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SUPREME COURT JUDGMENTS 2012

AIT-2012-12-SC
M/s Flex Engineering Limited Vs. CCE, U.P.

the process of testing the customised F&S machines is inextricably connected with the manufacturing process, in as much as, until this process is carried out in terms of the afore-extracted covenant in the purchase order, the manufacturing process is not complete; the machines are not fit for sale and hence not marketable at the factory gate. We are, therefore, of the opinion that the manufacturing process in the present case gets completed on testing of the said machines and hence, the afore-stated goods viz. the flexible plastic films used for testing the F&S machines are inputs used in relation to the manufacture of the final product and would be eligible for Modvat credit under Rule 57A of the Rules

AIT-2012-13-SC
M/s Indian Oil Corporation Ltd. Vs. CCE, Vadodara

RCO was not to be used in the factory of the appellant but at the place of generation of electricity by the Ahmedabad Electricity Company Ltd. Hence, the second condition laid down in the proviso was also to be complied with. As the procedure laid down in Rule 192 of Chapter X of the Rules has not been complied with, the appellant is not entitled to avail the exemption of excise duty under the exemption notification during the period from 01.01.1996 to 25.06.1996

AIT-2012-14-SC
M/s Osnar Chemical Pvt. Ltd. Vs. CCE, Bangalore

the process of mixing polymers and additives with bitumen does not amount to manufacture. Both the lower authorities have found as a fact that the said process merely resulted in the improvement of quality of bitumen. Bitumen remained bitumen. There was no change in the characteristics or identity of bitumen and only its grade or quality was improved. The said process did not result in transformation of bitumen into a new product having a different identity, characteristic and use. The end use also remained the same, namely for mixing of aggregates for constructing the roads.

AIT-2012-21-SC
Essar Oil Limited and another Vs. State of Gujarat & others

This appeal is directed against the judgment of the High Court of Gujarat dated 22.04.2008, Essar was given the benefit of Sales Tax incentive under the Government of Gujarat “Capital Investment Incentive to Premier/Prestigious Unit Scheme, 1995-2000”

AIT-2012-24-SC
Vodafone International Holdings B.V.
Vs. Union of India & Anr.

the Offshore Transaction herein is a bonafide structured FDI investment into India which fell outside India's territorial tax jurisdiction, hence not taxable. The said Offshore Transaction evidences participative investment and not a sham or tax avoidant preordained transaction. The said Offshore Transaction was between HTIL (a Cayman Islands company) and VIH (a company incorporated in Netherlands).  The subject matter of the Transaction was the transfer of the CGP (a company incorporated in Cayman Islands). Consequently, the Indian Tax Authority had no territorial tax jurisdiction to tax the said Offshore Transaction.

AIT-2012-43-SC
M/s Hotel Ashoka (Indian Tour. Dev. Cor. Ltd.) Vs. ACCT & Anr.

The Corporation is having its duty free shops at all major International Airports in India. At the said duty free shops, the appellant sells several articles including liquor to foreigners and also to Indians, who are going abroad or coming to India by air

AIT-2012-48-SC
Al-Kabeer Exports Limited Vs. CIT, Mumbai

Full Bench: In view of this Court's Order in the case of Commissioner of Income-Tax vs. Bhari Information Technology Systems (P) Ltd., upholding the judgment of the Special Bench of ITAT in the case of Deputy Commissioner of Income Tax vs. Syncome Formulations (I) Ltd.,  the impugned judgment of the High Court is set aside and the judgments of the ITAT in these cases stand affirmed.

AIT-2012-52-SC
M/s Topman Exports Vs. CIT, Mumbai

Full Bench: while the face value of the DEPB will fall under clause (iiib) of Section 28 of the Act, the difference between the sale value and the face value of the DEPB will fall under clause (iiid) of Section 28 of the Act and the High Court was not right in taking the view in the impugned judgment that the entire sale proceeds of the DEPB realized on transfer of the DEPB and not just the difference between the sale value and the face value of the DEPB represent profit on transfer of the DEPB.

AIT-2012-53-SC
M/s ACG Associated Capsules Pvt. Ltd. Vs. CIT, Mumbai

Full Bench: it was not necessary to refer to the explanatory Memorandum when the language of Explanation (baa) to Section 80HHC was clear that only ninety per cent of receipts by way of brokerage, commission, interest, rent, charges or any other receipt of a similar nature included in such profits computed under the head profits and gains of business of an assessee could be deducted under clause (1) of Explanation (baa) and not ninety per cent of the quantum of any of the aforesaid receipts which are allowed as expenses and therefore not included in the profits of business of the assessee.

AIT-2012-58-SC
M/s. Food & Healthcare Specialities & Anr. Vs. CCE, Faridabad

whether the Assessee was merely a processor of ‘Glucon-D’, independent of Heinz or it was related to Heinz. In other words, whether the relationship between the Assessee and Heinz was one of principal to principal or that of an agent and principal. As aforesaid, the stand of the revenue is that the Assessee, as the processor, is not independent of Heinz

AIT-2012-66-SC
Catholic Syrian Bank Ltd. Vs. CIT, Thrissur

whether on the facts and circumstances of the case, the assessee(s) is eligible for deduction of the bad and doubtful debts actually written off in view of Section 36(1)(vii) which limits the deduction allowable under the proviso to the excess over the credit balance made under clause (viia) of Section 36(1) of Income Tax Act, 1961 

AIT-2012-74-SC
Minwool Rock Fibres Ltd. Vs. CCE, Bhopal

Slagwool and Rockwool are appropriately classifiable under Sub-heading No.6807.10 of the tariff entry

AIT-2012-75-SC
M/s. Caryaire Equipment India Pvt. Ltd. Vs. CC, New Delhi

Aluminium grills cannot fit into Item 7 of the Product Code 61 of the DEPB Schedule in order to claim benefit of the DEPB Scheme

AIT-2012-76-SC
M/s. Minimax Industries Vs. CCE, Delhi

the Revenue has not produced the order passed by CESTAT dated 10.01.2010 and the only order produced by them is the interim passed by CESTAT and not the final orders against which the appeal had been preferred by the Revenue before the High Court.

AIT-2012-79-SC
M/s. Bonanzo Engineering & Chemical Private Limited Vs. CCE

merely because the assessee, maybe, by mistake pays duty on the goods which are exempted from such payment, does not mean that the goods would become goods liable for duty under the Act. Secondly, merely because the assessee has not claimed any refund on the duty paid by him would not come in the way of claiming benefit of the Notification No.175/86-CE dated 1.3.86

AIT-2012-80-SC
M/s IFB Industries Ltd. Vs. State of  Kerala

How far deductions are allowable under rule 9(a) of the Kerala General Sales Tax Rules, 1963 for trade discounts?

AIT-2012-81-SC
M/s. Plaxair India Pvt. Ltd. Vs. CCE, Kolkata

whether penalty and interest can be levied and collected when the duty has been paid before the issue of Show Cause Notice under the provisions of the Central Excise Act, 1944

AIT-2012-88-SC
M/s. Zunaid Enterprises & Ors. Vs. State of Chhattisgarh & Ors.

The appellants herein are successful bidders. When they were demanded to pay the taxes under the VAT Act, they thought it fit to approach the High Court by filing a petition/appeal under Article 226 of the Constitution, inter alia, seeking a writ in the nature of mandamus to the respondents/revenue to treat the sales, made by the Federation in favour of the appellants as purely inter-state sale and, therefore, not exigible for the levy of tax under the VAT Act.

AIT-2012-89-SC
M/s. Wockhardt Life Sciences Ltd. Vs. CCE

classification of two products viz. ‘Povidone Iodine Cleansing Solution USP and Wokadine Surgical Scrub for the purpose of levy of duty under the provisions of Central Excise Tariff Act, 1985

AIT-2012-99-SC
M/s. Konkan Synthetic Fibres Vs. CC (Import), Mumbai

It is a settled proposition in a fiscal or taxation law that while ascertaining the scope or expressions used in a particular entry, the opinion of the expert in the field of trade, who deals in those goods, should not be ignored, rather it should be given due importance.

AIT-2012-102-SC
N.K. Bajpai Vs. Union of India & Anr.

Section 129(6) of the Customs Act, 1962, which stipulates that on demitting office as Member of CESTAT a person shall not be entitled to appear before the CESTAT, is not ultra vires the Constitution of India

AIT-2012-103-SC
M/s. Favourite Industries Vs. CCE, Surat

whether the finished goods manufactured by the 100% EOU out of the raw material supplied by another 100% EOU, and subsequently, cleared in the DTA in accordance with the EXIM Policy 1997-2002 are entitled to the benefit of the exemption provided under the Notification No.8/97-CE, dated 1.3.1997.

AIT-2012-106-SC
Vodafone International Holding B.V. Vs. Union of India & Anr.

Full Bench: We find no merit in the review petition. The review petition is, accordingly, dismissed.

AIT-2012-156-SC
Rashtriya Ispat Nigam Limited Vs.
Dewan Chand Ram Saran

Service Tax: whether under the relevant clause 9.3 of the terms and conditions of the contract between the parties, the appellant was right in deducting the service tax from the bills of the respondent and, (ii) secondly, whether the interpretation of this clause and the consequent award rendered by the arbitrator was against the terms of the contract and therefore illegal as held by the High Court, or whether the view taken by the arbitrator was a possible, if not a plausible view.

AIT-2012-161-SC
M/s Nalwa Sons Investment Ltd. Vs. CIT

SC upholds Delhi HC Ruling in case of Nalwa Sons Investment Limited - it is the deemed income assessed under Section 115 JB of the Act which has become the basis of assessment as it was higher of the two. Tax is thus paid on the income assessed under Section 115 JB of the Act. Hence, when the computation was made under Section 115 JB of the Act, the aforesaid concealment had no role to play and was totally irrelevant. Therefore, the concealment did not lead to tax evasion at all.

AIT-2012-177-SC
Cargil Global Trading I.P. Ltd
. Vs. CIT, Delhi

SC dismisses appeal of Income Tax against Delhi HC Ruling which held Discounting charges are not interest within the ambit of Section 2(28A) of the Income Tax Act-the discount charges paid were not in respect of any debt incurred or money borrowed. Instead, the assessee had merely discounted the sale consideration respectively on sale of goods-No obligation to deduct TDS

AIT-2012-225-SC
Columbia Sportswear Company Vs. DIT, Bangalore

to hold that an advance ruling of the authority should not be permitted to be challenged before the High Court under Articles 226 and/or 227 of the Constitution would be to negate a part of the basic structure of the Constitution. Nonetheless, we do understand the apprehension of the Authority that a writ petition may remain pending in the High Court for years, first before a learned Single Judge and thereafter in Letters Patent Appeal before the Division Bench and as a result the object of Chapter XIX-B of the Act which is to enable an applicant to get an advance ruling in respect of a transaction expeditiously would be defeated. We are, thus, of the opinion that when an advance ruling of the Authority is challenged before the High Court under Articles 226 and/or 227 of the Constitution, the same should be heard directly by a Division Bench of the High Court and decided as expeditiously as possible

AIT-2012-245-SC
Smifs Securities Ltd. Vs. CIT, Kolkata

Question No.[a]: "Whether Stock Exchange Membership Cards are assets eligible for depreciation under Section 32 of the Income Tax Act, 1961? Whether, on the facts and in the circumstances of the case, deletion of Rs.53,84,766/- has been made correctly?

AIT-2012-246-SC
ICICI Securities Primary Dealership Ltd
. Vs. ACIT, Mumbai and Ors.

The assessee had disclosed full details in the Return of Income in the matter of its dealing in stocks and shares. According to the assessee, the loss incurred was a business loss, whereas, according to the Revenue, the loss incurred was a speculative loss. Rejection of the objections of the assessee to the re-opening of the assessment by the Assessing Officer vide his Order dated 23rd June, 2006, is clearly a change of opinion. In the circumstances, we are of the view that the order re-opening the assessment was not maintainable.

AIT-2012-247-SC
Gujarat Flouro Chemicals Vs. CIT, Gujarat

whether interest is payable by the Revenue to the assessee if the aggregate of instalments of Advance Tax/TDS paid exceeds the assessed tax?

AIT-2012-254-SC
M/s. Fiat India (P) Ltd. & Anr. Vs. CCE, Mumbai

1. Whether the Price declared by assesses for their cars which is admittedly below the Cost of manufacture can be regarded as “normal price” for the purpose of excise duty in terms of Section 4(1) (a) of the Act.

AIT-2012-261-SC
M/s. Arisudana Spinning Mills Ltd. Vs. CIT, Ludhiana

The assessee is aggrieved by denial of deduction which it claimed under Section 80IA of the Income Tax Act, 1961 - the assessee ought to have maintained a separate account in respect of raw material which it had sold during the assessment year. If the assessee had maintained a separate account, then, in that event, a clear picture would have emerged which would have indicated the income accrued from the manufacturing activity and the income accrued on the sale of raw material. We do not know the reason why separate accounts were not maintained for the raw material sold and for the income derived from manufacture of yarn.

AIT-2012-262-SC
M/s Salora International Ltd. Vs. CCE, New Delhi

whether the goods manufactured by the appellant are liable to be taxed as ‘Parts of Television Receivers’ falling under Tariff Entry 8529 of the Central Excise Tariff contained in the First Schedule to the Central Excise Tariff Act, 1985 or as ‘Television Receivers’ under Tariff Entry 8528 of the Tariff.

AIT-2012-264-SC
M/s. Dynavision Limited Vs. CIT, Tamil Nadu

while computing the assessment under Section 143(3) found that the assessee had not included in the closing stock the element of excise duty. Accordingly, he added a sum of Rs. 16,39,000/- to the income of the assessee on the ground of undervaluation of closing stock.

AIT-2012-265-SC
Ahmedabad Stamp Vendors Association Vs. CIT Ahmedabad and Ors.

0.50% to 4% discount given to the Stamp Vendors is for purchasing the stamps in bulk quantity and the said discount is in the nature of cash discount. - the impugned transaction is a sale. Consequently, Section 194H of the Income Tax Act, 1961, has no application.

AIT-2012-266-SC
M/s. Gebilal Kanhaialal HUF Vs. ACIT, Udaipur

The assessee has paid tax with interest upto the date of payment. The only condition which was required to be fulfilled for getting the immunity, after the search proceedings got over, was that the assessee had to pay the tax together with interest in respect of such undisclosed income upto the date of payment. Clause (2) did not prescribe the time limit within which the assessee should pay tax on income disclosed in the statement under Section 132(4). For the above reasons, we hold that the assessee was entitled to immunity under clause (2) of Explanation 5 to Section 271(1)(c)

AIT-2012-268-SC
M/s. Drilcos (India) Pvt. Ltd. Vs. CIT, Madras

The Agreement with the American company called “Licence and Technical Assistance Agreement" under which the American company was required to transfer technical know-how to the assessee for consideration of US $2,25,000/- to be paid in three instalments. The first instalment in convertible Indian currency amounting to Rs.17,49,889/- was paid on 29th November, 1990. Subsequently, disputes arose between the contracting parties and the know-how was not transferred by the American company.

AIT-2012-269-SC
Rakesh Shantilal Mardia Vs. DCIT

assessee has computed his interest income arising on the difference between purchase price of the debenture and redemption price after six years and calculated the income on amortization basis.

AIT-2012-271-SC
Tamil Nadu Minerals Ltd. Vs. CIT, Taminadu

the assessee is not entitled to claim deduction to the extent of profits referred to in sub-section 1-B of Section 80HHC of the Income Tax Act, derived from export of goods – in this case, granite.

AIT-2012-282-SC
Price Waterhouse Coopers Pvt. Ltd. Vs. CIT, Kolkata

The assessee is undoubtedly a reputed firm and has great expertise available with it. Notwithstanding this, it is possible that even the assessee could make a "silly" mistake and indeed this has been acknowledged both by the Tribunal as well as by the High Court.

AIT-2012-284-SC
M/s. Krishi Utpadan Mandi Samiti Vs. CIT

amounts transferred by the assessee to Mandi Parishad would constitute application of income for charitable purposes within the meaning of Section 11(1)(a) of the Income Tax Act, 1961

AIT-2012-285-SC
Morinda Cooperative Sugar Mills Ltd. Vs. CIT,
Chandigarh

whether at the time of marketing of sugar, the same could be treated to retain the character of agricultural produce [sugarcane] grown by members of the Society or does it represent an independent commercial commodity which no longer has the character of agricultural produce? whether the operation undertaken by the assessee(s) constitutes `manufacture’?

AIT-2012-286-SC
M/s. Bannari Amman Sugars Ltd. Vs. CIT, Coimbatore

closing stock of incentive sugar has to be valued at levy price and not at cost price-stock valuation of incentive sugar has a direct impact on the manufacturer’s revenue or business profits. If we were to accept the case of the Department that the excess amount realized by the manufacturer(s) over the levy price was a revenue receipt taxable under the Act then the very purpose of the Incentive Scheme formulated by Sampat Committee would have been defeated. One cannot have a stock valuation which converts a capital receipt into revenue income

AIT-2012-314-SC
M/s Thakker Shipping P. Ltd. Vs. CC

CESTAT has discretionary power under Section 129A (5) of the Customs Act, 1962 to condone the delay caused in filing the appeal under Section 129D(3) [sic, 129D(4)] of the said Act, when there was sufficient cause available to appellant for not filing it within the prescribed period before the Appellate Authority

AIT-2012-331-SC
M/s. Nagarjuna Constn. Co. Ltd. Vs. Government of India & Anr.

Service Tax: the appellant, who had paid service tax prior to 01.06.07 for the taxable services, namely, erection, commissioning or installation service, commercial or industrial construction service or construction of complex service, was not entitled to change the classification of the single composite service for the purpose of payment of service tax on or after 01.06.07 and hence, was not entitled to avail of the Composition Scheme.

AIT-2012-336-SC
M/s Connaught Plaza Restaurant (P) Ltd.
Vs. CCE, New Delhi

‘soft serve’ served at the restaurants/outlets commonly and popularly known as McDonalds, is classifiable under heading 21.05 of the Central Excise and Tariff Act, 1985.

AIT-2012-355-SC
Pradip Kumar Vs. Union of India and Ors.

Larger Bench: The order of discharge, being based upon the report of the President, is clearly stigmatic and could not have been passed without giving an opportunity to the respondent to meet the allegations contained in the report of the President, CESTAT.

 


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