Jurisprudentiol – Tuesday's cases

By Vijay Kumar

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

Chief Commissioner can exercise power of Commissioner and file appeal under Section 35(B)(2), as per provisions of Rule 3 of Central Excise Rules, 2002: CESTAT

AGGRIEVED by the order of the Commissioner (Appeals), revenue preferred an appeal before the Tribunal under Section 35B(2) of the Central Excise Act, 1944. During the material period, the said power was vested with the jurisdictional Commissioner (At present, it is the Committee of the Commissioners). But, the appeal was filed by the Chief Commissioner. The respondent assessee raised a preliminary objection to this, by contending that the appeal under Sec 35B(2) should be filed by the Commissioner only.

Revenue argued that as per Rule 3 of the Central Excise Rules, 2002, the Chief Commissioner is also a Central Excise Officer and he is entitled to exercise the powers of his subordinate also.

Income Tax

India-Denmark DTAA - assessee enters into contract for supply of platform vessel to ONGC - also provides crew - sources crew from Group Co based in Denmark - salary to crew paid by sister concern - taxability of salary income - Revenue treats assessee as agent - A non-resident cannot be held to be agent of a non-resident company: ITAT

MAERSK Co. Ltd.(MCL), a foreign company resident of the UK, entered into a contract for supply of Platform Vessel (PSV) to ONGC. Hire charges were received by MCL with regard to this supply of PSV. Under the contract, MCL was also to provide crew members. MCL obtained such crew from one Rederiet A. P. Motor (RAPM), a group company, resident of Denmark which does not have a PE in India. The salary of the crew members is thus paid by the sister concern.

Service Tax

Exports – refund of service tax – Notification No. 41/2007 – refund cannot be denied by reviewing the correctness of service tax payment at end of service providers - CESTAT

TRIBUNAL in a series of judgments has held that CENVAT credit cannot be denied to a receiver of duty paid inputs, by the Central Excise authorities having jurisdiction over the input receiver, by revising the assessment of duty at the supplier's end. The same principle will be applicable to this group of cases and unless and until, the service tax payment by the service providers is revised by the jurisdictional service tax officers, the service tax refund available to the exporters, who had received those taxable services in connection with export of goods, cannot be revised.

See our columns Tomorrow for the judgements