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Case Laws
Showing 241 to 260 of 868 Records
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2009 (4) TMI 824 - CESTAT NEW DELHI
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... ... ..... h the submission of the learned Advocate that it is a case of non-maintenance of proper account and contravention of Rule 10 of the Central Excise Rules. So, confiscation of the goods and imposition of penalty for contravention of Rule 10 is justified. However, in my view the amount of fine and penalty is highly excessive. Considering the facts and circumstances of the case I uphold the confiscation of goods and imposition of penalty but, redemption fine and penalty are reduced to Rs. 25,000/- and Rs. 5,000/- respectively. 6. Regarding imposition of penalty of Rs. 15,000/- on the appellant No. 2, I find that he is commercial head of the factory. There is no material available on records regarding his knowledge in respect of shortage of goods. Hence, imposition of penalty on the appellant No. 2 is not justified. Accordingly, penalty on appellant No. 2 is set aside. Appeal filed by appellant No. 2 is allowed with consequential relief. (Dictated and pronounced in the Open Court)
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2009 (4) TMI 823 - CESTAT BANGALORE
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... ... ..... ding duty on that basis. The action is also patently unjust as it has been done without giving abatement for the penalties. Accordingly, the duty demand is set aside. rdquo 6.2 Further, in the MPR Refractories Ltd., decision of the Chennai Bench (supra), it has been held that the bonus earned for above average work and penalty for below average work for ladle management or refractory lining work undertaken in Customer rsquo s premises has nothing to do with manufacture of bricks and lining material in assessee rsquo s factory. Therefore, the said bonus is not a part of the assessable value of refractories. 6.3 A similar view was taken in the case of Burn Standard Co. Ltd. (supra). 6.4 Further, the appellants had also made a very strong case on grounds of limitation. 7. In these circumstances, the impugned order has no merits. The same is set aside. We allow the appeal with consequential relief. (Operative portion of the Order pronounced in open Court on conclusion of hearing)
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2009 (4) TMI 822 - CESTAT BANGALORE
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... ... ..... s and, therefore, the Notification No. 8/2003 is not applicable has not been accepted by the Original Authority and the Appellate Authority. In that case, the aggregate clearances of the units should have been computed for deciding the entitlement to Notification No. 8/2003. The appellant had furnished the figures to show that the aggregate value of the clearances of both the units put together during the relevant period comes to less than Rs. 1 crore. Hence, on this ground also, the duty is not demandable. Moreover, the appellant had produced evidence to the effect that the units are situated in the rural area. In that case, even the duty on branded goods is not demandable. In such circumstances, there is no justification in demanding the duty on the clearances effected in Unit No. I. The impugned order has no merits. Hence, we set aside the same and allow the appeal with consequential relief. (Operative portion of the Order pronounced in open Court on conclusion of hearing)
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2009 (4) TMI 821 - MADRAS HIGH COURT
Whether the Tribunal failed to consider the violation of principles of natural justice in not granting an opportunity to the appellant for cross-examination of the witnesses and that the findings and orders are based on inadmissible and flimsy evidence?
Whether the Tribunal ignored the subjective satisfaction regarding the voluntary nature of statements, when the statement of the appellant was retracted at the earliest point of time and the appellant reported to the Magistrate about slapping by the Enforcement Officials, as held by the Supreme Court in KTMS Mohamed’s case reported [1992 (4) TMI 6 - SUPREME Court]?
Whether the Tribunal failed to consider the absolute confiscation of Indian currency is not sustainable in law on mere presumptions in respect of the order of confiscation and the finding of contravention?
Whether the order passed by the Tribunal is invalid/non est in law in view of the violation of Section 52(6) of the FERA 1973 r/w Section 20(2)(b) of the FEMA 1999?
Held that:- The questions raised by the appellant are purely questions of facts and not questions of law. We reject the appeal and the Civil Miscellaneous Appeal stands dismissed.
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2009 (4) TMI 820 - KERALA HIGH COURT
Offence under Sec. 39(5) of the Standards of Weights and Measures Act, 1976 and Rule 5 Schedule III Clause No. 17 (c) of the Standards of Weights and Measures (Packaged Commodities ) Rules, 1977
Held that:-Tthere is absolutely no merit or substance in the contentions raised by the respondents holding that the package in question is not a ‘multi-piece package’ and that Rule 17 is not attracted to the case in hand. The challenge raised by the petitioner against the impugned proceedings taken by the respondents 1 and 2 is very much justified. The impugned orders/proceedings Ext. P2, P6 & P7 are set aside. It is declared that the ‘multi-piece package’ defined under Rule 2(j) of the Rules, on satisfying the requirement under Rule 17 of the Rules, does not attract the stipulation under Clause 17(c) of the 3rd Schedule mentioned under Rule 5 of the Rules but for the individual units contained in the ‘multi-piece package’, which of course shall be of standard weight. W.P. allowed.
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2009 (4) TMI 819 - MADRAS HIGH COURT
Whether, in the facts and circumstances of the case, the Tribunal was right in holding that expenditure on renting and maintaining a guest house is allowable as business expenditure ?
Held that:- In view of the fact that every assessment of a unit is unique by itself, even assuming that the decision rendered by the Tribunal is not in accordance with law and can be agitated in appropriate case before the appropriate forum, the appeal is dismissed
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2009 (4) TMI 818 - MADRAS HIGH COURT
Rectification application rejected - Held that:- The tax effect in these cases is less than ₹ 2 lakhs, the limit prescribed under the above said Circular dated March 27, 2000. The appeals are filed on May 19, 2005. Hence, the circular is binding on the Revenue. The appeals are dismissed.
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2009 (4) TMI 817 - MADRAS HIGH COURT
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... ... ..... nses cannot be treated as capital expenditure for the current year and the expenses clearly come within the ambit of the provisions of section 35D because these have not been incurred for the expansion or extension of business but merely to find out new ideas by conducting test studies and pilot studies for improving the existing business. On those facts and relying on a decision of this court in the case of CIT v. Seshasayee Brothers P. Ltd. 1981 127 ITR 218 and that of the Kerala High Court held that the assessee is entitled to the benefit being a firm. In view of the above said factual finding recorded by the authorities under the Act as well as the Tribunal, we are of the view that there is no question of law, much less, a substantial question of law involved in this appeal. Learned counsel appearing for the Revenue also is not able to convince us that this amount has been expended for the purpose of any new project . For the very same reasoning, this appeal is dismissed.
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2009 (4) TMI 816 - COMMISSIONER OF CENTRAL EXCISE (APPEALS), PUNE-II
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... ... ..... apital goods and was trying to utilize the same for the clearances of other products which are nothing to do with the raw materials, packing materials destroyed in the fire. In the above background, there should not have been any duty demand from the appellant. However, the above conclusion is only of my view and not decision in the instant appeal since I have already held that the appellant wants to pay/settle duty involved on the raw materials, packing materials and capital goods details of which were supplied to the department basing on which the present demand was raised. As regards reversal, I have already held that the same is out of my domain, since the eligibility of remission has to be considered by the Commissioner. As regards penalty, I have already held that the appellant is not to pay any penalty. 8. emsp In view of the above facts and circumstances, I allow the appeal by setting aside the impugned order passed by the Joint Commissioner, Central Excise, Pune-II.
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2009 (4) TMI 815 - CESTAT BANGALORE
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... ... ..... (Appeals) are incorrect and misplaced. Every assessee has a right to claim the re-test of the samples from Central Revenue Laboratories, New Delhi, if he does not agree to the test report of the Dy. Chief Chemist. This point is amply proved in the current case before us, as we find that the samples of the Iron ore were sent for re-testing to the Central Revenue Laboratories, New Delhi and the results which were intimated to the appellant by the Asst. Commissioner of Customs, Kakinada, Customs-I Divison are as under - 6. It can be seen from the above letter addressed to the appellant that the Iron content tested is 60.8 which is less than 62 . If that be so, we are of the considered view that the benefit of the Notification No. 62/2007 cannot be denied to the appellant in this case. Accordingly, we find that the impugned order is liable to set aside and we do so. The impugned order is set aside and appeal is allowed with consequential relief, if any. (Pronounced in open Court)
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2009 (4) TMI 814 - CESTAT BANGALORE
Interest on the delayed fortnightly Cess payments - Oil Industry (Development) Act, 1974 (OID Act, 1974) - Held that: - the charging section of the OID Act, 1974 clearly talks about duties of excise and provisions of sub-section (4) of Section 15, which specifically indicates that the provisions of the Central Excise Act and the Rules made thereunder, including those relevant to refund and exemption from duties, shall, as far as may be, applied in relation to the levy and collection of duties of excise leviable under section. There is no provision in the OID Act, 1974 for demand of interest for delayed payment of Cess.
Demand of interest set aside - appeal allowed - decided in favor of appellant.
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2009 (4) TMI 813 - CESTAT BANGALORE
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... ... ..... ty. We also find that the adjudicating authority has imposed equivalent amount of penalty on the appellant under the provisions of Section 11AC. We find that adjudicating authority has traversed beyond the show cause notice which has been issued to the appellant show cause notice does not invoke the provisions of Section 11AC for the purpose of imposition of penalty as there is no allegations as to suppression, fraud, misstatement, etc., on the appellant. 7. In view of the above reasons since there is no invocation of the imposition of penalty on the appellant under the provisions of Section 11AC, the penalty imposed on the appellant under the provisions of Section 11AC is unsustainable and is liable to be set aside and we do so. 8. In sum, the impugned order to the extent it upholds the interest liability on the appellant is upheld and to the extent it upholds the penalty imposed on the appellant is set aside. The appeal is disposed of accordingly. (Pronounced in open Court)
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2009 (4) TMI 812 - MADRAS HIGH COURT
Detention orders challenged - Held that:- the Department has failed to prove as to how they have arrived at the conclusion that there is undervaluation since there is no material on record to show that the Department has followed the procedure contemplated under the Act and Rules to arrive at the conclusion regarding the valuation.
There is a lot of delay in slapping the impugned order of detention on the detenu. For the alleged incident said to have taken place during the year 2005, the impugned order of detention came to be passed on 9-9-2008, for which no explanation, worth considering and appreciating, is coming forth from the respondents. Thus, we have no hesitation to hold that the respondents have committed a legal error in slapping the impugned order of detention on the detenu. On this ground, this Habeas Corpus Petition is allowed.
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2009 (4) TMI 811 - BOMBAY HIGH COURT
Whether in facts and circumstances of case, the Tribunal was right inholding that product “gypsum board” is covered by entry C-41 in respect of gypsum in all its forms?
Held that:- As the Tribunal noted the appellant had proceeded to hold that it is not covered by the entry purely based on the classification in the Customs Tariff Act. As the tribunal rightly noted this is irrelevant for the purpose of considering the entry in the Maharashtra Sales Tax Act or VAT Act. What has to be considered is the entry in the schedule. It may also be noted that in other states also similar expressions have been used in so far as Gypsum is concerned. In so far as State of West Bengal is concerned, the Gypsum Board and Gypsum Plaster are specifically excluded. Therefore, the expression forms and description will have to mean gypsum of any shape and whatever description it may have in the market as long as chemical composition remains the same. In our opinion, in so far as VAT is concerned, gypsum Board will be covered by the entry C-41. We therefore, find no fault in the judgment of the Tribunal. Against assessee.
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2009 (4) TMI 810 - CESTAT NEW DELHI
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... ... ..... ommunication of the order of the Central Excise officer, the amount of penalty liable to be paid by such person under this section shall be 25 of the duty so determined. In the present case the respondent deposited the duty before issuance of show cause notice and, therefore, penalty is imposable 25 of the duty i.e. Rs. 38,732/- (Rupees thirty eight thousand seven hundred and thirty two only). Regarding imposition of penalty on respondent No. 2, I find that there is no material that he had knowledge about the clandestine removal of the goods. So, penalty on the respondent No. 2 is not warranted. 7. In view of the above discussion, order of the Commissioner (Appeals) against Respondent No. 1 is set aside and Order of the original authority is restored and modified and penalty on Respondent No. 1, is reduced to Rs. 38,732/- (Rupees thirty eight thousand seven hundred and thirty two only). Appeal against Respondent No. 2 is dismissed. (Dictated and pronounced in the Open Court)
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2009 (4) TMI 809 - CESTAT BANGALORE
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... ... ..... rship dispute and in fact the appellant appears to be well aware of this fact. It appears that having failed at the proper forum by default in the year 1997 itself, the appellants have approached the department to settle the dispute which they are not authorised and competent to do. In view of the aforesaid facts I find no infirmity in the impugned order. rdquo 7. We find that the issue whether the document was forged or not is not in the domain of this Tribunal. The appellant has had a remedy to appear/approach before the appropriate authorities who could have considered whether the documents which were produced before the licencing authority for deletion of the name of the appellant was a forged one or not. In any case, we are of the considered view that no appeal lies to us on this matter. Accordingly we find no merit in the appeal filed by the appellant and the same is rejected. (Operative portion of the Order already pronounced in open Court on conclusion of the hearing)
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2009 (4) TMI 808 - CESTAT NEW DELHI
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... ... ..... de the penalty on the ground that the respondents deposited the duty before issue of show cause notice. I find that the respondent in their statement admitted that the goods were cleared without payment of duty, which was detected by the central excise officers during their visit. So, it is a case of clandestine removal of the goods. Hence, imposition of penalty under Section 11AC of the Act is warranted. However, 1st Proviso to Section 11AC(1) of the Act provides that if the assessee paid the duty within 30 days of the Adjudication Order, the penalty would be reduced to 25 of the duty. In the present case, the respondent paid the duty before issue of show cause notice. Hence, the amount of penalty is reduced to Rs. 26,280/-. The order of the Commissioner (Appeals) is set aside. The order of the Original Authority is restored and modified accordingly. The appeal filed by the Revenue is disposed of in the above terms. (Order dictated and pronounced in open court on 16-4-2009)
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2009 (4) TMI 807 - BOMBAY HIGH COURT
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... ... ..... reventing the petitioner for the limited period for not following the decision of the Gujarat High Court in the case of Dhariyal Chemicals v. Union of India in Sp. C.A. No. 5769/2008 (unreported) 2009 (234) E.L.T. 208 (Guj.) 2008-TIOL- 710-HC-AHM-CX) and thereafter the court passed conditional part in the given facts and circumstances. 4. In our view similar yard-stic cannot be applied in the facts and circumstances of the present case. 5. The learned counsel for the petitioner submitted that in the absence of any proposal and opportunity of being heard, the impugned order deserves to be stayed. We find that the petitioner was duly heard by the Chief Commissioner and we are satisfied regarding the complicity of the petitioner-assessee having knowingly removed the goods without payment of duty, which itself disqualifies the petitioner from any equitable relief being granted in his favour much less the interim order. We are, therefore, not inclined to grant any interim relief.
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2009 (4) TMI 806 - ITAT MUMBAI
Pre-operative expenses - Power Purchase Agreement - abandon project - setting up of Speed Power Projects - aggregate capacity of about 5000 MW - Whether the business of the assessee could be said to have been set up on 18.11.1997, which was the date of agreement with MPEB - CIT(A) dismissed the assessee's appeal on this issue observing that since the expenditure was incurred by the assessee for setting up of a plant, the same was capital in nature and, therefore, could not be allowed as deduction to the assessee as revenue expenditure.
HELD THAT:- As it is evident from the facts noted earlier, the assessee had only entered into agreement with MPEB but MPEB finally backed out from the said agreement. This was only an assurance to the assessee for purchasing power from it subject to fulfillment of series of activities. It cannot be said that the assessee's business had been set up on 18.11.1997 when the agreement had been entered into with MPEB. It is true that entering into an agreement with MPEB was one of the essential activities for the business but this essential activity was in furtherance of setting up business.
The assessee has pointed out that it had employed managerial and other staff in order to start the business. All these actions were essential for setting up of business because, admittedly, in order to priorities for Escrow Protection the assessee had submitted its offer for better terms on different parameters in pursuance to letter as mentioned in the written submissions filed by assessee placed on record. The assessee had undertaken this venture in pursuance to liberalized government policy which could not be implemented on account of change in policy decision itself and, therefore, it could not be said that the assessee's business had been set up because setting up implies that assessee is only few steps away from formal commencement of business. In this regard, we may refer to some decisions relied upon by Ld Counsels for the assessee:
In the case of Western India Seafood (P) Ltd.[1992 (8) TMI 68 - GUJARAT HIGH COURT], it was held that the test to be applied is as when a businessman would regard a business as having commenced and the approach must be from a common sense point of view. Applying this test also, we are of the opinion that till the assessee was prioritized for Escrow Protection and given a green signal by MPEB to go ahead with the project and in pursuance to that the assessee took its first step towards commencement of business, it cannot be said that the assessee's business had been set up.
Whether the expenses once classified as capital expenditure in earlier years, could be treated as business expenditure in the year of abandonment of project - it is well settled commercial principle of accounting that the nature of expenditure is determined at the first instance when it is incurred and its nature cannot be altered on account of subsequent events. Once the expenditure has been classified as capital in nature, it cannot partake the character of revenue on account of supervening circumstances.
Therefore, assessee's appeal is dismissed.
Receipt of interest - Capital or revenue - AO treated the interest income as income from other sources as against the assessee's claim of treating the same as income from business and also disallowed the assessee's claim of set off of business loss.
HELD THAT:- The Hon'ble Supreme Court in the case Bokaro steel [1998 (12) TMI 4 - SUPREME COURT] also considered the decision in the case of Tuticorin Alkali Chemicals and Fertilizers Ltd.[1997 (7) TMI 4 - SUPREME COURT] and held that the said decision was not applicable because in that case the money borrowed for business purposes was temporarily invested and utilized on interest, which the assessee could incur the manner he likes. However, in the case of Bokaro Steel, the utilisation of various assets of the company and the payments received for such utilization were directly linked with the activities of setting up steel plant of the assessee. These receipts inextricably linked with the setting up of the capital structure of the assessee and, therefore, they were held to be capital receipts going to reduce to cost of construction applying the decision of the Hon'ble Supreme Court in the case of Challapalli Sugar [1974 (10) TMI 3 - SUPREME COURT]. In our opinion, this decision fully supports the claim of the assessee raised by way of additional ground.
We have held in A.Y. 2002-03 that assessee's business had not been set up. Same situation persisted in A.Y. 2003-04 and, therefore, it cannot be said that the business had been set up in assessment year 2003-04. That being the factual state of affair, whatever expenditure had been incurred and whatever amount was received on security deposit were in capital field and could not be treated as revenue in nature. The decision in the case of Tuticorin Alkali cannot be applied because in that case there was no dispute regarding the setting up of the business.
The business was treated as being set up and, therefore, the receipts by way of interest by deployment of surplus funds were held to be assessee's income. But till the business is set up, the receipts cannot be held to be in revenue field. The receipts upto the stage of setting up of business would go to reduce the cost of setting up of business. While parting we may observe that it would be travesty of justice if the assessee's expenditure upto the stage of setting up is treated as capital in nature but not the receipts during the same period. In view of above discussion, we allow the additional ground raised by assessee.
In the result the assessee's appeal for AY 2002-03 is dismissed while appeal for AY 2003-04 is allowed.
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2009 (4) TMI 805 - ITAT DELHI
Levy of Penalty u/s 271(1)(c) - two additions u/s 68 on speculative loss and loan received - Whether penalty levied by AO is contrary to the facts and law of the case? - It is submitted that although the addition has been confirmed by the Tribunal, penalty u/s 271(1)(c) cannot be imposed because the assessee has furnished explanation which the assessee could not substantiate but such explanation is bona fide and all the facts relating to the same and material to the computation of total income have been disclosed by the assessee and as per Explanation 1 to section 271(1)(c), it is not a case of concealment of income or furnishing of inaccurate particulars of income and hence the penalty imposed is not justified.
HELD THAT:- Respectfully following the judgment of the hon'ble Delhi High Court CIT v. Auric Investments and Securities Ltd. [2007 (7) TMI 276 - DELHI HIGH COURT], we hold that penalty is not leviable u/s 271(1)(c) because it cannot be said that there is concealment of income or furnishing of inaccurate particulars of income merely because the claim of the assessee regarding business loss has been accepted by the AO as speculative loss.
Regarding the second aspect, i.e., Penalty on addition u/s 68 - loan received by the assessee from M/s. Elite Management Pvt. Ltd - For this loan, the assessee has furnished the loan confirmation from the party - HELD THAT:- In view of this fact that the party has accepted that the cheque in question was given by them to the assessee although not as a loan, we are of the considered opinion that although the addition has been confirmed by the Tribunal on this account but it cannot be said that the explanation of the assessee was not bona fide and it also cannot be said that all the facts relating to the same and material to the computation of total income have not been disclosed by the assessee and hence Explanation 1 to section 271(1)(c) is not applicable in the present case for this addition and hence penalty cannot be imposed on this account also.
Addition u/s 68 - claim of the assessee, four cheques were received by the assessee from M/s. Sujata Securities Pvt. Ltd. - assessee has given loan confirmation - HELD THAT:- The addition was made for the reason that this cheque was given by M/s. Sujata Securities Pvt. Ltd. to the assessee out of fund said to be received by that company from M/s. Model Trading Co. and it is noted by AO, director of M/s. Sujata Securities Pvt. Ltd. has stated in his statement that he does not remember the address of M/s. Model Trading Co. which create serious doubt about the genuineness. It is further found that in the bank account of M/s. Model Trading Co. cash was deposited.
On this basis, the addition made may be justified but it cannot be said that the explanation of the assessee was not bona fide and hence as discussed regarding loan received from M/s. Elite Management Pvt. Ltd, Explanation 1 to section 271(1)(c) is not applicable and hence for this loan also, AO is doubting the source of source which cannot be the basis for imposing penalty.
Since, we have noted that in the present case, Explanation 1 to section 271(1)(c) is not applicable because bona fide explanation has been furnished by the assessee and hence we feel that penalty in the present case is not justified and hence respectfully following this Tribunal's decision with regard to applicability of the judgment of the hon'ble apex court rendered in the case of Dharamendra Textile Processors [2008 (9) TMI 52 - SUPREME COURT], we delete the penalty.
In the result, this appeal of the assessee is allowed.
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