Updates 1st Sepj

8/18/2019 Updates 1st Sepj

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RECENT UPDATES IN DIRECT & INDIRECT TAXES AND IN OTHER AREAS OFPROFESSIONAL INTEREST – 01st September, 2015

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INCOE TAX

ACIT s re%ter N$#% I*#)str$%+ Dee+pme*t A)t'r$t3

Whether the jurisdiction of the Assessing Officer to make an assessment under Section 143(3)

(ii) is based on the issuance of a notice under Section 143(2)(ii), and the proiso to c!ause (ii) of sub Section (2) of Section 143 c!ear!" stipu!ates that a notice must be sered on the assessee #$%S& '

Whether in case, AO has fai!ed to issue notice ithin the specified period u*s 143, it has poer to assume jurisdiction under Section 143(2) # +O& '

Whether the aboe defect can be cured b" taking recourse to the deeming fiction proidedunder Section 22-- # +O& ' # .eenue/s appea! dismissed & A00A'A-A '' O.5

CIT s "%b)+ C'%4+%

Whether addition cou!d be made to the income of the assessee a!read" assessed here on thedate of the search, the assessments a!read" stood comp!eted and no incriminating materia! asunearthed during the search, no additions cou!d hae been made to the income a!read"assessed6 # .eenue7s appea!s dismissed & %0' '' O.5

S%r% 6HUF7 s 8CIT

Whether app!ication for condonation of de!a" must contain cogent reasons for e8p!aining thede!a" ith particu!ars hich caused the de!a" # $%S& ' # Assessee/s motion dismissed &-O9-A$ '' O.5

CIT s 9+%(/ D$%m*# Tr%#$*. Cmp%*3

Whether hen the eidences of tota! e8penditure or purchase ere not aai!ab!e ith thereenue and conse:uent!" the assessee as e!! as AO both decided to determine the incomeb" app!"ing a reasonab!e estimate of profit and that estimation as found er" near to theincome offered b" the assessee, the tribuna! has correct!" confirmed the order of 5 (A)6 #.eenue/s appea! is dismissed & ;A.A5 '' O.5

mailto:[email protected]:[email protected]


2/31

R%$ U*$ers$t3 s DIT

Whether at the time of registration u*s 12AA, the 5(%) has to satisf" ith regard to thegenuineness of actiities of the 5rust # Whether hen there is no finding that the niersit" isnot imparting education, or otherise imparting of such education on the basis of commercia!consideration, 5(%) as not justified in dec!ining the registration to the assessee u*s 12AA6 #

Assessee/s appea! is a!!oed & A'9%A-A 5A5

Resere 9%*/ St% C:Oper%t$e Cre#$t S($et3 Lt# s ITO

Whether in case of o#operatie redit Societ", interest income, commission income and po!ic"charges, etc6, receied from non#members i!! be e!igib!e for deduction u*s of Act # +O&5A5 # Assessee/s appea! dismissed & 99-A 5A5

%*$p%+ e#$% Net4r/ Lt# s A##+!CIT

Whether disa!!oance under Section 14A r66 ru!e ort 5rust charges are in nature of reimbursement and the assesseedoes not hae an" right oer an" fork!ift*cranes6 # .eenue/s Appea! dismissed & 99-A 5A5

DCIT s C*s)+t$*. E*.$*eer$*. Ser$(es 6I*#$%7 Pt! Lt#

Whether hen the pa"ments made b" the assessee compan" as not sa!ar" and the same asremuneration*consu!tation fee paid to the high!" e8perienced technocrats*consu!tants hichcou!d not be engaged on fu!! time basis as regu!ar emp!o"ees due to high remuneration andtemporar" re:uirement of the assessee compan", 5S is correct!" deducted under section14;6 # .eenue/s appea! is dismissed & %0' 5A5

$s'*) C'em$(%+s Lt# s DCIT

Whether here the issue regarding deductibi!it" of 5S b" assessee on pa"ment of commissionmade to foreign parties, had not been en:uired into b" the AO, such action of AO is prejudicia!to interest of .eenue and attracts inocation of jurisdiction b" 5 u*s 23 # $%S& 5A5 #

Assessee/s appea! dismissed & '$%.A-A 5A5


3/31

9$/r%m;$t S$*.' $++ s CIT

Whether hen there is pro rata transfer of !and to the dee!oper, the assessee can be made!iab!e to pa" capita! gains ta8 in respect of remaining !and for hich no consideration had beenreceied, in the eent of cance!!ation of the ee!opment agreement due to arious orderspassed b" the Ape8 court and 'igh ourt # +O& ' # Assessee/s appea! a!!oed & >+;A-

A+ 'A.$A+A '' O.5

CIT s 9$re*#er S$*.'

Whether non#maintenance of stock registers cannot be a ground for rejection of books, as itdepends upon the nature of the business # $%S&'

Whether hen books of accounts maintained ere du!" audited, then the onus shifts on the.eenue to sho that the accounts ere incomp!ete or incorrect, in order to make an" addition #

$%S&' # .eenue/s appea! dismissed & %0' '' O.5

CIT s S'r$ S'r$r%m H$r%+%+ S*$

Whether hen .eenue appea! has been dismissed in :uantum proceedings, then the occasionto restore the issue for reconsideration of the Assessing Officer for imposing of pena!t" does notarise # $%S& ' # .eenue/s appea! dismissed & -O9-A$ '' O.5

CIT s 9'%4%*$ S$+$(%te I*#)str$es

Whether an" addition cannot be made mere!" because there is some deficienc" of :ua!it" iserecord in the books B $%S & '

Whether mere!" because books of accounts are rejected, it does not mean that it mustnecessari!" !ead to addition in the return of income of the assessee B $%S & ' # .eenue/sappea! dismissed & .A;AS5'A+ '' O.5

CIT s S)t' Tr%%*(re D$st$++er$es & A++$e# Pr#)(ts

Whether the 'igh ourt has poer to ignore the circu!ars issued b" the -5 prescribing theminimum !imit to fi!e an appea!, proceed to decide the statutor" appea!s on merits, if the:uestion ino!ed is a substantia! one # $%S& ' # ase remanded & C%.A0A '' O.5

DCIT s Ut/%+ I*estme*ts Lt#

Whether profits arising from purchase and sa!e of shares are !iab!e to be treated as businessincome here the assessee as shoing these shares in its inestment portfo!io in the books of accounts and the shares so!d ere shon in the ba!ance sheet for the preious "ear and thesame had been carried forard as inestment in the beginning of the ne8t financia! "ear and inthe ear!ier "ears # Whether assessee/s income can be treated as specu!atie profit hereinterest earned on the !oans and adances granted b" the assessee as the main source of

Assessee/s income and the gross tota! income consists main!" of income hich is chargeab!e


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under the head capita! gains and income from other sources6 # .eenue/s appea! dismissed &%0' 5A5

DCIT s %r4%re P+3ester Lt#

Whether once the profit and !oss account is prepared under >art# D >art# of Schedu!e#E of the ompanies ActF du!" certified b" the AuditorsF p!aced before the shareho!ders andadopted*approed b" the A9, then the .eenue can not make an" adjustments to the bookprofit e8cept to the e8tent proided in %8p!anation 1 # $%S & 5.-+A0 # .eenue/s appea!dismissed & 99-A 5A5

%'$*#r% A*# %'$*#r% F$*%*($%+ Ser$(es Lt# s A##+! CIT

Whether depreciation on !eased assets be a!!oed hen in past in assessee/s on case it hasbeen a!!oed and no materia! change since then has taken p!ace # $%S & 5A5

Whether issue of disa!!oance u*s 14A in respect of nterest e8penditure and Administratie

%8penses on e8empted income can be reconsidered and restored back to the fi!e of AO, in !ightof ratio !aid don b" the -omba" 'igh ourt in the cases of .e!iance ti!ities and odrej Agroet # $%S & 5A5

Whether issue of a!!oance of commission D brokerage be restored back to AO in ie of thedecision taken in past in assessee/s on case, to seek confirmations from the parties to homcommission D brokerage has been paid in e8cess of .s6 3,==,=== # $%S & 5A5 # ase.emanded & 99-A 5A5

DDIT s C'e**%$ C)stm H)se

Whether after =16=462==, as per the second !imb of section 2(1G), an" actiit" of rendering an"

serices in re!ation to an" trade, commerce and business for a cess or an" other consideration,irrespectie of the nature of use or app!ication, or retention, of the income from such actiit"cannot come under the purie of charit"H Whether the assessee haing 12A registration andc!aiming as a charitab!e organiIation is e!igib!e to be c!aimed again under princip!es of mutua!it"H # .eenue/s Appea! A!!oed & '%++A 5A5

ACIT s S'r$ eer% Se/'%r Re##3

Whether the matter be restored to the fi!e of the AO for deciding the same afresh after erif"ingthe confirmation !etter hich is produced as eidence before appe!!ate authorit" but has notbeen produced before AO # $%S & 5A5

Whether passing of order based on additiona! eidence ithout giing an opportunit" to AO toe8amine the same is correct # +O & 5A5 # ase .emanded & '$%.A-A 5A5

CIT s S)m%* D'%m$;%

ncome ta8 # -5 nstruction dated *2*2=11 # monetar" !imit6


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Assessee/s appea! ere disposed of b" the 'igh ourt on the basis of the instructions issued b"the entra! -oard of irect 5a8es dated 6262=116 # ase remanded & S>.%9% O.5 O@+A

DCIT s Am$. 9r)s'es 6P7 Lt#

Whether the deposit receied b" the assessee is to be treated as deemed diidend here theassessee compan" did not ho!d a share in the !ender compan" from hich it had receieddeposit # Whether foreign trae! e8penses can be said to be incurred for the purpose of business ho!!" and e8c!usie!" here the e8penditure as incurred for negotiating for sparesand purchases of manufacturing machiner" # Whether e8penditure incurred on account of repairs for e8caation of pond, purchase of ood shaft, p!", -urma teak ood, ti!es, door, etc6 isa!!oab!e as reenue e8penditure # Whether deduction u*s


6/31

CIT s T'e E=e()t$e E*.$*eer

Whether if three separate contracts hae been entered into b" the assessee, but a!! theseparate contracts ere integra! parts of a composite contract on sing!e sa!e responsib!e basis,the inoices raised on the basis of the said composite contract separate!" mentioning the a!ueof the materia! supp!ied can be subjected to 5S u*s 14 # +O& ' # .eenue/s appea!

dismissed & CA.+A5ACA '' O.5

N%rt$s I*#$% Lt# s DCIT

Whether !unch e8penses incurred for the emp!o"ees during the course of outdoor duties is to bea!!oed u*s 3J(3) # Whether the disa!!oance of .s6 14,4,42*# for tota! e8penses and air faresof foreign isitors in ndia is justified # Whether if an e8cess proision has been added back anddirections hae been gien to the AO that he shou!d reduce the income offered b" the assesseeon such a proision ritten back b" the assessee, then is there an" merits in a!!oing suche8cess proision in this "ear, as direction has been a!read" gien for conse:uentia! re!ief in thene8t "ear6 # Assessee/s appea! part!" a!!oed & 99-A 5A5

ACIT s S'r$ R%3m*# N%r$m%* E+%$%

Whether the the proceedings u*s 1G


7/31

Whether the interest e8penditure i!! hae to be e8c!uded from the e8penses to be a!!ocatedunder ru!e


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Whether assessee ou!d be entit!ed to e8emption u*s 11 here the assessee/s actiities erenot in e8cess of its objects and the trustees hae carried out the actiities of the trust bonafideand in a manner, hich according to them best subsered the charitab!e objects and the intentof the Sett!or # Whether assessee ou!d be entit!ed to e8emption u*s 11 here in the pastperiod, the Assessee has been consistent!" granted e8emption under Section 11 of the Act anda!so under Section 1=(22)*1=(22A) or Section 1=(23) of the Act # Whether depreciation on

assets used for proiding A!!opathic s"stems of medicine ou!d be a!!oab!e if the actiities of the Assessee are ithin the scope of its objects6 # Assessee7s appea! part!" a!!oed & %0''' O.5

R%mes' eer%pp% S'$r+ 6H)7 s ITO

Whether one more opportunit" to produce a!! the eidences and gie e8p!anation, be granted toassessee, hen it fai! to do so ear!ier because books of accounts and the connected documentsare seiIed b" the .eenue # $%S& 5A5 # ase .emanded & >A+A; 5A5

A P Pr(essrs s ACIT

Whether -ooks of account can be rejected ithout assigning specific reasons for the same #+O& 5A5

Whether estimation of receipt can be sustained in the absence of an" a!!egation regardingsuppression of receipts or per se error in the profit rate dec!ared b" the assessee # +O& 5A5

Whether the order of AO for rejection of assessee/s c!aim for shrinkage, ou!d amounts toarbitrariness, in the absence of an" eidence to the contrar" # $%S& 5A5Whether disa!!oance made ithout bringing an" kind of comparab!es on record to substantiatethe disa!!oance, is sustainab!e # +O& 5A5

Whether addition as justified here AO had fai!ed to mention the detai!s of specific pa"mentshich in his opinion as hit b" the proisions of section 4=A(3) # +O& 5A5

Whether in the absence of an" proof being adduced or basis to proe that the fire incident asfabricated to c!aim insurance, mere assumption b" reenue that the assessee/s c!aim as notgenuine, is justified # +O& 5A5

Whether disa!!oance of rent paid for the machineries for the period from Apri! to ;une 2== is justified, here !iabi!it" to deduct 5S on pa"ment of rent on machiner" is introduced b" the5a8ation 0a Amendment Act, 2== 6e6f6 136J62== on!" and not before that # +O& 5A5

Whether here the processing actiit" done b" assessee as ?manufacturing?, then for c!aiming

deduction u*s 32(1)(iia) it as immateria! that the assessee as doing the job of processing for outside customers too # $%S& 5A5 # ase remanded & %0' 5A5

Smt R)t% S 8$*#%+ s ACIT

Whether hen AO accepts that joint fami!" is !iing together in the same house, the jee!!er"found in one room cannot be treated as on!" be!onging to the !ad" !iing B Whether hen at thetime of search no statement as recorded from the assessee and hence there as no occasionfor her to state that part of the jee!!er" be!ong to her mother in !a* father in !a or to specif"


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the items of such jee!!er", no aderse inference shou!d be taken on the basis of the same6 # Assessee7s appea! is a!!oed & %0' 5A5

ITO s "%+%*;$%m Dee+pme*t F$*%*($%+ Ser$(es

Whether hen the assessee has raised !oans to adance to the customers b" pa"ing interestand it is not haing on corpus in a forma! capita! so as to adance the !oan, the assessee isproiding !oans b" association ith arious commercia! banks b" raising !oans from them, suchkind of micro finance actiit" cannot be termed as charitab!e actiit" rather than it is a businessactiit"6 # .eenue7s appea! a!!oed & '%++A 5A5

Tr$+ I*p%r/ Lt# s ITO

Whether the !ease for "ears is a!most !ike a sa!e and ta8 cannot be deducted u*s 14# #Whether the 5S amount can be recoered from the assessee if the recipient has paid theta8es6

5he assessee is a joint enture ith the object of dee!opment of Specia! %conomic Kone for nformation 5echno!og" * nformation 5echno!og" %nab!ed Serices6 5he AO b" the impugnedorder found that the assessee had not deducted ta8 u*s 14# on the pa"ment made to 5+ndustria! ee!opment orporation 0td6 5he AO he!d the assessee as assessee in defau!t u*s2=1(1), and !eied pena! interest u*s 2=1(1A)6 5he AO passed the order on 361=62=13 treatingthe assessee as assessee in defau!t for the A6$ 2==#1=6 5he 5(A) affirmed the AO order6 #ase remanded & '%++A 5A5

S'ree @ ithin the due dateas prescribed u*s 3(1)(a), the said amount can be disa!!oed if the assessee has remitted the

same ithin the due date of fi!ing of return u*s 13(1) # +O& 5A5

Whether >S being part and parce! of computer s"stem, the depreciation on the same can bec!aimed at =L as prescribed for computers # $%S& 5A5 # Assessee/s appea!s a!!oed &'$%.A-A 5A5

DCIT s NSL Re*e4%b+e P4er Pt! Lt#

Whether sa!e of carbon credits is to be considered as capita! receipt and not ta8ab!e income #$%S& 5A5 # .eenue/s appea! dismissed & '$%.A-A 5A5


10/31

PR!CIT s # T$mes %r/et$*. Pt! Lt#

Whether hen the assessee/s staff had fai!ed to deposit the membership fee ith '0, as per the agreement, then such mone" paid b" the Assessee to '0 shou!d hae been a!!oed asbusiness !oss # $%S& ' : .eenue/s appea! dismissed & %0' '' O.5

CHIEF CIT s %'%r%*$ L)=m$ 9%$ emr$%+ E#)(%t$*%+ S($et3

Whether if an assessee is c!aiming e8emption u*s 1=(23)(i), the objects appear to be anci!!ar"to the main object of running the institution, it can be he!d that the objects can be an"thingithout an" !inkage to the main purpose of imparting education # +O& ' # ase remanded &55A.AC'A+ '' O.5

"t'%r$ et%+s Om/%r H)se s ITO

Whether if re#opening of the assessment as done on the basis of a statement recorded b" thencome 5a8 authorities of some other person, hich statement as neer furnished to theassessee in the reasons to be!iee, this ou!d amount of io!ation of principa!s of natura! justice# $%S& ' : Assessee/s appea! a!!oed & CA.+A5ACA '' O.5

CIT s 8%s;$t S$*.'

Whether in the case of the searched person, the date ith reference to hich the proceedingsfor assessment or reassessment of an" assessment "ear, ithin the period of the si8assessment "ears, shou!d be the date of initiation of the search under Section 132 or the

re:uisition under Section 132A # $%S&' : .eenue/s appea! dismissed & %0' '' O.5

CIT s H%*)m%* S).%r I*#)str$es Lt#

Whether the assessee can be a!!oed deduction on account of interest arising out of a !iabi!it"hich as neither paid nor shon to hae been incurred in the books of accounts, the assesseehimse!f has disputed the same # +O& ' : .eenue/s appea! a!!oed & A055A ''O.5

CIT s Cmp)(m St4%res Lt#

Whether hen a fact finding authorit" has decided an issue after comp!ete erification of documents and records, it is possib!e to interfere in such a case on the basis of 5ribuna!/s order # +O& ' : ase remanded & .A;AS5'A+ '' O.5

CIT s R%#'% S4%m$ Cmm)*$(%t$*

Whether here there is contradiction regarding period of deposit of 5S as to either before or after the conduction of sure" operation, the matter re:uires restoration to the 5ribuna! being afina! fact finding authorit" # $%S& ' : ase remanded & .A;AS5'A+ '' O.5


11/31

P)s'p%/ 9)++$* Pt! Lt# s DCIT

Whether the AO is bound to decide objections raised b" assessee on re#opening of hisassessment on merit, een if the assessee has fai!ed to fi!e his return ithin a period of not !essthan 3= da"s in pursuant to the notice of reopening issued u*s 14< # $%S& ' : Assessee/sappea! a!!oed & ;A.A5 '' O.5

P)*;%b$ Cper%t$e H)se 9)$+#$*. S($et3 s CIT

Whether mere pro#rata transfer of !and as a !icensee for the dee!opment of the propert" ou!dattract Section G3A of 5ransfer of >ropert" Act, here no possession as gien b" the transferor to the transferee of the entire !and in part performance of the joint dee!opment agreement #+O& '

Whether the assessee is !iab!e to the capita! gains ta8 in respect of remaining !and under joint

dee!opment agreement, for hich no consideration as receied and hich stood cance!!edand incapab!e of performance due to orders passed b" the Supreme ourt or 'igh ourt # +O&' : ase remanded & >+;A- A+ 'A.$A+A '' O.5

%$*% S'ett3 s DCIT

Whether in case the reopening as on the basis of an order passed b" the 5ribuna! be"ond theperiod of !imitation specified in Section 14 of the Act, the reopening can be he!d as a!id innature # +O& ' : Assessee/s appea! a!!oed & CA.+A5ACA '' O.5

)?%%rp)r Ce*tr%+ C:per%t$e 9%*/ Lt# s ITO

Whether the !iabi!it" for deduction of ta8 at source u*s 14A gets e8tinguished upon !apse of reasonab!e period of time, hen !iabi!it" is determined and stands outstanding on the part of deductee # +O& 5A5

Whether in the said absence of abatement of recoer" as per 5S proisions, an" !imitationperiod can be prescribed for !e" of interest !iabi!it" u*s 2=1(1A) # +O& 5A5

Whether the charge in respect of ta8 deductib!e at source ou!d abate ith time and the ta8 duecan be he!d as not pa"ab!e or recoerab!e b" the entra! oernment, upon non action b" ittoard recoer" for a particu!ar period of time # +O& 5A5 : Assessee/s appea! dismissed &>A5+A 5A5

S'%m 9)$+#ers s ACIT

Whether mere!" because a higher percentage of income is estimated b" the .eenue on thebasis of fair gross profit ratio, the assessee can be pena!iIed for concea!ment of income # +O&5A5

Whether hen the assessee himse!f has dec!ared reasonab!e profits a!ongith the additiona!income in respect of e8tra ork done on no profit basis, he can be he!d gui!t" for concea!ment of income # +O& 5A5 : Assessee/s appea! a!!oed & A'9%A-A 5A5


12/31

SERICE TAX

@e*$t' 69%*.%+re7 R++ers Pt! Lt# s CCE

Serice 5a8 # !assification # .e#rubberiIation of o!d and orn out spind!es for the printingindustr" b" fresh coat of u!caniIed rubber # Actiit" he!d c!assifiab!e as -usiness Au8i!iar"Serices in the !ight of Zenith Rollers ratio and fa!!s ithin the ambit of e8emption +otification+o614*2==4#S5 dt6 1=*=*2==4 # mpugned orders den"ing benefit of +otification b" c!assif"ingthe said actiit" under 9anagement, 9aintenance or .epair (99.) :uashed and appea!

a!!oed ith no costs # Assessee appea! a!!oed & '$%.A-A %S5A5

Ce*t)r3 St%r s CST

Serice 5a8 # 5ransportation charges ithin the port from arehouse to harf and ice ersaduring the "ears 2==#=J and 2==J#=< # A!!oed under 5A serice # >ost 2=1=, the @inance

Act treated a!! serices rendered ithin the port area as Mport sericeN # >rior to 2=1=, sericesrendered ithin port are c!assified according to the categor" and nature of serice # @or theperiod in dispute, appe!!ant as engaged in transportation ithin the port from arehouse toharf and ice#ersa # 'e!d justified in be!ieing that serices rendered coered under 5Aserice # Authorities be!o fai!ed to sho ho inter carting ork undertaken b" the appe!!antamounted to rendering of steamer agent serice # Since the appe!!ant paid entire amount of ta8

a!ong ith interest prior to issue of sho cause notice, ithout contesting issue of c!assification,he!d is entit!ed to the benefit aier of pena!t" b" inoking proisions of Section


13/31

poer to e8tend the sta" order be"ond the specified ma8imum time !imit prescribed # .eenueappea!s dismissed& 'igh ourt # Appea!s dismissed & A00A'A-A '' O.5

CC, CE & ST s Tps( I*#$% Pt! Lt#

Serice 5a8 : %mp!o"ees of parent compan" at ;apan deputed to ork in ndia # emand under reerse charge under Supp!" of manpoer serice # .eenue in appea! against the order of 5ribuna! granting unconditiona! sta" # 'e!d& 5he 5ribuna! had taken into consideration of the factthat the issue ith regard to simi!ar circumstances as a!read" the subject matter of todecisions of the 5ribuna! at e!hi6 n that ie of the matter, hen the issue is s:uare!" coered,there ou!d be no justification for directing a pre#deposit # +o i!!ega!it" or infirmit" in theimpugned order # 5he appea! is dismissed6 # Appea! dismissed & A+'.A >.A%S' ''O.5

P'e*$= L.$st$(s Pt! Lt# s CC

Serice 5a8 : Appea! against the order of 5ribuna! dec!ining to condone the de!a" in fi!ing theappea! and dismissing the same on the ground of de!a" # 'e!d& 5he fact that order dated26=362=12 came to be sered on the emp!o"ee of a sister concern and the same came to thenotice of the appe!!ant be!ated!", cannot be ignored6 +o motie as such can be attributed to theappe!!ant for not fi!ing appea! in time, especia!!" in ie of the fact that the appe!!ant is di!igent!"agitating the issue ino!ed as against the assessment for the preious "ears and a!so for subse:uent "ears # 5he 5ribuna! cou!d hae taken a !enient ie and, b" putting the appe!!anton terms, cou!d hae condoned the de!a" # nasmuch as the 5ribuna! fai!ed to e8ercise thediscretion, considering the facts of the case, appea! is a!!oed on condition of the appe!!antdepositing a sum of .s63,G=,===*# ithin a period of si8 eeks6 Appea! a!!oed & A+'.A>.A%S' '' O.5

I8 6I*#$%7 I*r%str)(t)re Lt# s CC, CE & ST

Serice 5a8 # Serice proided to Associate enterprise # Absent debit*credit entries in books of account, outstanding amount due from associated enterprise as of 1=*G*2==< # 'e!d cannot betreated as amounts paid for the purpose of !e" of ta8 # Amendment to Section J of @inance

Act, 14 not retrospectie # @o!!oing precedent decision, demand he!d unsustainab!e #irected to hear appea! ithout insisting pre#deposit6 # Sta" granted & -A+A0O.% %S5A5

9 R S$*.' A*# C s CCE & ST

S5 # 0itigants shou!d not suffer due to the fau!t of their Adocate # Appea! shou!d hae beendecided on merits and not on mere technica!ities # e!a" of G3 da"s in fi!ing appea! condoned&'igh ourt # >etition disposed of & ;'A.C'A+ '' O.5

T%;m%'%+ Tb%(( Cmp%*3 Pt! Lt# s CCE

Serice 5a8 # .ectification of error # incomp!ete sentence at para#G in the @ina! Order +o64==G*2=1G dt6136162=1Gpassed b" the -ench # brought to notice for rectification6

'e!d& ue to t"pographica! mistake, the citation of the Supreme ourt/s judgement is not t"ped # According!", the !ast sentence of para#G in @ina! Order +o64==G*2=1G dated 136162=1G iscorrected to read as under


14/31

?'e re!ied upon the 'on/b!e Supreme ourt judgment in the case of ujarat Ambuja ements0td6 Es O # 0etter disposed of & '%++A %S5A5

e+ N$tr* C*str)(t$*s s CCE

S5 # Appe!!ants are bui!ders*promoters of housing societ", constructing residentia! f!ats and arein appea! against !e" of S5 on /one#time maintenance*contribution/ co!!ected from purchasers of the f!ats # such maintenance charges are co!!ected for the interim period ti!! the societ" is formedas per the 9aharashtra Onership @!ats (.egu!ation of >romotion of onstruction, Sa!e,9anagement and 5ransfer) Act, 13 and thereafter once the bui!ding is occupied b" the f!atoners, the" ou!d form a housing societ" as per 'S .u!es # the appe!!ants are co!!ectingcorpus for maintenance etc6 and ba!ance of funds a!ong ith account of uti!isation are

transferred to the ne!" formed societ" in terms of s6 G D of the Act, 136 'e!d& .e!"ing uponthe ear!ier decision in the case of Cumar -ehera" .athi D Others s6 %, >une# # he!d thatappe!!ants are not !iab!e to pa" S5 under the categor" of /9aintenance and .epair serices/ onthe /one#time maintenance/ charges co!!ected from bu"ers of the f!ats # appea!s are a!!oed ithconse:uentia! re!ief& %S5A5 # Appea!s a!!oed & 99-A %S5A5

P%t%*;%+$


15/31

S5 # .enting of mmoab!e propert" serice # Appe!!ant had gien its immoab!e propert" onrent and receied rent of .s6G16 !akhs during the period =1*=*2==J to 3=*=*2=11 on hichS5 of .s646t6 0td6 # it is he!dthat conse:uent upon omission of 1st , 2nd and 3rd proiso to section 3G(2A) of the %A,144 b" the @A, 2=14 it is to be he!d that there is no proision for making further app!ication for e8tension of sta" and that the sta" order passed b" the 5ribuna!, if it is in force be"ond=J6=


16/31

% # %+EA5 credit suo motu reersed b" assessee # here there has been no determinationof the demand u*s 11A(2) of %A, 144, pena!t" u*s 11A cannot be imposed # hoeer,interest is pa"ab!e u*s 11A- irrespectie of the fact that the inadmissib!e credit as not uti!iIed #

Appea! part!" a!!oed& %S5A5 # Appea! part!" a!!oed & 99-A %S5A5

Peps$( I*#$% H+#$*.s Pt! Lt# s CCE & ST

# !assification # Assessee engaged in manufacture of arious namkeens and potato chipsith different f!aours # n order to gie arious f!aours to these products, assessee procuresarious spices from market and make spice mi8es as per their specifications # Whether c!assification of such mi8tures of spices fa!!s under hapter of %5A as c!aimed b" assesseeor under hapter 21 as stated b" epartment # Such mi8tures i!! hae an essentia! character not necessari!" that of sing!e ingredient spice but of combination of such spices as per their

proportion # %en if additiona! materia!s are added hat is re:uired is that these mi8tures retaintheir essentia! character of arious ingredients of spices # @urther, essentia! character of spicesare basica!!" re!ating to aroma, taste and f!aour # @urther, Origina! Authorit"/s finding that apartfrom spices, certain chemica! ingredients, di!utants and addities and sa!ts are used in differentproportion in spice mi8 # onc!usion of Origina! Authorit" is not substantiated to the effect thatho such addition of certain chemica!s or addities has taken aa" the essentia! character of spice mi8 # Addition of ingredients !ike onion poder, gar!ic poder and tamarind, etc asconsidered as addition of other materia!s # Spice -oard c!ear!" indicates the gar!ic and tamarindas ndian spices, hence, addition of these items if at a!! cannot be a consideration for e8c!udingc!assification for spice mi8tures under hapter # 'aing c!ose!" e8amined the scope of entr"under 'eading +o621=3 and scope of hapter , it is conc!uded that spice mi8tures producedb" assessee are to be c!assified under hapter and not under 'eading +o6 21& %S5A5 #

Appea!s a!!oed & %0' %S5A5

S'%+$m%r Isp%t s CCE

Assessee are a ro!!ing mi!! and period of dispute is from September 1J to 9arch 2=== # -" a+otfn 32*J#% (+5) dated 1


17/31

);%r%t St%te Fert$+$?ers A*# C'em$(%+s Lt# s CCE & ST

Appe!!ant as supp!"ing apro!actum to their sister concern # ifferentia! dut" as paid b"assessee on =6= # statutor" proision under Section 4A cannot be a!tered or inf!uenced mere!" because the appe!!ant has chosen todischarge serice ta8 on portion of the retai! sa!e price # emand uphe!d and appea! dismissed&%S5A5 # Appea! dismissed & 99-A %S5A5

9%+/r$s'*% I*#)str$es Lt# s CCE

# Appe!!ant se!!ing si8 "ear o!d used fork!ift on discharge of % dut" at depreciated a!ue #after department raised objection that appe!!ant shou!d hae paid an amount e:ua! to credit

taken, appe!!ant pa"ing differentia! dut" a!ong ith interest under protest # !ater refund c!aimedof amount paid hich as rejected6 'e!d& 9achine (fork !ift) c!eared after putting into use cannotbe treated as c!eared /as such/ # insertion of proiso in ru!e 3(G) of ., 2==4 6e6f 1361162==Jmakes it c!ear that there is a difference beteen machine c!eared ithout putting into use andc!eared after use # in ie of authoritatie judicia! pronouncement in case of .agha A!!o"s 0td6,order rejecting refund set aside and appea! a!!oed ith conse:uentia! re!ief& %S5A5 # Appea!a!!oed & 99-A %S5A5

As$%t$( %ses Lt# s CCE


18/31

# nterest # Whether appe!!ant is re:uired to pa" interest in a case here dut" a!ong ith partinterest as paid o!untari!" # appe!!ant submitted that interest on de!a"ed pa"ment of dut"cannot be demanded un!ess dut" is determined under s611A(2) of %A, 1446 'e!d& t is anadmitted fact that there is substantia! de!a" in pa"ment of dut" een though appe!!ant has paidinterest o!untari!" # een though the dut" as not determined u*s 11A(2) of %A, 144 buthen there is admitted de!a" in pa"ment of dut", interest is chargeab!e een prior to 116=G62==1

# in ie of ape8 court decision in nternationa! Auto 0td6 interest is !eied for !oss of .eenue onan" count # no infirmit" in the order, hence sustained # appea! dismissed& %S5A5 # Appea!dismissed & 99-A %S5A5

Amb%ss%#r C+ers Pt! Lt# s CCE

# Assessee has p!aced purchase order to supp!" a!! goods to 9*s6 +orangro" .ameshar ith directions that goods are re:uired to be de!iered at job orker/s p!ace # noices ereraised in name of assessee and goods ere de!iered to job orker, hich ere receied b"assessee after processing # .ates :uoted are of job ork charges on!", a!though the job orker has paid EA5 thereon # t cannot be conc!uded that goods hae been so!d b" job orker toassessee # When assessee has fi!ed rep!" to S+, facts ere re:uired to be erified hich.eenue has fai!ed to do so # nder notfn6 214*


19/31

accepted b" officer ncharge of supp!ier unit 9*s S>>90 # On merit assessee as e!igib!e totake %+EA5 credit # +o eidence brought on record that main assessee and its irector ereaare that inputs receied as as a resu!t of an actiit" not amounting to manufacture #emand issued is c!ear!" time barred as e8tended period is not imposab!e and no pena!ties canbe imposed upon assessee& %S5A5 # Appea!s a!!oed & A'9%A-A %S5A5

S)r3% Rs'*$ Lt# s CCE

# .efund # Assessee is manufacturer of e!ectric bu!bs and are procuring inputs and capita!goods and a!so aai!ing enat redit thereon # 5he" opted to aai! e8emption under notfnG=*2==3#% i6e6 area based e8emption # At the time hen assessee took enat redit oninputs*capita! goods, their fina! product as dutiab!e and !ater on the" opted for aai!ing

e8emption under said notfn # As per Apco >harma 0td6, the" are not re:uired to reerse enatredit on input * inputs contained in ork#in#progress * finished goods !"ing in their factor"&%S5A5 # Appea! a!!oed & %0' %S5A5

CCE s H$*#)st%* Leer Lt#

entra! %8cise # !assification # Ease!ine ntensie are 'ee! uard is medicament& 5he issueino!ed in the appea! is as to hether Ease!ine ntensie are 'ee! uard (for short, /E'/) isto be treated as mere!" a skin care preparation or it is a medicament haing curing properties6Whi!e contrasting the to %ntries, name!", %ntr" 33=46== on the one hand and 3==361= on theother, it can be discerned that if it is a product for care of the skin, then it ou!d fa!! under hapter 'eading 33=46== but if it is for the cure of skin disease then the product in#:uestionou!d be medicamentF meaning thereb" the in:uir" has to be hether it is a care product or aproduct meant for cure6

5he product in :uestion, Ease!ine ntensie are 'ee! uard, is marketed as a so!ution for cracked hee!s and it is c!aimed that this so!ution is specia!!" dee!oped b" the scientists atEase!ine .esearch6 5he composition of this product inc!udes sa!ic"!ic acid 6>6 16GL *6 !acticacid


20/31

5he decision of the 5ribuna! ho!ding the product in :uestion to be a medicament and, therefore,coered b" hapter 'eading 3==361= is perfect!" justified and does not ca!! for an" interference6# .eenue Appea! ismissed& S>.%9% O.5 O@ +A

P)r+%tr I*#$% Lt# s CCE

entra! %8cise # Ea!uation # ash iscount has to be taken into account in arriing at ?price?een under Section 4 as amended in 2===& t can be seen that Section 4 as amendedintroduces the concept of ?transaction a!ue? so that on each remoa! of e8cisab!e goods, the?transaction a!ue? of such goods becomes determinab!e6 Whereas preious!", the a!ue of such e8cisab!e goods as the price at hich such goods ere ordinari!" so!d in the course of ho!esa!e trade, post amendment each transaction is !ooked at b" itse!f6 'oeer, ?transactiona!ue? as defined in sub#c!ause (3)(d) of Section 4 has to be read a!ong ith the e8pression ?for de!ier" at the time and p!ace of remoa!?6 t is c!ear, therefore, that hat is paramount is thatthe a!ue of the e8cisab!e goods een on the basis of ?transaction a!ue? has on!" to be at thetime of remoa!, that is, the time of c!earance of the goods from the appe!!ant/s factor" or depotas the case ma" be6 5he e8pression ?actua!!" paid or pa"ab!e for the goods, hen so!d? on!"means that hateer is agreed to as the price for the goods forms the basis of a!ue, hether

such price has been paid, has been paid in part, or has not been paid at a!!6 5he basis of ?transaction a!ue? is therefore the agreed contractua! price6 @urther, the e8pression ?hen so!d?is not meant to indicate the time at hich such goods are so!d, but is meant to indicate thatgoods are the subject matter of an agreement of sa!e6

When so!d does not mean the time& 5he e8pression ?actua!!" paid or pa"ab!e for the goods,hen so!d? on!" means that hateer is agreed to as the price for the goods forms the basis of a!ue, hether such price has been paid, has been paid in part, or has not been paid at a!!6 5hebasis of ?transaction a!ue? is therefore the agreed contractua! price6 @urther, the e8pression?hen so!d? is not meant to indicate the time at hich such goods are so!d, but is meant toindicate that goods are the subject matter of an agreement of sa!e # Appea! part!" a!!oed infaour of assessee & S>.%9% O.5 O@ +A

%+)e I*#)str$es Lt# s CCE

# Whether the actiit" of repair carried out on returned defectie compressors fa!!s under ?repair? as proided u*r 1J3' of %., 144 or Pmanufacture/ u*s 2(f) of the %A, 144 # Actiit"is repair as no ne commodit" emerges # % dut" demands set aside and appea! a!!oed&%S5A5 # Appea! a!!oed & 99-A %S5A5

%rr( E*.$*eer$*. Pt! Lt# s CCE

# Appe!!ant aai!ing %+EA5 credit of ta8 in respect of serices proided b" >rakash Air

@reight >t6 0td6 B department of the ie that appe!!ant had rong!" paid S5 on serice hichere e8empted from pa"ment of S5 ide notification 2*2==G#S5 in re!ation to transport of goods b" aircraft operator and subse:uent!" aai!ed credit B appe!!ant submitting that bi!!sissued b" serice proiders shos the same as /courier serice/ # credit denied and in de nooproceedings Assistant ommissioner conc!uding that /courier serice/ proided b" sericeproider as not coered under definition of /input serice/ B ommissioner(A) ho!ding thatserices are post c!earance e8port actiities not connected ith manufacture of goods, hencecredit not admissib!e6 'e!d& As de!ier" charges are inc!uded in se!!ing price, in ie of Carnataka ' decision in A-- 0td6, the e8pression /actiities re!ating to business/ admitted!"coers transportation up to the customers p!ace and, therefore, credit cannot be denied B as it is


21/31

an integra! part of business of manufacturer to transport and de!ier the goods manufactured,appe!!ant entit!ed to take credit B Appea! a!!oed ith conse:uentia! benefits& %S5A5 # Appea!a!!oed & 99-A %S5A5

T$me= >%t('es Lt# s CCE

# Whether inputs on hich assessee hae taken modat credit hae been put to use for manufacture of atches # As per .eport of efectie Work, assessee initia!!" aai!ed modatcredit on inputs*parts of atches, at time of receipt of same before putting to use, assessee hasconducted certain tests to find out hether inputs to be usab!e or not # nputs hich did not findfit to be used, assessee has reersed credit thereon, rest of inputs ere issued b" assessee for processing or assemb!ing of atches # efectie goods ere found on!" after inputs ereissued for processing or assemb!ing of atches, assessee is entit!ed to credit as per .u!e GJof ersthi!e entra! %8cise .u!es, 144& %S5A5

# Shortage of inputs # Assessee hae e8p!ained genera! !edger of stock adjustment accountref!ected inputs hae been short accounted in some cases and in some other cases inputs are

in e8cess, therefore, there is no actua! shortage of inputs # Shortages and e8cesses are due tothe fact that stock accounting used to be done on eighment basis since minute inputs ran intomi!!ions and ph"sica! counting is not possib!e # 5here is no shortage of inputs as e8p!ained b"assessee # A!! shortages*rejections hae been supported b" chartered accountant certif"ing thesame hich has not been controerted b" .eenue ith cogent eidence # Assessee are notre:uired to reerse modat credit taken b" them # >ena!t" is not imposab!e on assessee&%S5A5 # Appea! a!!oed & %0' %S5A5

ST I*#)str$es Lt# s CCE, C & ST

entra! %8cise # apita! goods # Scope # nputs (insect contro!!ing traps) used for managing*contro!!ing the tobacco beet!e infestation # 'e!d, hae to be considered as e!igib!e

cenattab!e inputs haing been used in re!ation to manufacture of fina! products # redit aai!edc!ear!" ref!ected in the records # Question of ma!afide intention does not arise # Stereot"pereasoning gien in a!! the cases of adjudication orders b" .eenue to inoke e8tended period of !imitation, deprecated# mpugned order of dut" demand, pena!t" and confiscation of goods, setaside # Assessee appea! a!!oed & -A+A0O.% %S5A5

9'%r%t He%3 E+e(tr$(%+s Lt# s CC & CE

# >roisiona! Assessment # .u!e J of %., 2==2 # nterest is !eiab!e een here differentia!dut" as paid prior to the fina!iIation of the assessment # -omba" ' decisions in %A5 Dspat ndustries disagreed& A!!ahabad ' # Appea! dismissed & A00A'A-A '' O.5

R%;)r$ Stee+s Pt! Lt# s CCE & C

# Appe!!ant as orking under the compounded !e" scheme u*s 3A of %A, 144 # sinceappe!!ant did not discharge % dut" !iabi!it" as fi8ed u*r K>(3) of %., therefore, S+ issuedand dut" confirmed hich appe!!ant paid ithout contesting the order#in#origina! # subse:uent!",another S+ as issued demanding interest and e:ua! amount of pena!t" u*r K>(3) andhich as confirmed # appe!!ant before %S5A56 'e!d& +o discretion is proided to an" authorit"to either reduce or aie pena!t" and interest in an" circumstances # hen there is admittedde!a" in pa"ment of dut" under compounded !e" scheme, interest and pena!t" proided under the proiso to the ru!e sha!! unaoidab!" be imposed # >ena!t" and interest right!" imposed b"


22/31

adjudicating authorit" and uphe!d b" ommissioner(A) hich do not re:uire an" interference #Order uphe!d and appea! dismissed& %S5A5 # Appea! dismissed & 99-A %S5A5

ett)r T'erm%+ P4er St%t$* s C9EC

entra! %8cise # emand of dut" on @!" Ash and @!" Ash bricks c!eared post =16=362=11 #>etition cha!!enging the Sho ause +otice on arious grounds6

'e!d& >rocess does not amount to manufacture # 5o be subjected to !e" of e8cise dut"?e8cisab!e goods? must be produced or manufactured in ndia6 @or being produced andmanufactured in ndia, the ra materia! shou!d hae gone through the process of transformationinto a ne product b" ski!!fu! manipu!ation6 %8cise dut" is an incidence of manufacture and,therefore, it is essentia! that the product sought to be subjected to e8cise dut" shou!d hae gonethrough the process of manufacture6

5he Ape8 ourt nion of ndia ersus Ahmedabad %!ectricit" ompan" 0imited? # hascategorica!!" he!d the ?cinder? hich is unburnt part of coa!, is not e8igib!e to e8cise dut" sinceno manufacturing process as ino!ed to produce the same and as such it did not satisf" thetest of being manufactured in ndia as enisaged in the proisions of the Act and that the onusto estab!ish that cinder has gone through the process of manufacture in ndia as notdischarged b" the department6 #5he difference beteen /cinder/ and /f!" ash/ is that hen coa! isnot burnt fu!!" and !eaes pieces behind, is ca!!ed /cinder/ hereas, hen it is fu!!" burnt andreduced to ash, is ca!!ed /f!" ash/6 5herefore, 5he ratio decided in the aboe said decision ou!ds:uare!" app!" in the case of /f!" ash/ a!so since the product /f!" ash/ a!so cannot be said to haegone through an" manufacturing process6

+otification +o etition part!" a!!oed &9A.AS '' O.5

$s'*) & C Pt! Lt# s S)per$*te*#e*t Ce*tr%+ E=($se

# S6*AA of %A, 144 B emand of dut" set aside b" %S5A5 # Quashing of @. sought #since the petitioners hae an a!ternate and efficacious remed" to seek discharge from tria! court,


23/31

'igh ourt not inc!ined to e8ercise its inherent jurisdiction under Section 4& ' #>etitions disposed of & %0' '' O.5

A$r(e+ Lt# s CCE, C & ST

entra! %8cise # >re#deposit # %+EA5 redit of dut" paid on 5oer parts and She!ters andinput serices used for erection and insta!!ation of toers and she!ters # Appea! against theorder of 5ribuna! directing the appe!!ant to pre#deposit .s 12 crores6

'e!d& @o!!oing the order of the 'igh ourt in appe!!ant/s on case, pre#deposit is modified to.s 1= crores, to be paid in three insta!!ments6 # Appea! disposed of & 9A.AS '' O.5

C%str+ I*#$% Lt# s CCE

# %+EA5 # .u!e 2(!) of ., 2==4 # Outdoor atering Serice # %!igibi!it" # in ie of 0-decision in 5 ndustries 0td6 D appe!!ants on case, credit is admissib!e # hoeer, sinceappe!!ant hae co!!ected 3L of the tota! catering charges from their emp!o"ees, %+EA5 creditis not permissib!e on the attributab!e amount # as copies of input serices inoices hae beensubmitted b" appe!!ant from time to time a!ong ith month!" returns, e8tended period of !imitation is not app!icab!e # demand hit b" time bar, demand be"ond one "ear of S+ isdropped # interest pa"ab!e on the :uantified amount # pena!t" aied& %S5A5 # Appea! part!"a!!oed & 99-A %S5A5

Ismt Lt# s CCE

# uring the course of manufacture of A!!o"s and +on#a!!o" cast and ro!!s, s!ag arises hichis aste materia! and hich is c!eared ithout pa"ment of dut" # .eenue demanding amount of 1=L of a!ue of s!ag b" inoking ru!e (3)(i) and (ii) of the ., 2==46 'e!d& n terms of para 36Jof hapter G of the -%/s %8cise 9anua! of Supp!ementar" nstructions, 2==G, %+EA5 creditis admissib!e een in respect of input contained in an" aste, refuse or b"#product, therefore,demand under ru!e (3) is not maintainab!e # Supreme ourt in case of 'industan Kinc 0td6 hashe!d that demand under ru!e (3)(i) is not sustainab!e in respect of an" aste, b" product, refusec!eared ithout pa"ment of dut" # in ie of sett!ed !ega! position, Order set aside and appea!a!!oed& %S5A5 # Appea! a!!oed & 99-A %S5A5

CCE s Isp%t I*#)str$es Lt#

# Ea!uation # s64 of %A, 144 # Whether cost of transportation from factor" to depot i!! beinc!udib!e in the a!ue of goods during the period Apri! 2==2 to 9arch 2==3 # ommissioner (A)a!!oed appea! keeping in ie 5ribuna!/s order dated =161262==3 herein it as he!d thatrespondent is not responsib!e to pa" the cost of transport from the p!ace of remoa! to the p!aceof de!ier" i6e6 from the factor" gate to the depot separate!" D in terms of .u!e G of the Ea!uation.u!es, 2===, such a cost of transport hich is a!so separate!" shon is not inc!udab!e in thea!uation for the purpose of e8cise dut" # .eenue in appea!6 'e!d& 5ribuna!/s order has beenuphe!d b" the Supreme ourt ide order dated 2G6=362=1G # in ie of the said decision,.eenue appea! dismissed& %S5A5 # Appea! dismissed & 99-A %S5A5


24/31

SE> I*r%str)(t)re Lt# s CCE & C

# >ena!t" imposed of .s6264 crores on appe!!ant under ru!e 2G of %., 2==2 # Appe!!antsubmits that 5ribuna! has ide @ina! order dated =6=362=14 a!!oed the appea! of the mainnoticee against hom a demand of .s6264 crores as made and e:ua! amount of pena!t" asimposedF that since the demand itse!f has not been sustained, no pena!t" can be imposed onco#noticee6 'e!d& Since dut" demand on main appe!!ant has been set aside, pena!t" on thepresent appe!!ant cannot surie # pena!t" set aside # appea! as e!! as sta" petition area!!oed& %S5A5 # Appea! a!!oed & 99-A %S5A5

"%%$ S$+$(%tes s CESTAT

entra! %8cise #+on prosecution # dut" demand on Sodium Si!icates c!eared on job ork basisconfirmed ith interest and pena!t" in adjudication, uphe!d b" ommissioner (Appea!s) andagitated before the 5ribuna!, ho dismissed their appea! for non prosecution # impugned5ribuna! order agitated herein6

'e!d& considering the number of adjournments a!read" granted in the case and the number of occasions on hich the case as adjourned at the instance of the appe!!ant*assessee andhaing regard to the different reasons, hich ere compe!!ing in nature for hich theadjournment ere sought for, the 5ribuna! ought not to hae dismissed the appea! for non#prosecution and ought to hae considered granting one more opportunit" to theappe!!ant*assessee to prosecute its case # no reason to arrie at a conc!usion that the assessee

as not interested in prosecuting the appea!, depriing the assessee of its right to prosecute theappea! on merits # impugned order set aside and the matter is remanded back for fresh disposa!on merits and in accordance ith !a # 5he appe!!ant*assessee is directed to co#operate iththe 5ribuna! for ear!ier disposa! of the appea!, ithout seeking further adjournments # 9atter remanded & 9A.AS '' O.5

CCE s R%$+4%3 E)$pme*t A*# E*.. >r/s

# !assification # Whether ast ron >!ates for %mer" machiner" manufactured b" assesseei!! be c!assified under ' J32G61= of %5A, 1


25/31

entra! %8cise # Ea!uation # Additiona! onsideration # transfer of the right to procure dut" freeimported ra materia! is additiona! consideration, to be inc!uded in a!ue& additiona! monetar"consideration, in addition to the price being paid for the goods, i6e6 transfer of adance import!icence in faour of the se!!er b" the bu"er enab!ing the se!!er of the goods to effect dut" freeimport of the ra materia!s and bringing don the cost of production*procurement, is aconsideration, the monetar" a!ue of hich has to be considered under the proisions of the

.u!es, i6e6 .u!e thereof6 t needs to be emphasiIed at the cost of repetition that the resu!tanteffect of ina!idating the adance !icence b" the bu"er as issuance of !icence for intermediatesupp!" in faour of the assessee and the said !icence ensured certain benefits in faour of theassessee6 n the present case, on these facts, e hae to simp!" see as to hether thedefinition of /transaction a!ue/, as contained in Section 4 of the Act read ith .u!e of the.u!es, ou!d encompass this benefit as amounting to additiona! consideration6 t ou!d comeithin the ambit of additiona! consideration indirect!" f!oing from the bu"ers to the assessee6

Supreme ourt ;udgement in IFGL case affirmed, Maa!on "o#$ distinguished& nCommissioner o% Central &x#ise, 'hu(aneswar ) II v. IFGL Re%ra#tories Ltd. , the Supreme ourthad he!d that in *ursuan#e o% the #ontra#t o% sale, there is dire#tly a %low o% additional #onsideration %rom the (uyer to the seller. The value thereo% has to (e added to the *ri#e.

5hough the ounse! sought a re#consideration of this judgement, the Supreme ourt did notagree6 5he Supreme ourt distinguished the judgement in the case of Commissioner o% Central &x#ise, 'an!alore v. Maa!on "o#$ Ltd., herein it as he!d that subsid" gien b" theoernment need not be inc!uded in the assessab!e a!ue6 5his judgement has no bearing onthe present matter6 : .eenue Appea! a!!oed & S>.%9% O.5 O@ +A

9')4%+/% Stee+ I*#)str$es Lt# s UI

entra! %8cise # 'ot .e#ro!!ing 9i!!s Annua! apacit" etermination .u!es, 1J (A> .u!es1J) # emands adjudicated and agitated in appe!!ate channe!, cu!minating in a rit petitionpra"ing inter a!ia for dec!aring .u!e G of the A> .u!es 1Ji!!ega!, u!tra irus andunenforceab!e # Order passed b" sing!e bench uphe!d b" iisiona! bench and agitated before

the Ape8 ourt, hich disposed of a bunch of cases b" remand to the respectie 'igh ourts #5he restoration as based on the obseration in the aoba Stee! 9i!!s case, that in a!! thoseappea!s, there is no cha!!enge to the a!idit" of .u!e G of the 1J .u!es inserted ide+otification dated 3=# is disposed of herein6

'e!d& Order passed b" the ourt on J61262==G indicates that the issue of constitutiona! a!idit"of .u!e G as considered #judgment of the Sing!e ;udge came to be affirmed on re#appreciationof contentions b" iision -ench ieing that .u!e G cannot be stated to be io!atie of Artic!e14 or u!tra ires Section 3AF and that the differentia or c!assification, as a!!eged, hae a rationa!ne8us ith the object to be achieed b" the !a # it has been he!d b" the iision -ench that.u!e G of the A> .u!es, 1J is neither io!atie of Artic!e 14 of the onstitution of ndia or u!tra ires of the proisions contained in Section 3A of the entra! %8cise Act, 144 and thereb"dismissed the appea!s # the co#ordinate -ench as e!! as iision -ench of the ourt has dea!te8tensie!" ith regard to constitutiona! a!idit" of .u!e G of the A> .u!es, 1J # :uestion of re e8amination of the said issue does not arise6 : W> dismissed & CA.+A5ACA '' O.5

S'reem%t'% Pre($s$* Cmp*e*ts s CCE

entra! %8cise # efau!t in pa"ment of dut" # .u!e 143


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26G62=11 and interest haing been paid on 26G62=12, it as he!d b" the authorities that interms of sub#ru!e (3A) of .u!e < of entra! %8cise .u!es, 2==2, petitioner has defau!ted inpa"ment # n W> 131=4*2=1G, the respondent authorities a!!eged that petitioner has fai!ed to pa"the centra! e8cise dut" on the goods c!eared during the said month and same had been paidbe!ated!" thereb", petitioner has committed defau!t b" contraening the proisions of .u!e of E> make computer ith # documents referred to in thesho cause notices in :uestion, inc!uding seiIure mahaIar has been furnished to petitioners inthree o!umes # the documents hich are no sought for b" petitioners in their respectierepresentations hae not been re!ied upon in the sho cause notices # :uestion of issuing an"rit of mandamus to respondent to furnish copies of documents to petitioners, as sought for inthe respectie representations, does not arise # t is not the case of petitioners that documentshich are indicated in the sho cause notices hae not been furnished to petitionersF or that thesame has been re!ied upon b" the respondent # W>s deoid of merit : >etitions dismissed &CA.+A5ACA '' O.5


27/31

9')s'%* Stee+ Lt# s CCE

%+EA5 # Since pipes are so!d on basis of !ength, end cuttings hich are not sa!eab!e are sentunder coer of dut" paid inoices b" registered depots to Sahibabad unit for manufacture of ingots # credit is aai!ed on the dut" suffered on a!ue ar"ing from .s63*# to .s642*# per kg #ontention of department is that as inoices issued of end cuttings mention a!ue as .s61G*# per kg, credit is to be restricted on!" to the dut" pa"ab!e on said a!ue # emand of .s6162= croresconfirmed6 'e!d& Stand of the epartment is not correct in ie of the Ape8 court/s judgment inthe case of ommissioner of entra! %8cise D ustoms s6 9S Sitchgear 0td6, herein it hasbeen he!d that the receier manufacturer ho had receied the dut" paid inputs from a supp!ier#manufacturer is entit!ed to enat credit of the dut" paid b" the supp!ier manufacturer and the%8 Authorities haing jurisdiction oer the recipient manufacturer cannot reie theassessment of the dut" at the end of the supp!ier manufacturer # emand of redit is ithoutan" basis # %+EA5 redit of dut" paid on We!ding %!ectrodes as e!! as S!og >ot is a!soadmissib!e # Appea! a!!oed& %S5A5 : Appea! a!!oed & %0' %S5A5

P)r%b Pr$*ters s CCE

# !ause 4(e) of +otfn6 - scrips ere not found forged # there is nodispute that the mporter imported the goods on the basis of the documents, hich ere a!id atthe time of importation and therefore, such document is a!id, ti!! it is not set#aside, e8tendedperiod cannot be inoked # demand barred b" !imitation # >ena!ties on Supdt6 % D 'A a!soset aside in ie of ear!ier order of 5ribuna! in their on case # as the e8porter and its irector had committed the fraudu!ent actiities b" manipu!ating the 0et e8port order and -i!! of 0ading,the" ere the actua! beneficiar" and, therefore, imposition of pena!t" on the %8porter and itsirector are justified, !ega! and proper& %S5A5 # Appea!s part!" a!!oed & A'9%A-A%S5A5

Ab+e S'$pp$*. A.e*($es 6I7 Pt! Lt# s CC


28/31

us # ssue is regarding denia! of dra#back and dismissa! of appea!s b" the first appe!!ateauthorit" # As per first proiso to section 12A(a) of the ustoms Act, 12 appea! !ies tooernment of ndia and not before 5ribuna! # Appea!s disposed of as not maintainab!e&%S5A5 : Appea!s disposed of & 99-A %S5A5

CC s D?( 6I*#$%7 Pt! Lt#

ustoms # .efund c!aim of Specia! Additiona! ut" (SA) # 0imitation app!icabi!it" # SA refundc!aim fi!ed be"ond one "ear re!ating to the period prior to the date of issue of amending+otification +o6 3*2==< dated 16


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Whi!e considering a simi!ar case under the entra! %8cise Act, the Ape8 ourt in .anba8"0aboratories 0td6, has interpreted under Section 11-- as e!! as the %8p!anation of the saidSection in the same manner as has been he!d b" the 5ribuna!6 5he proisions of Section 11--of the entra! %8cise Act, 144 and Section 2JA of the ustoms Act are parimateria6

+o substantia! :uestion of !a arises in this appea! for determination # Appea! dismissed #

Appe!!ant directed that besides the pa"ment of interest from 246=361 (hich is three monthsafter the date of app!ication for refund of customs dut" fi!ed b" the respondent) ti!! the actua!date of the pa"ment, hich sha!! be at such rates notified from time to time, the appe!!ant sha!!further be !iab!e to pa" additiona! interest at the rate of L per annum (besides the notifiedinterest) on the amount hich is found !iab!e for pa"ment as on 136=462=11, ti!! its actua!pa"ment # Appea! ismissed & CA.+A5ACA '' O.5

$(rst I*#$% 6R & D7 Pt! Lt# s CC & CE

ustoms # ut" e8emption aai!ed ithout fu!fi!!ing conditions stipu!ated in +otification +o6G2*2==3#Onership of subsidiar" is a condition precedent for sharing of assets # 'o!dingcompan" mere!" haing effectie contro! oer subsidiar" does not per se amount to onershipof ho!ding compan" oer the subsidiar" # Sharing of common faci!ities*assets constitutes breachof conditions stipu!ated in +otification +o6G2*2==3 # onfirmation of the dut" demand on theappe!!ant is thus unassai!ab!e and arrants no appe!!ate interference # ut" on the a!uationmust reckonfrom the date of commencement of sharing of the assets # mpugned order suffersfrom no infirmit" and re:uires no interference # Assessee appea! has no merits hence isdismissed6 # Assessee appea! dismissed & '$%.A-A %S5A5

P%r%m)*t E=prts s CC

us # Appe!!ant fi!ed Shipping -i!! for e8port of tobacco product # n ie of -% !etter dated3=6=


30/31

+>S #-ased on inte!!igence that appe!!ant Ki!e Singh as habitua! se!!er ofcharas and aspresent near the atercourse, a po!ice part" apprehended him in the presence of a cii! gaIetteofficer and detected G==g of charas in his pocket # the materia! as seiIedF samp!e sent toforensic !ab confirmed it to be charas # After comp!etion of re:uired forma!ities and finding aprima facie case for the offence punishab!e under Section 2=(b) of +>S Act, the appe!!ant ascharge#sheetedF statement under Section 313 r> recordedF to hich he p!eaded not gui!t"

and c!aimed tria!#contentions that (i) the prosecution case suffers from materia! discrepanciesF(ii)S .am hander being comp!ainant, as not entit!ed to inestigate the caseF(iii) no independentitness as joined during inestigation of the caseF and(i) the proisions of Section G= +>S

Act ere not comp!ied and the offer of search gien to the appe!!ant suffered from materia!discrepanc" to the effect that he as not apprised to get himse!f searched before a 9agistrateFdiscarded b" trai! ourt # appe!!ant conicted for the offence punishab!e under Section 2=(b) of +arcotic rugs and >s"chotropic Substances Act, 1etition fi!ed b" the department against the anticipator" bai! granted b" the >rincipa!istrict and Sessions ;udge6

'e!d& 5he dictum !aid don b" the Supreme ourt ou!d c!ear!" sho that once anticipator" bai!is granted, the same cannot be cance!!ed in a mechanica! manner6 On!" if there is an" abuse of concession granted to the accused, then on!" the court can cance! the anticipator" bai!6 n theinstant case, een according to the reenue, it is not the case of the petitioner that therespondent is abusing the concession granted to him6 On the other hand, it is the submission isthat the reasons assigned b" the ourt be!o for granting anticipator" bai! to the respondent arefactua!!" incorrect6 5he said submission i!! not sere as a ground for cance!!ation of anticipator" bai! granted to the respondent # >etitioner has not made out an" case to cance! theanticipator" bai!6# >etition dismissed & 9A.AS '' O.5

P%r$s*s A.rte(' 6P7 Lt# s UI

@5> # ban of import of pa!m oi! through the ports of Cera!a, in pub!ic interest # uphe!d& t is morethan abundant!" c!ear that the restriction is imposed keeping in ie the e!fare of 3G !akhsfarmers in the State of Cera!a6 9atter as e8amined at the highest !ee!6

5he oernment had to a!ternaties before it, either to increase the custom dut" i6e6 dut" onthe import of crude oi! or to issue impugned +otification6 %nhancing the import dut" ou!d haea!! ndia ramification, hereas the prob!em as Cera!a specific6 5herefore, instant step astaken6 When a particu!ar decision is taken in the interest of the said farmers hich aremargina!iIed section of the societ", more so for their suria!, this po!ic" decision of the entra!oernment proides a comp!ete rationa! in support of the decision haing ne8us ith theobjectie sought to be achieed : Appea!s ismissed & S>.%9% O.5 O@ +A

DR Fre$.'t Fr4%r#ers Pt! Lt# s CC


31/31

ustoms # ustoms -roker 0icensing .egu!ations, 2=13 (-0. 2=13) # Appe!!ant acted asustoms -roker in the import of >E @!e8 -anners # . inestigation reea!ed that theimporters misdec!ared the countr" of origin to eade anti dumping dut" and it as a!!eged thatthe petitioner as ino!ed in the easion # 'A 0icense suspended under .egu!ation 1(1) of -0. 2=13, suspension continued under .egu!ation 1(2) ibidem ith a notice proposingreocation under .egu!ation 1< ibidem # impugned order as passed, reoking the !icence of

the petitioner and ordering forfeiture of the amount of securit" deposit made b" the petitionerFagitated herein6

'e!d& After issuance of the sho cause notice, the petitioner had submitted their rep!"Fparticipated in the en:uir" on comp!etion of hich, the petitioner as gien opportunit" to fi!etheir rep!"F the petitioner fi!ed the rep!", du!" considered b" the first respondent ho passed theimpugned order reoking the !icense # haing rep!ied to the sho cause notice and to the reportof the %n:uir" Officer and haing participated in the en:uir", it is not appropriate for thepetitioner to raise objections regarding the sho cause notice that too after the impugned order as passed and in fact, the sho cause notice got merged ith the impugned order # 5heimpugned order in the instant case has been passed b" the ommissioner of ustoms (mports)in e8ercise of his poer under the ustoms -rokers 0icensing .egu!ations, 2=13 hich are

framed under Artic!e 14(2) of the ustoms Act, 12 # .egu!ation 21 proides that a ustoms-roker ho is aggrieed b" an" order passed b" the ommissioner of ustoms under the saidregu!ations ma" prefer an appea! under Section 12#A of the ustoms Act to the ustoms,entra! %8cise and Serice 5a8 Appe!!ate 5ribuna!, hich is an efficacious a!ternatie remed"aai!ab!e to an aggrieed broker

5he rit ourt is aerse to interfere ith the acts and actions of the statutor" authorities un!essthose are be"ond jurisdiction or in e8cess of jurisdictionF and un!ess those ingredients arepresent, the Writ ourt i!! be s!o to interfere in the matter # n the present case, the firstrespondent has not acted contrar" to the princip!es of natura! justice or be"ond his jurisdiction,meriting interfere ith the impugned order #Ape8 ourt in the P5itaghur >aper 9i!!s o60td6ersus State of Orissa/, and PWhir!poo! orporation ersus .egistrar of 5rade 9arks/ he!din

essence that here right or !iabi!it" is created b" a statute hich gies a specia! remed" for enforcing it, the remed" proided b" that statute must be aai!ed of# in ie of e8istence of a!ternate statutor" appe!!ate remed" in the instant case, ourt disinc!ined to e8ercise itse8traordinar" poer under Artic!e 22 of the onstitution of ndia # >etitioner free to agitate thereocation of !icense before jurisdictiona! bench of 5ribuna! ithin si8 eeks of receipt of thisorderF 5ribuna! directed to entertain it ithout e8amining !imitation6 : W> dismissed & 9A.AS'' O.5

%#%* L%+4%*$ s CC

us # >re#deposit # -oard ircu!ar

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Updates 1st Sepj