newsletter july final - baroda-icai. · pdf fileservice tax update ... 07 faqs on ias - 19 ......

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Index Forthcoming Events ... 02 Due Date Planner ... 02 Direct Tax Updates ... 03 3D ... 03 Amendments in CENVAT Credit Rules ... 06 Service Tax Update ... 07 FAQs on IAS - 19 ... 09 Excise & Service Tax Updates ... 09 PhotoFlash ... 11 THE INSTITUTE OF CHARTERED ACCOUNTANTS OF INDIA Tel. : E-mail : Web : ICAI Bhawan, Post Box No. 7100, Indraprastha Marg, New Delhi - 110002. +91 (11) 39893989 [email protected] www.icai.org “ICAI Bhawan”, Kalali-Tandalja Road, Atladra, Vadodara - 390 012. +91 (265) 2681115 / 2680593 [email protected] www.baroda-icai.org BARODA BRANCH OF WIRC OF ICAI Telefax : E-mail: Web : WESTERN INDIA REGIONAL COUNCIL Tel. : Email : Web : ICAI Tower, Plot no C-40, G Block Opp MCA Ground, Bandra Kurla Complex, Bandra (E), Mumbai - 400 051 +022-33671400/33671500 [email protected] www.wirc-icai.org CA. Nayan R. Kothari 98244 33445 CA. Yash Bhatt 99243 88339 CA. Viral Shah 98243 62211 CA. Arpan Dodia 98983 83530 CA. Ashish Parikh 98252 31545 CA. Abhishek Nagori 94260 75397 Chairman Vise-Chairman Secretary Treasurer Immediate Past Chairman Ex-officio CA. Dhiren Parikh 93762 11099 CA. Kejal Pandya 98259 77220 CA. Amar Doshi 93749 63993 Managing Committee Editorial Team CA. Nayan R. Kothari CA. Amar Doshi CA. Ashok Thakkar CA. Rahul Parikh CA. Neena S. Patel CA. Bhupesh Porwal CA. Hitesh Agrawal CA. Prabhat Doshi CA. Prashant Upadhyaya VOLUME - IV AUG - SEPT - OCT, 2014 l ` 20/- COPY Baroda Branch of Western India Regional Council of The Institute of Chartered Accountants of India The Institute of Chartered Accountants of India (Setup by an Act of Parliament) NEWSLETTER Chairman's Communication Dear Professional Colleagues, Navaratri happens to be the most auspicious and unique period of devotional sadhana, worship of Goddess Amba (the Power) and also celebrations. Vadodara is the best Garba destination and I am sure you all must have got rejuvenated and charged up after the world’s longest dance festival. After a hectic schedule of Tax audits & quarter closing Navratri is the best time to come. By the time you will be reading this it will be Diwali time which again brings a combination of various religious aspects, celebrations & social gatherings. In past months we successfully completed 6 sessions’ Company Law Refresher Course, Full Day Seminar on Companies Act, 2013, 2 days Practical Workshop on Financial Modelling, Half Day Seminar on Tax Audit, Lecture Meeting on CARO, Interactive Meet for Members in Industry and Interactive Meet of Young members in profession and formal launch of a one of its kind unique initiative – Young Members’ Clinic. We also had a mega Investor Awareness program with a remarkable attendance of 400+ participants from the various sections of the society. We completed the certificate course on Concurrent Bank Audit too. We successfully completed campus placement program at Baroda Branch after the gap of a couple of years. In the coming month we have organised 2 days All Gujarat Workshop on Company Law jointly with Ahmedabad Branch. WIRC has given us an opportunity to host WIRC’s Regional Information Technology Conference. We are also going to have at Baroda ICAI Regional Conference on Urban Cooperative Banks. We also have organised clinic for young members on continuous basis. We are starting Certificate Course on IFRS and Post Qualification Course of ISA at Baroda in the coming months. I request the members to take fullest advantage of all the programs. India's Mars Orbiter Spacecraft successfully entered into an orbit around planet Mars on September 24, 2014 by firing its 440 Newton Liquid Apogee Motor (LAM) along with eight smaller liquid engines. This was a very proud moment for India due to Indigenous factors, lowest cost & first time successful. Our Salute to team ISRO. Our PM Shri Modi has talked to the common man on various occasions & in various forums like 15th August, Madison Square etc. I know we have captured those things in our heart as well as mind and we will be stepping leaps & bounds by contribution ourselves towards the aspects which the PM has mentioned. The profession have lot of responsibilities in the days ahead. We also have commitment towards "Swachh Bharat Mission" and every small thing will count. Wishing you a Very Happy Diwali and Happy New Year in advance. Chairman CA. Nayan R. Kothari

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Page 1: NEWSLETTER JULY FINAL - baroda-icai. · PDF fileService Tax Update ... 07 FAQs on IAS - 19 ... 10.00 to 12.00 am Service Tax Returns CA. ... Computation of MAT credit is with reference

Index

Forthcoming Events ... 02

Due Date Planner ... 02

Direct Tax Updates ... 03

3D ... 03

Amendments in CENVAT Credit Rules ... 06

Service Tax Update ... 07

FAQs on IAS - 19 ... 09

Excise & Service Tax Updates ... 09

PhotoFlash ... 11

THE INSTITUTE OF CHARTERED ACCOUNTANTS OF INDIA

Tel. :E-mail : Web :

ICAI Bhawan, Post Box No. 7100,Indraprastha Marg, New Delhi - 110002.

+91 (11) [email protected] www.icai.org

“ICAI Bhawan”, Kalali-Tandalja Road,Atladra, Vadodara - 390 012.

+91 (265) 2681115 / [email protected] www.baroda-icai.org

BARODA BRANCH OF WIRC OF ICAI

Telefax :E-mail: Web :

WESTERN INDIA REGIONAL COUNCIL

Tel. :Email : Web :

ICAI Tower, Plot no C-40, G BlockOpp MCA Ground, Bandra Kurla Complex, Bandra (E),Mumbai - 400 051 +022-33671400/33671500

[email protected] www.wirc-icai.org

CA. Nayan R. Kothari 98244 33445

CA. Yash Bhatt 99243 88339

CA. Viral Shah 98243 62211

CA. Arpan Dodia 98983 83530

CA. Ashish Parikh 98252 31545

CA. Abhishek Nagori 94260 75397

Chairman

Vise-Chairman

Secretary

Treasurer

Immediate Past Chairman

Ex-officio

CA. Dhiren Parikh 93762 11099

CA. Kejal Pandya 98259 77220

CA. Amar Doshi 93749 63993

Managing Committee

Editorial Team

CA. Nayan R. Kothari CA. Amar Doshi

CA. Ashok Thakkar CA. Rahul Parikh

CA. Neena S. Patel CA. Bhupesh Porwal

CA. Hitesh Agrawal CA. Prabhat Doshi

CA. Prashant Upadhyaya

VOLUME - IV AUG - SEPT - OCT, 2014l

` 20/- COPY

Baroda Branch of Western India Regional Council ofThe Institute of Chartered Accountants of India

The Institute of Chartered Accountants of India(Setup by an Act of Parliament)

NEWSLETTER

Chairman's Communication

Dear Professional Colleagues,

Navaratri happens to be the most auspicious and unique period ofdevotional sadhana, worship of Goddess Amba (the Power) and alsocelebrations. Vadodara is the best Garba destination and I am sure youall must have got rejuvenated and charged up after the world’s longestdance festival. After a hectic schedule of Tax audits & quarter closingNavratri is the best time to come.

By the time you will be reading this it will be Diwali time which again brings a combination ofvarious religious aspects, celebrations & social gatherings.

In past months we successfully completed 6 sessions’ Company Law Refresher Course, FullDay Seminar on Companies Act, 2013, 2 days Practical Workshop on Financial Modelling, HalfDay Seminar on Tax Audit, Lecture Meeting on CARO, Interactive Meet for Members in Industryand Interactive Meet of Young members in profession and formal launch of a one of its kindunique initiative – Young Members’ Clinic. We also had a mega Investor Awareness program witha remarkable attendance of 400+ participants from the various sections of the society. Wecompleted the certificate course on Concurrent Bank Audit too. We successfully completedcampus placement program at Baroda Branch after the gap of a couple of years.

In the coming month we have organised 2 days All Gujarat Workshop on Company Law jointlywith Ahmedabad Branch. WIRC has given us an opportunity to host WIRC’s Regional InformationTechnology Conference. We are also going to have at Baroda ICAI Regional Conference on UrbanCooperative Banks. We also have organised clinic for young members on continuous basis. Weare starting Certificate Course on IFRS and Post Qualification Course of ISA at Baroda in thecoming months. I request the members to take fullest advantage of all the programs.

India's Mars Orbiter Spacecraft successfully entered into an orbit around planet Mars onSeptember 24, 2014 by firing its 440 Newton Liquid Apogee Motor (LAM) along with eightsmaller liquid engines. This was a very proud moment for India due to Indigenous factors, lowestcost & first time successful. Our Salute to team ISRO.

Our PM Shri Modi has talked to the common man on various occasions & in various forums like15th August, Madison Square etc. I know we have captured those things in our heart as well asmind and we will be stepping leaps & bounds by contribution ourselves towards the aspectswhich the PM has mentioned. The profession have lot of responsibilities in the days ahead.

We also have commitment towards "Swachh Bharat Mission" and every small thing willcount.

Wishing you a Very Happy Diwali and Happy New Year in advance.

ChairmanCA. Nayan R. Kothari

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Baroda Branch of WIRC of ICAI

Those who say it can't be done are usually interrupted by others doing it. 2

Forthcoming EventsBRANCH EVENTS

141st batch of the IFRS Certificate course

Date :

Fees :

Venue :

Starting from 10.10.2014

Rs. 30,000/-

Royal Orchid Central, Akota, Mujmahuda,Baroda

CPE Hrs. 60

Lecture meeting on – How to Gear up forImplementation of IND AS

Day & Date :

Time :

Faculty :

Fees :

Saturday, 11.10.2014

05.30 pm to 08.00 pm

CA. Yagnesh Desai, Mumbai

Non-members Rs 100 / Students – Rs. 50

Venue : ICAI Bhawan

STUDY CIRCLE

CPE Hrs. 2

13th Batch of ISA – PT

Dates :

Fees :

1,2,8,9,15,16,22,23,29,30 November, 20147,8 December, 2014Rs 17,500/-

(Starting from 1st, Nov 2014)

Important Due Dates for October 2014 Compiled by CA. Abhijit J. Kotecha

DATES COMPLIANCE PERIOD

05.10.2014 Excise Duty (for NON SSI) Sept.'14

06.10.2014 E-Payment of Service Tax - Monthly & Quarterly Cases / Excise Duty (for NON SSI) Sept.'14 / Q2 (F. Y.: 2014-15)

09.10.2014 VAT / CST E-Return - Monthly (For VAT or CST > Rs. 5,000/-) July'14

10.10.2014 Extended Date: TDS / TCS payment Sept.'14

15.10.2014 TDS / TCS Return - Quarterly Q2 (F. Y.: 2014-15)

15.10.2014 Payment of Provident Fund / Excise Duty (for SSI) Sept.' 14

15.10.2014 Professional Tax Payment & Return Sept.' 14

16.10.2014 Excise Duty E-Payment (for SSI) Sept.'14

21.10.2014 ESIC Payment Sept.'14

22.10.2014 VAT / CST payment - Monthly & Quarterly Cases Sept.'14 / Q2 (F. Y.: 2014-15)

25.10.2014 Service Tax E-Return / PF Return (Monthly) April'14 - Sept.'14 / Sept.'14

30.10.2014 Filing Balance Sheet and Profit & Loss A/c. of Companies with ROC Fin. Yr.: 2013-14

30.10.2014 VAT / CST E-Return - Monthly (For VAT or CST <= Rs. 5,000/-) / August' 14

30.10.2014 VAT - Quarterly Return for Regular / Lumpsum tax payers (For Manual Return) Q2 (F. Y.: 2014-15)

30.10.2014 TDS / TCS Certificate issuance - Form 16A / 27D Q2 (F. Y.: 2014-15)

Young Member's Clinic -IV

Day & Date :Time :Topic :Faculty :Venue :

Sunday, 19.10.201410.00 to 12.00 amService Tax ReturnsCA. M J Parsiya, BarodaICAI Bhawan

For registration you may contact Decentralized Office, ICAI,Baroda on 0265-2681115 or to the Chairman Baroda BranchCA. Nayan R. Kothari.

ICAI Regional Conference on UrbanCo-operative Banks

Day & Date :

Time :

Fees :

Venue :

Saturday, 08.11.2014

08.30 a.m. to 05.30 p.m.

Rs.1,500/- per delegate (inclusive of coursematerial, breakfast & lunch)

ICAI Bhawan, Vadodara

CPE Hrs. 06

Young Member's Clinic -V

Day & Date :Time :Topic :Faculty :Venue :

Sunday, 09.11.201410.00 to 12.00 amVAT AuditCA Prakash ThakkarICAI Bhawan

Congratulations :Co-opted Member - FRRB of ICAI

CA. Gaurang Parikh CA. Manish Baxi

CA. Pradeep Agarwal

CA. Manilal Parsiya

CA. Bhupesh Porwal

CA. Rohit Kothari

- Capacity Building

- Indirect Tax

- International Taxation

- Members In Industry

Congratulations for being Co-opted invarious committees of WIRC

CA. Ashish Parikh

CA. Rajkamal Shah

CA. Manish Baxi

- Members in Industry,Working Group

- Exposure Draft

- Professional Development

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Baroda Branch of WIRC of ICAI

Do not wish to be anything but what you are, and try to be that perfectly.3

Direct Tax UpdatesCompiled by CA. Narendra Hindocha

1. Tax deducted but not paid by deductor

2. Wealth-tax returns to be efiled

3. Cost Inflation Index

4. New forms for Income-tax returns

We are occasionally faced with thissituation when the deductor does notpay tax deducted at source toGovernment, generally when thedeductor is a sick company.According to the decision of GujaratHigh Court dated 23rd June, 2014 incase of Sumit Devendra Rajani VersusAssistant Commissioner Of Income Taxin Special Civil Application No. 2349 Of2014, the Income-tax Department isrequired to give credit to the deducteeeven when the deductor has not paidthe tax to the Government. It furtherobserves that the Government is free tocollect the tax from the deductor.

According to new Rule 3, in respect ofthe assessment year 2014-15 and anyother subsequent assessment year inthe case of individuals, Hinduundivided families and companies, thewealth-tax return shall be in Form BBand shall be furnished electronicallyunder digital signature, except that incase of individual or Hindu undividedfamily who are not subject to auditunder section 44AB of the Income-taxAct, 1961, the return may be furnishedfor assessment year 2014-15 in apaper form.

Cost Inflation Index for F.Y. 2014-15 is1024

On quick reading of new forms forreturn, I observed the followingrequirements:

Returns no longer give the option ofreceiving the refunds by cheque and allrefunds will be credited directly to thebank accounts.

Earlier, many Chartered Accountantswere giving own email ID and mobilenumber while filing returns of clients.Now the rules require person email IDand mobile number of each assesseewith option to receive communicationson second email ID which can be of thetax professional. One email ID is

acceptable for 10 assessees.

Details of P. A No. of relative customerin case of bad debts written off foramounts of Rs.100000/- and above.

Details of expenditure on commission,royalty, and professional and technicalservices in respect of which payment ismade to nonresident.

Earlier total amount of exemption undersection 10 was required to be stated.Now separate amounts of House rentallowance, leave travel concession, etcare required to be stated.

For claim under section 54EC, date ofinvestment is required to be stated.

For sale of land and building, it isnecessary to state the value of theproperty as per Stamp duty authorities.

Deductions under sections 80IA and80IB linked to relative items in Form10CCB

Corporate Identity No. is to be stated

In Balance Sheet, debit balance of Profitand Loss account to be shown asnegative figure.

Deposits from related parties to beseparately shown.

Computation of income starts withprofit before tax but of Book profit startswith profit after tax

Computation of MAT credit is withreference to tax including surchargeand cess.

In the case of Commissioner Of IncomeTax Versus M/S Vector ShippingServices(P) Ltd. reported at (2014)TaxCorp(LJ) 3446 (SC), SupremeCourt dismissed the special leavepetition filed by the revenue against thejudgment held by Honorable AllahabadHigh Cour t according to whichdisallowance u/s. 40(a)(ia) appliesonly to amounts 'payable' as of 31stMarch and not to amounts already'paid' during the year. However, suchdismissal may not be considered asapproval of the decision of theAllahabad High Court.

In case of companies:

5. D isa l lowance under sec t ion40(a)(ia)for amounts paid and notpayable

(FREE SUPPLY IN CONSTRUCTIONCONTRACTS)

Lao Tzu said “The key to growth is the

introduction of higher dimensions of

consciousness into our awareness”.

Thinking about an issue only from one-

dimension may result in faulty action. This is

also true for indirect taxes. One has to think

from all points of view to get the best

answer. This column attempts to discuss

various issues pertaining to indirect taxes

from all the three dimensions i.e. Central

Excise, Service Tax & VAT.

Previous article analyzed valuation aspectsof free supply in construction contractsfrom perspective of Service Tax. Itconcluded by stating that value of free-supply will not form part of total amount forlevy of service tax. Current article will dealthe same issue from perspective of VAT andExcise.

VAT

Hon. Supreme Court in case of L & T (2013)65 VST 1 (SC) has substantially expandedthe scope of works contract includingbuilding construction contracts. Purpose ofthis article is not to analyze the saidjudgment (please refer earlier article by theauthor). Present article will analyze thevaluation aspects of free supply assumingthat VAT is chargeable on a givenconstruction contract.

Many times contractee agrees to supplysome materials (e.g. steel & cement) free ofcost to the contractor during the executionof construction contract. VAT is applicableonly on sale of goods. Issue before us iswhether the said supply can be consideredas “sale” under provisions of GVAT Act,2003? If yes, contractee has to pay tax atagreed rate on the sale price by issuing aninvoice on the contractor. And contractorhas to include the same in his sale price, asthe property in goods on execution ofcontract will again pass from contractor tocontractee, whether under compositionscheme or normal scheme.

Sec. 2(23) of GVAT Act, 2003 defines saleas “sale means a sale of goods made withinthe State for cash or deferred payment orother valuable consideration and includes

3-DCompiled by CA. Abhay Desai

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Baroda Branch of WIRC of ICAI

It's your attitude and not your aptitude that determines your altitude. 4

….”. As this definition does not give us anyinsight of the word “sale”, we turn todefinition as per Sale of Goods Act, 1930. Asper Sec. 4(1) of Sale of Goods Act, acontract of sale of goods is a contractwhereby the seller transfers or agrees totransfer the property in goods to the buyerfor a price. Thus to constitute a valid sale,there has to be transfer of property in goods.Can free supply of material by contractee beregarded as “transfer of property in goods”?

First important case dealing with this issueis of N.M. Goel & Co. [1989] 72 STC 368(SC).

The appellant, a dealer registered under theMadhya Pradesh General Sales Tax Act,1958, made an item rate tender to the PWDfor construction of food-grain godowns andancillary buildings. In that tender, prices ofthe materials used for the constructionincluding cost of iron, steel and cementwere included. The PWD had, however,agreed to supply from its stores the iron,steel and cement and to deduct the prices ofthe materials so supplied and consumed inthe construction, from the final bill of theappellant. As per Sec. 3 of Madhya PradeshSthaniya Kshetra Me Mal Ke Pravesh Par KarAdhiniyam, 1976, tax was levied on theentry of goods specified in the Schedule inlocal area for consumption, use or sale. Sec.6© provided that when a dealer purchasedgoods from an unregistered dealer, dealerwho purchased the same will be liable forpayment of tax. As PWD was not registered,tax was levied on the appellant on the groundthat it had purchased the goods supplied byPWD for construction of food-graingodowns and ancillary buildings. Hon.Madhya Pradesh High Court dismissed writpetition filed by the appellant by holding thatsupply of goods by PWD will be regarded assale. Thereafter matter was taken up beforeHon. Supreme Court.

Clause (10) of the agreement betweenappellant and PWD was relevant fordeciding the case. Relevant clause isreproduced for ready reference:

"Clause (10) If the specification or Scheduleof terms provides for the use of any special

CASES WHERE FREE SUPPLY WILL BEINCLUDED

Facts of the case are as under:

Before Hon. Supreme Court:

description of materials to be supplied fromEngineer-in-Charge's stores, or if it isrequired that the contractor shall use certainstores to be provided by the Engineer-in-Charge as shown in the Schedule ofmaterials hereto annexed, the contractorshall be bound to procure and shall besupplied such material and stores as arefrom time to time required to be used by himfor the purposes of the contract only, and thevalue of the full quantity of materials andstores supplied at the rates specified in thesaid Schedule of materials may be set-off ordeducted from any sums then due orthereafter to become due to the contractorunder the contract or otherwise, or againstor from the security deposit, or the proceedsor sale thereof if the same is held inGovernment securities, the same or asufficient portion thereof being in this casesold for the purpose. All the materials sosupplied to the contractor shall remain theabsolute property of the Government andshall not be removed on any account fromthe site of the work, and shall be at all timesopen to inspection by the Engineer-in-Charge. Any such materials remainingunused and in perfectly good condition atthe time of the completion or determinationof the contract shall be returned to theEngineer-in-Charge at a place directed byhim, if by a notice in writing under his handhe shall so require; but the contractor shallnot be entitled to return any such materialsunless with such consent and shall have noclaim for compensation on account of anysuch materials so supplied to him asaforesaid not being used by him or for anywastage in or damage to any suchmaterials. Provided that the contractor shallin no case be entitled to any compensationor damages on account of any delay insupply or non-supply thereof all or any suchmaterials and stores. Provided further thatthe contractor shall be bound to execute theentire work if the materials are supplied bythe Government within the scheduled timefor completion of the work plus 50 per centthereof (scheduled time plus 6 months if thetime of completion of the work exceeds 12months) but if a part only of the materialshas been supplied within the aforesaidperiod, then the contractor shall be bound todo so much of the work as may be possiblewith the materials and stores supplied in theaforesaid period. For the completion of the

rest of the work, the contractor shall beentitled to such extension of time as may bedetermined by the Engineer-in-Chargewhose decision in this regard shall be final."

Under the said clause, all materials suppliedto the contractor remained the absoluteproperty of PWD and could not be removedon any account from the site of the work andwere at all times open to inspection by theEngineer-in-Charge. Any such materialsremaining unused and in perfectly goodcondition at the time of completion ordetermination of the contract were to bereturned to the Engineer-in-Charge at aplace directed by him by a notice in writing inhis hand if he so required but the contractorwas not entitled to return any such materialunless he was required to do so. Thus PWDhad an option to take back the material.Further the prices of iron, steel and cementsupplied and used by the appellant for thework were deducted from its final bill. Hon.Supreme Court observed that as per thecontract, appellant was required to procureall the material. Just to ensure that qualitymaterials are procured, PWD undertook tosupply such materials and stores from timeto time as required by the contractor to beused for the purpose of performing thecontract only. The value of such quantity ofmaterials and stores so supplied wasspecified at a rate and got set-off ordeducted from any sum due or to becomedue thereafter to the contractor. Clause (10)of the contract further makes it clear thatPWD has an option and not a compulsion totake back the unused material. It held that onsuch facts, though there is no apparent sale,a sale inhers from the transaction. Thus itaffirmed the decision of Hon. MadhyaPradesh High Court.

Hon. Supreme Court replying on abovejudgment, held in case of Cooch BeharContractors Association and Others [1996]103 STC 477 (SC) that value of goodssupplied by the contractee will be included intaxable turnover. In this case as well therewas a clause similar to clause (10) referredabove wherein price of goods supplied bycontractee were deducted from the bills ordues of the contractor. One may also refer tosimilar judgments in case of Rashtriya IspatNigam Ltd. [1998] 109 STC 425 (SC), B.Seenaiah and Co.[2001] 124 STC 248 (AP)and Karya Palak Engineer, C.P.W.D.,

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Baroda Branch of WIRC of ICAI

All that we see or seem, is but a dream within a dream5

Bikaner[2004] 136 STC 641 (SC).

Hon. Allahabad High Court in case ofMoriroku ut India Pvt. Ltd. [2007] 7 VST 482(All) held that amortization cost of toolssupplied free of cost by the customer shallbe added to sale price under UP Trade TaxAct, 1948. In this case appellant, amanufacturer of plastic automobilecomponents, was supplied with tools, dyes,moulds, etc., by the customer to enable theappellant to manufacture motor parts for thecustomer. For the assessment year 2000-2001, reassessment order was passed onthe appellant and tax was levied on theamount of amortization cost (tooling cost)in respect of moulds and tooling’s given bythe customer for manufacturing of parts onthe ground that the sale price of the finishedgoods should be the same which was theassessable value for the Central Excise Act.

Hon. Allahabad High Court observed thatagreement between the appellant and thecustomer reveals that the toolings weresupplied and possession given for use in themanufacture of the parts exclusively for thecustomer. In view of this matter, the supplyof tooling’s for use in the manufactureamounts to transfer of right to use suchtooling’s by the customer to the appellantand therefore such supply of toolingamounts to "sale" within the extendeddefinition of sale provided in section 2(h) ofthe U.P. Trade Tax Act, 1948. The fact that thetooling’s are to be returned back to theowner would not waive the consideration,which would pass on and is captioned astooling amortization. The amortization costwhich is fixed for transfer of right to use thetoolings is the amount payable by theappellant to the customer. It is in the natureof manufacturing cost to bring themanufactured goods in existence andtherefore is part of the sale consideration. Itmay be payable either in terms of money orby way of adjustment in the book with theamount receivable from the customer. In thecase of the appellant the selling price hasbeen shown without including theamor tization cost, which is shownseparately. In this way though the saleconsideration includes the amortizationcost, it has been reduced by theamortization cost by way of adjustment. It

CASES WHERE FREE SUPPLY WILL NOTBE INCLUDED

held that appellant ought to have paid the taxon the amount including the amortizationcost which is the sale consideration ofgoods.

Subsequently Hon. Supreme Court in thecase of Ts Tech Sun (India) Ltd. [2008] 15VST 559 (SC) reversed the above decision.In this case appellant manufactured plasticautomobile components as per design andspecifications given. The customer suppliedtools, dies, moulds, etc., free of cost to theassessee to enable it to manufactureautomobile components. Hon. SupremeCourt held that for sales tax purposes, whathas to be taken into account is theconsideration for transfer of property ingoods from the seller to the buyer. For thispurpose, tax is to be levied on the agreedconsideration for transfer of property in thegoods and in such a case cost ofmanufacture is irrelevant. As compared tothe sales tax law, the scheme of levy ofexcise duty is totally different. For exciseduty purposes, transfer of property in goodsor ownership is irrelevant. Excise duty is aduty on manufacture. The provisionsrelating to measure, viz., section 4 of theCentral Excise Act, 1944, read with ExciseValuation Rules, 2000, aim at taking intoconsideration all items of costs ofmanufacture and all expenses which lead tovalue addition to be taken into account andfor that purpose rule 6 makes a deemingprovision by providing for notionaladditions. Such deeming fictions andnotional additions in excise law are totallyirrelevant for sales tax purposes. Thus it heldthat value of free supply, even though willform part of value under excise, will not formpart of taxable turnover for sales tax. Onlyprice charged for parting with ownership ofgoods will for part of sale price. Ratio of saidjudgment will also apply in case of freesupply under construction contractswherein contractor is not legally bound tosupply the material, in case of default, whichis supplied free of cost by the contractee.

One can also refer to decision of Hon.Allahabad High Court in case of Mukhya RailPath Nirikshak 2007 NTN (Vol. 33) - 86 (All).In this case appellant was one of the units ofNor thern Railway engaged in themanufacture of Railway tracks in its region.Appellant entered into the contract withvarious contractors for the manufacturingand supply of sleepers for the Railway

tracks. As per the terms of the agreementcast iron scrap were supplied by theappellant to the contractor free of cost.Assessing Authority levied the tax on thecost of pig iron supplied by the appellant tothe contractor treating it as sale. Hon. HighCourt observed that as per terms of contractneither the cost of iron was charged by thecontractee nor was it deducted by thecontractor from the contract price. In factcontractor was under no obligation tosupply the iron on failure of the appellant. Bydistinguishing the facts of present case fromthat of N.M. Goel & Co. (supra), Hon. HighCourt held that value of free supply will notform part of sale price. Recent judgment ofHon. Andhra Pradesh High Court in case ofV.S. Engineering (P) Ltd (2014) (68 VST 87)also confirms the same view.

From above analysis it can be concludedthat value of free supply will form part of saleprice only when under the contract,contractor is responsible for supply of thatmaterial and because it is supplied bycontractee, price of the same is deductedfrom the bill of contractor.

As per Sec. 3(1) of Central Excise Act, 1944,excise duty is levied on manufacture ofexcisable goods in India (excluding SEZ).Excisable goods are defined in Sec. 2(d) ofthe Act as goods specified in First andSecond schedule to Excise Tariff Act, 1985.For a thing to be called “goods”, it has tosatisfy two tests: movability & marketability.Immovable property fails to satisfy the testof movability. Hon. Karnataka High Court incase of Thungabhadra Steel Products Ltd.1998 (98) E.L.T. 334 (Kar.) has held thatstructures installed by embedding thefabricated materials on the land are notgoods attracting levy of excise duty. Hon.Supreme Court has maintained the saidjudgment. As execution of constructioncontracts at site results into an immovableproperty there is no levy of excise duty. Inabsence of any levy at site, there is noquestion of adding value of free-supplymaterial supplied and used at theconstruction site. However clearance ofcomponents from the factory of amanufacturer for execution of constructioncontracts at site will attract excise duty.

CONCLUSION

EXCISE

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Imagination is more important than intelligence. 6

Amendments in

An overviewCENVAT Credit Rules 2004

Compiled by CA. Dhruvank Parikh

These Rules may be called the CENVATcredit (sixth Amendment) Rules, 2014.

Save as otherwise provided in theserules, they shall come into force on11th day of July, 2014.

Under the existing provisions, themanufacturer or provider of outputservice is allowed to avail the CENVATcredit in respect of inputs immediatelyon:

(1) Receipt of the said inputs in the factoryof the manufacturer (in case ofmanufacturer) and

(2) Receipt of the said inputs in thepremises of the provider of outputservice with a condition that theprovider of output service maintains thedocumentary evidence of delivery andlocation of the inputs (in case of outputservice provider).

� However, with the introduction of thirdproviso in sub rule (1) of Rule 4, arestriction shall be placed on themanufacturers of final products orprovider of output service. Themanufacturers and the provider ofoutput service shall be required to availthe CENVAT credit of the duty paid oninputs with in a period of 6 months fromthe date of issue of documents (i.eInvoice, Supplementary Invoice, Bill orChallan, Bill of Entry, Certificate issuedby appraiser of Customs, Challanevidencing payment of Service Tax,etc. as applicable) specified in Rule9(1).

� The introduction of third proviso in Rule4(1) shall restrict the right of themanufacturer of final products andprovider of output services to avail theCENVAT credit after 6 months from thedate of issue of the aforementioneddocuments (generally invoice). Nosuch restriction is in place in theexisting provisions owing to thedepar tmental clarification on the

Rule 4(1):

subject matter as regards the word ‘immediately.’ Under the existing provisions, theDepartment has clarified that ‘immediately’ means the manufacturer can avail theCENVAT credit at the earliest opportunity and doesn’t mean that if the manufacturerdoesn’t take the credit as soon as inputs are received in the factory, he would be deniedthe benefit of CENVAT credit. Hence, under the existing provisions, no time limit hasbeen prescribed for the availment of CENVAT credit, however time limit of 6 months foravailment of CENVAT credit shall be applicable under the new provisions. If CENVATcredit is not availed within a period of 6 months as mentioned above, the manufactureror the provider of output service shall not be eligible to avail the said CENVAT credit.

Note: The above amended provisions shall become applicable w.e.f 01st September 2014.

� CENVAT credit in respect of ‘Input Services’ shall be available to the manufacturer andoutput service provider on or after the day on which Invoice, Bill or Challan as the casemay be, referred to under Rule 9 is received. However, the following additional conditionneeds to be borne in mind:

100% service tax is to be paid by the Service After making payment of Service Tax

Receiver under Reverse Charge Mechanism

Where both i.e Service Provider and Service

Receiver is liable to pay service tax partly of value of input service and service tax paid

or payable as indicated in invoice, bill or

challan as referred to in Rule 9.

In all the cases of input service except (i) above, the payment of invoice value togetherwith the service tax paid or payable has to be made to the service provider within aperiod of 3 months from the date of invoice, bill or challan. If the payment is not madewithin a period of 3 months as aforesaid, the CENVAT credit availed on said inputservices shall be required to be reversed. Subsequently if the payment is made after 3months, the manufacturer or output service provider shall be entitled to avail credit ofthe amount equivalent to the CENVAT credit paid/reversed. (Circular No. 122/03/2010-ST dated 30th April 2010 issued by the CBEC will remain valid even under the newprovisions whereby the CBEC has clarified that if service receiver doesn’t pay the fullinvoice value of taxable services, he can take proportionate credit of service taxrelatable to proportionate value of taxable services provided).

Also, the manufacturers and output service provider should borne in mind that CENVATcredit needs to be availed only within a period of 6 months from the date of issue ofinvoice, bill or challan as the case may be. (Note: The said amended provision shallbecome applicable w.e.f 01st September 2014.)

By virtue of the above amendments, the manufacturer of service provider receiving theinput services shall be required to ensure that:

(1) The CENVAT credit of service tax paid on input service is availed within 6 months fromthe date of issue of invoice, Bill or challan as the case may be, and

(2) The payment of invoice value and service tax is made to the service provider within 3months of the issue of invoice, challan or the bill as the case may be (however, thiscondition will not be applicable where 100% liability towards service tax is required tobe discharged by the Service receiver under Reverse Charge Mechanism)

The manufacturers and output service provider liable to discharge 100% service taxobligation under reverse charge mechanism shall not be required to make the paymentof the invoice value to the service provider within a period of 3 months under the newprovisions. The benefit shall be extended to the manufacturer or output service providerlike those receiving input services in the nature of transportation of goods by road,

Rule 4(7):

Liability to pay Service Tax in case of When will CENVAT credit be allowed?

Input service

On or after the day of making payment

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Never let formal education get in the way of learning7

sponsorship, legal services providedby individual advocate or firm ofadvocates etc (One can refer to theNotification No. 30/2012-ST dated20th June, 2012).

The provisions of Rule 6 (8) had alwaysremained confusing to the assesses.With the introduction of a proviso afterclause (b) in the rule, the Governmentseems to have cleared the intention ofthe introduction of Rule 6(8). Therequired CENVAT credit pertaining tothe services exported in terms of Rule6A of Service Tax Rules 1994 needs tobe reversed applying the provisions ofRule 6(3) of the CENVAT credit Rules2004 by treating the said services as‘exempted service’ if the payment is notreceived in conver tible foreignexchange within a period of 6 monthsfrom the date of provision of service orperiod as extended further by theReserve bank of India. However, theproviso clarif ies that in suchcircumstances if the payment isreceived in conver tible foreignexchange after 6 months or periodfurther extended by the Reserve Bankof India but within a period of 1 yearfrom the completion of 6 months orextended specified period, the CENVATcredit pertaining to exported servicereversed as above can be availed by theservice provider on the basis ofdocumentary evidence of the paymentso received.

To illustrate, if Mr. A (Service providerlocated in Mumbai) provided servicesto Mr. Harry in New York on01/01/2014, the payment must bereceived in conver tible foreignexchange by Mr. A up to 30/06/2014. Ifthe said payment in the said manner isnot received by Mr. A, Mr. A is requiredto reverse the credit following Rule 6(3)treating the expor ted service as‘exempted’ one. Assume that noextension is granted by the Reservebank of India in this regard. In such acase if the payment in convertibleforeign exchange is received by Mr. Aup to 30/06/2015, he can avail theCENVAT credit reversed by him onreceipt of payment in foreign

Rule 6(8):

convertible exchange by the end ofJune’2014.

A restriction has been placed on interunit transfer of CENVAT credit to a large‘Tax Payer.’ The amendment hasrestricted the inter unit transfer byproviding that only the CENVAT credittaken, on or before the 10th July 2014by one of the registered manufacturingpremises or premises providing taxableservices can be transferred to his otherunit. Hence no such inter-unit transferof CENVAT credit shall be allowed ifCENVAT credit is availed after 10th July,2014.

‘Place of Removal’ is defined in a waysimilar to how it is defined in Section4(3)© of the Central Excise Act, 1944because there are various rules likeRule 2(k) defining ‘Inputs,’ Rule 6(2)(b)etc where the said word finds a place.

Rule 12A(4):

Rule 2(qa):

Changes in Service Tax

Union Budget 2014Compiled by CA. Manilal Parsiya

Review of the Negative List of Services:

New Exemptions (w.e.f. 11.07.14):

(1) Service tax has been extended to coveronline and mobile adver tising,hoardings, business directory, yellowpages and t r ade ca ta l oguesadvertising.

(2) Radio tax has been removed fromnegative list

(1) Life micro-insurance product asapproved by the IRDA, havingmaximum cover of fifty thousandrupees.

(2) Transpor t of organic manure byvessels, rail or road.

(3) Loading, unloading, packing storage orwarehousing, transport by vessel, railor road of cotton, ginned or baled.

(4) Service provided by common bio-medical waste treatment facilityoperators to clinical establishments.

(5) Specialized financial services receivedby RBI from global financial institutionsin the course of management of foreignexchange reserves.

(6) Services provided by Indian touroperators to foreign tourists in relationto a tour wholly conducted outsideIndia.

(7) C l i n i c a l r e sea r ch on humanparticipants

(8) Air-conditioned contract carriages likebuses

(9) Exemption in respect of servicesprovided to Government or localauthority or governmental authority,will be limited to services by way ofwater supply, public health, sanitationconservancy, solid waste managementor slum improvement and upgradation.

(10)Concept of ‘auxiliary educationalservices’ has been removed and thespecified services will be exempt whenrece i ved by the educa t i ona linstitutions. Exemption extended so farin respect of renting of immovableproper ty ser v ice received byeducational institutions, standswithdrawn.

(11)E x e m p t i o n a v a i l a b l e t oaccommodation services provided byhotels, dharamshalas or ashramswhen they provide rooms for less thanRupees One Thousand per day is beingre-worded to bring out the intent clearly.

Service tax on service portion in WorksContracts: In Rule 2A of the Service TaxValuation Rules, category ‘B’ and ‘C’ ofworks contracts proposed to bemerged into one single category, withservice por tion as 70% (w.e.f.1.10.14).

Change in Abatement - Notification No.8/2014-ST:

Taxable portion in respect of transportof goods by vessels to be reduced from50% to 40% (w.e.f. 1.10.14).

Rent-a-cab operator and tour operator:service tax paid by sub-contractor inthe same line of business would beallowed as eligible credit to mainservice provider to avoid doubletaxation (w.e.f. 1.10.14).

GTA service: service receiver may availabatement, without having to obtainnon-availment of CENVAT Credit

Exemptions withdrawn (w.e.f. 11.07.14):

Exemptions Modified (w.e.f. 11.07.14):

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Life is not so much a matter of position as of disposition 8

certificate from service provider. (w.e.f11.07.14).

Taxable portion in respect of transportof passenger by contract carriage (wef11.07.14) and in respect of radio taxi(Date to be Notified) – 40%.

Service provided by a Director to abody corporate to be brought under thereverse charge mechanism. Servicereceiver, who is a body corporate willbe the person liable to pay service tax.

Services provided by Recovery Agentsto Banks, Financial Institutions andNBFC to be brought under the reversecharge mechanism; service receiverwill be the person liable to pay servicetax.

In renting of motor vehicle, portion ofservice tax payable by service providerand service receiver will be 50% each.

Service tax paid under full reversecharge the condition to pay invoicevalue to the service provider for availingcredit of tax paid, to be omitted (w.e.f.11.07.14).

Re-credit of Cenvat credit reversed onaccount of non-receipt of exportproceeds within the specified period, tobe allowed, if such export proceeds arereceived within one year from thespecified period on the basis ofdocumentary evidence of receipt ofpayment (w.e.f. 11.07.14).

Time limit for taking credit on input andinput services: credit shall be takenwithin six months from the date of theinvoice or challans or other documentsspecified (w.e.f. 1.09.14)..

Provision for prescribing conditions fordetermination of place of provision ofrepair service carried out ontemporarily imported goods, to beomitted.

Intermediary of goods to be given thesame treatment as is given tointermediary of services.

Vessels (excluding yachts) and aircraftto be excluded from Rule 9(d); hiring of

Reverse Charges of Service Tax (w.e.f.11.07.14):

CENVAT Credit:

Place of Provision of Services Rules(w.e.f. 1.10.14):

vessels or aircrafts, irrespective ofwhether short term or long term, will becovered by the general rule, which isplace of location of the service receiver.

I

To vary on the basis of extent of delay inpayment of service tax. Extent of delaysimple interest rate per annum

(1) up to six months 18%, (2) from sixmonths and upto one year 24% and (3)more than one year 30%

In case of reverse charge services, tobring certainty in the determination ofpoint of taxation, it is proposed toprovide that point of taxation will be thepayment date or first day after threemonths from the date of invoice,whichever is earlier. The amended pointof taxation will apply to invoices issuedafter 1st October 2014. A transition ruleis proposed to be prescribed.

In section 67A, for determination of rateof exchange, rules to be prescribed(w.e.f. date to be notified).

Section 73 to be amended (w.e.f. dateof assent of the President): Reply ofSCN is to be adjudicated (1) within 6months in normal cases; or (2) Within 1year in case of evasion, from the date ofnotice. This t ime-l imit is notmandatory, if possible, demand mustbe adjudicated.

Reference to section 78 is proposed tobe deleted from Section 80(1). Thus, incases where evasion is established,penalty cannot be deleted/waivedunder Section 80(1) (w.e.f. date ofassent of the President).

Section 83 to be amended to include areference to sections 5A(2A), 15A, and15B of the Central Excise Act (w.e.f.date of assent of the President):Section 5A(2A) of CEA prescribes thatinser tion of an explanation innotifications/orders within one yearshall have the effect as if it has alwaysbeen part of the notification; Section15A & 15B in CEA are being inserted togive Power to collect information fromthird party sources & Penalty fordefault.

nterest on Delay in Payment of ServiceTax under Section 75 (w.e.f. 1.10.14).:

Point of Taxation Rules (w.e.f. 1.10.14).:

Other Amendments

Vide section 83, Section 35F of CEA isalready applicable to service tax.Section 35F of CEA is now beingsubstituted: Prescribes a mandatoryfixed pre-deposit of (1) 7.5% of dutydemanded/penalty for filing appeal atthe first stage; and (2) 10% of dutydemanded/penalty for filing secondstage appeal, subject to a ceiling ofRs.10 Crore. Made effective when newsection 35F of CEA comes into force.

In section 87, power to recover dues ofa predecessor from the assets of asuccessor purchased from thepredecessor, is to be provided(w.e.f.date of assent of the President).

Section 94 to be amended to obtain rulemaking power (w.e.f. date of assent ofthe President): (a) to impose uponassessees, the duty of furnishinginformation, keeping records andmaking returns and specify the mannerin which they shall be verified; (b) forwithdrawal of facilities or imposition ofrestrictions (including restrictions onutilization of CENVAT credit) on aservice provider or exporter, to checkevasion of duty or misuse of CENVATcredit; and (c) to issue instructions insupplemental or incidental matters.

Mandatory Electronic Payment throughInternet Banking for all assesses (w.e.f.1.10.2014)

Resident Private Limited Companyeligible for Advance Ruling (w.e.f. 11-7-2014).

- Authorization in Form A-2 within 15working days from the date ofsubmission of Form A-1.

- The authorisation is valid from the dateof verification of Form A-1, if it issubmitted within 15 days or from thedate on which it is submitted.

- Provider of specified services may, onthe basis of Form A-1, provide suchspecified services, without payment ofservice tax.

- If the SEZ Unit does not provide a copyof the said authorisation within threemonths the service provider shall payservice tax on specified services.

SEZ – Procedural Simplification (w.e.f.11.07.14)

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9 A smile is an inexpensive way to change your looks

FAQs on IAS – 19:

Employee BenefitsCompiled by CA. Prashant Upadhyay

1) When employee benefits understandard are liable to be recorded byan entity?

2) What is defined contribution planand defined benefit plan?

3) An entity switches over from definedbenefit plan to defined contributionplan. The entity agrees withemployees to pay $ 9 million onintroduction of defined contributionplan. The pension liability as perrecords is $ 10 million, how thecurtailment of liability of shifting ofplans to be recognized by the entity?

Ans: In terms of objective and para 139 ofIAS 19, entity should recognize aliability when an employee hasprovided service in exchange foremployee benefits to be paid in futureand an expense when the entityconsumes the economic benefit fromservice provided by an employee inexchange of employee benefits.Discounted value of liability should berecognized where benefits falls duefor more than 12 months.

Ans: Defined contribution plans are post-employment benefit plans underwh ich an en t i t y pays f i xedcontributions into a separate entity (afund) and will have no legal orconstructive obligation to pay furthercontributions if the fund does not holdsufficient assets to pay all employeebenefits relating to employee servicein the current and prior periods. Theyare recognized on accrual basis. Statepension schemes are definedcontribution schemes.

Defined benefit plans are those post-employment benefit plans other thandefined contribution plans. They arerecognized based on actuarialvaluation, using projected unit creditmethod.

Ans: In terms of para 109, the entity shouldrecognize settlement gain in profit andless. The gain or loss on settlementshould comprise a) any resulting

change in present value of definedbenefit plan, b) any resulting changein fair value of the plan assets and c)any related actuarial gains and lossesand past service cost that had notpreviously been recognized.

Other long-term staff benefits arepayable beyond 12 months other thanpost-employment benefits andtermination benefits. Para 129 of thestandard suggests inclusion offollowing items while bookingexpenditure of other long term staffbenefits: a) current service cost b)interest cost c) the expected return onany plan assets and on anyreimbursement right recognized as anasset d) actuarial gains and losses,which should all be recognizedimmediately e) past service costwhich should all be recognizedimmediately and f) the effect of anycurtailments or settlements.

As per para 50, the entity should i)Determine fair value of plan assets, ii)Determine the total amount ofactuarial gains and losses and theamount of those actuarial gains andlosses that should be recognized iii)where a plan has been introduced orchanged, determine the resulting pastservice cost and iv) where a plan hasbeen curtailed or settled, determinethe resulting gain or loss and accountfor accordingly.

In terms of para 61, aggregate amountof current service cost, interest cost,reduction of expected return on anyp l a n a s s e t s a n d o n a n yreimbursement rights, actuarial gainsand losses, past service cost and theeffect of any cur tailments orsettlements are to be accounted asemployee benefit expense.

The amount to be recognized asdefined benefit liability should be totalof a) the present value of definedbenefit obligation at the end ofreporting period, b) plus any actuarialgains (less any actuarial losses) not

4) How expenditure is booked in caseof other long-term staff benefits?

Ans:

5) What accounting steps are involvedin case of defined benefit plans?

Ans:

recognized, c) minus any past servicecost not yet recognized d) minus thefair value at the end of the reportingperiod of plan assets (if any) out ofwhich the obligations are to be settleddirectly.

Judicial Decisions onExcise And Service Tax

Reviewed By CA Anirudh Sonpal

I. EXTENDED PERIOD

1.1 Cenvat credit of excise duty on inputshad been taken by a manufacturing unitwhich was disputed by the revenueauthorities. The revenue authoritieshad audited the records of the unit in2002 whereas the SCN was issued in2005, disputing the eligibility of cenvatcredit for the period prior to 2002. Onthis ground, the Honourable AllahabadHigh Court dismissed the appeal filedby the revenue authorities.

[CCE Vs Avadh Transformer (Pvt) Ltd -2014-TIOL-1502-All HC]

1.2 The Mumbai CESTAT, while allowingthe appeal filed by the revenueauthorities, observed that the extendedp e r i o d c a n b e i n v o k e d ,notwithstanding the fact that the therecords of the assessee had beensubject to revenue audit since it wasthe responsibility of the assessee todeclare the correct value of the finishedproduct on which excise duty was tobe paid. The CESTAT observed thatconcept of knowledge on the part ofthe department is not a relevant factorfor computation of time-limit u/s 11Aof CEA, 1944; and that when the lawdoes not provide for taking intoaccount the knowledge of thedepartment, it is not permissible toincorporate such factor as part of thelegal provision.

[CCE & C Vs Laxmi Metal PressingWorks - 2014-TIOL-1511- MumCESTAT]

1.3 If the penalty leviable u/s 78 of theFinance Act,1994 is waived on theground that there was no mala fide onthe part of the appellant , the longerperiod of limitation cannot be invokedagainst the assessee.

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[Vasundhara Thawait Vs CCE & ST -2014-TIOL-1375- Delhi CESTAT]

1.4 The Delhi CESTAT, while allowing, onmerits, the cenvat credit claimed by theassessee, observed that demand wasalso barred by limitation; the relevantdate as specified under the law doesnot start from the date of auditobjection; adopting the said date as therelevant date for the purposes oflimitation, would amount to rewrite thelaw, Since the appellants had availedthe credit in the statutory records andthe same was reflected in thereturns/declarations filed, no mala fidecan be attributed, the issue being agenuine issue of interpretation of law.The appeal of the assessee appellantwas allowed, both - on merits as alsoon grounds of limitation.

[Midi Extrusions Ltd Vs CCE - 2014-TIOL-1467-Delhi CESTAT]

2.1 The limitation u/s 11B of the CEA,1944 was not applicable for claim ofrefund of amount paid duringinvestigation since the same was onlya deposits and not a payment towardsexcise duty.

[CCE, Chennai vs Ucal Fuel SystemsLtd – 2014-306-ELT-26- Mad HC]

2.2 Refund claim admitted since there wasno bar of unjust enrichment u/s 11B ofthe CEA, 1944 when duty was paidafter clearance of goods on insistenceof anti-evasion branch, in which casethe duty burden had not been passed tocustomers.

[CCE, Pune vs Rocket Eng Corp Ltd –2014-306-ELT-33-Bom HC]

2.3 Clearance made by one 100% EOU toanother 100% EOU was deemedexport that can be treated as physicalexports for the purpose of beingentitled to refund of unutilized cenvatcredit in terms of Rule 5 of CCR,2004.

[CCEC vs Anita Synthetics Pvt Ltd –2014-306-ELT-133- Guj HC]

2.4 Recipient of taxable service, havingborne the incidence of Service Tax, areentitled to claim refund of excessservice tax paid consequent todownward revision of charges paid bythem to service provider

II. REFUNDS

[CCE&ST vs IFFCO – 2014-35-STR-492 – All HC]

2.5 Section 11B of CEA, 1944 was notapplicable and refund was to beallowed of service tax erroneously paidby builder on sale of residential flats toowners, particularly when service taxwas not payable as per CBEC Circular.

[Shravan Banarasilal Jejani vs CCE,Nagpur – 2014-35-STR-587-MumbaiCESTAT]

[Vyankatesh Real Estate Developers vsCCE, Nagpur – 2014-35-STR-589–Mumbai CESTAT]

3.1 Mens rea, ie intention of assessee toevade payment of duty, is required tobe determined for imposition of penaltyu/s 11AC of CEA, 1944.

[Jaiswal Steel Processing vs CCE –2014-306-ELT-159 – ChhattisgarhHC]

Under Section 11AC of the CEA, 1944,penalty is required to be imposedwithout the necessity to prove mensrea; however, before imposing thepenalty, other defences of theassessee are to be considered.

[CCEC vs G.E.Plastics India Ltd –2014-306-ELT-180- Guj HC]

[Note – in both the above judicialdecisions, the respective HonourableHigh Courts have relied on theHonourable Supreme Court decisionsin the case of Dharmendra TextileProcessors(2008-231-ELT-3) andRajasthan Spinning and Weaving Mills

(2009-238-ELT-3)]

3.2 In absence of active suppression,penalty cannot be imposed and benefitof section 73(3) of the FinanceAct,1994 should be available whereservice tax and interest have been paidbefore issuance of SCN even thoughthe same were paid after detection bythe revenue auditors.

[CST, Chennai vs Shriram EPC Ltd –

III. PENALTY

2014-35-STR-564-Chennai CESTAT]

In case of Restaurant Service, ifservice tax is charged on 40% of billvalue on the presumption that 40% isthe value of the services, VAT cannotbe imposed on the said 40%. If there isno provision in the VAT Act to bifurcatethe total bill amount between the sale offood and the provision of services, theState Govt. was directed to frame therules and issue the necessaryclarification. The Honourable HighCour t observed that consumersshould not be taxed doubly on thesame amount.

[Hotel East Park vs UOI – 2014-35-STR-433 – Chhattisgarh HC]

5.1 Where staff was deputed by theassessee Company to subsidiariesand group companies for a limitedperiod, service tax was not liable to bepaid u/s 65(68) and 105(k) of theFinance Act, 1994. Amongst otherreasons, the following reasons wereconsidered for non-levy of service tax:

1. The staff deputed did notexclusively work under the directionand supervision of

the subsidiary company; and

2. The assessee company had recoveredonly the actaul cost of manpowerwithout any additional finance benefit.

[CST vs Arvind Mills Ltd – 2014-35-STR-496 – Guj HC]

5.2 Service Tax was not leviable underreverse charge in case where theholding company outside Indiadeputed some staff to appellantcompany in India, when the Indiancompany paid salary to the staff sodeputed and even deducted tax atsource on the salary so paid in India.

[Bain & Co India Pvt Ltd vs CST, Delhi –2014-35-STR -433- Delhi CESTAT]

IV. VALUATION

V. MANPOWER SUPPLY

Failure is the path of least persistence 10

OBITUARYCA Narsinhbhai G. Patel (MN: 003745), 84, entered into eternal peace onMonday, June 30, 2014. He was born on August 14, 1930. He was partnerin M/s Narsinhbhai G. Patel & Co. Chartered Accountants VadodaraWe will miss him.

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JULY 2014

CA. Mehul Shah, Mumbai CS. Makrand Joshi, Mumbai CA. Nilesh Vikamsey, Mumbai CA. Shushrut Chitale, Mumbai CS. M. C. Gupta, Ahmedabad CS. Bhairav Shukla, Surat

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The ICAI and the Baroda Branch of WIRC of ICAI is not in any way responsible for the result of any action taken on the basis of the advertisement published in the Newsletter. The members,however, may bear in mind the provisions of the Code of Ethics while responding to the advertisements. The views and opinion expressed or implied in the Newsletter are those of the authors / contributors and donot necessarily reflect those of Baroda Branch. Unsolicited matters are sent at the owner's risk and the publisher accepts no liability for loss or damage. Material in this publication may not be reproduced, whetherin part or in whole, without the consent of Baroda Branch. Members are requested to kindly send material of professional interest to The same may be published in thenewsletter subject to availability of space & editorial editing.

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CA. Nayan R. Kothari on behalf of Baroda Branch of WIRC of ICAI. “ICAI Bhawan”, Kalali-Tandalja Road, Atladra, Vadodara - 390 012

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SEPTEMBER 2014

Lecture Meeting on “CARO” on 23.08.2014

Seminar on Scope and Opportunities for Young Members in Practice and Service on 07.08.2014

Study Circle Meeting on 12.08.2014 & 27.08.2014 Workshop on Transfer Pricing

“Half Day Seminar on Service Tax & CENVET” on 12.09.2014 Half Day Seminar on “Tax Audit” on 06.09.2014

Young Member's Clinic-II held on 14.09.14

Orientation Programme for Newly Qualified Chartered Accountants, 1st September, 2014

If a man does not keep pace with his companions, perhaps it is because he hears a different drummer.Let him step to the music which he hears, however measured or far away.