Jurisprudentiol - Tuesday's cases

By Vijay Kumar

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

Appellant receives consideration from various concessionaires for display, demonstration and sale of products from retail stores operated by appellant - there is per se no renting of space - prima facie activity falls under category of Business Support Services as appellant seems to provide both infrastructural support services and accounting and processing of transactions - Pre-deposit ordered of Rs.1.70 Crores: CESTAT

THE appellants are in the business of operating and running retail stores where goods of various brands, varieties, description, etc. are sold under one roof. They grant concession to various concessionaires for the display, demonstration and sale of the products from the retail stores operated by the appellant. The consideration for the concession is received as a percentage of the value of the goods sold subject to a minimum amount.

The department was of the view that the said service rendered by the appellant falls within the category of ‘Business Support Services' (BSS in short) and accordingly, a show cause notice dated 22-10-2009 was issued to the appellant demanding service tax of Rs.3,44,45,034/- [on a consideration of Rs. 27,86,81,505/- received during 1-5-06 to 31-5-07] along with interest thereon and also proposing to impose penalties under the provisions of Finance Act, 1994.

Income Tax

Whether adjournment should necessarily be granted in a case where counsel for assessee has certain reservations against Judicial Member of Bench and a representation was pending before ITAT President - NO: ITAT

THE issues before the Bench are - Whether adjournment should necessarily be granted in a case where the counsel for the assessee has certain reservations against the Judicial Member of the Bench and a representation is pending before the ITAT President; Whether when a contempt case is pending before the High Court on a reference from the Judicial Member, such Member should not hear cases and grant adjournment merely because a good number of cases before the Bench are represented by the Advocate and the CA accused of contempt; Whether when the counsel for the assessee does not want to represent the case before a particular Bench, the assessee should be hiring the services of other professionals to represent them before the Bench; Whether the counsel of a taxpayer can choose his own judicial member in the Bench; Whether seeking repeated adjournments on the ground of a complaint being lodged against the Judicial Member amounts to holding the Tribunal to ransom and Whether such behaviour of an advocate amounts to de facto boycott of the judicial proceedings. And the verdict goes against the assessee's counsel.

Central Excise

CE - Shortage of final products - once assessee has paid duty on same and penalty of 25% within 30 days of issuance of show-cause notice there is no force in department's appeal that being a case of clandestine removal 100% penalty should be levied: CESTAT

THIS is an ‘interesting' Revenue appeal.

When the officers of the anti-evasion wing visited the factory of the appellant and calculated the total stock of M.S ingots, it was found to 4.596 M.T. A shortage of 32.174 M.T. was detected. Since respondent failed to explain the reason for said shortage, it was concluded by the revenue that short found material has been cleared surreptitiously with intent to evade payment of duty. The respondents deposited duty of Rs.52,493/- on 4/11/2009. Later, they also deposited 25% of the penalty within 30 days of the issuance of the SCN.

See our Columns Tuesday for the judgements