Jurisprudentiol – Monday's cases

By Vijay Kumar

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

Variation in weight of material shown on invoice and on physical verification - variation within tolerance limits as prescribed under SWAM Act and can be ignored - CESTAT

UNLESS the invoices are found to be wrong or diversion of inputs received under invoice is proved, there is no provision to deny CENVAT credit – there is also nothing on record to prove that respondent actually recovered any "proportionate amount" by way of deduction from transporter's bill on account of loss of material by theft - Revenue appeal dismissed.

Income Tax

Sec 194C - Whether when assessee enters into agreements with sub-contractors for civil construction and erection of transmission towers and also supplies materials, assessee is liable to TDS on supply portion as well: ITAT

THE issues before the Tribunal are - Whether when assessee enters into agreements with sub-contractors for civil construction and erection of transmission towers and also supplies materials, the assessee is liable to tax deduction at source on the supply portion as well and whether when contractors compensate farmers for uprooting their trees for installation of towers on behalf of assessee and also undertake the work of haulage of felled trees to stores, it attracts provisions of Sec 194C.

Service Tax

There is no scope for filing appeal or stay petition before Tribunal against order of Assistant Commissioner, which has been passed in de-novo proceedings: CESTAT

THE order passed by Assistant Commissioner is appealable before Commissioner (Appeals) and not before Tribunal. The reasons advanced by the advocate are that since the present impugned order stand passed by Assistant Commissioner in de-novo proceedings and they have already challenged the earlier order of Commissioner (Appeals) before Tribunal, the present stay petition should be considered as being a part of the earlier appeal before Tribunal. No merit in the above arguments. There is no scope for filing appeal or stay petition before Tribunal against the order of Assistant Commissioner which has been passed in de-novo proceedings and for limited purpose of quantification in terms of remand order of Commissioner (Appeals).

See our columns Tomorrow for the judgements