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Case Laws
Showing 161 to 180 of 737 Records
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2008 (4) TMI 673 - KARNATAKA HIGH COURT
Tax arrears - Held that:- It was the duty of the Designated Authority while considering the declaration filed by the assessee to determine the tax arrears even with reference to any other amounts due from the assessee and which are not reflected in the declaration. It was then for the assessee to make payment or to desist from making payment on such determination. The revenue having failed to do so in the present case and having issued a Certificate of the tax arrears for the assessment year, notwithstanding the apparent discrepancy, insofar as the tax arrears in relation to the dispute sought to be raised by the revenue in its appeals, was not part of the said declaration is attributable to the revenue’s own lapse and hence, there is no substance in the contentions put forth by the revenue. Appeal allowed.
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2008 (4) TMI 672 - CESTAT NEW DELHI
... ...
... ... ..... f the Commissioner (Appeals) in Order-in-Appeal dated 31-5-06 is reproduced below - ldquo However, considering the totality of facts and circumstances of the case and taking into account the fact that out of total duty liability of Rs. 3,41,894/-, the appellants had already discharged substantial duty liability of Rs. 3,19,894/- by the due date and outstanding amount of duty was Rs. 22,000/- which was paid along with interest beyond 30 days from the due date, the forfeiture of facility of paying duty on monthly basis for a period of two months is quite harsh and merits to be modified and reduced. rdquo 6. It is noted that the Respondents discharged the substantial amount of duty liability by due date and therefore, the Commissioner (Appeals) rightly reduced the forfeiture facility. Accordingly, I do not find any reason to interfere with the order of the Commissioner (Appeals). All the appeals filed by the Revenue are rejected. (Order dictated and pronounced in the open Court)
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2008 (4) TMI 671 - ITAT MUMBAI
... ...
... ... ..... ing similar business of rough diamonds. It is an established principle that there is no merit in estimating the trading results of a particular year based on the trading results shown in preceding or succeeding year. Similarly, there is no merit in comparing the trading results of a concern with the trading results of another concern carrying on similar or same business. In the facts and circumstances of the case before us, we find no merit in the addition made by the lower authorities and direct the Assessing Officer to accept the gross profit rate shown by the assessee and delete the addition made on account of lower gross profit rate shown by the assessee. There is no basis for invoking the provisions of section 92 of the Act, hence the addition made by the Assessing Officer is directed to be deleted. Thus, the grounds of appeal raised by the assessee are allowed.In the result, the appeal filed by the assessee is allowed.The order pronounced on the 23rd day of April, 2008.
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2008 (4) TMI 670 - CESTAT, MUMBAI
100% EOU – DTA clearance – who is liable to pay duty – held that:- It is also significant to note that under para 9.26 of the Handbook of Procedures, all duties and taxes on clearances by EOU into DTA under para 9.10 of the Exim Policy were to be borne by the purchaser in DTA. The expression used is “all duties and taxes” and not merely “all taxes”. The specific use of the word “duties” is quite clearly intended to inter alia cover central excise duty. If the stand of the Revenue is accepted, it would man that Central excise duty could be charged from the EOU under rule 7 of the Central Excise Rules, 1944 and also from the DTA purchaser under para 9.26 of the Handbook of Procedures. Tax cannot be collected on the same taxing event from two persons.
Duty on clearances by the appellants, a 100% EOU, into DTA after obtaining requisite permission from the Development Commissioner is to be recovered from the DTA buyer on the basis of paragraph 9.26 of the Handbook of Procedures, 1997-2002 and Tribunal’s judgement in Interdrill Asia vs. CCE, Belapur [2005 (7) TMI 245 - CESTAT, MUMBAI]
Regarding refund – unjust enrichment – held that:- The submission that selling price shown in the invoice of Rs.42.89 is equivalent to the contract price of US $0.80 and duty payable is separately shown on the invoice and, therefore, the appellants could not be held to have recovered any duty from the customers, is not sufficient to discharge the burden of proving that the incidence of duty had not been passed on by the appellants to their customers.
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2008 (4) TMI 669 - DELHI HIGH COURT
... ...
... ... ..... Tribunal accepted the view taken by the CIT(A) and noted the fact that the business agreement was not a sham and it involved day-to-day administration of the assessee in the management of the store run by M/s. Ebony Retail Holdings Ltd. It appears that the arrangement arrived at between the assessee and M/s. Ebony Retail Holdings Ltd. was only to exploit the property in this manner due to a recession in the market. 6. We are of the opinion that essentially a finding of fact has been arrived at concurrently by both the CIT(A) and the Tribunal that the arrangement was not a sham and it was not a mere rent agreement but in fact required involvement of the assessee in the management of the store also, therefore, the amount received by the assessee cannot be treated as lsquo income from house property rsquo and it should be treated as lsquo business income rsquo . 7. In our opinion on these facts, no substantial question of law arises for consideration. 8. The appeal is dismissed.
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2008 (4) TMI 668 - SUPREME COURT
Whether the defendant proves that the present suit is barred by the limitation under Section 34(3) of the Arbitration and Conciliation Act, 1996?
Whether the provisions of Sections 12 and 14 of the Limitation Act, 1963 are applicable to an application filed under Section 34 of the Act was pending for consideration in other matters also?
Held that:- Judgment rendered by the Division Bench of the High Court of Karnataka dismissing the application filed by the appellant under Section 34 of the Arbitration and Conciliation Act, 1996 for setting aside the award of the arbitrator, is set aside, and civil appeal arising from SLP(C) is allowed.
The Division Bench of the High Court of Karnataka was not justified in concluding that the appellant had not prosecuted the matter in other courts with due diligence and in good faith. The said finding being against the weight of evidence on record, is liable to be set aside and is hereby set aside. We, therefore, hold that the appellant had prosecuted the matter in other courts with due diligence and in good faith and, therefore, is entitled to claim exclusion of time in prosecuting the matter in wrong courts
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2008 (4) TMI 667 - CESTAT AHMEDABAD
Penalty - Personal penalty on Director - Undervaluation of goods imported by the company ... ... ... ... ..... ned SDR appearing for the Revenue and after going through the impugned order passed by the Commissioner vide which he has discussed the role played by the appellant for the alleged under-valuation of the imported goods. Tribunal, in the case of M/s. Madras Petrochem Ltd. v. CC, Chennai as reported in 2007 (218) E.L.T. 712 (Tri-Chennai), has held that imposition of penalty on company for mens rea under Section 114A does not mean that its Managing Director is also to be penalized automatically under Section 112(a) of the Customs Act. In the absence of any finding that the Managing Director personally indulging in commission or omission of rendering goods liable for confiscation, he cannot be penalized. In the present matter, we find that there is no role attributable to the appellant, reflecting upon his personal knowledge. 3. emsp As such, we set aside the penalty imposed upon him and allow the present appeal with consequential relief to him. (Dictated and pronounced in Court)
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2008 (4) TMI 666 - CESTAT CHENNAI
Demand - Jurisdiction - Product having emerged in premises of customer at Kanjikode (Kerala), demand of duty not to be raised by Superintendent of Central Excise, - Set aside for want of jurisdiction - Section 11A of Central Excise Act, 1944.
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2008 (4) TMI 665 - GUJARAT HIGH COURT
Dispensation of pre-deposit - Held that:- The question now to be debated before the Tribunal is in respect of the demand of ₹ 62,64,550/- by way of additional customs duty. 25% thereof would roughly come to about ₹ 15,66,137/- which may, for the sake of convenience, be rounded off to ₹ 15,60,000/-. The petitioner has already given bank guarantee of ₹ 7.60 lacs and therefore, we are of the view that the petitioner should now deposit a further sum of ₹ 8 lacs in cash within two months from today. We are also of the view that bank guarantee of ₹ 7.60 lacs lying with the department should be permitted to be encashed.
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2008 (4) TMI 663 - ALLAHABAD HIGH COURT
Cancelling letter of allotment/letter of permission - declining to extend the validity of LOA/LOP - Held that:- In the present case, as we have already noticed, after expiry of last extended period of 2006, i.e., 7-4-2006, the respondents have not been able to show that any notice or opportunity was given to the petitioner before passing the impugned orders.In the result, we have no hesitation in holding that the impugned orders are in violation of principles of natural justice and, therefore, liable to be set aside. The writ petition, therefore, succeeds and is allowed.
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2008 (4) TMI 662 - CESTAT, CHENNAI
Stay/Dispensation of pre-deposit ... ... ... ... ..... levant Foreign Trade Policy. It is submitted that such a condition was illegally imposed by the licensing authority. This aspect is also a part of the present challenge. We have heard learned JDR also. 2. emsp After considering the submissions, we find that the so-called lsquo illegal condition rsquo imposed by the licensing authority was not challenged by the party before the competent authority under the Foreign Trade (Development and Regulations) Act, 1992. Nevertheless, it is seen that the clearance of the vehicle was allowed against production of bank guarantee for an amount of Rs. 40.00 lakhs. An amount of Rs. 2.00 lakhs was also paid by the party as duty under Customs Notification No. 97/2004 dated 17-9-2004. We find that the sum of the adjudged dues remains less than the bank guarantee amount. In the circumstances, there will be waiver of predeposit and stay of recovery in respect of the penalties and the balance amount of duty. (Dictated and pronounced in open Court)
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2008 (4) TMI 661 - CESTAT, AHMEDABAD
Dutiability - Scrap obtained by breaking ships ... ... ... ... ..... to have overlooked the fact that at the relevant time, CTH 72.15 and 73.09 did not figure the Notification No. 208/83-C.E., dated 1-8-83. While he has noted that chapter heading 72.15 covers the scrap obtained by breaking ships, the other point has been missed. As regards the other point about the production of photocopies when inputs are not specified question of dutiability or otherwise of scrap does not arise. In fact, we find that the recipient had submitted reply waiving the requirement of personal hearing and desired that a decision may be taken in view of the CESTAT decisions quoted by them. The original adjudicating authority has given a clear finding in respect of those cases. As regards the judgments cited by the Commissioner (Appeals), we find that the facts are not comparable. 5. emsp In view of the above discussion, we set aside the order of the Commissioner (Appeals) and restore the order of the adjudicating authority. (Pronounced in the open Court on 21-4-2008)
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2008 (4) TMI 660 - CESTAT, AHMEDABAD
Production capacity based duty ... ... ... ... ..... a note of the Tribunal rsquo s decision in the case of Balaji Steel Profile v. CCE, Visakhapatnam - 2004 (166) E.L.T. 175 (Tri.-Bangalore), wherein it was held that on closing down of the unit, duty cannot be confirmed against the assessee in terms of Rule 96ZP(3). The only factual differentiation in that decision and in the present case is that the assessee in the case of Balaji Steel Profile surrendered its registration certificate whereas in the present case, the appellants has not done so. Nevertheless, the said fact, in our view, will not make any material difference, in as much as admittedly, the factory was closed w.e.f. 1-7-1998 onwards and was never revived thereafter. 6. emsp In view of the above, we set aside the impugned order and remand the matter to the Commissioner for adjudging the duty liability in the light of the findings given by us as mentioned in the preceding paragraph. 7. emsp The appeal is disposed off in above terms. (Pronounced in Court on 3-4-2008)
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2008 (4) TMI 659 - KARNATAKA HIGH COURT
Business disallowance ... ... ... ... ..... 4.1988. In view of this, the appeals preferred by the revenue have been dismissed. 5. We have also been informed that similar questions had come up for consideration before a bench of this Court in CIT v. Sabri Enterprises 2008 298 ITR 141 (Kar. ) and connected matters, which came to be disposed of on merits on 03-07-2007. After elaborate discussion on the questions projected therein, the Court came to the conclusion that both the questions are to be answered against the revenue and in favour of the assessee. It was further held that revenue has to accept the payment of ESI, PF etc., paid by the assessee and give the deductions of that amount in favour of the assessee as claimed by it in its return. 6. In the light of the aforesaid judgment, it cannot be disputed that the questions have already been answered by the aforesaid judgment, which would hold good even for these appeals. Thus, without answering the questions, we dismiss the appeals. The copy of the order be retained.
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2008 (4) TMI 657 - CESTAT, NEW DELHI
Refund - Cenvat/Modvat ... ... ... ... ..... n holding that there was ample evidence to show that the inputs were used in the final product which was exported on payment of duty. Under Rule 3(b) of the Cenvat Credit Rules, credit in respect of additional duties of excise leviable under Section of the Additional Duties of Excise (Textiles and Textile Articles) Act could be utilized towards payment of additional duty of under the Central Excise Act, 1944 in respect of which rebate claim was separately made under Rule 18. The rebate claim was confined only to basic excise duty. Therefore, it did not debar the appellant from claiming refund of additional excise duty under Rule 5, since the Cenvat credit relating to such duty could not be adjusted. rdquo 3. emsp The Revenue filed appeal and the Hon rsquo ble Punjab and Haryana High Court vide order dated 12-10-07 dismissed the appeal. In view of the above decision, we find no merit in the appeal filed by Revenue, the same is dismissed. (Dictated and pronounced in open Court)
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2008 (4) TMI 656 - CESTAT, CHENNAI
Demand - Limitation - Demand contested as time-barred - Compounded Levy Scheme ... ... ... ... ..... to the apex court rsquo s judgments in the cases of Commissioner v. Venus Castings (P) Ltd., 2000 (117) E.L.T. 273 (S.C.) and Union of India v. Supreme Steels and General Mills, 2001 (133) E.L.T. 513 (S.C.), wherein it was held that, for a manufacturer who opted to work under Compounded Levy Scheme in a given financial year, it was not open to claim a switch-over to actual production-based duty levy scheme under Section 3A(4) of the Central Excise Act midway in that year. Thus the Asst. Commissioner rsquo s decision declining the party rsquo s request for permission to opt out of the scheme is supported by case law. Ld. Counsel also has made mention of requirement of payment of interest on duty, but the records do not indicate that any interest amount was demanded by the authorities. Even otherwise, this aspect is also missing in the grounds of appeal. 4. emsp In the result, the impugned order is sustained and this appeal is dismissed. (Dictated and pronounced in open court)
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2008 (4) TMI 655 - CESTAT, AHMEDABAD
Landing charges - Ship imported for breaking ... ... ... ... ..... asis. It is to facilitate the expeditious clearance that landing charges are assessed on percentage basis. On this basis, the appellant claimed that since the duty was collected before the goods came on land, the landing charges cannot be collected. They have not produced any evidence of actual expenses incurred by them. Further, as observed by the Commissioner (Appeals) that ldquo If the appellant rsquo s contention is accepted, then it will lead to the absurd conclusion that the said charges would not be included in case of payment of duty in respect of prior bill of entry, where the duty is paid even before the arrival of the vessel rdquo . It is not the case of the appellant that the imported ship meant for breaking would not be brought to land mass of the country but would be permanently anchored in the sea. Thus, we find that all the disputed issue have to be decided in favour of the revenue and accordingly, reject the appeal. (Pronounced in the open Court on 21-4-2008)
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2008 (4) TMI 654 - CESTAT, AHMEDABAD
Demand and penalty - Clandestine removal - Penalty on Director - Held that: - in view of the clear cut admission of the Director himself and the Manager, the payment of duty before issue of show cause notice is sufficient evidence. It is also noted that the Director’s statement was recorded after nearly one year of the recovery of receipts which again goes in favour of the revenue. Therefore, I find no reason to interfere with the confirmation of demand and interest thereon, if any liable.
I am unable to say agree that the Director has not physically dealt with the goods when clearance had been made without payment of duty with his knowledge. Therefore, the liability to penalty is sustained - having regard to the facts and circumstances of the case, the total amount of penalty on the Director is reduced to ₹ 10,000/- from ₹ 25,000/-.
Appeal allowed - decided partly in favor of appellant.
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2008 (4) TMI 653 - CESTAT, AHMEDABAD
Confiscation - Returned goods viz. defective plastic chairs ... ... ... ... ..... verizing and remolding is not covered by the process of reconditioning of chairs as envisaged, under rule 2(c) of 173H and imposed redemption fine thereof. The appellant has contended. that the process of remaking by remolding of defective plastic products is covered by the provisions of Rule 173H. They have supported their contention by citing the decision of Tribunal in the case of Baijnath Plastic Products - 2001 (138) E.L.T. 227 (Tri.). I have perused the above mentioned case law. I am of the view that the case of the appellant is covered by the above mentioned decision of the Tribunal. rdquo 3. emsp After going through the grounds of appeal, we find no justifiable reason to take different view. The issue stands decided by the earlier decision of the Tribunal in the case of Baijanath Plastic Product 2001 (138) E.L.T. 227 (Tri.) , which was correctly followed by the Appellate authority. We accordingly, reject the appeals filed by the revenue. (Pronounced in the open Court)
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2008 (4) TMI 652 - CESTAT, AHMEDABAD
Seizure - Kar Vivad Samadhan Scheme ... ... ... ... ..... the scheme and I find that nowhere it is mentioned in the scheme that the same is not applicable in case of seizure. I find that when a specific mention of show cause notice has been made in the declaration and when the certificate has been issued by the competent authority, no further action in the matter is warranted and the adjudicating authority has no authority to go beyond the action taken by the competent authority in settling the issue in toto. I find that the appellant has paid the required duty and therefore, the order of the lower authority is liable to be set aside on this ground alone and I do not find it necessary to discuss other points. rdquo 2. emsp I do not find any infirmity in the views of the Commissioner (Appeals), inasmuch as the show cause notice which was considered by KVSS, which would also include the fact of seizure. 3. emsp No merits are found in the Revenue rsquo s appeal and the same is, accordingly, rejected. (Dictated and pronounced in Court)
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