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Burden of proving any form of mala fide lies on shoulders of one alleging it - since vessels were boarded by Customs (Prev.) staff and examined and pursuant thereto assessment was done, there cannot be any suppression alleged on part of appellant - Appeals allowed: CESTAT
THE Commissioner of Customs (Imports), Mumbai classified the Tug/Supply Vessels "Sea Cheetah" and "Sea Venture" imported by the appellant under CTH 8904 and confirmed differential duty demands of Rs.9,08,68,858.87 and Rs.62,88,264/- respectively by invoking the extended period of time. Further, he also imposed penalties u/s 114A, 112(a) &114AA on various persons who are all before the CESTAT along with the appellant.
The appellant submits that they had filed documents such as invoices, packing list, bill of lading, sale bill and the Indian Register of Shipping certificate at the time of assessment; the vessels were examined by the Customs on first check basis and there after, the goods were assessed to duty as per the claim of the appellant under CTH 8901 9000 as vessels for the transport of goods and persons.
Income Tax
Whether when assessee engaged in trading of shares incurs expenses on unsecured loan and utilises same for buying shares for investment, such expenses are allowable as per Sec 36(1)(iii) - YES: HC
THE assessee concern was dealing in trading of shares. It was depicted in the order of Tribunal that as per clauses of memorandum, the company was authorised for investment and dealing. Clause-43, though entitles the assessee to carry on all that activities, does not mean it can carry on business or acquiring shares for the purpose of carrying the business. Its expenses were debited by the entry in the accounts and other attempting balances. Balance Sheet shows "Long Term Investment" and not "Stock-in-Trade". The Company for which the shares were acquired was a BIFR Company, the shares of which were hardly tradable. The assessee own version that intention was to acquire the company through BIFR shows that it was not with an intention to carry on business, nor to acquire the shares, but to acquire the company through BIFR.
The issue before the Bench is - Whether when assessee engaged in trading of shares incurs expenses on unsecured loan and utilises same for buying shares for investment, such expenses are allowable as per Sec 36(1)(iii). YES is the answer.
Service Tax
Benefit of savings in Ocean freight passed on to appellant by principal is not chargeable to ST under Cargo Handling Service as there is no service involved - goods belong to appellant & for charging ST there has to be service provider and service recipient: CESTAT
THE Bench observed that in the matter of Distribution fee/Agency fee received from the foreign principal under 'Commission Sales Agreement' and 'Non-exclusive Distributor Agreement', the question whether such activities would attract service tax is no longer res integra in view of the decision in GAP International Sourcing (India) Private Limited vs. CST - holding that where a service provided by a person in India is consumed and used by a person abroad, it is treated as export.
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