Notifications / Circulars / Clarifications
1 – 3
Recent Case Law
20 September 2016
Notifications / Circulars / Clarifications
(Ref: Notification No 02/2016 – Customs (SG) dated 4 July 2016)
(Ref: Notification Nos 36, 38, 39, 40, 42, 44, 45 and 46/2016 – ADD issued on various dates)
(Ref: Notification No 22/2015-2020 dated 12 August 2016)
(Ref: Notification No 24/2015-2020 dated 4 August 2016)
(Ref: Notification No 31/2016-CE dated 24 August 2016)
(Ref: Notification No 32/2016 dated 26 August 2016)
(Ref: Notification No 42/2016-CE (NT) dated 11 August 2016)
(Ref: Notification No 38/2016-ST dated 30 August 2016)
(Ref: Circular No 197/7/2016-Service Tax dated 12 August 2016)
(Ref: Circular No 199/09/2016-Service Tax dated 22 August 2016)
Value Added Tax
(Ref: Notification No Bikri Kar/Vividh-43/2011-3055 dated 10 August 2016)
(Ref: Notification No SO. L.G.01-11-/2016/149/Leg dated 12 August 2016)
(Ref: Kerala VAT Circular No 14/2016 dated August 20, 2016)
(Ref: Circular No 12 of 2016 dated 08 August 2016) insert correct no.
(Ref: Trade Circular No 21T of 2016 dated 24 August 2016)
(Ref: Trade Circular No 22T of 2016 Dated 26 August 2016 and Trade Circular No 24T of 2016 dated 3 September 2016)
(Ref: Circular No 761/CT/PRO/3C/PRO/2012 dated 2 September, 2016)
Recent Case Law
In this case, the assessee had exported certain goods under claim of rebate under central excise and had also claimed drawback under customs law. The department sought to deny the same as it would amount to a double benefit to the assessee for the same export.
The assessee relied upon the decision of the Supreme Court (SC) in the matter of Spentex Industries Limited, wherein it was held that claims for rebate under central excise could be allowed simultaneously for both inputs and the final export products. Following the same logic, it was prayed that concurrent benefits of rebate and drawback should also be allowed.
The Madras High Court (Madras HC) rejected the above submission by the assessee, holding that the said judgment of the Supreme Court was in relation to interpretation of a solitary provision of law Rule 18 of the Central Excise Rules, 2002 whereas the present case involved two different set of rules under two different statutes. The Madras HC noted that there was a clear restriction under the rules of drawback that the amount related to a rebate claim was to be denied at the time of sanctioning drawback. According to the Madras HC, this proposition had not been present before the SC.
Finally, the writ petition filed by the assessee was dismissed.
(Ref: Raghav Industries Limited v Union of India)
In this case, the assessee was engaged in the activity of loading business software onto imported cashless currency transmitting devices. Such software was in addition to the basic software already embedded into the machine.
The question before the Authority for Advance Rulings (AAR) was whether such activity of loading software amounts to manufacture under the Central Excise Act, 1944?
The AAR held that the machine in the form in which it is imported, post uploading of software, has the same name, character and use as it did prior to uploading the software. The usage and identity of the machine on loading of software remain the same. The software loading activity only provides further additional functions. Therefore, loading of business software would not amount to manufacture under Central Excise Law.
The AAR allowed the application filed by the assessee.
(Ref: In re Nucleus Software Exports Limited)
The North Eastern Industrial Policy (NEIP) was introduced on 24 December 1997 to provide industrial stimulus in the North Eastern Region, by way of fiscal incentives for a period of ten years. Under central excise law, fiscal incentive was provided by Notification No 32/1999-CE dated 8 July 1999, which granted exemption from excise duty.
The NEIP was discontinued on 1 April 2007 and replaced by the North East Industrial and Investment Promotion Policy (NEIIPP). The NEIIPP provided that the concessions announced under NEIP would cease to operate with effect from 1 April 2007. But where industrial units have commenced commercial production before 31 March 2007, benefits under NEIP for a period of ten years with effect from 1 April 2007 will continue.
By Notification No 11/2007-CE, the notification 8/2004-CE was amended to provide that exemption vide the original notification shall not be available to goods cleared after 1 March 2007.
The assessee challenged Notification No 11/2007-CE inasmuch as its units had been set up and operated for commercial production before Notification No 11/2007-CE was issued. According to the assessee, the exemption granted by the earlier notification had been prematurely withdrawn before the expiry of ten years, as promised in the NEIP.
The Tripura High Court (Tripura HC) invoked the principle of promissory estoppel and stated that assessee would continue to get the benefit in terms of the promise extended. The Tripura HC held that the representation or the promise under the NEIP was unequivocal and the assessee had acted on such promise or assurance till expiry of the promised period.
(Ref: Dharampal Premchand Limited v Union of India)
The issue in this case was liability to impose service tax on persons who manufacture alcoholic liquor for human consumption on job work basis, which was brought into effect from 1 June 2015.
The principle contention of the petitioner(s) was that the Parliament does not have the legislative competence to impose this tax since the activity of manufacture of alcoholic liquor for consumption, whether for oneself or for another person, lies exclusively within the domain of the State Legislature under Entry 51 of List II of Schedule VII to the Constitution of India, 1950 (Constitution). Per contra, the service tax authorities argued that that service tax is not levied on the manufacture of alcohol but on the service aspect of the contract of manufacturing of alcohol on behalf of the principal manufacturer/brand owner.
The Delhi High Court (Delhi HC) applied the doctrine of 'pith and substance.' It noted that while Entry 51 of List II envisages manufacture of alcoholic liquor for consumption, it does not contemplate a situation of manufacture of alcoholic liquor by one person or entity for another. Importantly, the taxable event is the manufacture and it is amenable to state excise duty. However, manufacture for another is in pith and substance a service performed by one for another and cannot therefore fall within the ambit of Entry 51 of List II. This same conclusion was also reached by the Delhi HC upon application of the aspect doctrine.
Finally, the HC undertook a detailed analysis of various precedents and dismissed the challenge to the validity of liability to service tax.
(Ref: Carlsberg India Private Limited v Union of India)
In this case, the assessee challenged the constitutional validity of:
The principal contention of the petitioners was that:
The Delhi HC drew the entire legislative history relating to deemed sales under the Constitution. After a detailed analysis, it concluded as follows:
Finally, the HC partially allowed the writ petition filed by the assessee.
(Ref: Federation of Hotels and Restaurants Association of India v Union of India)
Value Added Tax
The Bombay HC in the present case has dealt with two writ petitions: first, by Mahyco Monsanto Biotech (India) Private Limited (Monsanto) which was engaged in supply of hybrid cotton seed impregnated with proprietary protective technology, and second, by Subway Systems India Private Limited (Subway) in respect of VAT on franchise agreement.
Monsanto argued that the sub-licence agreement entered with third parties would be regarded as ‘permissive use’ rather than ‘the transfer of right to use’ under Article 366(29A) of the Constitution and would be subject to service tax. It further argued that the transaction is a single composite transaction and cannot be taxed as sale and service both since both taxes are mutually exclusive. The Bombay HC observed that in the present case, Monsanto would be divested of the portion of technology embedded in the seeds and the ‘effective control’ would entirely vest in the sub-licensee. It further stated that such a transaction would clearly satisfy the ‘twin test’ propounded in the case of BSNL: transfer to the exclusion of the transferor, i.e., not merely a license to use the goods, and restraint upon the owner to again transfer the same rights to others. Based on the above, the Bombay HC held that the transfer of technology by way of seed would be regarded as transfer of right to use and subject to VAT.
However, the Bombay HC took a completely different view in the case of Subway, which was different on facts than Monsanto and involved transfer of franchise. Subway submitted that franchise agreement is not one for sale / transfer of right to use but merely permits the franchisee to display certain marks and to use certain technologies and methods in preparing the salads and sandwiches for sale, therefore subject only to service tax. The Bombay HC observed that in this case, there are set terms provided in the agreement and any breach thereof would result in termination. It further observed that the right of transferability is extremely restricted and is under Subway’s control throughout.
The Bombay HC stated that the mere inclusion of ‘franchises’ under the Maharashtra Value Added Tax Act, 2002 would not automatically make all franchise agreements liable to sales tax and the real nature of the transaction and the actual intention of the parties must be looked into.
(Ref: Mahyco Monsanto Biotech India Private Limited. v Union of India)
In this case, the SC dealt with the constitutional validity of Section 19(20) of Tamil Nadu VAT Act, 2006 which mandated reversal of excess input tax credit upon sale of goods at price lesser than purchase price. The said Section was introduced in 2013 and was made applicable retrospectively with effect from 2007. It was argued before the SC that the said provisions are confiscatory in nature as well as unreasonable and arbitrary, hence, violative of Article 14 and 19(1)(g) of the Constitution. It was further argued that the said provisions are repugnant to the general scheme of charging provisions of VAT Act. The SC observed that input tax credit is a form of concession provided by the Legislature subject to certain conditions. When concession is given by a statute, the legislature has power to make provision stating the form and manner in which such concession is to be allowed. The main purpose of Section 19(20) is to protect the Revenue Department against clandestine transactions resulting in evasion of tax. Thus the same is not violative of the Constitution. As regards the retrospective application of the amendment, the SC observed the parameters laid down in the case of Vatika Township Private Limited, regarding testing the validity of retrospective operation of fiscal laws. It observed that Section 19(20) is a new provision introduced for determining input tax in specific situations, and thus its retrospective application cannot be permitted.
(Ref: Jayam & Company v Assistant Commissioner & Another)
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Indirect Tax Newsletter - August 2016
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