MUM-CUS holding that principle of unjust enrichment not applicable to refund of redemption fine and penalty squarely applicable – Appeal rejected: MUMBAI CESTAT;