Indirect Taxes Recent Judgements

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CENTRAL EXCISE ACT
SECTION 4
VALUATION UNDER CENTRAL EXCISE – TRANSACTION VALUE
Clearances of ‘motor vehicles parts’ manufactured by job-worker for use in manufacture of ‘motor vehicles’ by principals, would be valued as per rule 11 and valuation rules 8 and 9 cannot apply thereto –(2015) 57 taxmann.com 299 (SC)
 
SECTION 5A
EXEMPTIONS – CENTRAL EXCISE – SSI/THRESHOLD EXEMPTION
Usage of mark/initials of buyer’s name (say, HM for Hindustan Motors) amounts to use of buyer’s brand/trade name on goods and same is neither eligible for SSI-exemption, nor includible for purposes determining eligibility limit of SSI-turnover of previous year – (2015) 57 taxmann.com 205 (SC)
 
SECTION 11A
RECOVERY – OF DUTY OR TAX NOT LEVIED/PAID OR SHORT-LEVIED/PAID OR ERRONEOUSLY REFUNDED
Extended period cannot be invoked when assessee had furnished all particulars and classification list and same had been approved by department – (2015) 57 taxmann.com 298 SC)
 
 
CENTRAL EXCISE TARIFF ACT
SECTION 2
CLASSIFICATION – PRINTED TRADE ADVERTISING MATERIAL
Tariff Headings 49.01 v. Comprar Bragas Calvin Klein 94.05 : Vinyl sheets printed with a picture and slogan thereon using thermocopied machine and meant for use as advertising material, is classifiable as ‘printed matter’ (Heading 49.01) and not as ‘Illuminated signs, illuminated name plates, etc. not elsewhere specified’ (Heading 94.05) – (2015) 57 taxmann.com 298 (SC)
 
 
CUSTOMS ACT
SECTION 128
APPEALS – CONDONATION OF DELAY – GENERAL
Application seeking exclusion of time spent in remedy before non-jurisdictional forum bona fide, amounts to invocation of section 14 of Limitation Act – (2015) 57 taxmann.com 399 (SC)
 
Provisions of Limitation Act do not apply to Tribunal other quasi-judicial authorities; but principles therein may be extended to proceedings before Tribunal and other quasi-judicial authorities so as to advance cause of justice – 2015) 57 taxmann.com 399 (SC)
 
Time spent in pursuing remedy before wrong forum bona fide would stand excluded but period prior to institution of initiation of any abortive proceeding cannot be excluded – (2015) 57 taxmann.com 399 (SC)
 
Though periods of limitation would ordinarily be applied retrospectively; however, a new law prescribing a shorter period of limitation cannot extinguish existing period of limitation – (2015) 57 taxmann.com 399 (SC)
 
Since section 128 of Customs Act does not lay down a long period; hence, to infer exclusion of section 14 of Limitation Act or principles contained in section 14 would be unduly harsh and would not advance cause of justice; hence, time taken in pursuing remedy before wrong forum bona fide, would be excluded – (2015) 57 taxmann.com 399 (SC)
CENTRAL EXCISE ACT
SECTION 4
VALUATION UNDER CENTRAL EXCISE – TRANSACTION VALUE – EXCLUSION OF COST OF TRANSPORT/TRANSIT INSURANCE
Where price was inclusive of freight from factory to depot and assessee had made clearances at factory gate, then, since assessee had not incurred freight from factory to depot in said clearances made at factory, said freight was excludible from value under rule 5 – (2015) 57 taxmann.com 271 (SC)
 
 
CUSTOMS ACT
SECTION 25
EXEMPTIONS – CUSTOMS – GENERAL
Where benefit of exemption notification was not claimed at initial stage of import, i.e., when such benefit was forgone, same cannot be claimed by a subsequent act at later stage – (2015) 57 taxmann.com 218 (New Delhi – CESTAT)
 
SECTION 28
RECOVERY – OF DUTY OR TAX NOT LEVIED/PAID OR SHORT-LEVIED/PAID OR ERRONEOUSLY REFUNDED – INVOCATION OF EXTENDED PERIOD OF LIMITATION
Where subsequent to filing of bill of entry, full facts were disclosed in letter addressed to Department, it was not a case of wilful misstatement/wrong declaration and, hence, extended period could not be invoked – (2015) 57 taxmann.com 297 (SC)
 
CST & VAT
SECTION 2(22) OF THE GUJARAT VALUE ADDED TAX ACT, 2003
SALE
Where assessee, a motor car dealer, purchased spare parts and replaced same in place of defective spare parts during warranty period for which manufacturer issued credit notes, transaction of replacement of spare parts amounted to sale and levy of tax on said sale was justified – (2015) 57 taxmann.com 244 (Gujarat)
 
SECTION 25 OF THE HARYANA GENERAL SALES TAX ACT, 1973
INTEREST – ON DELAYED DEPOSIT OF TAX
Where Assessing Authority issued on assessee a notice proposing to levy penalty and interest and after framing assessment he passed a separate order dropping penalty proceeding but levying interest, Assessing Authority should have decided question of penalty and interest along with assessment order, but his failure to do so did not render impugned order null and void – (2015) 57 taxmann.com 204 (Punjab & Haryana)
 
 
STATUTES
INDIRECT TAX LAWS (ST/EX. & CUS. /CST & VAT)
Exemption to Specified Goods when brought into 100% EOU/STP Complex – Amendment in Notification No.22/2003-C.E. Calzoncillos Calvin Klein & Notification No.23/2003-C.E., Both Dated 31-3-2003 – NOTIFICATION NO. 28/2015-C.E., DATED 15-5-2015
 
Exemption to Specified goods when brought into 100% EOU/STP Complex – Amendment in Notification No.22/2003-C.E ., Dated 31-3-2003 – NOTIFICATION NO.30/2015-C.E., DATED 25-5-2015
 
Exemption to certain excisable goods from Additional Duty of Excise – AMENDMENT IN NOTIFICATION NO.6/2005-C.E. DATED 1-3-2005 – NOTIFICATION NO.29/2015-C.E., DATED 22-5-2015

 

 

SERVICE TAX
SECTION 65(19)
TAXABLE SERVICES – BUSINESS AUXILIARY SERVICES
Conversion of wheat into wheat products (maida, atta, suji and bran) using process such as cleaning, grinding, milling, etc. amounts to ‘manufacture’ and not liable to service tax under Business Auxiliary Services – (2015) 57 taxmann.com 125 (Chennai – CESTAT)
 
 
CENTRAL EXCISE ACT
SECTION 2(f)
MANUFACTURE – GENERAL MEANING
Mere addition of dehydrated vegetables and certain spices to raw rice to sell it as ‘rice and spice’ would not make it a different product, as its primary and essential character still remains same; hence, it is not manufacture – (2015) 57 taxmann.com 268 (SC)
 
 
CENTRAL EXCISE TARIFF ACT
SECTION 2
CLASSIFICATION
Product ‘rice and spice’ continues to be product of milling industry and would be classifiable under sub-heading 11.01 with NIL rate of duty – (2015) 57 taxmann.com 268 (SC)
 
 
CUSTOMS ACT
SECTION 129B
APPEALS – RECTIFICATION OF MISTAKES/REVIEW
There is no power to condone delay in filing Rectification of Mistake (ROM) applications; hence, ROM applications beyond 6 months from date of final order, must be rejected as barred by limitation – (2015) 57 taxmann.com 220 (New Delhi – CESTAT)
 
Non-consideration of a plea neither ‘raised’ nor ‘argued’ at time of disposal of appeal, cannot amount to ‘mistake’ on part of Tribunal; hence, no ROM application lies therefor – (2015) 57 taxmann.com 220 (New Delhi – CESTAT)
 
SECTION 129E
APPEALS – DEPOSIT, PENDING APPEAL, OF DUTY/TAX DEMANDED OR PENALTY LEVIED
In cases where lis between assessee and department commenced prior to introduction of mandatory pre-deposit in section 129E (i.e., before amendment by Finance (No. 2) Act, 2014 i.e., before 6-8-2014), same would be governed by erstwhile section 129E and mandatory pre-deposit would not apply thereto – (2015) 57 taxmann.com 129 (Kerala)
 
 
CST & VAT
SECTION 2(36) OF RAJASTHAN VALUE ADDED TAX ACT, 2003
SALE PRICE
Where assessee sold diesel to railways and delivered same by road through tanks at delivery point, since assessee was unable to lead any evidence to effect that freight was charged separately and was paid separately by railways, freight formed part of sale price – (2015) 57 taxmann.com 294 (Rajasthan)
 
SECTION 11 OF GUJARAT VALUE ADDED TAX ACT, 2003
TAX CREDIT
Once on assessment or reassessment a final amount of input tax credit is assessed and determined, a dealer is entitled to adjust such input tax credit against its output tax liability of current year – (2015) 57 taxmann.com 266 (Gujarat)
 
SECTION 20 OF HARYANA VALUE ADDED TAX ACT, 2003
REFUND – PROCEDURE OF
Where collection of VAT from assessee was without authority of law and Service Tax department had raised service tax demand upon assessee for period for which Assessing Authority had levied and collected VAT, Assessing Authority was to be directed to transfer amount of VAT to Service Tax department – (2015) 57 taxmann.com 293 (Punjab & Haryana)
 
 
CENVAT CREDIT RULES
RULE 57Q
CENVAT CREDIT – CAPITAL GOODS
Water Spray, Cut off Gates, M.S.