VAT AND SERVICE TAX CASES (VST)

ONLINE EDITION


VOL. 5 : ISSUE DATED 28-8-2015


HIGH COURTS


Appeal--Value added tax--Pre-deposit--Dismissal of appeal for failure to make pre-deposit as directed by appellate authorities--Writ petition--High Court--Further time granted to dealer to make deposit, failing which appeal to stand dismissed.--Kiran Oil Mill v. State of Gujarat (Guj) . . . 213

----See also VAT Tribunal (Karn) . . . 223

Central sales tax--Fast track revisional authority--Proceedings--Declaration forms--Order by adjudicating authority denying concessional rate of tax and exemption for failure to produce relevant declaration forms confirmed by appellate authority--Assessee approaching Fast Track Revisional Authority but not appearing on date fixed for hearing--Revisional application dismissed--Writ petition submitting suo motu adjournment ought to have been given to produce those declaration forms in his possession--Direction to revisional authority to rehear application--West Bengal Value Added Tax Act (37 of 2003)--West Bengal Value Added Tax Rules, 2005, r. 149B, (3), proviso--Central Sales Tax Act (74 of 1956).--Wellman Wacoma Ltd. v. Deputy Commissioner of Commercial Taxes (Cal) . . . 216

----See also Inter-State sales (Bom) . . . 221

Cess--Legislative powers--State Legislature--Levy of cess known as "Mangalya Nidhi Cess"--Invalid--Kerala Finance Act (29 of 2013), s. 11.--State of Kerala v. Thara Jayakumar (Ker) . . . 208

Check-post--Sales tax--Goods in transit--Penalty--"Person in-charge" of goods included "owner of goods" even prior to March 22, 2002--Rajasthan Sales Tax Act, 1994 (22 of 1995), s. 78(2), (5).--Assistant Commercial Tax Officer v. Shree Meera Dal Udyog (Raj) . . . 196

Declaration forms--Central sales tax--Fast track revisional authority--Proceedings--Order by adjudicating authority denying concessional rate of tax and exemption for failure to produce relevant declaration forms confirmed by appellate authority--Assessee approaching Fast Track Revisional Authority but not appearing on date fixed for hearing--Revisional application dismissed--Writ petition submitting suo motu adjournment ought to have been given to produce those declaration forms in his possession--Direction to revisional authority to rehear application--West Bengal Value Added Tax Act (37 of 2003)--West Bengal Value Added Tax Rules, 2005, r. 149B, (3), proviso--Central Sales Tax Act (74 of 1956).--Wellman Wacoma Ltd. v. Deputy Commissioner of Commercial Taxes (Cal) . . . 216

Deduction--Value added tax--Freight--Sales return--Service tax--Concurrent findings by three authorities below that transportation charges collected a pre-sale expense includible in taxable turnover--Ground of payment of service tax on sales return raised for first time by assessee before Court--No case made out for remitting matter to assessing authority--Revision petitions challenging order passed by Tribunal disallowing claim of deduction of freight charges and tax on sales return dismissed--Karnataka Value Added Tax Act, 2003 (32 of 2004)--Karnataka Value Added Tax Rules, 2005.--Parle Products Pvt. Ltd. v. Assistant Commissioner of Commercial Taxes (Karn) . . . 218

Exemption--Sales tax--State electricity board--Sale and lease back of machinery by finance companies--Denial of rebate on ground of failure by Board to produce supporting documents before assessing or appellate authority--Board filing documents before revisional authority explaining reason for delay--Revisional authority not considering documents--Writ petition--High Court--Matter remanded to assessing authority to consider matter in light of documents--Madhya Pradesh Commercial Tax Act, 1994 (5 of 1995), ss. 9, 9A--Notification Nos. 65 and 66 dated August 14, 2000.--M. P. Electricity Board v. State of M. P. (MP) . . . 204

----Value added tax--Rate of tax--Demo cars--Authorized dealer engaged in business of sale of vehicles manufactured by M also engaged in purchase and sale of used cars--Demo cars sold by M to dealer sold by dealer on their getting obsolete or on change of model--Ambiguity in notification dated October 24, 2005 prescribing concessional rate of tax on sale of used cars clarified by notification dated March 30, 2007 prescribing concessional rate of tax on sale of used cars by dealer engaged in "purchase and sale of used cars"--Purchase of demo cars not that of used car but of brand new car from manufacturer--Sale by dealer of demo cars not entitled to concessional rate of tax--Karnataka Value Added Tax Act, 2003 (32 of 2004), s. 4(1).--Mandovi Motors Pvt. Ltd. v. State of Karnataka (Karn) . . . 223

----See also Central sales tax (Cal) . . . 216

Fast Track Revisional Authority--See Central sales tax (Cal) . . . 216

Freight--Value added tax--Deduction--Sales return--Service tax--Concurrent findings by three authorities below that transportation charges collected a pre-sale expense includible in taxable turnover--Ground of payment of service tax on sales return raised for first time by assessee before Court--No case made out for remitting matter to assessing authority--Revision petitions challenging order passed by Tribunal disallowing claim of deduction of freight charges and tax on sales return dismissed--Karnataka Value Added Tax Act, 2003 (32 of 2004)--Karnataka Value Added Tax Rules, 2005.--Parle Products Pvt. Ltd. v. Assistant Commissioner of Commercial Taxes (Karn) . . . 218

High Court--See Appeal (Guj) . . . 213

----See Exemption (MP) . . . 204

Inter-State sales--Sales tax--Central sales tax--Stock transfers--Jewellery carried to various places of exhibition outside State for display and sale--Finding that transaction not subject to Central sales tax--Finding of fact reached by reference to documents--No substantial question of law--Central Sales Tax Act (74 of 1956), s. 6A.--Additional Commissioner of Sales Tax v. Shobha Asar (Bom) . . . 221

Legislative powers--State Legislature--Levy of cess known as "Mangalya Nidhi Cess"--Invalid--Kerala Finance Act (29 of 2013), s. 11.--State of Kerala v. Thara Jayakumar (Ker) . . . 208

Penalty--Sales tax--Check-post--Goods in transit--"Person in-charge" of goods included "owner of goods" even prior to March 22, 2002--Rajasthan Sales Tax Act, 1994 (22 of 1995), s. 78(2), (5).--Assistant Commercial Tax Officer v. Shree Meera Dal Udyog (Raj) . . . 196

Pre-deposit--Value added tax--Appeal--Dismissal of appeal for failure to make pre-deposit as directed by appellate authorities--Writ petition--High Court--Further time granted to dealer to make deposit, failing which appeal to stand dismissed.--Kiran Oil Mill v. State of Gujarat (Guj) . . . 213

Rate of tax--Value added tax--Demo cars--Authorized dealer engaged in business of sale of vehicles manufactured by M also engaged in purchase and sale of used cars--Demo cars sold by M to dealer sold by dealer on their getting obsolete or on change of model--Ambiguity in notification dated October 24, 2005 prescribing concessional rate of tax on sale of used cars clarified by notification dated March 30, 2007 prescribing concessional rate of tax on sale of used cars by dealer engaged in "purchase and sale of used cars"--Purchase of demo cars not that of used car but of brand new car from manufacturer--Sale by dealer of demo cars not entitled to concessional rate of tax--Karnataka Value Added Tax Act, 2003 (32 of 2004), s. 4(1).--Mandovi Motors Pvt. Ltd. v. State of Karnataka (Karn) . . . 223

Review--Value added tax--Appellate Tribunal--Facts not placed before Tribunal when earlier order passed placed at time of review--Exercise of power of review--Valid--Karnataka Value Added Tax Act, 2003 (32 of 2004).--Mandovi Motors Pvt. Ltd. v. State of Karnataka (Karn) . . . 223

Revision--Sales tax--Exemption--State electricity board--Sale and lease back of machinery by finance companies--Denial of rebate on ground of failure by Board to produce supporting documents before assessing or appellate authority--Board filing documents before revisional authority explaining reason for delay--Revisional authority not considering documents--Writ petition--High Court--Matter remanded to assessing authority to consider matter in light of documents--Madhya Pradesh Commercial Tax Act, 1994 (5 of 1995), ss. 9, 9A--Notification Nos. 65 and 66 dated August 14, 2000.--M. P. Electricity Board v. State of M. P. (MP) . . . 204

Sale--Sales tax--Taxable turnover--Provision of free samples--Not liable to tax.--Commercial Taxes Officer v. Indian Shaving Products Ltd. (Raj) . . . 228

Sales return--See Deduction (Karn) . . . 218

Service tax--See Deduction (Karn) . . . 218

State Legislature--See Legislative powers (Ker) . . . 208

Stock transfers--Sales tax--Central sales tax--Jewellery carried to various places of exhibition outside State for display and sale--Finding that transaction not subject to Central sales tax--Finding of fact reached by reference to documents--No substantial question of law--Central Sales Tax Act (74 of 1956), s. 6A.--Additional Commissioner of Sales Tax v. Shobha Asar (Bom) . . . 221

Turnover--Sales tax--Taxable turnover--Provision of free samples--Not liable to tax.--Commercial Taxes Officer v. Indian Shaving Products Ltd. (Raj) . . . 228

----See also Deduction (Karn) . . . 218

Value added tax--See VAT Tribunal (Karn) . . . 223

VAT Tribunal--Value added tax--Appellate Tribunal--Review--Facts not placed before Tribunal when earlier order passed placed at time of review--Exercise of power of review--Valid--Karnataka Value Added Tax Act, 2003 (32 of 2004).--Mandovi Motors Pvt. Ltd. v. State of Karnataka (Karn) . . . 223

Words and phrases--"Person in-charge" of goods included "owner of goods"--Definitions.--Assistant Commercial Tax Officer v. Shree Meera Dal Udyog (Raj) . . . 196

----"Used cars"--Definition.--Mandovi Motors Pvt. Ltd. v. State of Karnataka (Karn) . . . 223

Writ petition--See Exemption (MP) . . . 204

Writs under Constitution--See Appeal (Guj) . . . 213


CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL


Appeal--Service tax--Appeal to appellate Tribunal--Limitation--Orders in appeal issued by speed post on May 9, 2011 to appellant and advocate, who appeared in personal hearing before Commissioner (Appeals) and Tribunal--Copy of speed post booking receipt produced as evidence by Department not refuted by appellant--Appellant cannot contend that certified copy of order received by it from Department only by letter dated December 22, 2011 subsequent to its letter requesting for a copy and that therefore appeal filed on January 4, 2012, within time--Service of order to advocate not disputed--Communication of order to authorized agent sufficient communication--Appeals dismissed as barred by limitation--Central Excise Act (1 of 1944), s. 37C.--Premier Garment Processing v. CST (CESTAT-Chennai) . . . 198

Limitation--Service tax--Appeal to appellate Tribunal--Orders in appeal issued by speed post on May 9, 2011 to appellant and advocate, who appeared in personal hearing before Commissioner (Appeals) and Tribunal--Copy of speed post booking receipt produced as evidence by Department not refuted by appellant--Appellant cannot contend that certified copy of order received by it from Department only by letter dated December 22, 2011 subsequent to its letter requesting for a copy and that therefore appeal filed on January 4, 2012, within time--Service of order to advocate not disputed--Communication of order to authorized agent sufficient communication--Appeals dismissed as barred by limitation--Central Excise Act (1 of 1944), s. 37C.--Premier Garment Processing v. CST (CESTAT-Chennai) . . . 198

Service tax--Appeal to appellate Tribunal--Limitation--Orders in appeal issued by speed post on May 9, 2011 to appellant and advocate, who appeared in personal hearing before Commissioner (Appeals) and Tribunal--Copy of speed post booking receipt produced as evidence by Department not refuted by appellant--Appellant cannot contend that certified copy of order received by it from Department only by letter dated December 22, 2011 subsequent to its letter requesting for a copy and that therefore appeal filed on January 4, 2012, within time--Service of order to advocate not disputed--Communication of order to authorized agent sufficient communication--Appeals dismissed as barred by limitation--Central Excise Act (1 of 1944), s. 37C.--Premier Garment Processing v. CST (CESTAT-Chennai) . . . 198



PRINT EDITION


VOLUME 83 : PART 3 : ISSUE DATED 28-8-2015


HIGH COURTS


Appeal--Service tax--Appeal to Appellate Tribunal--Appeal by Department--Decision to file appeal to be taken by Committee of Commissioners--Administrative function--No requirement that Committee should meet or consult or record independent reasons--Sufficient if record shows adequate material was before them while taking decision--No jurisdiction in Tribunal to examine decision taken by Committee of Commissioners on administrative side--Finance Act (32 of 1994), s. 86(2), (2A).--Commissioner of Service Tax v. Japan Airlines International Co. Ltd. (Delhi) [FB] . . . 242

----Service tax--Appeal to High Court--Question whether services rendered by assessee fell under category of real estate agent services or any other category--Is question relating to determination of rate of tax--Appeal not maintainable before High Court--Finance Act (32 of 1994), s. 65(88), (105)--Central Excise Act (1 of 1944), ss. 35G, 35L.--Commissioner of Service Tax v. Saumya Construction Pvt. Ltd. (Guj) . . . 277

Assessment--Value added tax--Assessee entering into contract with B. S. F. and C. R. P. F. for supply of shoes and shirts to canteen stores--Transaction sent through business mail and goods via courier from Delhi to Tripura--Passenger bus intercepted and packages found not accompanied by documents to show that consignment meant for B. S. F. or C. R. P. F. authorities--Goods seized at border and bank guarantee furnished as demanded--Order passed assessing tax payable and imposing maximum penalty and demand confirmed by assessing officer--Order of assessment without jurisdiction as sale not amenable to tax within State of Tripura--On facts penalty not imposable--Orders quashed and proceedings closed--Bank guarantee automatically discharged--Tripura Value Added Tax Act, 2004 (1 of 2005).--Dheer Marketing India v. State of Tripura (Tripura) . . . 341

Capital assets--Sales tax--Set-off--Dealer engaged in manufacture of goods for export--Dealer not found to have principally dealt with waste or scrap goods--Set-off not to be reduced by calculating export sales after excluding scrap sales--Dealer not treating consumables as capital assets--No contrary material available on record--Set-off not to be denied--Bombay Sales Tax Rules, 1959, r. 41D.--Pferd Tools Pvt. Ltd. v. Commissioner of Sales Tax (Bom) . . . 360

Construction of taxing statutes--Charging and machinery provisions--Charging provision to be construed strictly, and machinery provision so as to effectuate that objective.--Smt. Sushila Devi Chhabil Dass Charitable Trust v. State of U. P. (All) . . . 326

----Entries in Schedule--Residuary clause would not apply to a case under specific provision.--Ame De Verre (P) Ltd. v. Commissioner, Trade and Taxes (Delhi) . . . 264

----Entries in Schedule--Statute to be construed strictly on basis of plain language.--Ame De Verre (P) Ltd. v. Commissioner, Trade and Taxes (Delhi) . . . 264

Discrimination--Legislative powers--State Legislature--Classification need not be constituted by exact or scientific exclusion or inclusion of persons or things--Constitution of India, art. 14.--Smt. Sushila Devi Chhabil Dass Charitable Trust v. State of U. P. (All) . . . 326

Entertainment tax--Exemption--Games and sports--Clarification that exemption would not extend to video games and video games parlours--Proper--Rajasthan Entertainments and Advertisements Tax Act (24 of 1957)--Notification No. F.10 (4) FD/Tax-Div./99-168 dated March 26, 1999.--Citymax Hotels (India) Pvt. Ltd. v. CTO (Raj) . . . 314

Entries in Schedule--Construction of taxing statutes--Residuary clause would not apply to a case under specific provision.--Ame De Verre (P) Ltd. v. Commissioner, Trade and Taxes (Delhi) . . . 264

----Construction of taxing statutes--Statute to be construed strictly on basis of plain language.--Ame De Verre (P) Ltd. v. Commissioner, Trade and Taxes (Delhi) . . . 264

----Value added tax--Handicrafts--Stained glass articles (made by cutting sheet of glass based on design created on paper, into required pieces, polishing and assembling) and stained glass products including decorative items sold under brand name of "Baldi"--Are handicrafts--Not classifiable under residuary entry--Delhi Value Added Tax Act, 2004 (3 of 2005), s. 4(1)(b) ; Sch. III, entry 128.--Ame De Verre (P) Ltd. v. Commissioner, Trade and Taxes (Delhi) . . . 264

Evasion of tax--Value added tax--Seizure--Interception of new chassis taken from Jaipur to Moradabad and only temporary registration certificate and insurance certificate produced by driver--Claim that chassis taken for getting its body built by some body maker--Record showing driver was owner of chassis hypothecated to bank--View taken by officer that vehicle taken to U. P. for sale based on conjectures and surmises--Seizure of chassis with direction to release on furnishing cash security equivalent to 40 per cent. of estimated value of chassis--Not legal--Direction to release chassis--Cost of Rs. 5,000 awarded to driver-owner--Uttar Pradesh Value Added Tax Act (5 of 2008).--Raphik Mohammad v. Commissioner, Commercial Tax (All) . . . 356

Exemption--Entertainment tax--Games and sports--Clarification that exemption would not extend to video games and video games parlours--Proper--Rajasthan Entertainments and Advertisements Tax Act (24 of 1957)--Notification No. F.10 (4) FD/Tax-Div./99-168 dated March 26, 1999.--Citymax Hotels (India) Pvt. Ltd. v. CTO (Raj) . . . 314

----Interpretation of taxing statutes.--Citymax Hotels (India) Pvt. Ltd. v. CTO (Raj) . . . 314

High Court--See Service tax (Guj) . . . 277

Interpretation of taxing statutes--Exemptions.--Citymax Hotels (India) Pvt. Ltd. v. CTO (Raj) . . . 314

Jurisdiction--Value added tax--Revision--Scope of powers--Power only to set aside order under revision and direct assessment afresh--No power himself to pass order of reassessment--Karnataka Value Added Tax Act, 2003 (32 of 2004), s. 63A.--Solidus Hi Tech Products Pvt. Ltd. v. State of Karnataka (Karn) . . . 345

----See also Service tax (Delhi) [FB] . . . 242

Legislative powers--State Legislature--Discrimination--Classification need not be constituted by exact or scientific exclusion or inclusion of persons or things--Constitution of India, art. 14.--Smt. Sushila Devi Chhabil Dass Charitable Trust v. State of U. P. (All) . . . 326

----See also Tax deduction at source (All) . . . 326

Penalty--See Search and seizure (Tripura) . . . 341

Rate of tax--See Service tax (Guj) . . . 277

Reassessment--See Revision (Karn) . . . 345

Registered dealer--Value added tax--Deduction of tax at source--Provision requiring purchasing dealer to deduct tax at source towards satisfaction of tax payable by selling dealer and notification issued thereunder, bringing certain entities within ambit of liability to deduct tax at source--Neither arbitrary nor discriminatory--Valid--Uttar Pradesh Value Added Tax Act (5 of 2008), s. 34--Notification No. KA-NI-2-1315/XI-9(10)/08-U.P. Act-5-2008-Order-(101)-2013, dated October 7, 2013--Constitution of India, art. 14.--Smt. Sushila Devi Chhabil Dass Charitable Trust v. State of U. P. (All) . . . 326

Revision--Value added tax--Scope of powers--Power only to set aside order under revision and direct assessment afresh--No power himself to pass order of reassessment--Karnataka Value Added Tax Act, 2003 (32 of 2004), s. 63A.--Solidus Hi Tech Products Pvt. Ltd. v. State of Karnataka (Karn) . . . 345

Search and seizure--Value added tax--Assessee entering into contract with B. S. F. and C. R. P. F. for supply of shoes and shirts to canteen stores--Transaction sent through business mail and goods via courier from Delhi to Tripura--Passenger bus intercepted and packages found not accompanied by documents to show that consignment meant for B. S. F. or C. R. P. F. authorities--Goods seized at border and bank guarantee furnished as demanded--Order passed assessing tax payable and imposing maximum penalty and demand confirmed by assessing officer--Order of assessment without jurisdiction as sale not amenable to tax within State of Tripura--On facts penalty not imposable--Orders quashed and proceedings closed--Bank guarantee automatically discharged--Tripura Value Added Tax Act, 2004 (1 of 2005).--Dheer Marketing India v. State of Tripura (Tripura) . . . 341

----Value added tax--Evasion of tax--Seizure--Interception of new chassis taken from Jaipur to Moradabad and only temporary registration certificate and insurance certificate produced by driver--Claim that chassis taken for getting its body built by some body maker--Record showing driver was owner of chassis hypothecated to bank--View taken by officer that vehicle taken to U. P. for sale based on conjectures and surmises--Seizure of chassis with direction to release on furnishing cash security equivalent to 40 per cent. of estimated value of chassis--Not legal--Direction to release chassis--Cost of Rs. 5,000 awarded to driver-owner--Uttar Pradesh Value Added Tax Act (5 of 2008).--Raphik Mohammad v. Commissioner, Commercial Tax (All) . . . 356

Service tax--Appeal to Appellate Tribunal--Appeal by Department--Decision to file appeal to be taken by Committee of Commissioners--Administrative function--No requirement that Committee should meet or consult or record independent reasons--Sufficient if record shows adequate material was before them while taking decision--No jurisdiction in Tribunal to examine decision taken by Committee of Commissioners on administrative side--Finance Act (32 of 1994), s. 86(2), (2A).--Commissioner of Service Tax v. Japan Airlines International Co. Ltd. (Delhi) [FB] . . . 242

----Appeal to High Court--Question whether services rendered by assessee fell under category of real estate agent services or any other category--Is question relating to determination of rate of tax--Appeal not maintainable before High Court--Finance Act (32 of 1994), s. 65(88), (105)--Central Excise Act (1 of 1944), ss. 35G, 35L.--Commissioner of Service Tax v. Saumya Construction Pvt. Ltd. (Guj) . . . 277

Set-off--Sales tax--Dealer engaged in manufacture of goods for export--Dealer not found to have principally dealt with waste or scrap goods--Set-off not to be reduced by calculating export sales after excluding scrap sales--Dealer not treating consumables as capital assets--No contrary material available on record--Set-off not to be denied--Bombay Sales Tax Rules, 1959, r. 41D.--Pferd Tools Pvt. Ltd. v. Commissioner of Sales Tax (Bom) . . . 360

State Legislature--See Legislative powers (All) . . . 326

Tax deduction at source--Value added tax--Registered dealer--Provision requiring purchasing dealer to deduct tax at source towards satisfaction of tax payable by selling dealer and notification issued thereunder, bringing certain entities within ambit of liability to deduct tax at source--Neither arbitrary nor discriminatory--Valid--Uttar Pradesh Value Added Tax Act (5 of 2008), s. 34--Notification No. KA-NI-2-1315/XI-9(10)/08-U.P. Act-5-2008-Order-(101)-2013, dated October 7, 2013--Constitution of India, art. 14.--Smt. Sushila Devi Chhabil Dass Charitable Trust v. State of U. P. (All) . . . 326

Tribunal--See Service tax (Delhi) [FB] . . . 242

Value added tax--See Entries in Schedule (Delhi) . . . 264

----See Revision (Karn) . . . 345

----See Search and seizure (All) . . . 356, (Tripura) . . . 341

----See Tax deduction at source (All) . . . 326

----See Works contract (Ker) . . . 352

Works contract--Value added tax--Liability certificate--Entire work sub-contracted to sub-contractor--Amounts retained by contractor from out of payments made by awarder representing only its profit element--No sale of material in course of execution of works contract from contractor to awarder--Demand for tax on amounts retained by main contractor as profits arising out of transaction in question illegal--Kerala Value Added Tax Rules, 2005, form 20B.--Surya Constructions v. Commercial Tax Officer (WC & LT) (Ker) . . . 352
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