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Showing 381 to 400 of 927 Records
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2011 (8) TMI 992 - KARNATAKA HIGH COURT
Whether, on the facts and in the circumstances of the case, can it be held that the order dated July 12, 2007 passed by the Karnataka Appellate Tribunal in S.T.A. No. 425 of 2006 allowing the appeal is correct and in accordance with law?
Whether on the facts and in the circumstances of the case, can it be held that the Appellate Tribunal was right in law in ignoring that under the Karnataka Sales Tax Act in the Second Schedule in serial No. 1 of Part O, oil cake and de-oiled cake are listed under two separate sub-headings as two different commodities?
Held that:- The Tribunal committed an error in allowing the benefit and extending the benefit of the notification dated May 31, 2002 to the assessee in so far as de-oiled cake is concerned. Hence, we are of the view that the order passed by the Tribunal requires to be set aside.The questions of law are answered in favour of the Revenue and against the assessee.
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2011 (8) TMI 991 - RAJASTHAN HIGH COURT
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... ... ..... rovisions of section 78(2)(b) of the Act of 1994. A Division Bench of this court in State of Rajasthan v. Tajiander Pal reported in 2003 6 Tax Update, part 3, page 84, held that these provisions are not mandatory and are directory in nature. The Division Bench of this court further held that if all the requisite documents are available at the time of checking of vehicle/goods, then intention to evade tax cannot be inferred. Both the appellate authorities have recorded a concurrent finding that there was no mens rea on the part of the assessee, as all the required documents were available and tax had already been paid by the assessee, therefore the intention to evade tax cannot be inferred. In these circumstances, I do not find any illegality in the concurrent finding recorded by both the appellate authorities, so as to interfere with the same in this revision petition. No question of law is involved in this revision petition and the same is, accordingly, dismissed in limine.
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2011 (8) TMI 990 - CESTAT AHMEDABAD
100% EOU - exit from EOU scheme to EPCG scheme - Duty demand - demand after calculation of depreciation - Method of calculation - Whether the method for calculation of depreciation prescribed under amending Notification No. 14/2004-C.E. and Notification No. 40/2004-Cus., both dated 26-2-2004 is applicable in this case - Held that:- Sections 21 and 24 of the General Clauses Act are not relevant, as far as this case is concerned. In fact, when a later statute incorporates by reference the provisions of an earlier statute, a repeal of amendment of the earlier statutes does not affect the later statute or provisions incorporated therein. This Rule is subject to the qualification enacted in Section 8, General Clauses Act, which in itself is a Rule of general application. (National Sewing Thread Co. v. James Chadwick & Bros. - [1953 (5) TMI 13 - SUPREME COURT]). Therefore, the method of calculation adopted by the Revenue is held to be incorrect - It cannot be denied that the demand was made within the stipulated period of 1 year without invoking the extended period - Decided against assessee.
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2011 (8) TMI 989 - CESTAT BANGALORE
Denial of refund claim - Unjust enrichment - Held that:- there was no such exchange of debit notes and credit notes. Of course, credit notes or cheques were issued by the assessee to their dealers. But the dealers did not reciprocate with debit notes. In this scenario, it cannot be held that the incidence of duty was actually passed on to the dealers. The burden was on the assessee under Section 12B of the Central Excise Act to establish that the burden of duty claimed as refund had been passed on to the buyers (dealers). There is nothing on record to indicate that this burden was discharged beyond the pale of doubt. Clearly, therefore, the bar of unjust enrichment would operate against the assessee - mere issuance of credit notes by a refund claimant (assessee) subsequent to clearance of goods would not obliterate the bar of unjust enrichment - Following decision of S. Kumar’s Ltd. v. CCE, Indore [2003 (2) TMI 85 - CEGAT, NEW DELHI] - Decided in favour of Revenue.
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2011 (8) TMI 988 - CESTAT BANGALORE
Reversal of CENVAT Credit - Intention to evade duty - Irregular utilization of CENVAT Credit - Held that:- appellant becomes liable to pay interest on the amount of CENVAT credit reversed by them after taking it wrongly in their CENVAT account and such interest should be paid for the period from the date of taking of the credit to the date of its reversal - liability to pay interest for the delayed payment would not arise unless the credit of duty entered in the account books was duly taken to discharge the duty payable.
No credit was taken at all by the appellant and hence the question of payment of interest does not arise. In this context, it is also pertinent to note that the credit reversed by Unit-I is undisputedly available to Unit-II. Both the units are owned by the appellant. Hence it cannot be reasonably presumed that Unit-I had any intention to evade payment of duty through irregular availment and utilization of CENVAT credit. The finding of the original authority that what was done by Unit-I during the period of dispute could, at best, be an unintended error without mala fides appears to be reasonable - Decided in favour of assessee.
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2011 (8) TMI 987 - CESTAT NEW DELHI
Abatement of duty - whether for claiming abatement from monthly duty liability on account of closure of unit, provided under Rule 10 of Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008, the minimum period of closure should be 15 days in a calendar month or whether the assessee can claim the benefit for a continuous period of 15 days not falling within the same calendar month - Held that:- other rules provide for calculation of duty liability and manner of payment of duty to be deposited. The word “month” is not used in Rule 10. Instead the word “period” is used. There is no intendment of the idea canvassed by Revenue expressed in clear words in the Rule. Prima facie, we are of the view that the word “month” is omitted with clear intention that abatement should be allowed for any continuous 15 days. Therefore, prima facie, the appellant has made out a case for waiver of demand confirmed by the impugned order - Stay granted.
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2011 (8) TMI 986 - CESTAT AHMEDABAD
Impleading as party - Held that:- As far as provisions of Section 35B is concerned, the Revenue is the only party in this case and the aggrieved party or person can only appeal against the order of Commissioner (Appeals). In the appeal memorandum, in form EA3, Revenue has impleaded M/s. Rajan Prints as respondent and it is M/s. Rajan Prints to whom the notices have been sent by the Tribunal - Decided against assessee.
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2011 (8) TMI 985 - CESTAT AHMEDABAD
Restoration of application - Pre deposit order not complied - Bar of limitation - whether the appeal can be restored when pre-deposit of amount required to be deposited as per Stay Order has not been deposited by filing application for restoration and further whether such restoration application can be filed without any time-limit - Held that:- appellant was required to deposit amount and report compliance in 5-10-2007 and appeal was dismissed for non-compliance on 5-11-2007. Restoration application was filed on 25-5-2008. Therefore, it can be seen that restoration application in that case had been filed after about 8 months. In this case, restoration application is being filed after 5 years. When there is a decision of the Tribunal refusing to allow restoration application filed after 8 months in the case of Kiritkumar J. Shah v. CCE, Nagpur [2009 (5) TMI 86 - CESTAT, MUMBAI], such a decision is bound to be followed unless distinguishable - Decided against assessee.
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2011 (8) TMI 984 - CESTAT BANGALORE
Waiver of pre deposit - Penalty - Held that:- I have not found prima facie case for the appellant/applicant against either of the penalties. During the period from November 2008 to May 2009, they had not paid any amount of duty as per the Rules, but, in their returns, they stated that duty was paid in cash. Prima facie, they mis-represented a crucial fact in the statutory returns. This mis-representation cannot be held to have been made without intent to evade payment of duty. This mis-representation is no different from “mis-statement of fact with intent to evade payment of duty”, which is one of the grounds under Section 11AC for mandatory penalty. Irregular utilization of CENVAT credit in violation of Rule 8(3A) ibid is a fact not in dispute. The amount of duty paid by way of such irregular availment of CENVAT credit has been demanded with interest under Rule 14 of the CENVAT Credit Rules, 2004. On a perusal of the text of the Rule shows that interest is leviable on an amount of duty paid by irregular availment/utilization of CENVAT credit.
Wrong utilization of CENVAT credit virtually created a situation of short-payment of duty on excisable goods. It would thus appear that the CENVAT credit in question was utilized irregularly in violation of Rule 8(3A) of the Central Excise Rules, 2002 with intent to evade payment of duty on excisable goods - Conditional stay granted.
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2011 (8) TMI 983 - CESTAT BANGALORE
Waiver of pre-deposit - Denial of CENVAT Credit - Credit on CVD - Held that:- Items were used along with the equipment mentioned at serial no. 2 as a trap for tobacco beetles. These beetles are said to be a menace to tobacco (raw material for cigarettes) as well as for cigarettes (final product). It is not in dispute that the cigarette manufacturer has to use the “beetle trap” to drive the beetles away before the raw material is put into the stream of manufacturing activity. This trap is also used in the storage area for the final product. Prima facie, it was an accessory to the cigarette-manufacturing plant. The appellant has claimed CENVAT credit in terms of Rule 2(a)(iii) of the CENVAT Credit Rules, 2004, whereunder accessories of manufacturing plant are seen included as one of the ‘CENVATable’ capital goods eligible for CENVAT credit, defined under Rule 2 - Stay granted.
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2011 (8) TMI 982 - CESTAT NEW DELHI
Waiver of pre deposit - Denial of credit proportionate to the amount retained as security - input services - Held that:- appellant explains that a small percentage of the contract amounts awarded to different service providers for executing the expansion project of their plant was retained for settlement at the final stage of the contract after verification that all the terms and conditions of the contract has been fulfilled. Their case is that the tax amounts for which credit has been taken, have been paid by the service providers to the exchequer. They rely on Board Circular No. 8771/5/2008-CX., dated 17-1-2008 to justify their claims that they are entitled to take credit of duty paid by the service providers - Stay granted.
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2011 (8) TMI 981 - CESTAT MUMBAI
Rebate of duty - Applicability of provisions of Rule 6(3) of the Cenvat Credit Rules 2004 - Notification No 29/2004-CE - Notification No 59/2008 - Different rate of prescribed under both notifications - Simultaneous availment of both notification - Held that:- As per the show cause notice, in respect of the demand amounting to Rs.2,50,81,937/- the cotton fabrics have been exported under bond and, therefore, in terms of Rule 6(6)(v) of Cenvat Credit Rules the demand is unsustainable. As regards the balance amount of Rs.76,81,014/- wherein the cotton fabrics have been exported under claim for rebate of duty it is seen that, at the material point of time, there were two rates of duty applicable to cotton fabrics - one a 'nil' rate prescribed under Notification No 29/2004-CE as amended and the other '4% adv.' prescribed under Notification No 59/2008 dated 07/12/2008 Both these rates were unconditional rates. Therefore, it is not the case that the goods have been completely exempted. When two different Notifications prescribed two rates of duty, the assessee is at liberty to opt for whichever is beneficial to him. It is further on record that the assessee had consulted the department and as per the department's advice, the assessee had opted for payment of duty @ 4% under claim for rebate in respect of exports in some cases. Therefore, it is not a situation where the duty credit on inputs were availed in respect of exempted goods and dutiable goods simultaneously. Hence the provisions of Rule 6(3) of the Cenvat Credit Rules 2004 do not appear to be applicable in the facts of the case - Stay granted.
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2011 (8) TMI 980 - CESTAT AHMEDABAD
Refund of unutilised cenvat credit - Held that:- Following decision of assessee's own previous case in [2010 (2) TMI 538 - CESTAT, AHMEDABAD ] - proviso itself makes it clear that the restriction is applicable only in respect of Cenvat credit claimed as refund and is not applicable to terminal excise duty paid as drawback by under Foreign Trade Policy - EOUs who receive duty paid goods can avail input credit for the duty paid on such goods and utilize the credit for payment of duty on DTA clearances and if for some reasons, the credit cannot be utilized, the same can be claimed as refund under Rule 5 of CENVAT Credit Rules. In addition, as per para 8.3 of Foreign Trade Policy, the supplies to EOUs are treated as Deemed Export. Thus, the manufacturers have the additional facility to claim the benefit of refund of Terminal Excise Duty and deemed Export drawback on such supplies to EOUs. - Decided against Revenue.
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2011 (8) TMI 979 - ALLAHABAD HIGH COURT
Grant registration to assessee under Sections 12 AA(i)(b) (ii) - Held that:- It appears that the assessee is a statutory authority which was established under the U.P. Industrial Area Development Act, 1976. Other authorities which were established under the same Act were granted registration under section 12A of the Act but the same was denied to the assessee. On the basis of parity , we are of the view that the assessee is also entitled for the registration. It makes no difference that the assessee has not yet started functioning being charitable institution. Registration is required before starting business as per the ratio laid down in the case of M/s Bihar State Forest Development Corporation vs. CIT [1996 (9) TMI 96 - PATNA High Court].
In view of above, we see no reason to interfere with the impugned order passed by the Tribunal who has rightly directed CIT to grant registration to the assessee. The same is hereby sustained. No substantial question of law emerges.
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2011 (8) TMI 978 - CESTAT NEW DELHI
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... ... ..... below denied the claim. Adjudicating authority has ruled out plea of appellant at page 4 of his order holding that the goods in question had neither inevitable necessity nor found integral part of the capital goods. The observation of the appellate authority is that plastic flooring is not eligible for Cenvat credit not being used for manufacture of capital goods. Appellate authority made a finding that plastic flooring starts after final product of the appellant, i.e., when sugar comes into existence fully packed and ready for dispatch. He reduced the penalty while Cenvat credit claim was disallowed. The pleadings of the appellant before authorities below appearing from page 2 of the appellate order, does not appeal to common sense how that the goods in question shall be called as capital goods when that was neither any aid of manufacture nor of was any inevitable necessity to carryout manufacture. Appeal is, therefore, dismissed. (Dictated and pronounced in the Open Court)
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2011 (8) TMI 977 - SUPREME COURT
Whether impugned action of defendant is illegal and if it is proved, whether plaintiff is entitled for decree of declaration and mandatory injunction?
Whether plaintiff or defendant – must cooperate with the court in ensuring the effective work on the date of hearing for which the matter has been fixed?
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2011 (8) TMI 976 - ITAT CHANDIGARH
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... ... ..... f Income-tax (Appeals), counsel for the assessee had filed written submissions which are reproduced under paragraph 4 at pages 2 and 3 of the appellate order in which it was claimed that in the later years, assessment years 2008-09 and 2009-10, there was no consumption of raw material vis-a-vis sales of those years. In the facts and circumstances of the case, there is no merit in the aforesaid disallowance made by the Assessing Officer on account of consumption of raw material and other direct expenses being disproportionate to the sales made during the year as the said expenses are relatable to the total production made by the assessee during the year, out of which certain portion of the goods were sold and the balance were available as stocks at the close of the year. Accordingly, we delete the aforesaid additions. Grounds Nos. 1 and 2 are allowed. In the result, the appeal of the assessee is allowed. The order pronounced in the open court on this 26th day of August, 2011.
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2011 (8) TMI 975 - ITAT INDORE
Undisclosed investments - Motive of assessee - Held that:- Income earned on shares were regularly assessed by the Department as long-term/short-term capital gains. Dividend earned thereon was also assessed as income from other sources. There was no change in the intention of the assessee in acquiring these shares during the year under consideration nor in the method of accounting for these shares in the books of account. In the course of scrutiny assessment, after applying its mind the Assessing Officer accepted the long-term capital gains and short-term capital gains offered by the assessee, because the transactions were not frequent and the shares were held as investment in the same manner as was held in the earlier years. The Assessing Officer also found that the interest paid on borrowing was also not claimed as business expenditure nor claimed or allowed as set-off against the interest income - During the year, the total number of transactions were 37. Out of the total short-term capital gains of Rs. 66,87,198, about 90 per cent. of shares were held for six months and above. The short-term capital gains with respect to the shares held for one month to three months worked out to be Rs. 2,37,744. However, only in respect of a transaction entered into intra-trade, short-term capital gain of Rs. 23,475 was earned. By applying any test as discussed by the learned Commissioner of Income-tax, it cannot be said that such transactions were in the nature of business and trade - Furthermore, acquisition of shares with the help of borrowed fund is no more decisive of the true nature of transaction and dominant motive of the assessee - Following decision of H. Holck Larsen v. CIT [1971 (8) TMI 56 - BOMBAY High Court] - Decided in favour of assessee.
Jurisdiction of CIT u/s 263 - Held that:- The power of suo motu revision under sub-section (1) of section 263 is in the nature of supervisory jurisdiction and the same can be exercised only if both the circumstances specified therein exist, viz., (i) the order is erroneous ; (ii) by virtue of the order being erroneous prejudice has been caused to the interests of the Revenue. It has, therefore, to be considered firstly as to when an order can be said to be erroneous. An order cannot be termed as erroneous unless it is not in accordance with law. If an Income tax Officer acting in accordance with law makes certain assessment, the same cannot be branded as erroneous by the Commissioner simply because according to him the order should have been written more elaborately. This section does not visualise a case of substitution of judgment of the Commissioner for that of the Income-tax Officer, who passed the order, unless the decision is held to be erroneous - Decided in favour of assessee.
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2011 (8) TMI 974 - ITAT DELHI
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... ... ..... der of the Incometax Officer was prejudicial to the interests of the Revenue. It was held that the Commissioner of Income-tax was not debarred from exercising his revisional jurisdiction in the absence of his final conclusion in the matter. Apropos the above case law, it is seen that they are not helpful to the cause of the Department, since in all these cases, the reason for the Commissioner of Income-tax to invoke section 263 of the Act was lack of inquiry on the part of the Assessing Officer, which is not the case herein, as discussed hereinabove. In view of the above, we find the grievance of the assessee to be justified. The same is accepted as such. Accordingly, both orders of the learned Commissioner of Income-tax are cancelled. I. T. A. No. 2966/Del/04 This appeal is consequential to our above findings as pertaining to I.T.A. No. 2017/Del/03. In the result, all the three appeals filed by the assessee are allowed. The order pronounced in open court on August 26, 2011.
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2011 (8) TMI 973 - HIGH COURT OF BOMBAY
Validity of an order passed by the sub-divisional magistrate - petitioner, an asset reconstruction company, issued a notice under section 13(2) to the third and fourth respondents to take possession of the secured asset - third respondent had taken a loan from the ICICI bank for purchasing a house - third and fourth respondents declined to hand over possession - application was filed before the second respondent, the sub-divisional magistrate, for an order under section 14 - second respondent rejected the application holding that considering the legal and factual position, the petitioner had failed to the follow proper procedure laid down under the Act – Held that:- second respondent was duty bound to act in accordance with the law laid down by the Court, which is binding upon him. In failing to do so and in virtually entering upon the merits of the entitlement of the petitioner, the second respondent has exceeded his jurisdiction. There is absolutely no dispute about the position that a notice under section 13(2) was served on the third and fourth respondents and that the secured asset is within the jurisdiction of the second respondent. Once these two facts were established, the second respondent could not have refused to pass an order under section 14. petition is to be allowed by setting aside the impugned order of the Sub-Divisional Magistrate. The second respondent is to be directed to pass an order under section 14 and thereupon take steps forthwith to effectuate compliance with the order.
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