Leaf No	:	23
Month	:	February
Year	:	2012

editor’s desk

Greetings from Team SA!

"Today, corruption in our country not only poses a grave danger to the concept of constitutional governance, it also threatens the very foundation of Indian democracy and the Rule of Law. The magnitude of corruption in our public life is incompatible with the concept of a socialist, secular democratic republic. It cannot be disputed that where corruption begins all rights end. Corruption devalues human rights, chokes development and undermines justice, liberty, equality, fraternity which are the core values in our preambular vision. Therefore, the duty of the Court is that any anti-corruption law has to be interpreted and worked out in such a fashion as to strengthen the fight against corruption. That is to say in a situation where two constructions are eminently reasonable, the Court has to accept the one that seeks to eradicate corruption to the one which seeks to perpetuate it." - Justice Asok Kumar Ganguly, [ Dr. Subramanian Swamy vs. Dr. Manmohan Singh & Another 2012 TIOL 06 SC MISC].

The observation of Hon’ble Justice A K Ganguly while disposing of Petition of Dr. Subramaniam swamy is in fact a major boost to anti corruption crusaders and brings a sigh of relief to public in knowing that when all mechanisms fail judiciary rises to protect the fundamental human rights and preserve and uphold the basic tenets of Indian Constitution. A perusal of judgment that has been given in context of Special Leave Petition filed by Dr. Subramaniam swamy seeking permission to file complaint to prosecute a public servant for an offence under the Prevention of Corruption Act, 1988 (PCA for short) would show the depth of judicial prowess and respect for precedents depicted by Judges without overlooking and exceeding their powers in criticising the executive.

... read more

intaxicated

Doing business in India is beset with the need to combat the onslaught from different forces, like politicians, bureaucrats, et al, of which the tax department is also one. Experience shows that notwithstanding all rhetoric of being assessee friendly, unleashed from the roof top, the crude fact remains, the tax department (though the reference here is to the indirect tax department, the situation may be the same with other departments also) is the prime adversary of the business community (sans few exceptions)...

... read more

Union Budget 2012-13

to be presented on

16.03.12

genie in aladdin’s lamp

# Hon’ble Supreme Court holds that Circulars are not binding on assessee or quasi judicial authorities or judicial forums... CCE vs. Minwool Rock Fibres Limited - 2012–TIOL-18–SC-CX.

# Hon’ble High Court of Madras holds that the limitation under Section 11B of Central Excise Act, 1944 is not applicable for rebate claims filed under Notification No. 19/2004 dated 06.09.2004... Dorkas Market Makers Private Limited vs. CCE (Appeals) - 2012–TIOL-108-HC-MAD-CX.

# Hon’ble High Court of Andhra Pradesh holds that the Guest Houses run by TTD is not exempted from payment of service tax for providing short term accommodation to pilgrims on account of being run by charitable trust with non profit motive... Tirumala Tirupati Devastanam vs. Superintendent of Customs, Excise & Service tax - 2012-TIOL-97- HC-AP–ST.

# Hon’ble High Court of Allahabad upholds constitutional validity of Section 66A of Chapter-V of the Finance Act, 1994 and the Taxation of Services (Provided From Outside India and Received in India) Rules, 2006... Glyph International Limited vs Union of India - 2012-25-STR-259-ALL.

# Larger bench of CESTAT holds the condition of capital goods in possession and use of manufacturer is satisfied if capital goods are lying in factory for installation and process of erection is being carried out... Bharat Petroleum Corporation Ltd vs. CCE - 2012-TIOL-140-CESTAT-MUM -LB.

# CESTAT holds that there is no bar in claiming refund in respect of input services listed under Notification No. 41/07-ST dated 06.10.2007 under Rule 5 of Cenvat Credit Rules, 2004... SPEL semi conductors Limited vs. CCE Chennai - 2012-TIOL-210-CESTAT-MAD.

# CESTAT holds assessee not entitled for refund of excess duty paid in case of reduction in invoice value on account of downward revision of price... ECE Industries Limited vs. CCE - 2012-TIOL-217- CESTAT- DEL.

# CESTAT holds cellular towers, prefabricated buildings, printers, office chairs are neither Capital Goods nor inputs for providing cellular telephone service... Bharti Airtel Limited vs. CCE - 2012 –TIOL-209-CESTAT-MUM.

# CESTAT holds provision of service to a brand name owner does not disentitle a service provider from claiming small service provider exemption under Notification 6/05-ST dated 01-03-05... Mrs Jaspeet Kaur & Mr Gagandeep Singh vs. Commr. Of Customs - 2012-TIOL-142-CESTAT-DEL.

before parting ... - jk

VAT SPOT

# Hon’ble Supreme Court holds ‘duty free shops’ located at airports to be treated as outside custom frontiers of India and hence sale effected from such shops are not liable for levy of sales tax by State Government... Hotel Ashoka vs. Asst. Commissioner, Sales tax 2012 TIOL 08 SC VAT.

# Hon’ble High Court of Bombay holds that the amount received by the authorised dealer of vehicle manufacturers, for supply of parts to customers under warranty replacement, as subject to sales tax... Navnit Motors Private Limited vs. State of Maharashtra 2012 47 VST 511(Bom).

# Hon’ble High Court of Andhra Pradesh holds SIM cards, recharge coupon vouchers, mobile phone rentals on post paid connections, value added services as ring tones, music downloads, wall papers and proceeds received on sharing infrastructure as not goods whose sale or transfer of right to use is chargeable to APVAT... State of Andhra Pradesh vs. Bharat Sanchar Nigam Limited 2012 25 STR 321 AP.

# Hon’ble High Court of Delhi holds exemption from sales tax on account of ‘sale in course of import’ not available when a dealer is importing goods in his own name although for sale to a third party... Giesccke & Debrient I.P. Ltd vs. Commr. Of Sales Tax, Delhi 2012 47 VST 343 (Delhi).

# Hon’ble High court of kerala holds purchase and delivery of deep freezers for storing ice creams against security deposit to be adjusted in instalments to be treated as consideration for sale on credit basis... Supreme Food Industries vs. State of Kerala 2012 47 VST 487 Ker.

circulars & notifications

EXCISE & CUSTOMS

# Rule 12 of Cenvat Credit Rules, 2004 amended... Click here for copy of the Notification.

# Clarification issued regarding admissibility of exemption under area-based Notifications No. 49/2003-CE and 50/2003-CE, both dated 10.06.2003 in specific situations... Click here for copy of the Circular.

# Exemption to machinery and other equipments imported by authorised work centres of the International Thermonuclear Experimental Reactor (ITER) ... Click here for copy of the Notification.

# Instruction issued to take special steps to avoid unwanted delays on clearance of Cargo from Ports/Land Customs Stations/Air Cargo Complexes, CFSs/ICDs... Click here for copy of the Instruction.

# Tondiarpet ICD notified as port for unloading imported goods and loading exported goods... Click here for copy of the Notification.

SERVICE TAX

# CBEC clarifies ‘gross amount’ in Works contract Composition Rules, 2006 not to include value of free supplies till 07.07.09... Click here for copy of the Circular.

# CBEC issues clarification regarding service tax liability in respect of various arrangements in construction sector... Click here for copy of the Circular.

# CBEC clarifies service tax liability on toll collection by independent parties... Click here for copy of the Circular.

MISCELLANEA

# RBI issues circular simplifying and revising submission and verification of softex procedure ... Click here for copy of the Circular.

# RBI issues circular regarding requirement of declaration in case of purchase of immovable property in India by NRI establishing branch or office in India... Click here for copy of the Circular.

# RBI issues circular on prior approval to be obtained by an exporter for receipt of advance where the export agreement provides for shipment of goods extending beyond the period of one year from the date of receipt of advance payment... Click here for copy of the Circular.

# MoF issues circular on Implementation of The Pneumatic Tyres and Tubes for Automotive Vehicles (Quality Control) Order 2009... Click here for copy of the Circular.

disclaimer

The views expressed and the information provided in this newsletter are of general nature and is not intended to address the circumstances of any particular individual or entity. Further the above content should neither be regarded as comprehensive nor sufficient for making decisions. Although we endeavor to provide accurate and timely information, there is no assurance or guarantee in this regard. No one should act on the information or views provided in this publication without appropriate professional advice. It should be noted that no assurance is given for any loss arising from any actions taken or to be taken or not taken by anyone based on this publication.

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