30) Technical - Case Laws - 2009

Thursday, July 16, 2009

Recent - Case Laws

Income Tax - 2009 - TMI - 34117 - HC Bad Debts :-
Revenue contended that the loss have been shown as bad debt for the financial year 1993-94 and not for the assessment year 1999-2000 - the amount became irrecoverable when the assessee wrote it off in its books of account and that, therefore, the assessee was entitled to claim the amount - even if duty drawback was available for the previous assessment year, what will be relevant was when the same is treated as bad debt by the assessee in his books of account – the fact that there was no income in the course of assessment year 1999-2000 would not disentitle the assessee from claiming the business expenditure in the said assessment year – claim of bad debts allowed. *

Income Tax - 2009 - TMI - 34116 - HC Export :–
Negative export profits - Undoubtedly, section 80HHC has been incorporated with a view to provide incentive to export houses. Even though a liberal interpretation has to be given to such a provision, interpretation has to be as per the wording of the section. If the wording of the section is clear, then the benefits which are not available under the section can not be conferred by ignoring or misinterpreting words in the section - negative export profits can not be ignored when aggregating the total turnover including other export by not taking into consideration the specific definition adduced in section 80HHC read with section 80AB of the Act for the purpose of computing deduction under section 80HHC of the Act – decided in favor of revenue – tribunal order is not correct. *

Customs - 2009 - TMI - 34115 - Tri Import of goods Valuation :–
The evidence relied upon by the Commissioner for loading of value was not made available to the importers - the impugned order set aside – matter remitted for fresh decision in accordance with law after furnishing copy of the Bill of Entry and after extending a reasonable opportunity to the appellants of being heard in their defence. *

Central Excise - 2009 - TMI - 34114 - Tri Import of goods – valuation :–
value based on sale price in India – since no other value available, the deductive valuation method adopted by the department upheld. *

Customs - 2009 - TMI - 34113 - Tri Confiscation of unmanifested goods and imposition of penalty :-
The submission of the appellants is that they had applied for amendment of the IGM as per Section 30 of the Customs Act and there is no finding that there was any fraudulent intention on their part and, therefore, amendment should have been permitted so as to include the unmanifested goods and confiscation and penalty should not have been ordered/imposed – contention is not acceptable – confiscation and penalty upheld. *

Central Excise - 2009 - TMI - 34112 - Tri Adjustment of demand with the refund :- Excess duty has been paid in one unit which is equivalent to the differential duty demanded in respect of the second unit - Both the units belong to the same manufacturer - The appellant explained the reasons by mistake in deposit excess duty in one unit and less duty in another unit - We find the duty paid in excess in one unit is to be adjusted against the deemed differential duty and against the other unit of the assessee – adjustment allowed but appellant can not apply for refund after adjustment. *

Central Excise - 2009 - TMI - 34111 - Tri Appeal filed in wrong form :–
EA-3 form versus ST-5 form - regarding denial of Cenvat credit on input services - an appeal filed in ST-5 format appears to be maintainable more-so when an appeal in ST-4 form was admitted by Commissioner (Appeals). The show cause notices are therefore discharged. It is however made clear that no view is being expressed on the merits of the case as to whether a demand relating to denial of credit on input services is required to be raised under Section 11A of Central Excise Act, 1944 or Section 73 of the Finance Act, 1994 appeal is maintainable. *

Central Excise - 2009 - TMI - 34110 - HC Duty paid under protest :–
marking on Invoice and ER-1 return - refund claimed - during the period in dispute, the relevant invoices and ER-1 returns filed would show that they were marked with the endorsement “duty paid under protest” - ground of non-forwarding of a letter as contended by the Department would not be of any significance - It does not mean that the claim for refund is ex facie not maintainable - refund is allowed subject to the provision of unjust enrichment. *

Service Tax - 2009 - TMI - 34109 - Tri Demand and Recovery :–
Waiver of penalty - The demand of service tax along with interest has already been paid after receipt of the show cause notice. The contention of applicant is that in para ‘13’ of the adjudication order, the adjudicating authority admitted that applicants were regularly filing half yearly service tax return in the form of ST-3 to the Jurisdictional Superintendent, wherein they were showing the availment and utilization of Cenvat credit for monthly payment of Service Tax and also the Service Tax paid by way of challan. Adjudicating authority also held that there is no evidence that the assessee had hidden any detail/information from the department – pre-deposit of penalty waived. *

Service Tax - 2009 - TMI - 34108 - Tri Value of Free Supply :–
Abatement of 67% under notification no. 15/2004 ST - The applicants are providing the service of commercial and industrial construction. As per the notification No. 15/04-ST. the applicants are entitled for abatement of 67% from the gross amount. The dispute in the present case is in respect of the gross amount charged. The revenue wants to add the value of free supply of cement and steel which was used in the construction - pre-deposit of duty and penalty is waived. *

Service Tax - 2009 - TMI - 34107 - Tri Recovery of Refund of service tax granted earlier :–
Revision of refund order - department cannot insist on implementation of a Circular dated 27-7-05 issued later on when the impugned period is January 2005 to March, 2005 - department has merely passed the order-in-revision and has not issued any demand notice for the amount refunded earlier by the original authority. The appellants have also clarified that they have got refund only in respect of such cases where they have obtained certificate from the GTA and produced before the original authority. – revision order set aside. *

Service Tax - 2009 - TMI - 34106 - Tri Interior Decorator Service :–
Applicability of service tax on planting of trees, garden plants, grassy lawn, etc. - Prima facie, there is a merit in the appellant’s submission that the activity of gardening under Horticulture activities, such as planting of trees, garden plants, grassy lawn etc. does not fall within the scope of “Interior Decorators” – stay granted. *

Service Tax - 2009 - TMI - 34105 - Tri Mining Services :-
It is the case of the Appellants that the nature of activities undertaken by them relates to mining of mineral namely, coal and they do not come under the Entry relating to site formation and clearance, excavation and earth moving and demolition for the period prior to 1-6-2007 – pre-deposit waived. *

*courtesy www.taxmanagementindia.com

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