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Showing 281 to 300 of 547 Records
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2012 (2) TMI 448 - KERALA HIGH COURT
Declining to entertain appeal filed by the Department against first appellate authority’s order setting aside assessment and remanding the matter for reconsideration by Tribunal - Held that:- The assessment is made strictly in accordance with the compounding application but with the correct percentage of increase under the statute. The only deviation is the increase from 150 per cent to 200 per cent, which in our view, is only a mistake committed by the assessee as a result of failure to take note of amendment to statute. We could have permitted regular assessment on turnover of the assessee, if the assessee did not follow up compounding application and paid tax every month based on the turnover declared. However, the assessee has been paying tax only at compounded rate which cannot be anything other than the tax payable under section 8(f) of the Act. We do not think the assessee can now revert back for turnover based assessment because returns filed every month were not accompanied by payment of tax on the taxable turnover but tax payment was under the compounding scheme, though by mistake at 150 per cent of previous years’ tax as against correct rate of 200 per cent.
We do not find any justification for the Tribunal or the first appellate authority to interfere with the assessment which is made based on application filed by the assessee but by adopting the correct percentage of tax payable under the compounding scheme under the amended provisions of section 8(f) applicable for the year 2007-2008. We, therefore, allow the revision case by setting aside the orders of the Tribunal and that of the first appellate authority and restore the assessment.
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2012 (2) TMI 447 - MADRAS HIGH COURT
Whether the Appellate Tribunal is correct in sustaining the penalty levied under section 22(2) of the Tamil Nadu General Sales Tax Act and refixed by the Appellate Assistant Commissioner, when there was no excess or illegal collection of tax by the petitioner?
Held that:- The assessee was under the bona fide impression that they could make an application for registration within 30 days or before February 24, 1994. With that belief only, the application was made on February 24, 1994. Even assuming that the date should be calculated from the date of change in the constitution, i.e., on January 23, 1994, the application has been made on February 24, 1994 with a delay of one day. In these circumstances, the explanation offered by the assessee for not applying the registration within a period of 30 days should have been accepted by the assessing officer. If that explanation is accepted, in our opinion, the penalty is not automatic and the assessing authority ought to have exercised its discretion not to levy penalty.
Though the assessee had collected the tax, the amount had been paid. In these circumstances, the imposition of penalty by invoking the provisions of section 22(2)(i) of the Act is unwarranted. Hence, the substantial question of law raised in the revision is answered in favour of the assessee.
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2012 (2) TMI 446 - MADRAS HIGH COURT
Whether third and the fourth respondents have been stopping the vehicles belonging to the petitioners, which are carrying empty bottles to other States, without the authority of law and are contrary to articles 14, 19(1)(g) and 304(a) of the Constitution of India?
Held that:- This court is of the considered view that a general direction cannot be issued by this court, as prayed for by the petitioners, in the above writ petitions. It is a well-settled position in law that no blanket order can be passed by the courts of law, especially, when the relief sought is vague and general in nature. The petitioners have not been in a position to substantiate their claims that the third and the fourth respondents are interfering with the transportation of the empty beer and brandy bottles, as claimed by the petitioners, arbitrarily, without the authority of law. W.P. dismissed.
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2012 (2) TMI 445 - KERALA HIGH COURT
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... ... ..... raised by the counsel for the petitioner is that since exhibits P1 and P6 orders are totally illegal, the condition imposed by the appellate authority cannot be sustained. I am unable to accept the said contention. The merits of the controversy are matters to be decided as and when the appeal is finally heard and the question now is whether the appellate authority was justified in passing a conditional order. In my view, in the facts and circumstances of the case, the appellate authority cannot be faulted because substantial amount is due from the petitioner under the order of assessment. In such circumstances this order cannot be said to be vitiated warranting interference. In so far as the prayer of the petitioner for the disposal of exhibit P15 is concerned, no provision of law has been shown to be enabling the petitioner to file such a revision before the very same authority, who has passed exhibit P17. Therefore, I am not persuaded to direct consideration as prayed for.
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2012 (2) TMI 444 - MADRAS HIGH COURT
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... ... ..... hat in the wake of the second proviso to section 3(2) of the Tamil Nadu General Sales Tax Act, exemption is only in respect of first sale and in case of second sale, the dealer would be liable to pay tax. We have carefully perused the above provision and that proviso is applicable only in case of goods mentioned in the First Schedule, which are taxable at the point of first sale and the tax under this Act shall be payable by the first or earliest of the successive dealers in the State. In terms of section 3(2) of the Act, if the sale effected by the assessee is not the first sale, then under the provisions of the Act that sale cannot be brought within the net of taxation and the assessee is entitled to claim exemption on the ground that his sale is not the first sale even if the first sale has not suffered tax. In view of the above, we do not find any ground to entertain the revision on the questions raised by the Revenue. Hence, the tax case revision is dismissed. No costs.
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2012 (2) TMI 443 - BOMBAY HIGH COURT
Rate of interest - Whether the Tribunal erred in reducing the rate of interest on return of pre-deposit to 6% per annum with effect from 20th October 2005 in terms of Section 35FF of Central Excise Act, 1944 read with Section 11BB of Central Excise Act, 1944 - Held that:- modification of rate of interest under Central Excise Act, 1944 came into force only on 10-5-2008 and hence cannot be made applicable to instant case inasmuch as remand order of Tribunal was passed on 19-7-2005 and was received by Commissioner on 30-8-2005. Hence, rate of interest notified by Central Govt. under Section 11BB ibid @ 6% p/a vide Notification No. 67/2003-C.E. (N.T) applicable - Decided in favour of assessee.
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2012 (2) TMI 442 - BOMBAY HIGH COURT
Maintainability of appeal - remedy open under section 61 of the Bombay Sales Tax Act, 1959 - Alternate remedy - Held that:- challenge in the writ petition under article 226 is to the original order of the Tribunal. Such a challenge clearly would not be maintainable having regard to the fact that the Legislature has created an alternate remedy under section 61 of the Bombay Sales Tax Act, 1959. Having failed to espouse that remedy, it is not open to the State to circumvent the legislative provision by moving this court directly under article 226 of the Constitution - Decided against Revenue.
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2012 (2) TMI 441 - CESTAT NEW DELHI
Duty demand - Scheme for excise duty liability based on installed Annual Capacity - Appellant opted for duty payment - Held that:- if a manufacturer claims abatement for not working during a short period as provided in Section 3A(3) conditions prescribed have to be followed. Such conditions involve giving advance intimation taking meter reading for electricity supply etc. to make sure that the manufacturer does not actually do manufacturing activity during such period. However there are no such conditions prescribed in sub-section (2). Apparently the appellant has tried to take benefit of this loop-hole by just sending intimation that they were surrendering the certificate. The Authorised Representative for Revenue submits that it is this dubious method that the Appellant has adopted to evade excise duty.
As may be seen the adjudicating authority accepted that the factory was closed during Sep. 1997 and Oct. 1997 and also in March, 1998. The First Appellate authority has not accepted that the factory was closed during the period because intimations regarding last reading for electricity supply was not intimated and has confirmed duty liability for the entire period of Sep. 1997 to March, 1998. The Commissioner (Appeals) has accepted the contention of Revenue that the request for surrender of registration was an eye-wash and they were actually producing goods during the entire period.
Appellants did not do manufacturing activity during the period 2-9-1997 to 28-11-1997 and also from 28-2-1998 to 31-3-1998. So I hold that the duty liability determined in the adjudication order to be proper - However penalty not imposable - Decided partly in favour of assessee.
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2012 (2) TMI 440 - CESTAT MUMBAI
Waiver of pre-deposit of duty - Wrong availment of CENVAT Credit - Violation of principle of natural justice - Held that:- as the notices for hearing were not served as per the provisions of Section 37C of the Central Excise Act, therefore we find merit in the contention of the applicants that an opportunity of hearing is to be granted by the adjudicating authority. In view of this, the impugned order qua the applicants is set aside, after waiving pre-deposit of duty, interest and penalties and the matter is remanded to the adjudicating authority for de novo adjudication and to decide afresh after affording an opportunity of hearing to the appellants. The appellants are directed to appear before the adjudicating authority on 9-4-2012 at 10 am and thereafter the adjudicating authority will fix the date of hearing and decide in accordance with law - Decided in favour of assessee.
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2012 (2) TMI 439 - CESTAT NEW DELHI
Reversal of CENVAT Credit - Confirmation of interest and penalty - Held that:- As such the Explanation-II read with Rule 14 which in turn refers to the provisions of Section 11AB, the non-payment of the credit amount would result in confirmation of interest against the assessee. When the law itself provide for confirmation of interest, I find no reasons to accept the appellants’ plea for setting aside the interest confirmation - appellants are liable to pay interest on the late reversal of Modvat Credit - Following decision of Ind-Swift Laboratories Ltd. [2011 (2) TMI 6 - Supreme Court] - confirmation of interest is upheld.
The appellants were admittedly clearing their final exempted products on payment of 10% of the value of the same in terms of provisions of Rule 6(3)(b). Proper returns were being filed by them. The mistake came into notice of the Revenue only as a result of audit. I find that the this is a genuine mistake without any colour of suppression or mis-statement on the part of the appellants. As such I find that the penalty of Rs. 1 lakh imposed upon the appellants is not justifiable, the same is accordingly set aside - Decided partly in favour of assessee.
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2012 (2) TMI 438 - CESTAT NEW DELHI
CENVAT Credit - Non maintenance of separate accounts - Violation of provisions of Rule 6(3) of Cenvat Credit Rules - Held that:- if the Commissioner finds that the credit reversed by the assessee is not correctly reversed, the only option available to the Commissioner is to calculate it correctly and then ask them to reverse the correct amount. It goes without saying that before adopting the above manner of calculation, he has to give reasons as to why he considers that the calculation given by the assessee is not proper and he has to disclose the method he is going to adopt to the assessee so that the assessee can make submissions as to why the calculation adopted by him may or may not be justified. After the retrospective amendment made by Section 73 of Finance Act, 2010, there is no scope for demanding the assessee to pay 10%/5% of the value of the exempted product. Prima facie, we are convinced that the assessee has complied with the provisions of the amended Rule 6 of Cenvat Credit Rules, 2004.
Retrospectively amended provisions are applicable for the impugned period also. If the calculations submitted by the appellant is not correct, the Commissioner has to calculate the correct amount to be reversed explaining the method he proposes to adopt and giving an opportunity for hearing the appellant. Therefore, we set aside the impugned order and remand the matter to the adjudicating authority to properly decide the quantum of input credit to be reversed by the appellants as per provisions of Rule 6 of Cenvat Credit Rules - Decided in favour of assessee.
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2012 (2) TMI 437 - CESTAT NEW DELHI
Rate of duty - Debonding of duty - Held that:- appellant, a 100% EOU, had, at the time of debonding, achieved positive NFE and were eligible for migration to EPCG Scheme in terms of the provisions of Condition No. 8 of the Notification No. 22/2003-C.E. issued under Section 5A of Central Excise Act, 1944, and Condition No. 8 of Notification No. 52/2003-Cus. issued under Section 25(1) of Customs Act, 1962. In terms of the provisions of these Notifications, at the time of debonding the duty on the capital goods is payable on the depreciated value and at the rate in force on the date of clearance on debonding - a 100% EOU at the time of debonding can be allowed to migrate to EPCG Scheme provided it has positive NFE. However, while the rate of Customs duty chargeable on the capital goods imported under EPCG scheme has been prescribed under Notification No. 64/2008-Cus. issued under Section 25(1) of Customs Act, 1962 and the same along with the education cess is 3.09%, on Central Excise side, there is no such parallel notification issued under Section 5A of Central Excise Act, 1944, prescribing a similar concessional rate of duty in respect of capital goods supply under EPCG scheme.
Prima facie in absence of such an Excise Exemption Notification, the EPCG rate prescribed under Customs Notification No. 64/2008-Cus. dated 9-5-2008 cannot be treated as concessional rate of Excise duty chargeable on indigenously manufactured goods at the time of their debonding by a 100% EOU migrating to EPCG Scheme, as this is an omission on the part of the Government, which cannot be remedied by the Courts or the Tribunal. In view of this, we are of view that this is not the case for total waiver - Conditional stay granted.
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2012 (2) TMI 436 - CESTAT NEW DELHI
Demand of duty - Confiscation of cash - Demand on the ground that the inputs which were found short were used in the manufacture of finished goods and cleared without payment of duty - Held that:- shortage arrived at by counting size wise of goods and by taking average weight of one of each category - Further, in the case of shortage of input, in the absence of any evidence on record to show that the same was used in the manufacture of finished goods and cleared without payment of duty, the demand cannot be made on these goods - In the absence of any evidence on record that the amount in question is sale proceeds of clandestinely removed goods, the confiscation is not sustainable - Decided in favour of assessee.
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2012 (2) TMI 435 - CESTAT NEW DELHI
Remission of duty - Non-observance of the procedure as recorded in the Manual - Held that:- procedure as recorded in the Manual is required to be followed but in the facts and circumstances of the present case involving the product which is perishable in nature and the said fact as to be kept in a particular temperature, I am of the view that the strict non-observance of the above Rule should not be adopted as a reason for denial of the benefit otherwise available to the appellant. Admittedly, there was fire in the appellants factory, intimation about the same was given to the Revenue. Superintendent visited the factory within 4 days, subsequent destruction of the goods was in the presence of surveyor, who also issued certificate of destruction and the same was also intimated vide their letter dated 9-5-2005. In these circumstances, it will not be justifiable to deny the benefit of remission to the appellant on the sole ground of strict observance of the procedure. As such, by extending the benefit to the appellant, I set aside the impugned order of the Commissioner denying the remission - Decided in favour of assessee.
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2012 (2) TMI 434 - CESTAT NEW DELHI
Denial of exemption under S. No. 32D in Notification No. 6/2002-C.E., dated 1-3-2002 - Process not done at assessee's premises - Held that:- exemption cannot be denied for the reason that blending was not done in a tank of the Appellants. The Appellants control the blending process and take responsibility for the standards of the blended product. Since the products were used for the intended process, we prima facie do not agree that exemption should be denied for the reason that process of blending took place in the tanks of trucks. Also there is no condition in the notification that Appellants should have been holding a license from BIS authorities. Prima facie we do not agree with the argument of Revenue that the Appellants were collecting amounts representing as excise duty from the consumers when the goods were sold at a price inclusive of all costs and levies. The provisions of Section 11D appears to be prima facie not applicable, to the situation. Accepting the interpretation canvassed by Revenue will result in total denial of exemption that is notified by the Revenue which is prima facie not justified. The notification does not prescribe that the blended product should be sold at a lower price - Appellants have made out a prima facie case for waiver of pre-deposit of dues arising from the impugned order for admission of the appeal - Stay granted.
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2012 (2) TMI 433 - CESTAT KOLKATA
Confiscation of goods - Goods cleared without payment of duty - Held that:- Commissioner (Appeals) has held the goods not liable for confiscation and there is no challenge by the Department against these findings. We agree with the ld. Advocate that once the goods itself are not liable for confiscation vehicles also would not be liable for confiscation and vehicles owners would also not be liable for any penalty - Decided in favour of assessee.
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2012 (2) TMI 432 - CESTAT NEW DELHI
Classification of goods - Classification under Heading 9033.00 or Chapter 8544.00 - Held that:- Heading 9033.00 covers parts and accessories of the machines, appliances, instruments or apparatus of Chapter 90. Inasmuch as the optical fibre cables fall under Chapter 90 as held by the Tribunal in the above referred decision, the parts would fall under Chapter 90.33. As such in terms of the law declared by the Tribunal in the above referred decision, we hold the correct classification of the joint-closure/box of optical fibre cables would fall under Heading 9033.00. We accordingly set aside the impugned order - Decided in favour of assessee.
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2012 (2) TMI 431 - CESTAT NEW DELHI
Duty demand - Shortage in stock - Clandestine removal of manufactured goods - Held that:- before coming to a firm conclusion about the shortage detected during the stock taking the nature of commodity and the method of stock taking done has to be taken into account. We find that the commodity involved in this case is accounted in RG-I register in MTs and the stock verification is done by measuring the length of the pipes and the number of the pipes by segregating the pipes into three broad categories of light, medium and heavy. Thereafter weight per meter for each of the three categories are assumed and total weight of all pipes is arrived at. The basis of the standard linear density adopted is not explained. There is nothing in Panchnama to show that correctness of linear density has been verified by weighing at least sample pipes from the three categories. It is very obvious that the weight per meter depend upon the thickness. Thickness of sheets used is not recorded in Panchnama. In the absence of these critical parameters the ascertained stock as per the Panchnama is not reliable.
Revenue has not been able to adduce any collateral of clandestine removal. Therefore we are of the view that the quantity ascertained in the stock taking is not accurate enough to come to the conclusion that there was manufacture of goods without accounting and clearance of such goods. We also noticed that the internal record dated 29-5-2005 shows goods cleared for despatch as on that date. It is difficult to conclude that the document indicated the physical stock of goods on that day - Decided in favour of assessee.
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2012 (2) TMI 430 - CESTAT KOLKATA
Denial of CENVAT Credit - Cenvat credit on outward freight - Held that:- The period involved in this case is from April, 2008 to September, 2008. Both sides agree that there is no challenge to the demand confirmed in this case. I find that provisions of the ingredients of suppression of facts, etc., envisaged under proviso to Section 11A and under Section 11AC have not been invoked in this case. I also find force in the contention of the appellants that they were under bona fide belief that the provisions relating to credit on outward freight was not clear and they have availed the credit only under bona fide belief and the matter relates to interpretation of law. Therefore penalty is not imposable under Section 11AC of Central Excise Act, 1944 and Rule 15 of Cenvat Credit Rules, 2004 - Decided in favour of assessee.
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2012 (2) TMI 429 - CESTAT KOLKATA
Availment of CENVAT Credit - Held that:- both the lower adjudicating authorities have given concurrent and cogent finding and in terms of Rule 9(1)(a)(ii) the invoices issued by the importer is a valid document. The provisions of Rule 9(1)(ii) and Rule 9(1)(a)(iii) are independent. Therefore I do not find any reason to interfere with the concurrent finding of both the lower authorities - Decided against Revenue.
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