Jurisprudentiol – Thursday's cases

By Vijay Kumar

Legal Corner Icon — the image was hosted by the publisher and was not captured.Income Tax

Appeal before Commissioner (Appeals) and ITAT - Provisions of one section cannot be imported into another - doctrine of incorporation cannot be invoked by implication: Supreme Court

THE Courts have to be careful in reading into the Act such dis-enabling provisions as that would tantamount to judicial legislation which the Courts must eschew. It is for the Parliament to specifically say that no appeal shall be filed or admitted or maintainable without the assessee(s) paying the admitted tax due. That has been done only in the case of an appeal under Section 249(4)(a) of 1961 Act. We cannot read such a dis-enabling provision into Section 253(1)(b) of 1961 Act. If we do so, we are judicially legislating by reading something into the Act which is not there.

Central Excise

Excisability - Burden to show that product is marketed or capable of being bought or sold is entirely on Revenue: Supreme Court

MARKETABILITY is essentially a question of fact to be decided on the facts of each case and there can be no generalization, and the fact that goods are not in fact marketed is of no relevance and the question whether they are capable of being marketed.

Service Tax

Contract for execution of lump-sum work of loading, unloading, bagging, stalking, destalking to be read and interpreted in its entirety – Services rendered cannot be classified as ‘manpower recruitment & supply agency' service either directly or indirectly, temporary or otherwise - Ratio of Apex Court judgment in Super Poly Fabriks Ltd 2008-TIOL-82-SC-ST followed.

THE appellants entered into a contract for rendering services like feeding bags, for filling bulk, stitching, shifting back cargo, stacking, destalking, loading back cargo to the trucks, destalking and loading on trucks for wagon loading and transportation of the goods within the premises of CWC. The Service tax authorities scrutinized the contracts and other relevant documents, investigated the matter in detail and issued show cause notices alleging that the appellants were liable to pay service tax under the taxable service category of ‘manpower recruitment & supply agency' service. The Adjudicating authority held that services provided by appellants were classifiable under the category of ‘manpower recruitment & supply agency' service and confirmed the service tax demand.

See our columns Thursday for the judgements