Exchange of details of bank accounts with India possible only after DTAA revised: Switzerland;

Three new Members join CESTAT - Mr Ajit Kumar in Delhi + Mr S K Gaule for Kolkata and Mr V T K Nayanar for Mumbai;

Addl Director General, NACEN, Kolkata, Narayana Basu passes away; had recently undergone angioplasty;

Company Law Board reconstituted; Justice Dilip Raosaheb Deshmukh takes over as Chairman;

India receives USD 124 bn FDI since 1991;

Centre does not set up industrial parks but only provides tax holidays;

Delhi CBI recovers shahtoosh shawls from Emporium; Manager arrested;

CBEC gears up for reshuffle of Chief Commissioners;

UN hopes Copenhagen Summit may lead to new pact ;

Prospective Disobedience of Appellate Orders - Board Clarifies Draconian 2006 Circular ;

FBI team reaches India; likely to share intelligence with Indian investigators;

TIOL RUN UP TO GST

gst story.pdf

Premature GST will drain Central Exchequer; IGST fraught with inherent complexities;

TIOL COMMENTARY

ddt 7 dec.pdf

Micro Irrigation System and Service Tax;

CLB_reconstituted.pdf

Company Law Board reconstituted; Justice Dilip Raosaheb Deshmukh takes over as Chairman;

MIXED BUZZ

mbuzz1095.pdf

Centre does not set up industrial parks but only provides tax holidays;

mbuzz1094.pdf

India receives USD 124 bn FDI since 1991;

mbuzz1093.pdf

UN hopes Copenhagen Summit may lead to new pact;

2009-TIOL-660-HC-DEL-IT.pdf

CIT Vs Relaxo Footwears Ltd (Dated: November 30, 2009)

Income tax - Assessee is a manufacturing unit - suffers destruction of machineries and goods located at the unit in a massive fire - partly recovers losses by way of insurance payments - claims deduction for the rest of the losses - AO disallows by doubting the value of goods destroyed in the fire - Tribunal allows the appeal - held, no perversity in Tribunal's order based on facts - Revenue's appeal dismissed :DELHI HIGH COURT;

2009-TIOL-659-HC-MUM-IT.pdf

Shardadevi P Jhunjhunwala Vs CIT, Bombay (Dated: September 14, 2009)

Income tax - Sec 273A(4) - Assessees are individuals, partners in the firm and belong to Jhunjhunwala Group - Search & seizure - incriminating documents, including a diary, seized - assessees disclose additional income by revising returns - claims waiver of penalty and interest on the ground that they had made voluntary disclose and cooperated with the Revenue in deciphering incrimninating information from the seized diary - Revenue grants no relief - held, any disclosure made after the seizure of incriminating documents cannot be called voluntary, and since there are clear findings that the disclosure was not voluntary, the assessee cannot escape the liability of interest and penalty - rejection of assessee's application for waiver or reduction of interest and penalty is sustainable - Assessees' appeal dismissed:BOMBAY HIGH COURT;

2009-TIOL-657-HC-AHM-IT.pdf + it story.pdf

DDIT Vs State Of Gujarat & 1 (Dated: August 4, 2009)

Income Tax - Currency notes of Rs. 42.5 lakhs seized by police In spite of requisition by Income Tax, Police hand over the currency to claimant - By not complying with the requisition, a grave illegality has been committed by the concerned police officer . Money ordered to paid to Income Tax Department : The learned Magistrate was not at all within his powers to order for handing over muddamal currency notes to the respondent when proceedings were initiated by the Department under Sec.132 of the Act. In view of Section 132 of the Act, it shall be the duty of the police authority to comply with requisition issued by the authorized officer of the Department. The police authority has no power to retain the muddamal or hand it over to the respondent No.2 . It was incumbent upon him to have handed over muddamal to the Department for completion of proceedings initiated by it.:GUJARAT HIGH COURT;

2009-TIOL-757-ITAT-MUM.pdf

Advantage Advisors Inc Vs DDIT, Mumbai (Dated: July 21, 2009)

Income Tax - Section 10( 33 ) - assessee is incorporated in the USA and registered with SEBI as a FII - AO makes addition of compensation received on non -pari passu shares as dividend income - CIT(A) upholds the order of the AO - Held, in view of Tribunal's decision in assessee's own case the compensation on non- pari passu shares is a capital receipt not chargeable to tax and will only go to reduce the cost of acquisition of the shares.

Section 48 - On the issue of CIT(A) rejecting the contention of grating the benefit of indexation on the transactions resulting in long-term capital gain/loss under the provisions of section 48 – Held, in view  of decision of AAR in  Universities Superannuation Scheme Ltd., In re [2005] where AAR held that Foreign Institutional Investor has to be assessed with regard to capital gains/loss under section 115AD and is not entitled to opt out and claim to be assessed under section 48, read with section 112 with indexation provisions in case of assessment resulting into capital loss.:MUMBAI ITAT;

SERVICE TAX SECTION

2009-TIOL-1998-CESTAT-BANG.pdf

M/s Mudra Communications (P) Ltd Vs CCE, Calicut (Dated: September 25, 2009)

Service Tax - Stay/Dispensation of pre-deposit - Advertising Agency Service - discount given by the advertising media is not includable in the taxable value - prima facie case for waiver of pre-deposit.: BANGALORE CESTAT;

2009-TIOL-1997-CESTAT-BANG.pdf

M/s T G Kirloskar Automotive Pvt Ltd Vs CCE, Bangalore-II (Dated: June 12, 2009)

Service Tax – Service tax paid on service utilized for transportation of staff from residence to factory and vice versa eligible as input credit – Impugned order set aside: BANGALORE CESTAT;

2009-TIOL-1996-CESTAT-DEL.pdf

M/s Capital Transport Convoy Contractor Vs CCE, Indore (Dated: July 16, 2009)

ST - Business Auxiliary Service - Assessee transports vehicles from manufacturer's point to dealers' premises - Revenue treats such a service as BAS - raises demand - Assessee deposits 50% of tax demanded - held, whether such a service is covered under BAS needs to be examined later but in view of substantial sum deposited, stay granted: DELHI CESTAT;

CENTRAL EXCISE SECTION

NOTIFICATION

etariff09_26.pdf

Amends Notification 6/2006;

CASE LAWS

2009-TIOL-658-HC-MUM-CX.pdf

CCE, Mumbai-IV Vs Healwell Pharmaceuticals (Dated: June 10, 2009)

Central Excise – CENVAT Credit - plastic dropper packed in the paediatric drops container – input – eligible for credit: where dropper is provided in the carton along with bottle containing the drug it amounts to manufacture and the manufacturer is entitled to credit of duty paid on such product being input of the firm product. High Court decision in 2009-TIOL-312-HC-MUM- CX – followed: High Court: BOMBAY HIGH COURT;

2009-TIOL-2002-CESTAT-MUM.pdf + laxmi story.pdf

CCE & CC, Aurangabad Vs Laxmi Metal Pressing Works Pvt Ltd (Dated: October 29, 2009)

Exemption from payment of service tax leviable u/s 66 is provided by a notification issued under section 93 of the Finance Act, 1994 but that would not detract from the settled legal position that CENVAT credit of Service Tax paid by service provider is available to service recipient under rule 3 of CCR, 2004 - Re-assessment of input services cannot be done at the receiver's end – CESTAT dismisses Revenue appeal.: MUMBAI CESTAT;

2009-TIOL-2001-CESTAT-MUM.pdf

M/s Indo Rama Synthetics (I) Ltd Vs CCE, Nagpur (Dated: August 10, 2009)

Credit taken on Furnace oil for generating electricity which is sold to Indo Rama Textiles Ltd. – Credit prima facie not available – Pre-deposit ordered.

Fact that the applicants were using the furnace oil on which Cenvat credit was taken for generating electricity and which was supplied to IRTL came to the knowledge of the department only when the investigations were conducted – vital information withheld by the applicants and the ineligible credit was not only taken but also utilized by them for payment of duty on finished goods – Extended period is invokable and penalties are also imposable.: MUMBAI CESTAT;

2009-TIOL-2000-CESTAT-DEL.pdf

M/s Hind Lamps Ltd Vs CCE, Kanpur (Dated: August 27, 2009)

Central Excise - CENVAT - Common inputs - Dutiable and exempted goods - Credit reversed after clearance of final products  - The manufacturer who has availed credit on the inputs utilised in the manufacture of final products which are exempt from the duty or which are chargeable to nil rate of duty and because he has reversed the credit at the end of the month and after the clearance of the final product, the manufacturer cannot avoid the obligation to pay the amount in terms of the Rule 57CC(1).  (Para 16)

Interpretation of a decision - The ratio of a decision is to understood in the factual matrix involved therein and is to be culled out from the facts of the case, the point which arises in the matter and the decision based on the reasoning and the findings arrived at in that case. A decision in an authority for what it decides and not what can be logically deduced there from, Hence, every judgment has to be understood in the light of the facts of the case and nothing beyond what is stated therein can be read into it.   (Para 12)

Penalty - The matter relates to the interpretation of rule and, therefore, there is no justification for imposition of any penalty in the matter.  (Para 19): DELHI CESTAT;

2009-TIOL-1999-CESTAT-BANG.pdf

M/s Lanco Industries Limited Vs CCE, Tirupathi (Dated: July 2, 2009)

Central Excise – Commission paid to commission agents in pursuance of promotion of products manufactured by assessee – Service tax paid thereon eligible as CENVAT Credit – Excess credit taken erroneously reversed subsequently, order of original authority confirming demand on this count upheld – Penalty set aside: BANGALORE CESTAT;

CUSTOMS SECTION

2009-TIOL-661-HC-MUM-CUS.pdf + cus story.pdf

M/s Greenways Shipping Agencies Pvt Ltd Vs UoI (Dated: March 18, 2009)

Customs - The consignment did not arrive in the ship it was shown in the IGM , but arrived in another ship – IGM amended – Customs imposes penalty of about Rs. 15 lakhs – When the AGM was amended no question of discharging cargo under that IGM : Thus, in view of the fact that the IGM is amended, the very basis of the Order dated 19/3/2002 would not survive and consequently imposing penalty for non-discharge of the cargo would not survive. In other words, on cancellation of Item No.29 of the IGM , there is no question of discharging the cargo under Item No.29 of the IGM and consequently the question of penalising the petitioners for not discharging the cargo set out in Item No.29 of the IGM does not arise. In such a situation, the penalty imposed would become unenforceable.: BOMBAY HIGH COURT;

2009-TIOL-656-HC-MUM-CUS.pdf

M/s Mulji Devshi & Co Vs UoI (Dated: September 18, 2009)

Customs – exports – drawback – once one exporter in respect of same goods has been allowed drawback facility, it would not be open to the Department to deny similar benefits to another exporter: once one exporter in respect of same goods has been allowed drawback facility may be on the fact that the rates had been fixed in his case for the period 1-6-1989 to 31-5-1990 it would not be open to the respondents in respect of another exporter to deny similar benefits. In our opinion, therefore, these petitioners will also be entitled to duty drawback for exports done between the period 1-6-1989 to 31st May, 1990.: BOMBAY HIGH COURT;