Jurisprudentiol – Tuesday's cases

By Vijay Kumar

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

Nowhere it is mentioned in rule 2(1) of CCRs, 2004 that input service credit is not available for services utilized outside factory premises – Credit on account of services used for construction and other services like maintenance and repairs of Fly Ash Plant situated outside factory is admissible - Revenue appeal rejected: CESTAT

THE respondents are manufacturer of cement. They are availing CENVAT credit of Service Tax under the provisions of Cenvat Credit Rules, 2004. The respondent availed CENVAT credit of Service Tax on account of services used for construction, erection, installation and other services like maintenance and repairs used in the Fly Ash plant situated at Thermal Power Plant which is outside of the factory premises.

Income Tax

Whether Tribunal has jurisdiction to admit fresh plea by Revenue and direct AO to examine assessee's claim u/s 37? - YES, says ITAT Third Member

THE issue before the Third Member of the Tribunal is - Whether the words “aggrieved” and “objects” as appearing in section 253(1) and section 253(2) of the Act respectively have any bearing on the scope of appeal filed by the assessee and department and hence it is permissible for the department to raise a fresh plea while challenging the order of the Commissioner though such plea relates to the subject but not discussed by any of the authorities below. YES, says ITAT.

Customs

Charge of fake bills of entry was not rebutted by the appellant nor the appellant was able to tell that at which port, the bills of entry were filed – Revenue has discharged the burden of proof – Confiscation of motor cycles upheld: CESTAT

THE facts are that R & I Wing of the Customs department had conducted various searches in Mumbai city on specific information that a certain number of branded motor cycles are being smuggled/imported without payment of customs duties and some of them were registered with Regional Transport Authorities on fake bills of entry. The officers of R & I Wing of Customs (P) Commissionerate, Mumbai conducted search operations at five different premises and seized 28 motor cycles of foreign origin under reasonable belief that they have been smuggled into the country without payment of customs duty. The adjudication proceedings resulted in an order of confiscation of motor cycles. Penalty was also imposed on the appellant.

See our columns Tomorrow for the judgements