Jurisprudentiol– Monday's cases

By Vijay Kumar

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

Shifting or transportation of raw materials, waste materials and finished products from one place to another – not cargo handling: CESTAT

THE service provided should be relating to or in relation to cargo handling by a cargo handling agency. The service provided should be integrally or inseparably connected with handling of cargo or attributable thereto without being a mere activity of transportation of such cargo since transport service independent of cargo handling is an exception under the scheme of levy by Section 65 (23) of the Act.

Income Tax

Depreciation disallowed based on statement of supplier before Settlement Commission – cross examination not permitted - IT authorities are bound to accede to request for cross-examination and if they do not do so, addition cannot be sustained: ITAT

CROSS examination of witness is must before the department places reliance on the statement of witness for making the addition. Hon'ble Supreme Court in case of Kishan Chand Chelaram had also categorically held that any evidence/statement used against the assessee without giving any opportunity to cross-examination and to controvert the same, such evidence would not be admissible in support of the addition. It was specifically held that IT authorities are bound to accede to the request for cross-examination and if they do not do so, the addition cannot be sustained.

Central Excise

Merely because toothpaste is a notified item cannot make it assessable u/s 4A of CEA '44 - Aquafresh Toothpaste supplied to Glaxo Smithkline for free supply with Horlicks under sales promotion schemes is to be valued in terms of section 4 and not S 4A: Tribunal

UNLESS there is an element of sale, as contemplated in section 2(v), Rule 6(1)(f) will not be attracted.

See our columns Monday for the judgements