Jurisprudentiol-Monday's cases

By Vijay Kumar

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

C&F Agent - clearing & forwarding services can be considered as being rendered, if both the activities are connected and simultaneously done: CESTAT

THE expressions "directly or indirectly" and "in any manner" occurring in the definition of "clearing and forwarding agent" cannot be isolated from the activity of clearing and forwarding operations. A person may undertake to provide service of procurement of orders as agent of the principal without agreeing to provide services of clearing and forwarding of the goods. Clearing and forwarding has a very specific connotation in the context of movement of goods from the supplier to their destination and agents undertaking clearing and forwarding operations may never have been concerned with procurement of orders for the goods which are cleared and forwarded .

Income Tax

Whether merely because AO fails to delete irrelevant expressions in penalty notice, entire proceedings are to be construed as vitiated - NO, rules ITAT

THE whole idea behind the show cause notice is to make assessee aware that penalty provisions are going to be invoked and assessee has a right to offer an explanation. Therefore, merely non-striking of a particular column cannot lead to a conclusion that penalty needs to be deleted merely because of such failure. In any case, in this case though the column "concealment and filing of inaccurate particulars" was merely ticked without striking of either concealment or inaccurate particulars but para-3 of penalty order makes it clear that the action was initiated only for filing inaccurate particulars of income.

Central Excise

Capital goods cleared after use cannot be considered as cleared "as such": CESTAT

THE applicants have paid the duty on the transaction value at which the capital goods were sold and in case where the capital goods were transferred to other units duty has been paid on the depreciated value. If the capital goods are cleared after use then it cannot be considered as cleared 'as such'. Therefore, demand of duty equal to the credit availed is not sustainable. The applicants have a strong prima facie case. Therefore, pre-deposit of duty, interest and penalty is waived and recovery thereof stayed during the pendency of the appeal.

Happy Sankranti

See our columns Monday for the judgements