Jurisprudentiol - Tuesday's cases

By Vijay Kumar

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

Vessels for breaking up - Whether bunkers containing oil are to be treated as part of vessel's machinery so as to attract Entry No.89.08 of Schedule to Customs Tariff Act, 1985?" - Yes, HC

VESSELS for breaking up are classified under entry No 89.08 of the Schedule to the Customs Tariff Act, 1985 attracting tariff rate of 10%. Now, how to deal with the fuel that is left on the vessel when it is imported for breaking up? Should it be classified under CTH No 89.08 as part of the vessel or should it be assessed under a different tariff entry?

Income Tax

Whether restrictions u/s 10A(9) was applicable only for assessee who availed exemptions u/s 10A w.e.f April 1, 2001 - Ruled in favour of assessee: ITAT

THE issues before the Bench are - Whether when section 10A(9) was omitted w.e.f April 1, 2004 on the grounds of causing undue hardship, exemption can be availed in the AY 2004-05, inspite of an acquisition of shares resulting in change of ownership the previous year; Whether AO's order allowing exemptions u/s 10A is erroneous and prejudicial to the interests of the revenue, when the Commissioner never challenged the genuineness of such change in ownership, and AO relied upon the omission as appearing in section 10A during the AY; Whether a previous order of the Tribunal passed in the case of the assessee, can be relied upon, when the jurisdictional High Court has taken a different view in a later judgement, allowing exemption u/s 10A; Whether restrictions u/s 10A(9) was applicable only for assessee who availed exemptions u/s 10A w.e.f April 1, 2001; Whether restrictions in terms of General Clauses Act, arising in a case of repeal can be applied to an omission and Whether the speech of the Finance Minister can be relied upon in case of any ambiguity while interpreting any provision of the Income Tax Act. And the verdict goes in favour of assessee.

Central Excise

Valuation - S.4 of CEA, 1944 - Assessee entered into two different contracts, one for supply of DG sets and another for installation/erection and commissioning at customer's site - charges for installation /erection / commissioning cannot be considered for inclusion in assessable value of DG sets - Revenue appeal dismissed: CESTAT

IN the present case, the assessee supplies D.G sets in CKD condition under one purchase order and also has in place another contract order for erection and commissioning of the DG set at the customer's site. Revenue is of the view that this bifurcation of orders is for the purpose of avoiding payment of Central Excise duty on the value component of ‘erection and commissioning charges'. Viewing that as per the provisions of section 4 of the CEA, 1944, the total consideration amount is to be taken for levy of Central Excise duty, they issued a notice seeking to include the ‘erection and commissioning charges' in the assessable value and recovery of differential Central Excise duty.

Monday is a Holiday

See our columns Tuesday for the judgements