Jurisprudentiol – Friday's cases

By Vijay Kumar

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

CENVAT - Rule 2(l) of CCR, 2004 - Shipping fee paid on tugs and barges used for transportation of raw materials from mother vessel to jetty - ST paid by appellant under category of "port services" - whether Input service - stay granted: CESTAT

THE appellants are manufacturers of hot briquetted iron and sponge iron. They paid shipping fees on the tugs and barges operated and used by them for the transportation of raw materials from the mother vessel to the jetty at Revdanda Port. For operating the vessel, they paid shipping fee under the category of “port services” and discharged the service tax liability thereon and availed CENVAT credit of service tax paid.

The Revenue was of the view that the appellant is not eligible for the credit as there was no nexus with the manufacturing activity undertaken by the appellant.

Income Tax

Whether mistake, which entails evidences to proof itself, is mistake apparent from record - NO: ITAT

ASSESSEE, a company, engaged in the business of Airline and Institutional catering, filed its return of income (ROI) declaring an income of Rs. 36.06 Crores. During assessment, income of the assessee was determined at Rs.44.07 Crores after making addition of Rs. 7.78 Crores on account of disallowance of depreciation on goodwill. The issues before the Bench are - Whether a mistake which entails evidences to proof itself is a mistake apparent from record; Whether an error of judgment can be corrected through a rectification application u/s 254(2); What is the remedy available for such an error; Whether an order admitting additional evidence can act as a precedent and Whether Tribunal can recall its order in entirety as per the provisions of law. And the verdict goes against the assessee.

Central Excise

Section 4A - Goods of chapter heading 85.36 - Whether demands for period prior to 1.3.2008 are sustainable or not as there were no machinery provisions available to determine MRP of product till date of framing of Central Excise (Determination of Retail Sale Price of Excisable Goods) Rules, 2008 - Difference of Opinion - Matter referred to Third Member: CESTAT

THE appellants are manufacturers of goods falling under chapter heading 85.36 of the CETA, 1985 which heading goods came to be notified for assessment based on the Retail Sale Price in terms of section 4A of the CEA, 1944 by notification 13/2002-CE(NT) dated 01/03/2002.

None of the manufacturers affixed MRP on their products, which were sold to their dealers/distributors from their factory or depots, and the reasoning given was that their products were not covered by P.C. Rules inasmuch as the goods were not a pre-packed commodity and were not sold by weight, measure or number. The appellants were also making the following declaration on the packing ‘ Specially packed for the exclusive use of any industry as a raw material or for the purpose of servicing of any industry, mine or quarry. For industrial use only and not intended to be displayed for sale at a retail outlet '.

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