|
Advanced Search Options
Case Laws
Showing 421 to 440 of 1011 Records
-
2011 (7) TMI 982 - KARNATAKA HIGH COURT
Demand - GTA services - The respondent having its registered office at Anantapur Road, Bellary, have availed the service of Goods Transport Operator during the period from 16-11-1997 to 2-6-1998 without getting themselves registered with the Central Excise Department - As per amended Rules, a new Rule 7A has been inserted vide Notification No. 4/2003, dated 14-5-2003 which provides that the service receiver in case of service received by GTOs for the aforesaid period shall be required to file return in form ST-3B along with copy of TR 6 challan within a period of six months from the date of 13-5-2003 - The material on record would clearly show that there is no doubt about the date on which the amendment was made to the provisions of the Act retrospectively with effect from 11-5-2000 - Supreme Court in CCE, Meerut v. L.H. Sugar Factories Ltd., (2005 -TMI - 47389 - SUPREME COURT OF INDIA) - Held that: when the assessee is covered u/s 71-A of the Act any show cause notice can be issued u/s 73 of the Act - Appeal is dismissed
-
2011 (7) TMI 981 - CESTAT, BANGALORE
Waiver of pre-deposit - demand is confirmed on the ground that applicant received taxable services from the foreign airlines - Held that: the applicant is the importer who filed the Bill of Entry and the component of the Airfreight is part of the assessable value and therefore, the applicant has a strong prima facie case for waiver of the tax, interest and penalties - Petition is allowed
-
2011 (7) TMI 980 - PUNJAB & HARYANA HIGH COURT
CENVAT credit - Overseas Commission Agents - Input services - Post removal services - Rule 2(l) of Cenvat Credit Rules, 2004 - Tribunal while affirming the order of Commissioner (Appeals) and adjudicating the issue in favour of the respondent had come to the conclusion that the activities in respect of which cenvat had been filed, were pre-removal activities and the same could not be held to be post-removal - Held that: learned counsel for the revenue was unable to justify that the claim of cenvat credit by the assessee was erroneous in any manner - Appeal is dismissed
-
2011 (7) TMI 979 - DELHI HIGH COURT
DEPB scheme - Revision in DEPB rates - Doctrine of promissory estoppel - held that:- the main issue that the principle or doctrine of promissory estoppel cannot be invoked because the appellants could change the DEPB rates at anytime and thus there was no promise. Therefore the respondent cannot claim that the DEPB rate on the date of the contract should be applied. The aforesaid contention is not new and has been examined and dealt with by the Supreme Court in several cases. - Kasinka Trading and Another v. Union of India and Another, (1994 (10) TMI 64 - SUPREME COURT OF INDIA) - Shrijee Sales Corporation and Another v. Union of India, (1996 (12) TMI 61 - SUPREME COURT OF INDIA)
The appellant (government) has not pleaded that why the difference in the DEPB rate was made and what prompted the huge and substantial reduction from 23% to bare 1%, in case the cap value of ₹ 200/- is taken into consideration. The appellants have not endeavoured to justify or explain why this was necessary and required. - The respondent should be given benefit of paragraph 15.15 of the handbook i.e. entitled to DEPB rate as prescribed on the “date of export”. This will mean that the respondent is entitled to DEPB rate as in the policy with effect from 15th April, 1998 @ 20% applicable to the woven jackets without any value cap. - Decided in favor of assessee (exporter).
-
2011 (7) TMI 978 - CESTAT, MUMBAI
Inclusion in Assessable value - Turn over Tax - Rule 7 of the Central Excise (Valuation) Rules, 2000 - The case of the department is that in respect of vehicles sold from the depots situated in the State of Tamilnadu, the assessee has collected Turn Over Tax (TOT) from the buyers even though in the invoices issued to the buyers, the column against the turnover tax is left blank - Decision of Tribunal in Bangalore Paints Ltd., Vs. (2001 (3) TMI 165 - CEGAT, BANGALORE) - Held that:- turn over tax is a permissible deduction and the definition of transaction value under the new section effective from 01/07/2000 also clearly states that the tax paid or payable on the goods shall not form part of the transaction value for the purpose discharge of excise duty liability - Decided in favor of assessee.
-
2011 (7) TMI 977 - CESTAT, DELHI
Demand - Rule 96ZO(3) of the erstwhile Central Excise Rules, 1944 - whether the lower authority was justified in reducing the penalty imposed by the adjudicating authority. The records evidently disclose that the adjudicating authority had imposed penalty equivalent to the amount of duty confirmed against the respondents and their failure to pay the same on time - Apex Court in Dharmendra Textile Processors case (2008 (9) TMI 52 - SUPREME COURT), it was necessary for the authorities below to impose penalty equivalent to the duty demand confirmed against the assessee - Decided against the assessee
-
2011 (7) TMI 976 - CESTAT, MUMBAI
Place of removal - Cost of freight - assessee had indicated the freight amounts separately but excise duty was paid on the value exclusive of freight. - held that:- the place of removal remains the factory-gate and, therefore, the cost of transportation from the place of removal to the place of delivery cannot be included in the assessable value of the goods as per the provisions of Section 4 of the Central Excise Act, 1944. - Decided in favor of assessee.
-
2011 (7) TMI 975 - CESTAT, MUMBAI
Reversal of cenvat credit - when the appellants themselves have informed the department that after 31/12/2004 they have ceased their character of 'manufacturer' and in that case they have retained the inputs on which they have availed CENVAT credit and an activity of softening was undertaken by them and cleared on payment of duty on input plus value addition. In such a situation, whether the appellant are required to reverse the CENVAT credit availed by them or not?
Held that:- the appellant have taken inadmissible credit, therefore, they were issued show-cause notices to reverse the same. From the facts of this case it is very much clear that the appellant have taken inadmissible credit but they have paid the same at the time of clearance with value addition. In that scenario, as held by the Hon'ble apex court in the case of Narmada Chematur Pharmaceuticals Ltd. (2004 (12) TMI 93 - SUPREME COURT OF INDIA) where the assessee has wrongly availed modvat credit and was liable to reverse such amount and it was stated that the duty paid and modvat credit availed were identical and therefore consequences of payment of excise duty after availing the credit was revenue neutral. - payment of duty on value addition on the inputs received by the appellant amounts to reversal of the CENVAT credit as demanded by the department in the show-cause notices. - however penalty of ₹ 10,000/- imposed.
-
2011 (7) TMI 974 - CESTAT, NEW DELHI
Cenvat Credit on the basis of Bill of Entry in the name of International Operation Division of the assessee - Penalty - Circular No. 179/13/96-CX., dated 29-2-1996 - Plain reading of the order of the Commissioner clearly indicates that the bill of entry was in the name of the appellant only - It is pertinent to note that the appellant’s factory in Bhopal comes directly under the jurisdiction of Commissioner, Bhopal and, therefore, the finding that in the absence of endorsement in the bill of entry by the International Operations Division, it was not possible to ascertain as to whether the goods covered by the said bill of entry were received and used in the assessee factory cannot be appreciated. - Cenvat Credit allowed.
.
As regards the material procured from Hindustan Copper Limited - The fact that the job worker has processed the material and sent the intermediate goods manufactured using the inputs following Notification No. 214/86 has not been refuted. In the given facts and circumstances of the case, the transport of material directly to the job worker’s premises to avoid payment of extra period and same time, cannot lead to denial of credit - Cenvat Credit allowed.
-
2011 (7) TMI 973 - CESTAT, NEW DELHI
Assessable value - Rule 6(b)(ii) of the Central Excise (Valuation) Rules, 1975 - The department’s allegation is that in determining the assessable value on the basis of the cost of production, the appellant did not include the element of interest on loans and loss of materials - The department’s allegation is that in determining the assessable value on the basis of the cost of production, the appellant did not include the element of interest on loans and loss of materials - department alleged that there was short payment of duty of Rs. 8,19,569/- during 1995-1996 to 1999-2000 (October, 1999) period - Board’s Circular No. 6/29/2002-CX.I, dated 13-2-2003, the cost of the goods cleared for captive consumption must be determined in accordance with the general principles of costing and accordingly for this purpose, CAS-4 Standard is to be adopted - As per CAS-4, for determining the cost of goods, the interest cost is not to be included - Supreme Court in the case of C.C.E., Pune v. Cadbury India Ltd. reported in (2006 (8) TMI 2 - SUPREME COURT OF INDIA) has held that for determining the cost of production for the purpose of determining the assessable value under Rule 6(b)(ii) of Central Excise (Valuation) Rules, 1975, the cost must be determined, strictly according to the principles of costing and for this purpose CAS-4 must be adopted As regards the loss of raw materials, the appellant’s plea is that materials loss referred in the balance sheet is ore concentrates loss and since duty is being demanded in respect of ore concentrates, its cost cannot be included - Held that: if the department’s allegation is that the loss of raw materials referred to in the balance sheet refers to loss of ores or other raw materials not of ore concentrates, the burden of proving this would be on the department, but no evidence in this regard has been produced - Decided in favor of the assessee
-
2011 (7) TMI 972 - CESTAT, NEW DELHI
Waiver of pre-deposit - SSI Exemption - Misdeclaration - Classification - held that:- Supreme Court in the case of Benara Valves Ltd. v. CCE (2006 (11) TMI 6 - SUPREME COURT OF INDIA) and Indu Nissan Oxo Chemicals Industries Ltd. v. Union of India (2007 (12) TMI 220 - SUPREME COURT OF INDIA), for determining the question of waiver from the requirement of pre-deposit of duty demand, interest and penalty, in accordance with the provisions of the proviso to Section 35F, two factors have to be kept in mind - the aspect of undue hardship to the appellant and imposing conditions for safeguarding the interest of revenue.
Classification - held that:- Once the classification of a particular product been determined under Chapter 57, the question of its exact classification under Heading 57.01 or 57.02 or 57.03 has to be determined by applying sub-heading Notes 2(A) and 2(B) to Section XI, readwith Chapter Note 2 of this Section.
Manufacture of the carpets - Classification - held that:- There is no dispute that taking the base fabric and exposed surface as a whole, it is jute fibre which pre-dominates by weight and it is on this basis that the Appellant, relying upon sub-heading Note 2(A) readwith Note 2 of Section XI plead that the carpets, in question, have to be treated as non-woven carpets of Jute falling under sub-heading 5703.20.
Prima facie view - held that:- the carpets, in question, which are non-woven carpets with base/ground fabric of jute and exposed surface consisting of polyester/polypropylene fibre, are correctly classifiable as “other carpets” under sub-heading 5703.90.
Appellant had at no stage disclosed the detailed manufacturing process of the carpets - appellant have not been able to establish prima facie case in their favour and hence this is not the case for waiver from the requirement of pre-deposit. - Stay granted partly.
-
2011 (7) TMI 971 - KARNATAKA HIGH COURT
Whether the finding of the Tribunal that where one unit generates power and the neighbouring unit purchases the same, the inputs used for generation of power would be entitled for modvat credit in respect of the second unit which purchases power provided there is evidence of an amount equal to the amount of duty on the inputs used in generation of power and amount equal to duty should be considered as duty for availing cenvat credit, is perverse and arbitrary - held that:- though the generation of electricity is for captive use, if the electricity manufacture is found to be excess, the same is permitted to sell under the notification dated 20-2-2003 - It is clear from the above said clause that EOU unit which has established captive power plant can sell electricity found to be excessive subject to the condition mentioned there on and to sell surplus power in Domestic Tariff Area on payment of amount equal to the duty leviable on consumables and raw materials but for the exemption thereon, used for generation of each unit of power so sold in the domestic Tariff Area on the basis of approval by the Board of Approval - the order passed by the Tribunal is justified and the finding that the respondent is entitled to cenvat credit and the same could not have been recalled, does not suffer form any perversity, arbitrariness - Appeal is dismissed
-
2011 (7) TMI 970 - CESTAT, DELHI
Penalty - whether penalty could be levied on the person who did not actually deliver the goods and merely issued a fake invoice which enabled wrong availing of cenvat credit and the extent of penalty which could be levied. - appellant contended that he got enriched only to the extent of 1 to 3% of the credit passed on and that, therefore, they cannot be held to be equal partners in the commission of offence - held that:- merely because the monetary benefit differs from offender to offender in relation to the offence relating to the same act by various persons that cannot be a criteria to hold that the gravity of offence would differ from person to person in such cases. - penalty confirmed.
-
2011 (7) TMI 969 - CESTAT, MUMBAI
Condonation for delay - held that:- error committed by the Consultant should not be a reason for not condoning the delay and dismissing the appeal.
Application for stay - Evasion of duty - misdeclaration - authorized signatory - held that:- adjudicating authority has clearly recorded that the Government Examiner of Questioned Documents, Hyderabad has reported, that signatures made on the application for Central Excise Registration Certificate, and the declaration, do not tally/match with the signatures of Shri S. Hotwani/Shri H. Bulchandani. This would definitely indicate that the applications for registration and declarations of stocks were not made by the appellant/applicants hereinabove either in their capacity as director of the companies or in their personal capacity.
It is also seen from the findings recorded by the adjudicating authority that there is no corrobrative evidence on records, to come to a conclusion that the appellant company and two individuals had played any role in the entire exercise of duty evasion by M/s. KGPF. - Pre deposit waived - stay granted.
-
2011 (7) TMI 968 - CESTAT, NEW DELHI
By product versus waste - Whether the fatty acids/soap stock, waxes and gums obtained in course of refining of the vegetable oils are eligible for duty exemption under the Notification No. 89/95-C.E - It is a statutory obligation of the manufacturers of refined vegetable oil and vanaspati to remove free fatty acids, gums and waxes, as these substances are toxic substances - Held that:- The waxes and gums obtained in course of refining is covered by heading 1522. As regards soap stock, the same would also be covered by Heading 1522, as, as per HSN Explanatory Notes of heading 1522, this heading among other things, covers soap stocks which are the by-product of oil refining, produced by neutralisation of free fatty acids with a base (sodium hydroxide) and consist of mixture of crude soap, natural oils or fats. As regards, fatty acids obtained in course of refining, the same by virtue of Chapter Note 1(e) to Chapter 15 are excluded from the purview of Chapter 15 and the same are specifically covered by Heading 3823. Therefore, each of the three by-products, soap stock/fatty acids, waxes and gums are the manufactured products covered by Central Excise Tariff and since it is not under dispute that the same are marketable, the same have to be treated as excisable product chargeable to Central Excise Duty.
A distinction has to be made between the term ‘by-product’ and the term ‘waste.’ - The by-product would be waste only if it is of no value or negligible value something which the manufacture would want to get rid of - Held that: the products, in question, have not been shown to be of no value or negligible value which have only to be discarded, the same would not be eligible for exemption under Notification No. 89/95-C.E - Decided against the assessee
-
2011 (7) TMI 967 - CESTAT, KOLKATA
Under valuation of the goods cleared during the relevant period by the assessee - The appellants contested the show-cause notice on merits claiming specifically that the amount which is received back from the consignment agents may be more in a few consignment, but in some consignments, it could be less - It can be seen from the above reproduced Section that when there is a normal price of the goods which are already sold by the appellants to a buyer in the course of wholesale trade, it would become a normal price - In the absence of specific provisions to consider the consignment agent’s place as place of removal, during this period the price charged at consignment agents place cannot be considered as a price from the place of removal for adding into assessable value - Held that: the appellant has been taking consistent stand before the lower authorities that there is no evidence that the price shown for clearance from factory gate was vitiated As regards the demand for the period from 28-9-1996 to 28th February, 1997, it is undisputed that the provisions of amended Section 4(4)(b) were applicable and the premises of the consignment agents was also considered as place of removal - Held that: the appellants should have discharged duty liability on the clearances to consignment agent based upon the price charged by and at consignment agents’ premises at or about the same time. - Appeal is disposed of
-
2011 (7) TMI 966 - ITAT RANCHI
Block assessment - Search and seizure - served several notices to the assessee(s) u/s 158BD - Held that:- As it is seen that the returns filed by the assessee disclosed the amount of additions, which were made by the AO in the present assessment order passed under section 158BD - since the transactions made in the assessment year under appeal are found to have been disclosed in the return of income of the assessee already filed in the regular course, the addition made in this assessment order is not sustainable and accordingly, the CIT (A) has rightly deleted the addition made by the AO in the assessment order - Decided in favor of the assessee
Addition on protective basis - Held that:- CIT(Appeals) erred in deleting the addition made on protective basis by holding that the Assessing Officer made the substantive addition in the case of Shri Sunil Kumar Shah husband of the assessee in whose case the addition was deleted and as such the Assessing Officer should not have made the addition again on protective basis in the case of the assessee. By holding such opinion, the CIT(Appeals) overlooked the basic issue as to whom should the sources of deposits in the bank account be traced to. Since both protective and substantive, additions have been deleted the interests of the Revenue has been jeopardised.
The Commissioner of Income-tax (Appeals) has failed to look into the sources of the funds made towards investment of auction money by the assessee thus giving a clean chit to the assessee. Her further observation that the Assessing Officer has made post-search enquiry from the Excise Department. In contraction of section is also incorrect since the Assessing Officer based his enquiry on seized documents. Since the seized documents did not name any other person it was for the assessee to explain the sources of deposit of auction money. The learned Commissioner of Income-tax (Appeals) has failed to appreciate this fact.
-
2011 (7) TMI 965 - ITAT CHENNAI
Deduction u/s 80IA in respect of windmill undertaking - determination of price - assessee engaged in textile manufacturing, also engaged in generation of electricity from its windmills - captive consumption - assessing authority adopted the price of power at Rs. 2.70 per unit (rate at which Tamil Nadu Electricity Board takes over electricity from assessee) - assessee contended it to be market rate of Rs 3.50 per unit( rate at which TNEB sells electricity to consumers - Held that:- Market price comes into play only when the assessee is buying power from the Tamil Nadu Electricity Board just like any other consumer. The Tamil Nadu Electricity Board is the supplier and the assessee is the consumer and there is no question of commodity banking or barter exchange. The Tamil Nadu Electricity Board sells power to the assessee in the usual course of its business and the assessee buys the power like any other consumer in the market. It is in that context price collected by the Tamil Nadu Electricity Board i.e. Rs. 3.50 per unit is obvious the market price of the power generated by the assessee. The expression used in section 80-IA(8) is "market value" means the value determined by market forces. In the captive consumption of power generated by the assessee-company no market force is operating. Market forces come into the picture only when the assessee buys power from the Tamil Nadu Electricity Board like any other consumer.
Therefore assessing authority is directed to recompute, the profit and gains of the eligible unit for the purpose of section 80-IA on the basis of the unit price of electricity generated by the assessee-company at Rs. 3.50 per unit - Decided in favor of assessee.
-
2011 (7) TMI 964 - ITAT DELHI
Arm's length price - International transaction - TPO suggested upward revision by an amount of Rs. 18,22,82,026/-- assessee contested against non consideration of capacity utilization data provided by him - Held that: The turn over of the assessee has declined significantly in respect of the product named "Avaunt" which had happened because of utilization of BT cotton seeds by the farmers, which require very few sprays for controlling boll-worms. It is a matter of fact that fixed costs remain the same even when there is under utilization of capacity. Therefore, the case of the assessee and the comparable cases have to be examined in respect of capacity utilization so as to make the controlled and uncontrolled transactions comparable - restore this matter to the file of the AO to consider the matter afresh and work the adjustment to be made in this respect by way of a speaking order to be passed after hearing the assessee.
Grant of 5% deduction from the main PLI of the comparable cases can be decided by the Assessing Officer after deciding the aforesaid issue and also the interest chargeable u/ss 234B, and 234C as per the tax payable computed after making the assessment.
-
2011 (7) TMI 963 - PUNJAB AND HARYANA HIGH COURT
Transfer Pricing - determination of ALP - Tribunal directed AO to re-compute ALP at 21.97%, however TPO arrived at 35.26% - adjustment for the depreciation on administrative assets - Held that:- As Tribunal found the four comparable companies for adopting the Arm’s Length Price no perversity could be pointed out by appellant that may warrant interference in the finding recorded by the Tribunal In respect of adjustment on account of depreciation, Tribunal observed that TPO after accepting the working of Depreciation/Total cost ratio, failed to make adjustment for extraordinary items of depreciation in the order. Therefore, no perversity is found in said order.
Advertisement expenses - Capital or revenue expenditure - Held that:- Cost of a signboard cannot be contemplated as a capital expenditure because the benefit accruing to the assessee cannot be said to be in the capital field. It merely facilitates the assessee’s trading operations. Thus rightly held as revenue expenditure See Empire Jute Co. Ltd. vs. CIT [1980 (5) TMI 1 - SUPREME Court] - Decided in favor of the assessee
............
|
