Apr 06, 2013
Transcription
Apr 06, 2013
Tax Update Vol.3, Issue 6, March 2013 HSA(IDT)3(2013)6 CONTENTS CASES Excise Assembly of good fixed with nuts and bolts-amounts to manufacture of an excisable good Input services used in relation to inputs-cenvat credit allowed Others CONTRIBUTORS Akkriti Bhatt Ankita Bhasin Chinmay Agarwal Dilip Kataria Mannat Waraich Suresh Uniyal FOR ANY QUERIES CLICK TO REACH: Abhishek Dutta [email protected] Nand Kishore [email protected] Rashmi Chaudhury [email protected] m MODE OF CITATION: HSA(IDT)3(20 13)6 HC may frame substantial questions of law during hearing NOTIFICATIONS & CIRCULARS Customs Import of goods from Japan - Customs duty rates amended No refund of TED where TED exemption available VAT/Sales Tax Amendment to schedule IV of the APVAT Act Change in rates under WBVAT Act with effect from April 1, 2013 HSA Advocates, a law firm based out of India, has a significant team of lawyers headed by 10 Partners. Our principal offices are in New Delhi, Mumbai and Kolkata with a presence in Bangalore. HSA Advocates is a culmination of the shared visions of its Partners and brings together the demonstrated strengths and leadership positions in diverse practice areas. HSA Advocates is a fullservice law firm engaged in providing legal services in its chosen areas of practice. One amongst these areas is Indirect Top CASES Excise Assembly of good fixed with nuts and bolts-amounts to manufacture of an excisable good In the present case, the Revenue sought to levy excise duty on the assembling of telephone exchange equipment carried out by the Taxpayer. The key issues considered by the Tribunal are as follows: taxes. Our team of niche experts in Indirect taxes brings to bear their significant experience in advising various large clients on implications, optimization, planning and controversy. AWARDS AND RECOGNITIONS Leading law firm in Corporate / M&A Chambers Asia, 2011 & 2010 Editions Tier - 1 law firm in ‘Projects, Infrastructure & Energy : India Chambers Asia, 2011 Edition Consistently ranked as a Tier 1 law firm in ‘Projects & Energy’ and as a leading law firm in Corporate M&A, Banking and Finance, Private Equity and TMT Asia Pacific Legal 500 Winner of M&A Law Firm for the Year India Global Awards 2011; Leading Corporate & M&A Law Firm of the Year India – Law Awards 2011; Law Firm of the Year (M&A) – Asia – Continent Excellence Awards 2011 by InterContinental Finance Magazine Indian Cross-Border M&A Law Firm of the Year – Acquisition International Magazine – Legal Awards 2011 Best Banking & Finance Law Firm INDIA – InterContinental Finance Magazine End of Year Country Awards 2011 Whether the process of assembly of different parts of the equipment amounted to manufacture of an excisable good as per section 2(f) of the Excise Act Whether the test of marketability of the good was satisfied Whether the Excise Valuation Rules were attracted as the goods had not been removed from the place of manufacture The Tribunal ruled on the aforementioned issues as follows: The Tribunal followed the judgment of the SC in the case of CCE, Ahmadabad v. Solid and Correct Engineering Works, 2010-TIOL-25-SC-CX and held that if the goods are attached or affixed to earth by way of nuts and bolts to provide a wobble free operation to the machine, such attachment cannot be considered as a permanent attachment. Accordingly, the equipment was held to be an “excisable good” and not an immovable property The Tribunal followed the judgment of the SC in the case of Medley Pharmaceuticals v. CC and Cus., Daman, 2011-TIOL-09-SC-CX and held that the test of marketability was satisfied when the commercial identity of the article was known in the market for being bought and sold. Further, it was irrelevant whether the good was generally not being bought or sold. As the equipment was known in the market, the good would be considered as being marketable The Tribunal followed the decision of the SC in the recent case of CCE v. Fiat India Ltd. 2012-TIOL-58-SC-CX wherein it was held that the duty is payable on the goods even when the goods are used within the factory for captive consumption. Accordingly, the Tribunal held that even though the equipment was not removed from the place of manufacture, the Excise Valuation Rules were attracted and excise duty was liable to be paid Bharat Sanchar Nigam Limited v. Commissioner of Central Excise, Kolkata, 2013TIOL-474-CESTAT-Kolkata Input services used in relation to inputs-cenvat credit allowed The Taxpayer was engaged in the manufacture of excisable goods and had installed storage tanks for storing ammonia at its premises. The Taxpayer was availing cenvat credit of the input services which were used in relation to the storage tanks. The Revenue sought to deny the cenvat credit availed on the basis that the storage tanks were located outside the factory of production. Further, the Tribunal had held that the input services provided in relation to inputs were limited to the specified categories as provided in the inclusive part of the definition of input services under Rule 2(l) of CCR. Climate Change Law Firm of the Year in India – Corporate Intl Magazine - Global Awards 2011 2011 Indian - Climate Change Law Firm of the Year – Global Law Experts 2011 Indian Law Firm Awards Winner for Energy, Projects and Infrastructure - India Business Law Journal Best Energy Team, India World Finance Legal Awards 2010 Winner of ACQ Global Awards 2011 & Law Awards 2010 (UK) in over 20 categories If you wish to stop receiving these updates at any point then you may kindly email us at [email protected] m or contact Abhishek Dutta / Nand Kishore/ Rashmi Chaudhury at +91 11 2651 1000. The HC held that the definition of input services as provided under Rule 2(l) of the CCR covers any service used by the manufacturer directly or indirectly, in or in relation to the manufacture of final products and includes the two specified categories of services in relation to inputs. The HC held that the input services provided in relation to inputs cannot be restricted to the two specified categories as provided under Rule 2(l) of the CCR. Further, Rule 3(1) of the CCR allows a manufacturer of final products to take credit of any input service received in the factory of manufacture of the final product. Accordingly, the HC gave a broad and comprehensive meaning to the definition of input services and held that the Taxpayer was allowed to avail cenvat credit of the input services. Deepak Fertilizers and Petrochemical Corporation Ltd. v. CCE, Belapur, 2013-TIOL212-HC-Mum-CX Others HC may frame substantial questions of law during hearing SC has held that HC has the power to frame substantial question of law (other than the questions on which appeal that have been admitted) at the time of hearing of the appeal under Section 260A(4) of the IT Act. The power is available subject to the HC recording reasons for entertaining such questions. The Commissioner of Income Tax-II, Ahmadabad v. Mastek ltd, 2013-TIOL-20-SC-ITLB Top Provided on request for personal use. Not for circulation or distribution NOTIFICATIONS AND CIRCULARS Customs Import of goods from Japan - Customs duty rates amended The rate of customs duty has been amended in respect of import of goods from Japan specified under Notification No. 69/2011-Cus, dated July 29, 2011. Notification No. 17/2013-Customs, dated March 26, 2013 No refund of TED where TED exemption available It has been clarified that where ab-initio exemption of TED is available under the FTP in case of deemed exports, the refund of TED should not be provided by the RAs or offices of Development Commissioners of SEZ. Policy Circular No. 16/(RE-2012)/2009-2014, dated February 15, 2013 VAT/Sales Tax Amendment to schedule IV of the APVAT Act Under schedule IV of the APVAT Act, goods liable to 5 percent VAT, in entry 101 „Piped Natural Gas‟ is inserted. Notification No.G.O.Ms.No.146, dated March 20, 2013 Change in rates under WBVAT Act with effect from April 1, 2013 The following changes in rates under WBVAT would come into effect from April 1, 2013: Names of items/schemes Rate applicable from April 1, 2013 Items covered under schedule C Residuary items i.e., items not covered in any of the schedules Composition for works contractors under section 18 Composition scheme for resellers 5 percent 14.5 percent 3 percent (i) 0.25 percent for dealers paying tax on turnover of sales or (ii) Rs 7000/- for the year 2013-14 if turnover of the sales for 2012-13 is within Rs 30 lakhs. However, if the turnover exceeds Rs 30 lakhs but is less than Rs 50 lakhs, then Rs 12000 to be paid as tax With respect to tax to be deducted at source by the contractee, the following change of rates is effective from April 1, 2013: Status of a contractor Rate applicable from April 1, 2013 (percent) When contractor is a registered dealer When contractor is an unregistered dealer Notification Nos. 364, 365, 369 F.T, dated March 28, 2013 3 5 Top GLOSSARY OF TERMS APVAT Act CCR DTAA Excise Act Excise Valuation Rules FTP FTS HC IT RAs SC SEZ TDS TED WBVAT Act Andhra Pradesh Value Added Tax Act, 2005 Cenvat Credit Rules, 2004 Double Taxation Avoidance Agreement Central Excise Act, 1944 Central Excise Valuation (Determination of price of Excisable Goods) Rules, 2000 Foreign Trade Policy 2009-14 Fee for Technical Services High Court Income Tax Regional Authorities Supreme Court Special Economic Zone Tax deduction at source Terminal Excise Duty West Bengal Value Added Tax Act, 2003 Confidentiality: This message is intended only for the use of the individual or entity to which it is addressed and may contain information that is privileged, confidential and exempt from disclosure. 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