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Case Laws
Showing 121 to 140 of 655 Records
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2005 (7) TMI 612 - UTTARAKHAND HIGH COURT
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... ... ..... een held that, that the green leaves without grading and processing, has no market value, as unless it is graded and processed, the green leaves get rotten. In view of that position, the tea, graded and roasted by the selfproducing tea company, remains the agricultural produce. That being so, the tea producing company is not the dealer for the purposes of the Act. Also, in view of the principle laid down in Deputy Commissioner of Agricultural Income-tax and Sales Tax v. Travancore Rubber and Tea Co. 1967 20 STC 520 (SC), it has been held that agriculturist cannot be treated to be the dealer for the purposes of the Sales Tax Act. The tea even after being graded and processed, remains tea and it is not changed into a new item. 3.. In the circumstances, this Court finds that there is no error in the impugned judgment of the Sales Tax Tribunal, as such, the aforesaid question of law is answered in favour of the assessee. The revision is accordingly dismissed. Petition dismissed.
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2005 (7) TMI 611 - UTTARAKHAND HIGH COURT
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... ... ..... re preparing earthen pots could be said to be manufacturing pottery and not those who are manufacturing earthen tiles also. I examined the meaning of word pottery as explained in Websters Third New International Dictionary. In said dictionary, the word has three meanings, viz. (i) a place where clayware is made and fired (ii) the art or craft of the potter, and manufacture of clayware (iii) earthenware as distinguished on the one hand from porcelain and stoneware and on the other from brick and tile. The above definition makes it very clear that the earthen tile cannot be brought within the definition of pottery , as such, this Court is unable to agree with the view of the Sales Tax Tribunal. Therefore, in view of the above discussion, the question is answered in favour of the revisionist and the revision is accordingly allowed to the extent as discussed above. The impugned order dated February 1, 1992 passed by the Tribunal is set aside to the above extent. Petition allowed.
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2005 (7) TMI 610 - CESTAT NEW DELHI
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... ... ..... l know-how took place well before the levy was introduced. Since the time when service was provided is the relevant factor, no levy was attracted in the present case. It is another matter whether the transaction between the parties was a transaction between a client and a consulting engineer. The Commissioner was clearly in error in holding that date of payment for service is the relevant factor under the statute and not time of providing of service. 4. emsp In the above factual and legal situation, the tax demand is not sustainable at all. The appeals of the parties are, accordingly, allowed. The appeals of the Revenue are not maintainable in view of our finding that no service tax is attracted. Those appeals are rejected. All the appeals are ordered in these terms. 5. emsp We are not going into the other contentions raised by the assessee since we are of the opinion that, on the above ground alone, the appeals can be disposed of. (Pronounced and dictated in the open Court).
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2005 (7) TMI 609 - MADRAS HIGH COURT
Pre-deposit - Validity of Order of assessment - tax liability - Tamil Nadu General Sales Tax Act ('Act') - factory was on strike they could not furnish the declaration forms - HELD THAT:- In our opinion, there should be such a provision permitting waiver or stay of the pre-deposit amount by the appellate authority in appropriate and genuine cases because there may be cases where the assessee may not be able to deposit the pre-deposit amount for genuine reasons, or there may be a very glaring mistake in the order, or where waiver or stay should be done for some other good and appropriate reason. There may be cases where a huge demand is arbitrarily made by an assessment order although the assessee can clearly satisfy the appellate authority that he is not liable to pay tax at all, or at a far lower amount. Because of the absence of provision for waiver or stay in Section 31 of the Act many cases are coming up directly by way of writ petition in this Court challenging the assessment order. We are not inclined to entertain such writ petitions because there is alternative remedy by way of appeal. However, the appeal may be rendered illusory in many cases because there is no provision for waiver or stay of the pre-deposit amount even in genuine and appropriate cases.
Hence we recommend to the State Government to issue an ordinance forthwith amending Section 31 of the Tamil Nadu General Sales Tax Act and making a provision permitting waiver or stay by the appellate authority (in its discretion) of the pre-deposit amount in appropriate and genuine cases so that the assessees may not face hardship, and the alternative remedy of appeal may not become illusory.
It may also be pointed out that the second appellate remedy u/s 36 of the Act can only be availed of if the entire tax amount is prepaid vide second proviso (a) to Section 36 of the Act. Hence we recommend that there should be a similar amendment in Section 36 of the Act also. The writ appeals are disposed off.
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2005 (7) TMI 608 - ITAT MUMBAI
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... ... ..... case is concerned, the acquisition of the boiler and claiming of 100 per cent. depreciation is a self-contained deduction by itself and, there was no occasion for the assessee to bring the acquisition of the boiler under the umbrella of ldquo investment allowance scheme rdquo . It is quite independent and different. Therefore, the accounting entry passed by the assessee-company does not ipso facto transfer the ldquo reserve account rdquo to ldquo utilisation account rdquo so as to hold that the said reserve was actually utilised by the assessee-company for acquiring the boiler. Therefore, in the circumstances, we are of the considered view that the withdrawal of the investment allowance granted by the assessing authority for the assessment year 1987-88 is not justified. Therefore, the order of the assessing authority passed under section 155 is cancelled and the original assessment is restored with reference to the investment allowance. In the result, this appeal is allowed.
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2005 (7) TMI 607 - ITAT KOLKATA
Exemption u/s 10A - The process of fixing size labels, buttons checking, ironing and packing for making the garments amounted to Manufacturing process undertaken by the assessee Or Not - Export of readymade garments - HELD THAT:- We find that the Circulars by Ministry of Finance relied by the assessee clearly strengthen the contention of the assessee as vide the above Circular No. 314/20/97-CX. It has been clarified that even galvanizing of black MS Pipes tantamount to manufacturing activity. CBDT Circular 495 relied by the assessee also says that unit merely assemble or process goods for exports would also get the benefit of the tax holidays.
We find that the observation of the Assessing Officer that the assessee-company was not involved in manufacturing process to enable it to claim deduction u/s 10A was not correct as the above Circular of Board, Ministry of Finance, decision of Metro Readywear Co. [1976 (7) TMI 62 - HIGH COURT OF KERALA AT ERNAKULAM] and the licence granted by the Development Commissioner clearly indicate that the above stitching of buttons, ironing, labelling, etc. done by the assessee on the garments received by it from M/s. Arihant Garments was to be reckoned as manufacturing process against which the claim u/s 10A was justifiable and, hence, the ld. CIT(A) was justified in directing the Assessing Officer to allow the claim of the assessee under section 10A.
We, therefore, are of the opinion that the ld. CIT(A), while adjudicating the appeal before him, has passed a well reasoned and discussed order which does not call for any inference from our side and accordingly uphold the same and reject the ground raised by the revenue.
In the result, the appeal filed by the revenue is dismissed.
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2005 (7) TMI 606 - BOMBAY HIGH COURT
SALE IN COURSE OF IMPORT — IMPORT OF GOODS AGAINST LETTER OF CREDIT — BANK UPON RECEIPT OF PRICE OF GOODS FROM IMPORTER ISSUING LETTER OF DELIVERY TO CLEARING AGENT — IMPORTER ENDORSING LETTER OF DELIVERY TO ITS CUSTOMER AND CUSTOMER OBTAINING DELIVERY UPON PAYMENT OF CUSTOMS DUTY AND OTHER CHARGES — LETTER OF DELIVERY ISSUED BY BANK IS DOCUMENT OF TITLE — SALE BY IMPORTER BY ENDORSEMENT THEREOF IS BEFORE GOODS CROSSED CUSTOMS BARRIER AND IN COURSE OF IMPORT
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2005 (7) TMI 604 - CESTAT, MUMBAI
Foley Balloon Catheters - Exemption under Notification No. 10/02-C.E. ... ... ... ... ..... udgements has held that an exemption notification has to be read as a whole and not in a piecemeal manner. The test of strict construction of exemption notification applies at the entry, that is, whether a particular good is capable of falling in one or the other category but once it falls then the exemption notification has to be construed broadly and widely. We approve the reliance placed on. Union of India v. Wood Papers Ltd. - 1990 (47) E.L.T. 500 Bombay Chemical Ltd v. Collector of Central Excise - 1995 (77) E.L.T. 3 Collector of Central Excise, Bombay-I and Anr. v. M/s. Parle Exports (P) Ltd. - 1988 (38) E.L.T. 741 To arrive at grant of notification benefit under entry at Sl. No. 43. 2. emsp In view of the findings hereinabove we find no merits to deny the benefits to the exemption to Foley Balloon Catheters falling under heading 90.18, vide serial No. 43 in table to notification 10/2002. 2.1 emsp In view of the findings the Order is set aside and the appeal is allowed.
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2005 (7) TMI 603 - CESTAT, MUMBAI
Cenvat/Modvat - Inputs - Fuels - C-9 solvent ... ... ... ... ..... had these certificates before him as in evidence from para 7 of the order. The Commissioner accepts the fact that no sample was drawn and tested by his officers at the appellants premiere. Therefore his consideration ignoring the Technical details without having any reason to do so cannot be upheld. What is excluded by the notification in HSD falling under heading 2710 and not other such entities that may be classified under that heading. (b) emsp In any case, it is well settled that the receiving assessee are avail benefit of the duty paid as shown on the documents and if there is any reason to alter the description, classification and or the quantum of duty shown on such documents, the route of first varying the assessment at the suppliers and then taking action at receivers end has to be followed. (c) emsp In view of the above finding we cannot uphold the demand of denial of credit and penalty. (d) emsp Appeal is allowed after setting aside the order. (Pronounced in Court)
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2005 (7) TMI 602 - CESTAT, MUMBAI
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... ... ..... tly made cannot be upheld. 2. emsp We would therefore, without going into the merits of the issues involved herein, set aside the order and remit the matter to the original authority, with directions to rehear and determine the liability, if any, of duty on a lsquo person rsquo rsquo after hearing the appellants on all issues. 3. emsp Appeals allowed as remand to original authority for de novo adjudication. (Pronounced in Court)
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2005 (7) TMI 601 - GUJARAT HIGH COURT
Whether the Appellate Tribunal is right in law and on facts in deleting the addition of Rs.87,250/- being deposits in the accounts of partners?
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2005 (7) TMI 600 - CESTAT, BANGALORE
Stay/Dispensation of pre-deposit - Gases ... ... ... ... ..... eration, we notice that the cited Board rsquo s Circular is clearly applicable to the facts of the case. The Board rsquo s Circulars are binding on the authorities, even if the same are not in conscience with the tariff or with the citations. The Commissioner has attempted to apply the ratio of several judgments which would not apply to the facts and circumstances of the case. In view of the Board rsquo s Circular and the Government rsquo s decision not to levy duty on gases which have escaped into atmosphere by flare system or otherwise, the facts are fully covered by the Board rsquo s Circular and prayer for total waiver of the duty and penalty is allowed. There will be no pre-deposits in the matter and Revenue shall not recover the amount. As the issue is covered by the Board rsquo s Circular in the assessee rsquo s favour and the revenue involved is huge in the matter, the appeal to come up for final hearing on 21st September, 2006. (Pronounced and dictated in open Court)
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2005 (7) TMI 599 - CESTAT, MUMBAI
Valuation (Customs) - Commissioning and supervision charges ... ... ... ... ..... is quite possible that an unscrupulous importer with a little help from the seller can shift a part of the price of the imported goods to charges under lsquo commissioning rsquo etc. It is therefore necessary to go strictly by what the invoice and purchase order indicates. In the present case the alleged charge for commissioning and supervision is indicated in the invoice itself which only means that even this charge has become a part of the sale. Secondly insurance and freight was paid on this charge also. The appellants rsquo contention that the charge towards commissioning and supervision in the present case is not a part of the sale under Rule 9(e) has to be rejected. We may however caution that we are not propounding that post manufacturing charges are includible in the assessable value. In the facts of the present case we hold that pound 25000 formed part of the sale and not pest manufacturing charges. 5. emsp The appeal is rejected. (Operative part pronounced in Court)
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2005 (7) TMI 598 - CESTAT, MUMBAI
Cenvat/Modvat - Duty paying documents ... ... ... ... ..... d permitted to avail credit of the duty paid goods. Subsequently, the invoice in question was defaced by the Superintendent on 16-7-97 when the appellants took the Modvat credit. 6. emsp Show Cause Notice was issued on 22-12-99 i.e. admittedly after the normal period of limitation. It is seen that the entire basis for creating the demand against the appellants is the invoice in question, which undisputedly was before the authorities when the same was defaced and the appellants were allowed to take the credit. What has been made objectionable in the year 99, could have been taken note of by the authorities in the year 97 itself. As such I am of the view that the demand in question is hopelessly barred by limitation and on this short point itself and without going into the merits of the case, I set aside that part of the impugned order vide which demand has been confirmed and penalty imposed and allow the appeal with consequential relief to the appellants. (Pronounced in Court)
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2005 (7) TMI 597 - CESTAT, MUMBAI
Confiscation, fine and penalty - Import without licence - Scrap ... ... ... ... ..... ell under that grade it is not specified under ISRI. I have perused the ISRI specification. It is possible that the imported goods did not come within the specification for TALAP. But it does not necessarily mean that the goods are not specified under ISRI. There are other types of Aluminium scrap such as old Aluminium used beverage cans specified under ISRI. One is required to have a licence only when the scrap is not at all specified under ISRI. The appellants case is not of that type. The imported goods may not be TALAP but they do fall under TALDORK. I see no force in the Commissioner s contention that the goods are not specified in ISRI. An import licence is necessary only when the scrap is not at all specified in ISRI. The appellants goods do fall under TALDORK if not under TALAP. The order which proceeds on the assumption that the imported goods are not specified in ISRI. 4. emsp The appeal succeeds. The impugned order is set aside. (Operative part pronounced in Court)
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2005 (7) TMI 596 - CESTAT, MUMBAI
Interest on refund - Relevant date ... ... ... ... ..... o said section clearly provides for payment of interest in respect of the applications pending before the Finance Bill 1995 receives accent (sic) assent of the precedent (sic) President and is to the effect that if the refund is not granted within three months from such date, there shall be paid to the applicant interest under section from the date immediately after three months from such date. Said section itself is applicable to the refund application, which were filed before the said section came into existence. As such no infirmity is found in the Commissioner (Appeals) view. The revenue rsquo s appeal is accordingly rejected. (Dictated in Court)
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2005 (7) TMI 595 - CESTAT, MUMBAI
Penalty - Imposition and quantum - Advertising agency ... ... ... ... ..... e submissions made by both sides, I find that the delay in depositing the tax and in filing the returns is for the period May 1997 to September 1999. Almost every month there was a delay on the part of the appellants to deposit the tax. The appellants got himself registered in November 96 and, as such, was aware of the fact that advertising agency is liable to pay service tax. The scope of Section 80 relied upon by the ld. CA cannot be extended, so as to cover the fact of financial difficulties being faced by the assessee, to be made the basis for not imposing any penalty. As such, I am of the view that the authorities below have rightly invoked penal provisions against the appellants. The total service tax deposited late by the appellants is to the tune of Rs. 1,36,00,000/- (approximately). As such penalty of Rs. 2.66 lakhs (approximately) cannot be said to be on a higher side requiring any interference by the Tribunal. The appeal is accordingly rejected. (Dictated in Court)
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2005 (7) TMI 594 - CESTAT, MUMBAI
Cenvat/Modvat - Reversal of credit at instance of Department ... ... ... ... ..... so far as the reversal of credit is concerned. He therefore applied for the refund/recredit of the Modvat credit reversed by him at the instance of the Officers. The lower authority denied the recredit on the ground that the assessee voluntarily reversed the credit and therefore is not entitled for refund. 4. emsp The Revenue rsquo s grouse appears to be based on what the Commissioner has observed rather than on the contents of his order. It cannot be denied that the refund/recredit Modvat credit is due to the assessee. It cannot be denied on the ground that an assessee voluntarily reversed the credit. 5. emsp In so far as the remark of the Commissioner is concerned, I observe that what he says is correct. The original reversal is only a kind of a deposit of the disputed amount. It needs to be confirmed by a formal order, which is appealable unless such an order is specifically waived by the effected person. 6. emsp The appeal is rejected. (Operative part pronounced in Court)
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2005 (7) TMI 593 - CESTAT, MUMBAI
Refund - Return of goods for repair/rectification ... ... ... ... ..... d new serial numbers being given to the Radiators brought back to the factory and for Repairs/Rectification. Normally production Sr. No would be given to a new product in an assembly line and the reliance on this aspect of the lower authority cannot be found fault with unless the assessee comes with and viable explanation. That is not forthcoming in the appeal. Consequently the appeal is to be dismissed. 3. emsp Ordered accordingly. The appeal disposed as dismissed. (Pronounced in Court)
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2005 (7) TMI 592 - CESTAT, MUMBAI
Demand - Clandestine removal ... ... ... ... ..... market, as admitted by Shri Atul Gamanlal Gandhi- Partner, revenue cannot be expected to establish fact of clandestine removal by identifying the buyers. In ability to explain the shortage along with un-retracted inculpatory confessional statement is sufficient to hold against them. It is also seen that huge quantity of fabrics was lying un-accounted for in RG-1 register, for which no justifiable explanation has been given by the appellant. It is admitted that such huge quantity cannot be the production of one or two days. 6. emsp In view of the foregoing discussions I do not find any merits in appeal and reject the same. However keeping in view the circumstances and facts of the case penalty is reduced to Rs. 35,000/- on Shri Hari Processors and to Rs. 5000/- on Shri Atul Gamanlal Gandhi. The quantum of redemption fine of Rs. 2 lakhs is reduced to Rs. 25,000/- . But for the modification on the quantum of penalty and fine, appeals are otherwise rejected. (Pronounced in Court)
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