This appeal is filed by the revenue being aggrieved by the order dated 3-4-2009 passed by the Income-tax Appellate Tribunal, Bangalore Bench ‘A’ (hereinafter called as ‘Tribunal’ for brevity) bearing 1TA No. 1020/Bang/08 for the assessment year 2005- 06.
The question of bar of limitation as well as setting aside the penalty is dependant on the leviability of excise duty on the impugned product. That is an issue which is to be decided by the Apex Court and the Apex Court is already seized of the matter. As the findings on that issue would have direct bearing in deciding the issues arisen in these appeals and all these issues arise out of the very same order, it is settled law that these issues cannot be bifurcated and decided by this court.
The contention that under section 80-I(6) the profits derived from one industrial undertaking cannot be set off against loss suffered from another and the profit is required to be computed as if profit making industrial undertaking was the only source of income, has no merit.
The Karnataka High Court, in its recent ruling, in the case of CIT v. Expert Outsource Pvt. Ltd. held that deduction under section 10A of the Income-tax Act, 1961 is available to the assessee on conversion of existing Domestic Tariff Area (DTA) unit into a Software Technology Park (STP) unit.
The assessee is engaged in the manufacture of goods and availed Cenvat credit on Inputs/Capital goods/Input services under the provisions of Cenvat Credit Rules. During the course of audit it was found that the assessee had availed Cenvat credit of Rs. 5,45,460/- for the service tax paid by the assessee on the transportation charges incurred by them towards the outward transportation of goods cleared by them at their factory gate.
Section 65(53a) of the Finance Act, 1994, read with section 4 of the Karnataka VAT Act, 2003 – Information Technology Service – April, 2009 to March, 2010 – Assessee entered into agreements with its clients for development of software – Asses see provided its staff who were well-trained in field and who would develop software according to specification of customer – In terms of agreement even before development of software assessee had given up all rights and claims of software to be developed and had expressly agreed that such a software which may come into existence at end of contract period was absolute property of customer
The identical questions of law came up for consideration before this Court in the case of CCE v. Stanzen Toyotetsu India (P.) Ltd. [2011] 32 STT 244. This Court held that the transportation/Rent-a-Cab service is provided by the assessee to their employees in order to reach their factory premises in time which has a direct bearing on manufacturing activity.
It is not in dispute that the assessees used the inputs and have exported the impugned goods and the refund is only in respect of input credit attributable to the inputs utilized in the exported goods. It is not necessary to prove one-to-one correlation of inputs with that of exported goods. The assessees were not in a position to utilize the credit availed on inputs used in the manufacture of goods which were exported under bond and which were getting accumulated from time to time. In those circumstances, when once the appellate authority correctly applied Rule 5 and granted the refund.
Rule 7 of the Cenvat Credit Rules, 2004 – Cenvat credit – Distribution of credit on inputs by office or any other premises of output service provider – Assessee paid service tax pertaining to advertisement of its product manufactured in a unit – It availed Cenvat credit of service tax so paid in another unit – Revenue denied said credit on ground that assessee was entitled to take credit only in unit where product was manufactured –
Though the excise duty was not paid at the time of clearance strictly in accordance with rules governing the same, the assessee cannot be found fault with because according to the assessee the said goods were not excisable to tax. Now the said stand has been vindicated by the order of the Appellate Authority, which has become final.
