Jurisprudentiol – Tuesday's cases

By Vijay Kumar

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

Excisability - Chlorination Plants - there is no evidence that plants can be removed as such without dismantling - Strong prima facie case in favour - Pre-deposit waived: CESTAT

INTERESTINGLY, there are still some officers in the department who have a firm belief that all the “Plants” assembled at site are excisable and hence chargeable to Central Excise duty. The meticulously issued Section 37B order no. 58/1/2002-CX dated 15 th January, 2002 on the subject “Excisability of plant and machinery assembled at site – reg.” fails to find takers, and as is the norm, these officers prefer to err on the side of the Revenue.

Income Tax

Whether interest u/s 234C is to be levied on tax determined on book profits on deferment of advance tax liability - YES, rules ITAT

RETURN declaring book profits in terms of provisions of sec. 115JB was filed which was processed u/s 143(1). AO observed that the assessee deferred its advance tax liability and failed to pay various instalments of advance tax at the prescribed percentage in terms of provisions of sec. 211 of the Act and levied interest u/s 234C. Assessee filed an application u/s 154 that interest u/s 234C was not leviable. AO rejected the application on the ground that the interest u/s 234C of the Act in case of book profits determined u/s 115JB of the Act was a question of law on which different opinions exist and thus, the there was no mistake apparent from the record and it did not fall within the scope of section 154.

Service Tax

CENVAT Credit on input services used for construction of mall – Pre-deposit waived and recovery stayed: CESTAT

IT can be seen from the definition of input service that it is an inclusive definition which grants credit to the services which in relation in setting up...... premises of provider of output service. Prima-facie we find that the decision of the Tribunal in the case of Sai SamhitaStorages P. Ltd. Vs. C.C. & C.E., Visakhapatnam - (2010-TIOL-1751-CESTAT-BANG) covers the issue in favour of the assessee. the appellant has made out a prima-facie case for the waiver of pre-deposit of the amounts involved. The application for waiver of pre-deposit of the amounts involved is allowed and recovery thereof stayed till the disposal of appeal.

See our columns Tomorrow for the judgements