Jurisprudentiol - Friday's cases
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Whether appellant, being a sub-contractor, is not liable to pay service tax prior to 23/08/2007 in view of the clarification issued by the Revenue - Difference of Opinion - Matter referred to Third Member: CESTAT
THE following difference of opinion is therefore referred to the Third Member -
(1) Whether the sub-contractor of a main contractor is liable to discharge the service tax liability on the services provided by him as held by the Ld. Member (Technical) relying on the decision of the Larger Bench of this Tribunal in the case of Vijay Sharma & Co. and the decision of this Tribunal in the case of Sew Construction Ltd.
OR
The appellant being a sub-contractor is not liable to pay service tax prior to 23/08/2007 in view of the clarification issued by the Revenue vide Master Circular No. 96/7/2007 dated 23/08/2007.
(2) Whether the appellant is liable to penalty under the provisions of Section 76 & 78 of the Finance Act, 1994 as held by the Ld. Member (Technical) relying on the decisions of the Hon'ble High Court of Kerala in the case of Krishna Poduval , and of the Hon'ble Apex Court in the case of Chairman SEBI Vs. Shriram Mutual Fund & Another [2006-TIOL-72-SC-SEBI] and Rajasthan Spinning & Weaving Mills
OR
The appellant is not liable to penalty under Section 76 & 78 of the Finance Act, inasmuch as the appellant had paid the tax with interest before issue of show-cause notice as held by the Ld. Member (Judicial).
Income Tax
Whether loss claimed is to be allowed even if assessee fails to produce documents on pretext that same were seized by Central Excise Department - NO: ITAT
THE assessee was processed u/s 143(1) accepting the returned loss of Rs.38,75,670/- as claimed by the assessee. Subsequently, on the basis of the information from the Central Excise Department, the case of the assessee was reopened. In response to the notice u/s 148, the assessee submitted that the original filed return may be treated as having been filed in response to the issued notice. Thereafter, a notice u/s 143(2) was duly served on the assessee, however, the assessee failed to be present on several occasions and finally the assessment was completed on the best judgment method.
The issue before the Bench is - Whether loss claimed by the assessee can be allowed, when its documents were seized by the Central Excise department and could not be produced even though the assessee was provided a reasonable time period. And the answer goes against the assessee.
Central Excise
Classification - Programmable Logic Controllers are correctly classifiable under CETH 8537 and not under CETH 9032 or CETH 8471 as claimed by the assessee - Demand confirmed, however, since issue concerns classification dispute, penalty set aside: CESTAT
THE appellants a manufacturer of 'Programmable Logic Controllers' and they sought classification of the said goods a 'automatic data processing machines' falling under CETH 84.71 of the Central Excise Tariff, or in the alternative they contended that the goods manufactured by them would be classifiable under CETH 9032. However, it is Revenue's contention that the goods are classifiable under CETH 8537 and duty is payable on such goods under that heading.
Earlier, the matter was remanded to the Commissioner(A) by the CESTAT.
And in remand, the impugned order was passed by holding that -
++ the impugned goods do not measure or control parameters such as flow level, pressure, temperature or other variables of liquids or gases and hence they do not merit classification under CETH 9032 as the said entry pertains to automatic controlling and regulating instruments and apparatus.
++ the equipment manufactured by the assessee also is not useful for automatic data processing but are used as a programmable controllers and, therefore, they merit classification under CETH 85.37.
Until Tomorrowwith more DDT
Have a nice day.
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