Jurisprudentiol - Friday's cases

By Vijay Kumar

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

Repairs and Maintenance Service – Service tax not payable for service provided to immovable property under category of Repairs and Maintenance Service during period prior to 10.09.2004 – No merit in appeal filed by the Revenue – CESTAT.

THE Respondent (M/s GE Nuova Pignone), a corporation governed by the laws of Italy has been providing the maintenance and repair services to their customers including supply of spare parts required. The respondent had obtained Service Tax Registration under the category of 'Maintenance or Repair Services' and paying service tax in respect of the maintenance fees after deducting the value of spare parts supplied in terms of Notification No. 12/2003-ST dated 20.6.2003, which grants exemption from service tax on so much of the value of taxable services as is equal to the value of the goods and materials sold by the service provider to the recipient of service. Revenue took a view that respondent was not eligible for exemption Notification No. 12/2003-ST dated 20.6.2003.

Income Tax

Whether expenditures incurred in connection with Euro issue also qualify for amortisation u/s 35D - YES: Madras HC

THE issues before the Bench are - Whether in the context of industrial undertaking, the I-T Act does not assign any specific meaning to the word ''extension''; Whether the expression ''extension'' means both horizontal as well as vertical extension; Whether the word 'being' used in Sec 35D is restrictive in nature and Whether expenditures incurred in connection with Euro issue also qualify for amortisation u/s 35D. And the verdict goes in favour of the assessee.

Customs

Order passed by Commissioner of Customs (A), Mumbai-II first reviewed by Commissioner (Imports) and then by Committee of Commissioner (General) and Commissioner (Imports) - Neither of them have jurisdiction in matter - Revenue appeal dismissed by CESTAT as not maintainable - fresh appeal filed along with application for condoning delay of 697 days - while dismissing earlier appeal, Tribunal has not given liberty to appellant to take remedial steps - COD, appeal and stay application dismissed: CESTAT

THIS is an interesting case where the Revenue got it all wrong. In its hurriedness to file an appeal against an order of the lower appellate authority, they first got the order reviewed by the jurisdictional Commissioner forgetting that such orders are to be reviewed by a Committee of Commissioners. So it did just that. Unfortunately the Committee that signed the review order was not the one that was legally constituted in terms of the Notification issued by the Central Government u/s 129A of the Customs Act, 1962. The end result of this fiasco was that the appeal was dismissed by the CESTAT.

One would have hoped that the matter was dead.

But, nothing dies at the hands of the Revenue. They make an attempt to resurrect anything and everything! Surprisingly, against the very same Order-in-Appeal, the Commissioner of Customs (Import), Nhava Sheva, after being dressed down by the CESTAT, filed a fresh appeal along with application for stay and application for condonation of delay.

See our columns Tomorrow for the judgements