Jurisprudentiol – Wednesday's cases

By Vijay Kumar

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

CENVAT Credit – Capital Goods - assessee cannot claim depreciation under Income Tax Act in respect of non-utilized Cenvat credit and claiming benefit for relevant assessment year having claimed depreciation under Income Tax Act. Tribunal's order, without application of mind: High Court

THE tribunal has committed a serious error in not considering sub-rule (4) of Rule 4 of CENVAT Credit Rules. Without applying its mind, without coming to the conclusion how the assessee would be entitled to avail benefit of depreciation under Sec.32 of the Income Tax Act and also claiming benefit of CENVAT credit in the subsequent year has allowed the appeal wrongly. On account of improper interpretation of sub-rule (4) of Rule 4 of CENVAT credit Rules relief has been granted to the assessee by the tribunal which requires to be set aside.

Income Tax

Payment made to Producers, directors, actors for financing film production – Not Contractors – No TDS: ITAT

BASICALLY and primarily whether a particular contract is a contract for sale of goods or for work and labour, depends upon the main object of the parties, gathered from the terms of the contract, the circumstances of the transactions and the customs of the trade. There can be no gainsaying that there is no standard formula by which a contract of sale can be distinguished from a contract for work and labour. There may be many common characteristics in both the contract, some neutral in a particular contract and yet certain clinching terms in a given case may fortify the conclusion one way or the other. All that will depend upon the facts and circumstances of each case.

Customs

Brine Shrimp Eggs ( Artemia Cyst) are classifiable as Shrimp Seed under Tariff Heading 2309.90 and are eligible for exemption – Majority ruling of CESTAT EZB set aside – High Court

THIS is a DRI case. The dispute involves classification of Brine Shrimp Eggs. The importer claimed it under Tariff heading 2309.90 as shrimp feed which was completely exempted from duty before 1999 and after that, subjected to concessional rate of duty of 5%. It is the case of DRI that the Eggs become prawn feed only after incubation under controlled temperature and therefore the same merit classification under Tariff Heading 0511.99 attracting higher rate of duty.

See our columns Tomorrow for the judgements