1 [Contribution by CA. Amarpal and contributor is available at email-id : amar.p.ca1@gmail.com ]
CCE Vs. Ace Auto Comp. Ltd. Civil Appeal No. 3051 of 2003
Subject: SSI exemption under not. No. 1/93-CE and 16/97-CE.
Fact:
Ace Auto Comp. was using the ‘TATA’ brand along with its own brand ‘ACE’ and was claiming SSI exemption under Central Excise Act.
Judgement (Conclusion):‘The brand of ‘TATA ACE’ creates a connection between ‘TATA Company’ and the assessee. Hence, the assessee shall not be allowed to avail the benefit of the SSI exemption.
Ratio of the Decision:
“….In order to avail of the benefit of the exemption notification, the assessee must establish that his product is not associated with some other person. To put it differently, if it is shown that the assessee has affixed the brand name of another person on his goods with the intention of indicating a connection between the assessee's goods and the goods of another person, using such name or mark, then the assessee would not be entitled to the benefit of exemption notification. We may hasten to clarify that if the assessee is able to satisfy the Adjudicating Authority that there was no such intention, or that the user of the brand name was entirely fortuitous, it would be entitled to the benefit of the exemption.”
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2. COMMISSIONER OF INCOME TAX, Vs. INTERRA SOFTWARE INDIA PVT. LTD. , INCOME TAX APPEAL NO. 507 OF 2008, DATE OF ORDER : 24.12.2010, HIGH COURT OF DELHI
The provisions of Section 10A are only applicable in case of an industrial undertaking manufacturing or producing articles as approved in the sub Section set up in a free trade zone/electronic hardware technology park/software technology park after certain due dates. The export from Japan branch of the assessee is clearly not covered u/s 10A (2) of the Act. there is no doubt as per Explanation 3 to Section 10A as noted above the profits and gains derived from outside development of computer software including services of development of software outside India is deemed to be profit and gains derived from the export of computers software outside India w.e.f. 1-4-2001. There is no doubt the Japan Branch has been opened by the appellant as per the agreement with the Japanese company to also provide onside development service with approval of RBI and also noted by Noida Special Economic Zone that the appellant unit located at NSEZ has opened a new trading branch at Tokyo. Therefore that profit derived by the appellant company from its Japan Branch in reference to the onsite service provided quality for exemption u/s 10A of the IT act and the AO is directed to consider the same as exempt u/s 10A of the Act.”
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3. COMMISSIONER OF INCOME TAX, Vs. CHILD EDUCATION SOCIETY , INCOME TAX APPEAL NO. 1966 OF 2010, DATE OF ORDER : 24.12.2010, HIGH COURT OF DELHI
The Tribunal while allowing the appeal, returned the finding that there was no violation or irregularities committed by the assessee and, therefore, the assessee was entitled to exemption under Section 11 of the Act.
The precise submission is that even when certain persons had supplied the goods or rendered services, the same was treated as donation and certificate under Section 80G were issued which would clearly demonstrate that School was issuing these Certificates indiscriminately.
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