Jurispruden tiol – Tomorrow's cases

By Vijay Kumar

Legal Corner Icon — the image was hosted by the publisher and was not captured.Central Excise

Merely because appellants company had equity shares in another company and also that Chairman of two companies was common, mutuality of interest, direct or indirect in business of each other is not proved unless and until any extra commercial financial flow back is established with documentary evidence: Tribunal

The respondent company had cleared goods to M/s Maharashtra Scooters Ltd. wherein the Chairman, is also the Chairman of the respondent company and a share holder of the said M/s Maharashtra Scooters Ltd. It is the department's contention that both the companies are related persons and hence the price charged by the respondent to M/s Maharashtra Scooters Ltd. is not correct price. The adjudicating authority upheld the charges and confirmed the differential duty by adopting the normal price charged in the wholesale trade.

Customs

Anti-dumping - Notification ordering provisional assessment legally correct - Tribunal's view overlooks language and purport of Rule: Delhi HC

Needless to say, provisional assessments cannot be made with retrospective effect. Therefore, to avoid or at least lessen the chances of manipulation, there are three options available:

1.to permit exports without the levy of anti- dumping duty; this may wipe out the domestic industry;

2.to permit exports after levy of anti-dumping duty; this may financially wipe out first time exporters;

3. to permit exports on the basis of provisional assessments.

The Designated Authority has recommended the third option of exports through provisional assessments in respect of all exports of vitrified/porcelain tiles by Respondent Nos. 3 and 4 and this recommendation has been accepted by the Central Government as mentioned in the Notification dated 9th March, 2007. To this extent, there is a check on Respondents No. 3 and 4 and the interest of the domestic industry is protected and the decision is in conformity with Rule 22 (2) of the Anti- Dumping Rules and the proviso thereto.

Income Tax

Fee paid for use of transponder and up-linking facility in satellite is royalty and liable to TDS : ITAT

The assessee is getting a comprehensive service as part of digital broadcast of their programmes on MCPC platform at the thaicom teleport and DTH center . These service provisions cannot be equated with simple hire of transponder as “equipment” to be governed by the amended provision as canvassed by the AR. Whether any process is used or any services in connection with process are provided and whether the same fell within the meaning of term ‘Royalty' was already been considered by the ITAT Delhi “C” Bench in the case of Asia Satellite Telecommunication Co. Ltd. vs DCIT - 2003-TIOL-37-ITAT-DEL. In the case the issue was whether rental chares for hiring transponder capacity was covered by the definition of royalty. The above said decision was given in the context of foreign Satellite Company. But the service provisions are applicable equally in the assessee's case as the assessee is getting services as part of agreement and not simple hire of “Equipment”. In fact the payments made to Foreign Satellite Company are clearly termed as Service Fee vide clause 4 of the Agreement. The original invoices given by the said Shim satellite public company is for Transponder service fee only.

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