Jurisprudentiol–Wednesday's cases

By Vijay Kumar

Legal Corner Icon — the image was hosted by the publisher and was not captured.Central Excise

Penalty under Rule 26 of the CER, 2002 cannot be imposed against persons who have not dealt with goods- CESTAT by majority

WE had reported the Tribunal decision in Batra International & Ors [2009-TIOL-86-CESTAT-MUM] with the following caption “Whether penalty under rule 26 of the CER, 2002 can be imposed against persons who have not dealt with any goods – Matter referred to the President on account of difference in opinion – Tribunal.”

The majority decision is come and the order is on expected lines.

Income Tax

ALP as per TNMM - a higher import content of raw material by itself does not warrant an adjustment in operating margins - assessee cannot be expected to get the details and particulars which are not in public domain – ITAT

ONUS is not on the assessee to get all such details of the comparable concerns so as to make this comparison possible. The assessee cannot be expected to get the details and particulars which are not in public domain. In such a situation, i.e. when information available in public domain is not sufficient to make these comparisons possible, it is inevitable that some approximations are to be made and reasonable assumptions are to be made.

Service Tax

Sharing of knowledge shall not be called as consulting engineering service: CESTAT

SHARING of knowledge shall not be called as consulting engineering service when expertise acquired by a concern is also used for its own benefit along with others. Therefore is held that the show cause notice has been misconceived and the adjudication flowing from the show cause notice has no legs to stand.

Tomorrow is a Holiday

See our columns Wednesday for the judgements