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Case Laws
Showing 261 to 280 of 381 Records
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2012 (1) TMI 166 - GUJARAT HIGH COURT
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... ... ..... t which work was executed by the CPWD, which engaged the respondent-assessee for such work, can be stated to be the complex constructed by the Department directly engaging the respondent for construction of such complex and which was intended for personal use as residence by such person.”
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2012 (1) TMI 165 - GUJARAT HIGH COURT
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... ... ..... atch straps by the respondent on job work for various parties be considered the production of goods on behalf of the clients and attracting liability of service tax in the category of Business Auxiliary Services as defined under Section 65(19) of the Finance Act, 1994?
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2012 (1) TMI 164 - ANDHRA PRADESH HIGH COURT
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... ... ..... of the show cause notice, the Commissioner was right in refraining from imposing any penalty. Accordingly, the Tribunal rejected the appeal filed by the Revenue. 7. Feeling aggrieved, the Revenue is now in appeal before us. 8. In our opinion, since the assessee had paid the duty and interest thereon even before a demand was made by way of a show cause notice, there was obviously no mala fide intention on the part of the assessee in evading the duty and interest. Thereon even before a demand was made by way of a show cause notice, there was obviously no mala fide intention on the part of the assessee in evading the duty and interest. Both the Commissioner as well as the Tribunal came to the conclusion that, under these circumstances, penalty ought not to have been imposed on the assessee. We do not find any reason to interfere with the view expressed by the Tribunal. 9. In our opinion, no substantial question of law arises for consideration. 10. Dismissed.
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2012 (1) TMI 163 - ITAT JODHPUR
Exemption u/s 11 - JDA entitlement for registration - seek for registration under s. 12A/12AA. - Held that:- In case the authority has not complied with the provision of s. 11(4) of the Act then perhaps exemption under s. 11 may not be applicable. However, for the purpose of registration, we feel that JDA is entitled for registration. We had already noticed that Tribunal, Jaipur Bench has allowed the registration in the case of Jaipur Development Authority. Accordingly, we direct the learned CIT to allow registration under s. 12AA of the Act. Sub-cl. (a) of s. 12A requires that application of registration should be filed within one year from the date of creation of the trust. In case the same is filed before 1st June, 2007 then the first proviso to s. 12A(a) permitted the learned CIT to condone the delay. However, the first proviso to s. 12A(a) is not applicable for the application made on or after 1st June, 2007. Hence, the learned CIT can allow the registration from first year of the financial year in which the application is made. Hence registration, if any, to be allowed will be from the first day of financial year in which application is made or from the date of creation of trust whichever is later.
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2012 (1) TMI 162 - CESTAT AHMEDABAD
Refund in cash - whether debit made in CENVAT/MODVAT account, refund can be made in cash? - Held that: - the debit entry was made in the year 1997 whereas, the factory was closed in the year 2000 - This case is fairly covered by the decision in the case of Kochar Sung-Up Acrylic Limited,[2010 (8) TMI 330 - CESTAT, NEW DELHI] wherein the Tribunal upheld the refund made in cash to the assessee and rejected the claim of the Revenue that refund should have been given by way of credit in the Cenvat credit account - refund in cash allowed - appeal allowed - decided in favor of appellant.
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2012 (1) TMI 161 - SC ORDER
Classification - As regards Heading 28.35 prior to 28.2.2005, it covered Phosphinates (hypophosphites), Phosphonates (Phosphites), phosphates and poly-phosphates whether or not chemically defined.
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2012 (1) TMI 160 - GAUHATI HIGH COURT
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... ... ..... ade by the respondents, stands upheld and the writ petitions are dismissed being not maintainable at this stage. 27. The petitioner may respond to the impugned show cause notices dealing with all the grounds urged in the writ petitions. In the event of such response being shown, the authority shall deal with the same towards taking a decision in the impugned show cause notices. Depending upon the outcome of such a course of action, future rights and liabilities of the parties will govern. 28. Before parting with the case records, it is made clear that this order has not touched the merit of the case of the either parties, which shall be decided by the authority dealing with the show cause notices and the reply, if any, furnished by the petitioner. Needless to say that the said authority shall deal with the matter appropriately and strictly in accordance with law and facts involved. 29. Both the writ petitions are dismissed. There shall be no order as to costs.
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2012 (1) TMI 159 - SC ORDER
Demand, interest and penalty - 100% EOU - denying the benefit of exemption in terms of Notification No.8/97-CE dt. 1.3.97 on the ground of use of imported wax in the yarn, as the exemption was available only to goods manufactured wholly from the raw materials produced or manufactured in India.
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2012 (1) TMI 158 - CESTAT NEW DELHI
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... ... ..... tification that no material should be procured by the job-worker. We also find that this issue has been considered by the Tribunal in Shakti Insulators and Wires Ltd. reported at 2002 (149) E.L.T. 365 (Tri.-Mum.) wherein it was decided that the exemption will be available even in situations where some minor materials procured by the job-worker is used. In fact in most situations some materials like consumables procured in the factory of manufacture will be used directly or indirectly in undertaking the manufacturing process and that can not be a reason to deny the exemption. We are also not in agreement with the argument that the issue as to which is the main raw material should be decided by the weight of the materials involved. In the circumstances we do not see any merit in the contention that the exemption is not available in the present case. 8. Consequently the appeal filed by the assessee is allowed and that filed by Revenue is rejected. (Pronounced in the Court)
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2012 (1) TMI 157 - CESTAT AHMEDABAD
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... ... ..... very purpose of the law will be frustrated and fraud will be encouraged if the stand suggested by the learned Counsel for the appellants is to be accepted. Such a course will subject the provision to frequent abuse. There is, therefore, no substance, prima facie, in the contention that the extended period of limitation could not have been invoked in this case. “ 10. In view of the proviso to Section 28(1) of Customs Act, 1962 as also observed by the Tribunal in the case referred supra it is proved that the appellant cannot be absolved of the charges levelled in the show cause notice. 11. In the context of the above discussions on the basis of facts and evidences and considering various judgments and orders on this issue, we find that the charges levelled against the appellants stand proved. We therefore uphold the Order-in-Original issued by the Commissioner of Customs, Kandla and reject the appeals filed by the appellants. (Pronounced in Court on 18-1-2012)
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2012 (1) TMI 156 - CESTAT CHENNAI
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... ... ..... e re-worked out in the light of our findings as above. It has also been stated by the learned Advocate for the appellants that Section 11AC only came into force with effect from 28-9-1996 and we agree that penalty can not be imposed under the said Section for the relevant period, as the same is prior to 28-9-1996. However, we hasten to add that appropriate penalty can be imposed under Rule 173Q for the relevant period under the erstwhile Central Excise Rules, 1944. 7. For the purpose of re-quantification of the clearances made, and consequent re-working of duty demand and imposition of appropriate penalty, we set aside the impugned order and remand the matter to the original authority. He shall give an adequate opportunity of hearing to the appellants before passing a fresh order in regard to the duty demand and penalty. 8. The appeals are allowed in the above terms by way of limited remand. (Operative portion of the order was pronounced in open Court on 30-1-2012)
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2012 (1) TMI 155 - CESTAT CHENNAI
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... ... ..... h Court in TELCO case. 28. In my considered view, the ratio of the decision rendered by this Tribunal in Union Carbide case and by the Hon’ble High Court in TELCO case is squarely applicable to the instant case. 29. Appellant can also legitimately claim support from the Tribunal’s decision relating to grease-proof paper and release paper as also from the Hon’ble Supreme Court’s decision in Escorts case (vide supra). 30. In the result, with great respect for the view taken by the learned Technical Member, I concur with the learned Vice-President. The point is held in favour of the assessee. The records may be placed before the Division Bench for pronouncing the majority decision. MAJORITY ORDER 31. We hold that the disputed item is an input used in or in relation to the manufacture of “Heritage Flakes” and hence eligible to credit, and set aside the impugned order and allow the appeals. (Pronounced in Court on 23-1-2012)
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2012 (1) TMI 154 - CESTAT AHMEDABAD
CENVAT credit - goods returned - time limitation - Whether the Show Cause Notice issued on 22-9-2004 has to be held as time barred? - Whether the fact that Rule 7(l)(b) as it existed in the statute book at the time of issue of Show Cause Notice can be invoked for considering applicability of extended period? - difference of opinion - scrutiny of assessment - Held that: - In view of the majority order, the impugned orders are set aside and the appeals are allowed with consequential relief to the appellants - credit allowed - appeal allowed - decided in favor of appellant.
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2012 (1) TMI 153 - PUNJAB AND HARYANA HIGH COURT
Purchase assessment u/s 43B of the Punjab General Sales Tax Act quashed – Whether the Tribunal was right in directing the Assessing Authority to levy sales tax in place of purchase tax limited to the amount of purchase tax liability – Held that:- The transaction of purchase of empty bottles and packing material had two facets - under the first facet, it was whether purchase tax u/s 4B of the Act was or was not leviable on empty bottles and packing material and secondly if no purchase tax was leviable whether it was exigible to sales tax at the time of sale thereof along with the manufactured goods - at the same time, the transaction it is liable to sales tax at the time of sale thereof along with manufactured product which liability of the assessee is shown to exist - The Tribunal has only directed the assessing authority to levy sales tax on the bottles and packing material to the extent of quantum of tax which had been imposed by the assessing authority in the original assessment order – thus, the order of the Tribunal is upheld – Decided against petitioner.
Liability to pay sales tax - Export duty recoverable in respect of spirit exported to other States or Union Territories in India, forms part of turnover – Held that:- "manufacture and export duty" is the liability of the buyer - once that is so, the contention of the learned counsel for the petitioner loses its weight – in McDowell And Co. Limited Versus Commercial Tax Officer [1985 (4) TMI 64 - SUPREME Court] it has been held that it was primarily a burden which the manufacturer had to bear - intending purchasers of the Indian liquors who seek to obtain distillery passes are also legally responsible for payment of the excise duty is too broadly stated - The 'duty' was primarily a burden which the manufacturer had to bear and even if the purchasers paid the same under the Distillery Rules, the provisions were merely enabling and did not give rise to any legal responsibility or obligation for meeting the burden - the provisions of rules 80, 81, 82, 83 and 84 do not militate against the conclusion that the payment of excise duty is a liability exclusively of the manufacturer - In these rules detailed provisions have been made regarding obtaining of distillery pass, correct calculation and full payment of excise duty, the manner of depositing such duty and ultimately issue of the spirit under the pass from the distillery - these rules do not detract from the position that payment of excise duty is the primary and exclusive obligation of the manufacturer and if payment be made under a contract or arrangement by any other person it would amount to meeting of the obligation of the manufacturer and nothing more – Decided against petitioner.
Jurisdiction of the authorities upon the vires of provision or notification – Whether the Tribunal was right in framing assessment at the rate of four per cent having regard to the notification dated April 6, 1973, December 20, 1973 and July 3, 1975 issued under section 4B of the Punjab General Sales Tax Act - Held that:- In K.S. Venkataraman and Co. (P.) Ltd. v. State of Madras [1965 (10) TMI 11 - SUPREME Court] - The Act does not confer any such right on them - Their jurisdiction is confined to the assessment of the income and the tax under the provisions of the Act - the jurisdiction conferred upon the High Court by section 66 of the Income-tax Act is a special advisory jurisdiction and its scope is strictly limited by the section conferring the jurisdiction - as the Tribunal is a creature of the statute, it can only decide the dispute between the assessee and the Commissioner in terms of the provisions of the Act - The question of ultra vires is foreign to the scope of its jurisdiction - If an assessee raises such a question, the Tribunal can only reject it on the ground that it has no jurisdiction to entertain the said objection or decide on it - the notification dated July 3, 1975 had enhanced the rate of purchase tax from three per cent to four per cent by incorporating it in the notification dated April 6, 1973 - Thereafter by corrigendum dated June 19, 1979 the same was incorporated in notification dated December 20, 1973 which had superseded notification dated April 6, 1973 - the validity of notification cannot be challenged before the authorities under the statute and, thus, the petitioner cannot escape from its liability thereunder – Decided against petitioner.
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2012 (1) TMI 152 - GAUHATI HIGH COURT
Purchase and consumption of tobacco in the manufacturing of tobacco products are unreasonable and disproportionate to the extent of its maximum consumption limit - maintainability of the writ petition in view of alternative remedy
Held that:- The allegations contained in the impugned orders require adjudication on investigation of the disputed facts. The materials on record cannot lead to an interference that the allegations in the show-cause notices are wholly non-existent and that there is no foundation or basis of the allegations. In the writ petitions there is no challenge as to the vires of the statutory provisions governing the matter nor there is any question regarding violation of fundamental rights involved in the said proceedings. On examination of the materials on record, it cannot be said that the impugned orders are ex facie nullity and without jurisdiction. The basic facts on the basis of which the authority has assumed jurisdiction an the subject-matter, in my considered view, cannot be said to be on non-existent. The impugned orders, under the circumstances, cannot be said to be unauthorised and without jurisdiction.
Writ petitions are dismissed without being admitted upholding the plea of non-maintainability of the writ petitions as has been raised by the respondents.
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2012 (1) TMI 151 - MADRAS HIGH COURT
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... ... ..... ct No. 277/97 dated December 30, 1996, 306/97 dated March 1, 1997, etc. As per the contract the Appellate Assistant Commissioner found that the person exported the yarn is an agent of the buyer, viz., Natchiar Spinning Mills. He concluded that the transaction as falling under the category of principal/agency transaction and he allowed the claim after following the decisions in C.A. Akhtar and Company v. State of Tamil Nadu reported in 1981 47 STC 62 (Mad) and State of Tamil Nadu v. Vinyl Cable Industries 1994 94 STC 346 (Mad). The Tribunal has thus reached a finding of fact with reference to the transaction of the respondent-assessee by way of agency sale to an exporter. In the circumstances, in the absence of any perversity in the finding so reached by the Tribunal there is no scope to hold otherwise. Therefore, the second question of law also is answered against the petitioner and in favour of the assessee. The tax case revision, therefore, fails and the same is dismissed.
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2012 (1) TMI 150 - ALLAHABAD HIGH COURT
Penalty u/s 15A(1)(o) of the U.P. Trade Tax Act, 1948 for the transactions made in the year 1994-95
Held that:- In this particular case, the Tribunal has not returned the findings that there was intention to evade the tax.
On the other hand, the Tribunal has held that it is not necessary to establish mens rea in order to impose the penalty. The penalty, which has been imposed on the assessee, therefore, is not justified in the facts and circumstances of the case, which are that at the relevant time the assessee was an exempted unit and its final product was exempted and it was not liable to pay any tax at that time. The books of accounts of the assessee having been accepted at that stage also did not reflect any intention to evade any payment of tax. The penalty imposed, therefore, is not justified and it is deleted.
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2012 (1) TMI 149 - PUNJAB AND HARYANA HIGH COURT
Whether the impugned orders passed by the learned below authorities without establishing the mala fide intention on part of the appellant in view of essential ingredients of relevant provision of section 51 are legally sustainable in the eyes of law?
Whether the act on the part of the learned below authorities to pass the impugned orders without perusing the relevant documents is legally sustainable in the eyes of law?
Whether the impugned orders are legally sustainable in the eyes of law?
Held that:- The Tribunal after appreciating the material on record had correctly arrived at the conclusion that there was an attempt at evasion of tax on the part of the appellant as M/s. Snowman Frozen Foods Limited was having its business at Pind Ganna, Phillaur, District Jalandhar whereas the destination mentioned in the documents was M/s. Modern Refractories, Village Ikoloha, District Ludhiana which were reported by the driver of the vehicle at the ICC.
The findings recorded by the Tribunal having not been shown to be erroneous or perverse in any manner, no question of law much less substantial question of law arises in this appeal.
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2012 (1) TMI 148 - PUNJAB AND HARYANA HIGH COURT
Retention of slip pad beyond the period prescribed under the statute - tax and penalty imposed - Held that:- The slip pad on which reliance had been placed for assuming Uchanti sales on which tax of ₹ 6,58,731 and penalty of ₹ 13,17,462 has been imposed, could have been passed after providing an opportunity to the petitioner to explain the entries in the slip pad. Learned State counsel was unable to demonstrate that the order dated June 13, 2011 passed by the Revenue, was after providing a copy of slip pad which had been seized during the inspection on December 27, 2010. Learned State counsel was also unable to justify that the defendant had legally kept the slip pad after the expiry of statutory period prescribed under the Act for its retention. Furthermore, the petitioner had filed the returns and the order was passed without discussing the deductions claimed in the returns and the input-tax claims made therein. Since the action of the authority was in violation of principles of natural justice without affording proper opportunity, the plea of alternative remedy raised by the learned State counsel, in the facts and circumstances, loses its significance.
Accordingly, order dated June 13, 2011 (annexure P4) is quashed and the matter is remitted to the appropriate authority to pass a fresh order in accordance with law. However, the learned State counsel was unable to justify retention of seized documents beyond the period of 60 days.
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2012 (1) TMI 147 - MADHYA PRADESH HIGH COURT
Block assessment - levy tax at 13 per cent on the sale of the items in question - restricting the meaning of "utensils" to the items used in the kitchen - Held that:- We are of the opinion that in common parlance utensils mean items of daily household use generally used for preparing, serving or keeping food or beverages.
The Commissioner, by the impugned order, has taken the view that only the items which are used in the kitchen are covered within the meaning of utensils. The said interpretation of the Commissioner is not correct. It is too narrow an interpretation which cannot be upheld keeping in view the common parlance meaning of utensils. Even otherwise, the view which has been taken by the Commissioner runs counter to the Division Bench judgment of this court in the matter of Yadav Metal Industries v. Commissioner of Sales Tax, M.P. reported in [1979 (12) TMI 137 - MADHYA PRADESH HIGH COURT]. Thus, the impugned order passed by the Commissioner under section 70 of the Act restricting the meaning of "utensils" to the items used in the kitchen cannot be sustained and is hereby set aside. The matter is remanded back to the Commissioner for deciding the matter afresh
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