Demand of duty on Fly Ash post 01.03.2011 - Generation of Fly Ash in
CHENNAI: WITH effect from 01.03.2011, Central Excise duty at the rate of 1% was imposed on many goods which were hitherto exempted. Fly Ash is found at Sl No 27 of the Notification. Hence, many started to believe that Fly Ash attracts duty with effect from 01.03.2011. A Show Cause Notice was issued to a Thermal Power Station demanding Central Excise duty on Fly Ash and Fly Ash Bricks cleared by them, which is under challenge.
After hearing both sides, the High Court ruled:
Process does not amount to manufacture:
To be subjected to levy of excise duty "excisable goods" must be produced or manufactured in India. For being produced and manufactured in India, the raw material should have gone through the process of transformation into a new product by skillful manipulation. Excise duty is an incidence of manufacture and, therefore, it is essential that the product sought to be subjected to excise duty should have gone through the process of manufacture.
It is worthwhile to refer the decision of the Apex Court in "Union of India versus Ahemdabad Electricity Company Limited" - 2003-TIOL-17- SC-CX, wherein, while upholding the view of the High Court of Gujarat, the Apex Court has categorically held the "cinder" which is unburnt part of coal, is not exigible to excise duty since no manufacturing process was involved to produce the same and as such it did not satisfy the test of being manufactured in India as envisaged in the provisions of the Act and that the onus to establish that cinder has gone through the process of manufacture in India was not discharged by the department.
The difference between 'cinder&# 39; and 'fly ash' is that when coal is not burnt fully and leaves pieces behind, is called 'cinder&# 39; whereas, when it is fully burnt and reduced to ash, is called 'fly ash'. Therefore, The ratio decided in the above said decision would squarely apply in the case of 'fly ash' also since the product 'fly ash' also cannot be said to have gone through any manufacturing process.
Waste arising out of exempted goods is exempted under Notification No 89/95 CE:
It is not in dispute that 'electricity&# 39; has been specified in the First Schedule of the Central Excise Tariff under heading 27160000, but it is not subjected to a duty of excise since under the 'rate column' the duty of excise is indicated as 'nil' . Merely, rate of duty is mentioned 'nil' , it cannot be construed that it is non-excisable good. In "CCE, Hyderabad versus Vazir Sultan Tocacco Co.Ltd., - 2002-TIOL-215- SC-CX-LB, the Supreme Court has held that though by virtue of an exemption notification, the rate of duty was nil, this does not mean that they were not excisable goods. They were excisable goods. Nil rate of duty is also a rate of duty. Therefore, electricity is excisable good and can be construed as exempted goods by virtue of the above notification No.89/95-CE, dated 18.05.1995 as it has been clearly clarified in the Explanation that "....for the purpose of this notification, the expression "exempted goods" means excisable goods which are chargeable to "Nil" rate of duty. Therefore, as rightly contended by the petitioner, the exemption Notification No.89/95-CE would squarely applicable to the product 'fly ash', which is a waste arise during the course of manufacture of electricity, which is an excisable good chargeable to "nil" rate of duty.
Fly Ash Bricks dutiable:
As regards "fly ash bricks" , since fly ash does not itself get shaped as bricks unless some manufacturing activity is involved. Since the raw material fly ash undergoes a change since an operation performed on it, resulting into fly ash brick, such operation would certainly amount to processing of the commodity and such commodity is recognized as a new and distinct article, i.e. 'fly ash brick'. Therefore, the good 'fly ash brick', having satisfied the test of being manufactured in India and also marketability, it is leviable to excise duty.
Accordingly, the High Court set aside the demand on Fly Ash and allowed the Writ partly.
[2015] 60 taxmann.com 233 (Bombay)
HIGH COURT OF BOMBAY
Cosme Matias Menezes (P.) Ltd.
v.
Commissioner of Income-tax, Goa
Service Tax : Commission agents' services/marketing services provide
[2015] 60 taxmann.com 203 (New Delhi - CESTAT)
CESTAT, NEW DELHI BENCH
Commissioner of Central Excise, Chandigarh
v.
A.S. Financial
IT : Where assessee was bishop/metropolitan of a church and money de
[2015] 60 taxmann.com 172 (Cochin - Trib.)
IN THE ITAT COCHIN BENCH
Income-tax Officer
v.
Most Rev Dr. Joseph Marthoma
SEBI issues Guidance Note on Insider Trading Regulations, clarifies on ESOPs & contra-trades
SEBI issues Guidance Note on Insider Trading Regulations, 2015; Clarifies that exercise of ESOPs shall not be considered to be "trading" except for the purposes of Chapter III (relating to 'disclosure of trading by insiders'); States that any derivative contract that is settled in cash on expiry shall be considered to be 'contra-trade' and the trading in index futures or such other derivatives where scrip is part of such derivatives, need not be reported; States that buy-back offers, open offers, rights issues, FPOs, bonus are available to designated persons, and 'contra-trade' restrictions shall not apply; Clarifies that pledgor / pledgee may demonstrate that creation of pledge or invocation of pledge was bona fide and prove their innocence under proviso to Reg. 4(1) of the Regulations (relating to 'Trading when in possession of unpublished price sensitive information'); With respect to the trades done by compliance officer, SEBI clarifies that board of directors of the company shall be the approving authority and may stipulate procedures as are deemed necessary for ensuring necessary compliances: SEBI
ESOPs out of insider trading regulations, Maharashtra mulls Gujarat model of CSR; Megastar Chiranjeevi's dosa patent!
ESOPs out of insider trading regulations, Maharashtra mulls Gujarat model of CSR; Megastar Chiranjeevi's dosa patent!
LSI Note:
Part A of Schedule I of SEBI (Prohibition of Insider Trading) Regulation, 1992 relates to "Model Code of Conduct for prevention of Insider trading of listed companies". Clause 3.3 states that all directors/officers/designated employees of the co. and their dependents as defined by the company who intend to deal in the securities of the company (above a minimum threshold limit to be decided by the company) should pre-clear the transaction as per the pre-dealing procedure as described hereunder. Application shall be made in prescribed form to the Compliance Officer providing requisite details.
Directors' wife with independent income a "dependant", can't trade sans pre-clearance
SEBI penalizes director ('noticee') for non-compliance of Insider Trading Regulations, wherein director's wife traded in co. shares (when RBI restrained co. from accepting/renewing public deposits) without obtaining pre-clearance; Rejects noticee's argument that board of directors discussed and conveyed it's no objection on such share sale in its meeting, states that neither agenda nor minutes contains such decision, holds that there are prescribed procedures in conducting and convening Board Meetings under company law & secretarial practice, wherein agenda papers are circulated in advance, decisions are recorded and minutes are maintained; States the object of obtaining pre-clearance of trades by directors and their dependents is to ensure that trades in shares of co. in which they are associated are not based on price-sensitive information, notes such prescribed application and undertaking was not made; Explains purpose of Model Code for prevention of insider trading, states that Code monitors and regulates transactions of persons close to co. management, opines that "merely because the company has not defined the term 'dependant' in terms of financial limits, it cannot be said that a spouse with independent income can trade without the other spouse who is on the Board obtaining pre-clearance"; Rejects noticee's contention that share sale is mere 'technical violation' and does not warrant any penalty, observes that violation was repetitive in nature as noticee's wife failed to obtain pre-clearance for two transactions, relies on SC ruling in SEBI Vs. Shri Ram Mutual Fund:SEBI
Order was passed by S V Krishnamohan, SEBI, AO.
BANGALORE, AUG 25, 2015: THE issue before the Bench is - Whether, to prove that certain land has been used for agricultural purposes in the last two years, the assessee is required to present some accounts with regard to expenditure made by the assessee for sowing the crops and also revenue generated by selling the agricultural produce. YES is the answer.
Facts of the case
The assessee is a Class-IV employee in the postal department. He purchased certain land in village Dummannahalli on 27.7.2006. The said land was notified for acquisition under the provisions of Karnataka Industrial Area Development Act, 1966. The final notification was published on 17.05.2007. Thereafter, on the basis of an agreement entered into on 07.10.2008, the assessee was paid a compensation of Rs.1,47,48,750/- for the compulsory acquisition of his land which he had purchased on 27.07.2006. For the said AY 2009-10, assessee filed his return of income declaring a total income of Rs.5,33,780/-. In his return, the assessee had disclosed receipt of compensation of Rs.1,47,48,750/- in pursuance of the agreement dated 07.10.2008 but claimed benefit of Section 10(37), as it was the case of the assessee that said land which was acquired was an agricultural land and no capital gains would be leviable. A sum of Rs.1,47,48,750/- claiming exemption u/s 10(37) being compensation received on compulsory acquisition of agricultural land was denied by AO on the ground that assessee had not fulfilled the second condition laid down under said provision for availing exemption. Hence, it was held that amount of compensation received by the assessee was taxable as short term capital gains and thereby assessed the total income at Rs.1,35,18,640/- and imposed tax liability of Rs.59,10,180/-. On appeal, CIT(A) dismissed the appeal. On further appeal, Tribunal also dismissed the same.
Held that,
++ plantation of Eucalyptus would be plantation of trees which would not be for agricultural purpose as it does not give any agricultural produce. Thus, such contention of counsel for the assessee is not worthy of acceptance. Even otherwise, we notice from the records that subsequently certain certificates came to be issued by the revenue authorities in the year 2012 to indicate that there was agricultural crop of Jowar on the plot in the year 2005-06 as well as 2006-07 and in the year 2007-08. The revenue records produced by the assessee before the authorities also indicated that there was plantation of Eucalyptus saplings. Thus, even on facts, records are inconsistent or contrary to each other that there was plantation of Eucalyptus saplings. What is to be considered is that for being granted benefit u/s 10(37), the land in question should have been put to agricultural use by the assessee for the preceding two years. Even if we accept the contention of the appellant that he was in possession of the land for two years from 27.07.2006 to 07.10.2008, then too, from the records it is not at all clear that for both the years the appellant was carrying out agricultural activity in the land in question;
++ the Tribunal has further examined the issue and held that if at all there was any agricultural activity being carried on by the appellant in the previous two years, some accounts with regard to expenditure made by the appellant for sowing the crops and also revenue generated by selling the agricultural produce would have been submitted by the assessee, which has not been done by him. The same is also a strong ground for not accepting that the appellant was carrying on agricultural activity on the plot in question. Clear findings of fact have been recorded by all the three authorities, which in our view, do not require to be interfered with by this Court in appeal. As such, we are of the view that since the finding of fact has been given by all the authorities that the appellant was not carrying on any agricultural activity in the plot in question in preceding two years prior to 07.10.2008, the appellant would not be entitled to the benefit of Section 10(37). In view of the aforesaid, we are of the view that no substantial question of law arises for determination by this Court. The appeal is accordingly dismissed. No order as to costs. All pending applications stands consigned to file.
(See 2015-TIOL-1939-HC-KAR-IT)
PFA
SEBI issues Guidance Note on Insider Trading Regulations, clarifies on ESOPs & contra-trades
SEBI issues Guidance Note on Insider Trading Regulations, 2015; Clarifies that exercise of ESOPs shall not be considered to be "trading" except for the purposes of Chapter III (relating to 'disclosure of trading by insiders'); States that any derivative contract that is settled in cash on expiry shall be considered to be 'contra-trade' and the trading in index futures or such other derivatives where scrip is part of such derivatives, need not be reported; States that buy-back offers, open offers, rights issues, FPOs, bonus are available to designated persons, and 'contra-trade' restrictions shall not apply; Clarifies that pledgor / pledgee may demonstrate that creation of pledge or invocation of pledge was bona fide and prove their innocence under proviso to Reg. 4(1) of the Regulations (relating to 'Trading when in possession of unpublished price sensitive information'); With respect to the trades done by compliance officer, SEBI clarifies that board of directors of the company shall be the approving authority and may stipulate procedures as are deemed necessary for ensuring necessary compliances: SEBI
Click here to read more.
SEBI releases consultation paper for amending InvIT Regulations, proposes two-level SPV structure
SEBI releases consultation paper for amendments to SEBI (Infrastructure Investment Trusts) Regulations, 2014 ('InvIT Regulations'), invites public comments in prescribed form; Proposed amendments include allowing InvITs to invest in two-level SPV structure & relaxing sponsor commitment in InvIT from 25% to 10%: SEBI
Click here to read more.
Upholds appellant's impleadment to Sec 397/398 petition at belated stage, rejects CPC reliance
HC dismisses appeal, upholds CLB order allowing impleadment of appellant to Sec 397/398 petition, filed by respondent; During the hearing of petition, respondent had filed an amendment application before CLB to implead appellant alleging illegal transfer of shares to her name, thus submitting that she was a proper party to the petition; HC rejects appellant's reliance on proviso to Rule 17 of Order VI of CPC (which restrains amendment to any petition after trial) to contend that allowing impleadment of parties by CLB in the middle of proceedings, at belated stage, was impermissible; Holds that since CLB is guided by principles of natural justice and shall act in its discretion and can regulate its own procedure, "the provisions of the Code would not be stricto sensu applicable to the proceedings before the CLB ..it is difficult to hold that proviso to Rule 17 of Order VI of C.P.C., would be applicable to the proceedings before the CLB."; Further clarifies that depending on fact and circumstances, CLB could apply principles analogous to proviso to Rule 17 of Order 6 of C.P.C., however, "while doing so, the essential difference between a petition alleging oppression and mismanagement under the Companies Act and a suit, which can be entertained by a Civil Court, has to be kept in mind"; HC also rejects appellant's contention that shares were in demat form, held by a depository, thus she was not a proper party, as she was not the registered owner, holds that appellant was the beneficial owner enjoying rights of the shareholder, not the depository, relies on SC ruling in Sampat Kumar vs. Ayyakannu:Bombay HC at Goa
The order was passed by Justice C. V. Bhadang.
Senior Advocate Rafiq Dada, alongwith Advocates Gurudutt Mallya, Aashdin Chivalwala and Daksha Lotlikar argued on behalf of appellant. Respondent was represented by Senior Advocate Joseph Kodian Thara alongwith Advocates Eric Coriea and Rohit Bras de Sa.
__._,_.___
No comments:
Post a Comment