TIOL-DDT 2038 · the untouched capture
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<!DOCTYPE HTML PUBLIC "-//W3C//DTD HTML 4.01 Transitional//EN" "http://www.w3.org/TR/html4/loose.dtd"> <html> <head> <title>Untitled Document</title> <meta http-equiv="Content-Type" content="text/html; charset=iso-8859-1"> </head> <body> <p><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong><font color="#663399" size="3">TIOL-DDT 2038 </font><br> 05.02.2013 <br> Tuesday </strong></font></p> <p align="center"><strong><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif">Deemed Export Benefits for supply of goods to Mega Power Projects - DGFT Clarifies</font></strong></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>PARAGRAPH</strong> 8.2(f) of Foreign Trade Policy provides for grant of deemed export benefits to supply of goods required for setting up any Mega Power Project, as specified in Sl.No.507 of Notification No.12/2012-Customs dated 17.03.2012. This notification was amended by Notification No. 49/2012-Customs dated 10.09.2012, by which benefit of zero duty import is available only for such Mega Power Project, specified in List 32A, appended to the Notification No.49/2012-Customs, so certified by an officer, not below the rank of Joint Secretary to the Government of India, in the Ministry of Power before 19th day of July, 2012. Only 111 Mega Power Projects have been included in list 32A of the Notification. </font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">DGFT clarifies that deemed export benefits would be available for supply to these 111 projects (only).</font></p> <p><a href="http://www.taxindiaonline.com/RC2/subCatDesc.php3?subCatDisp_Id=46&filename=notification/dgft/2012/dgft12cir014.htm" target="_blank"><strong><font size="2" face="Verdana, Arial, Helvetica, sans-serif">DGFT Circular No. 14(RE-2012/2009-14, Dated: February 04 2013</font></strong></a></p> <p align="center"><strong><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif">Value added agricultural products exempted from Export restrictions/ban</font></strong></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>GOVERNMENT </strong>has exempted the following processed and/or value added agricultural products from any export restrictions/baneven in the event of restriction / ban on the export of basic farm produce::</font></p> <blockquote> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">1. Wheat or Meslin flour </font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">2. Cereal flours other than of wheat or meslin (Maize,Oats etc.) </font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">3. Cereal groats, meal pellets </font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">4. Cereal grains otherwise worked except rice of heading no. 1006; germ of cereals, whole ,rolled , flaked or ground </font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">5. Other Cereals items </font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">6. Milk products including casein and casein products etc. </font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">7. Butter and other fats derived from milk, dairy spread etc. </font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">8. Cheese and Curd</font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">9. Value added products of onion </font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">10. Peanut Butter </font></p> </blockquote> <p><a href="http://www.taxindiaonline.com/RC2/subCatDesc.php3?subCatDisp_Id=45&filename=notification/dgft/2012/dgft12not031.htm" target="_blank"><strong><font size="2" face="Verdana, Arial, Helvetica, sans-serif">DGFT Notification No. 31/(RE - 2012)/2009-2014, Dated: February 04, 2013 </font></strong></a></p> <p align="center"><strong><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif">Draft Policy on Units in Special Economic Zones (SEZs) carrying on recycling of plastic scrap or waste</font></strong></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>THE</strong> Department of Commerce (SEZ Division) has circulated a “Draft policy on Units in Special Economic Zones (SEZs) carrying on recycling of plastic scrap or waste" and has invited comments/suggestions within 15 days.</font></p> <p><a href="http://www.taxindiaonline.com/RC2/inside2.php3?filename=wnew/draft_policy_plastic_scrap.htm" target="_blank"><strong><font size="2" face="Verdana, Arial, Helvetica, sans-serif">DoC No. C.6/10/2009-SEZ, Dated: February 04, 2013 </font></strong></a></p> <p align="center"><strong><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif">CBEC seeks inputs for its 5 year strategic plan </font></strong></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>IN</strong> September 2012, the Directorate of Inspection of CBEC had sought inputs on the CBEC's strategic plan for the next 5 years from Commissioners and Chief Commissioners and it seems that they got inputs only from very few zones. Now they want it be sent within the next ten days. </font></p> <p align="justify"><a href="http://www.taxindiaonline.com/RC2/subCatDesc.php3?subCatDisp_Id=340&filename=notification/excise/2013/excirmics13_001.htm" target="_blank"><strong><font size="2" face="Verdana, Arial, Helvetica, sans-serif">DG, Inspection F. No.503/32/2007-PT.II, Dated: February 01, 2013 </font></strong></a></p> <p align="center"><strong><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif">Writ Against appointment of AP High Court Judge Dismissed - Petitioners imposed cost of Rs. 50000 each - SC </font></strong></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>RESPONDENT</strong> No. 3 in this case before the Supreme Court is a sitting Judge of the AP High Court. Next month he will become the senior-most judge of the High Court and he has over six years service left and so is almost sure to become the Chief Justice of a High Court and eventually a Supreme Court Judge. </font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Two advocates of the AP High Court filed a writ petition in the Supreme Court for quashing the appointment of this judge of the High Court on the grounds that at the time of his appointment, a criminal trial was pending in which the respondent Judge was not only an accused but a proclaimed offender and that even at the time of his enrolment as an advocate he had concealed the criminal proceedings and in the relevant column of the application for enrolment with the Bar Council, he falsely stated that there was no pending proceeding against him. </font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The criminal case in question dates back to the year 1981 when he was a student of Nagarjuna University. The students of the University, it appears, complained of inadequate public transport facilities for commuting from their homes to the University as only a few buses plying between Guntur and Vijayawada stopped at the University. They demanded that more buses should stop at the University. As is not uncommon with the youth in this country , some of the students of the University took to agitation in connection with the demand and at about 8.30 p.m. on February 13, 1981, a group of about 30 students put road blocks on the GNT road, opposite Nagarjuna University, causing stoppage of all vehicles on the road. At about 9.15 p.m., a bus of the State Transport Corporation, on its way from Guntur to Vijayawada, arrived there when there was already a heavy jam and pulled up at the road flank. In such situations, unfortunately a State bus is the softest and the most vulnerable target. In this case also, the State bus became the target of the agitating students' ire . The driver of the bus was pulled down and the door to the driver's seat was damaged. Some miscreants pelted stones on the bus and smashed its windscreen and glass windows with iron rods. One of the passengers also received some injuries. By this time, a police party also came to the spot. At this stage, an attempt was made to set fire to the bus by throwing a burning oil cloth tied to a rod inside the bus. But, a policeman put out the burning cloth and the bus was saved from any further damage. Shortly thereafter, the police dispersed the agitating students and restored normalcy. On the same day at 11.00 p.m. the driver of the bus lodged a first information report in connection with the incident at Mangalagiri Police Station where it was registered as Crime No. 55 of 1981 under Sections 147, 342, 427 and 324 of the Penal Code. The FIR was against unknown persons and the accused were described as “Nagarjuna University students”. </font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">In the writ petition and in course of hearing of the case,the respondent Judge has been repeatedly called, a little loosely and rather uncharitably (in the words of the Supreme Court), an “absconder” and a “proclaimed offender” in a case of robbery and burning down of a bus. </font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">From the record of the case, Supreme Court found it very difficult to hold that respondent No. 3 was even aware that in some record buried in the courts at Mangalagiri he was named as an accused and he was required to appear in the court in connection with that case. </font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Before his appointment as a judge of the High Court, he was the Additional Advocate General of Andhra Pradesh. If the case would have been within his knowledge, it is unimaginable that he would not have attended to it and got it concluded one way or the other. </font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">In his report the Chief Justice, Andhra Pradesh High Court stated: </font></p> <blockquote> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><em>"29. It does appear that Justice XXX was unaware of the pendency of the criminal case. I say this from the record of the case, which speaks for itself, and the contents of which need not be repeated. I also say this for another reason. </em></font></p> <p align="justify"><em><font size="2" face="Verdana, Arial, Helvetica, sans-serif">32. In my opinion Justice XXX was truly unaware of the criminal case against him and he deserves to be believed when he says so."</font></em></p> </blockquote> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The Supreme Court held, </font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">"We have no hesitation in holding that at the time respondent No.3 was being considered for appointment as a judge of the High Court, he was unaware of any case being pending in which he was named as an accused and it is quite wrong to refer to him as “an absconder and a proclaimed offender” in the case. This finding leads to another and that is, it is not a case of suppression of any material fact by respondent No.3 or at his behest. Here we wish to make it clear that had it been a case of deliberate and conscious suppression of material fact by respondent No.3 the position would have been entirely different. But that is not the case here."</font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The Supreme Court noted that in 1993, respondent No. 3 was a candidate for the post of the Member of the Income Tax Appellate Tribunal and in that connection, he was interviewed by a Selection Committee headed by a sitting judge of the Supreme Court. He was selected for appointment and was issued an appointment letter dated September 8, 1995 as judicial member in the ITAT. The appointment letter was undoubtedly issued to him only after police verification and nothing was mentioned even at that stage about any criminal case pending against him. He did not accept the appointment is another matter altogether. </font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">In his report to the Chief Justice of India the Chief Justice, Andhra Pradesh High Court has made the following comment: </font></p> <blockquote> <p align="justify"><em><font size="2" face="Verdana, Arial, Helvetica, sans-serif">"27. The incident occurred almost 30 years ago. The case against Justice Ramana was withdrawn almost 10 years ago. That it should be raked up now is a little inexplicable. The case does not seem to have been sensational in any manner whatsoever so that someone would be following it up. Therefore, it is a little odd that it should have suddenly surfaced now. It is possible that there is some reason behind digging up this case, but I am unable to fathom the motive."</font></em></p> </blockquote> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The Supreme Court observed, </font></p> <p align="justify"><strong><font size="2" face="Verdana, Arial, Helvetica, sans-serif">"It is indeed very important to uphold the "institutional integrity" of the court system, but it is equally important to protect the court from uncalled for attacks and the individual judges from unjust infliction of injuries."</font></strong></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The petition is dismissed with costs of Rs. 50,000/- payable by each of the two petitioners. The cost amount must be deposited in a fund for the welfare of the employees of the Andhra Pradesh High Court within four weeks. </font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The Supreme Court delivered this judgement yesterday and we bring it to you today. </font></p> <p><strong><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Please see <font size="1"><a href="http://www.taxindiaonline.com/RC2/subCatDesc.php3?subCatDisp_Id=50&filename=legal/sc/2013/2013-TIOL-14-SC-MISC.htm" target="_blank">2013-TIOL-14-SC-MISC</a></font></font></strong></p> <p align="center"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong><font color="#006600">Jurispruden</font><font color="#FF6633" size="5">tiol</font><font color="#006600"> - Wednesday's cases</font></strong></font></strong></font></p> <p><strong><font color="#663399" size="2" face="Verdana, Arial, Helvetica, sans-serif"><img src="http://www.taxindiaonline.com/RC2/image/stories/ddt_hammer.jpg" alt="Legal Corner Icon" width="100" height="84" hspace="5" border="0" align="left">Service Tax</font></strong></p> <p align="justify"><strong><font color="#FF6633" size="2" face="Verdana, Arial, Helvetica, sans-serif">Marketing fees paid by appellant to foreign service provider and on which Service Tax liability is discharged by appellant on reverse charge basis - same is an input service as defined in rule 2(l) of CCR, 2004 - refund is available since appellant is unable to utilize credit - Appeal allowed: CESTAT</font></strong></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>THE</strong> appellant is engaged in providing Renting of Immovable property services, Customized Software Development Services, etc. They are also paying service tax as recipient of Business auxiliary service. These services were used in providing software development services which was exported. As the appellants were unable to utilize the full CENVAT credit on these input services leading to accumulation of CENVAT credit, they filed a refund claim in terms of Rule 5 of the CCR, 2004 read with Notification No.5/2006 CE (NT) dated 14/03/2006. </font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Refund was rejected in respect of marketing fees paid by them to their foreign service provider whom they had engaged for promotion of their products abroad. On these services they had discharged service tax liability on reverse charge basis under business auxiliary service. The authority also rejected the refund claim of service tax credit on garden maintenance charges, gas filling and servicing charges, lightning toran for Navaratri festival. </font></p> <p align="justify"><strong><font color="#663399" size="2" face="Verdana, Arial, Helvetica, sans-serif">Income Tax </font></strong></p> <p align="justify"><strong><font color="#FF6633" size="2" face="Verdana, Arial, Helvetica, sans-serif">Whether sum paid as owelty during course of partition to settle inequalities is deemed to be immovable property, and will not attract capital gains - YES: HC</font></strong></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>THE </strong>issues before the Bench are - Whether a sum paid as owelty during the course of partition to settle inequalities is deemed to be immovable property, and will not attract capital gains; Whether a compensation paid by one party to another in a partition proceedings attracts invocation of principle of owelty and thus is not liable to tax and Whether any transfer of assets takes place in case group partition proceedings. And the verdict goes in favour of assessee. </font></p> <p align="justify"><strong><font color="#663399" size="2" face="Verdana, Arial, Helvetica, sans-serif">Central Excise </font></strong></p> <p align="justify"><strong><font color="#FF6633" size="2" face="Verdana, Arial, Helvetica, sans-serif">Although there is an allegation of collusion, manufacturer-suppliers have not been made party to the proceedings - allegation not sustainable - since appellant has only taken credit of duty paid by suppliers, <em>prima facie</em> they have strong case for waiver of pre-deposit of dues - Pre-deposit waived and Stay granted: CESTAT </font></strong></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>KNOCKING</strong> on the wrong door can have its surprises, as the Revenue would realize in the present case. A sorry sometimes does not suffice! The applicants are engaged in the manufacture of Organic Chemicals. The demands are confirmed after denying the CENVAT credit availed of the duty paid on intermediate products supplied by M/s Godrej Industries Ltd. and M/s. VVF Ltd. The case of the Revenue is that the applicants were required to follow the prescribed procedure under Notification No. 44/2001-CE (NT) dated 26.6.2001 as amended and should have procured indigenous raw materials duty free from the local supplier under Advance Licence/Authorization letter. </font></p> <p align="justify"><strong><font color="#663399" size="2" face="Verdana, Arial, Helvetica, sans-serif">See our Columns Tomorrow for the judgements </font></strong></p> <p align="justify"><font color="#FF6666" size="2" face="Verdana, Arial, Helvetica, sans-serif">Until Tomorrow with more<strong> DDT</strong></font></p> <p><font color="#FF6666" size="2" face="Verdana, Arial, Helvetica, sans-serif">Have a Nice Day</font></p> <p><font color="#FF6666" size="2" face="Verdana, Arial, Helvetica, sans-serif">Mail your comments to</font><font size="2" face="Verdana, Arial, Helvetica, sans-serif"> <a href="mailto:vijaywrite@taxindiaonline.com"><strong>vijaywrite@taxindiaonline.com </strong></a></font></p> </body> </html>