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Case Laws
Showing 141 to 160 of 286 Records
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1994 (9) TMI 150 - CEGAT, NEW DELHI
Offence - Misdeclaration of quantity of goods ... ... ... ... ..... ning the value of the goods but fact remains that whether market survey conducted by the Department as regards the price in respect of item in question was disclosed to the party. Working sheet has not been placed before us by either side. Apart from Working sheet the data collected from the sources also should be disclosed to the party for rebuttal. Accordingly we are remanding the matter to the concerned Collector on this limited issue to re-determine the value after disclosing the sources wherefrom the Department has collected the price of varieties Diodes covered under this Appeal and to re-determine the value after giving an opportunity to the appellants. As regards the fine and penalty, though imposition was justified for mis-declaration of the goods and undervaluation but quantum may be re-determined depending on the outcome of the value of the goods since we are remanding the matter to re-determine the value of the goods. This appeal is disposed of in the above terms.
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1994 (9) TMI 149 - CEGAT, NEW DELHI
Valuation - Secondary packing ... ... ... ... ..... examine this issue of freight subsidy, to determine whether the appellants have made out a case with evidence for substantiating their claim that the part of the freight subsidy is included in the price and it is in the nature of equalised freight. In such a view of the matter, in regard to their claims of cost which are in dispute in the present case, we held, for the reasons discussed above, that disallowance of the cost of special packing by the Assistant Collector is in order and is upheld. As regards the additional trade discount and freight subsidy, the jurisdictional Assistant Collector may look into these aspects afresh in the light of the observations of the Bombay High Court in the case of Ballarpur Industries (supra) and also having regard to the evidence like credit notes in the case of freight subsidy and redetermine the assessable value in accordance with law and after giving the appellants an opportunity of hearing. The appeal is disposed of in the above terms.
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1994 (9) TMI 148 - CEGAT, NEW DELHI
... ...
... ... ..... s not correct on our part to go into this issue since it was considered opinion of co-ordinate Bench. Under these circumstances the best course open to us is to refer to the larger Bench as it was held in the case of Union of India v. Paras Laminates (P) Ltd. 1990 (49) E.L.T. 322 (SC) . Accordingly without expressing our opinion on the issue involved in this case, we are placing the matter before Hon rsquo ble President to constitute a Larger Bench to resolve the issue. The following points are to be considered by the Larger Bench. (i) emsp In the facts and circumstances whether Modvat Credit availed of by the appellants is includibel in the assessable value of the final product. (ii) emsp Whether decision rendered by the Tribunal in the case of Collector of Central Excise v. Atic Industries Ltd. 1992 (62) E.L.T. 321 is in confirmity with the observations made in the case of Incab Industries 1990 (45) E.L.T. 342 . and (iii)Other points which are incidental to the issue No. 1.
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1994 (9) TMI 147 - CEGAT, NEW DELHI
Modvat Credit ... ... ... ... ..... aim(s) could be allowed even if any benefit of exemption notification had not been claimed in the classification list. 5. They had filed classification lists and their claims should have been allowed. 6. emsp Learned DR states that the issue has now been settled by the order of the Calcutta High Court in the case of Bengal Cardboard Industries and Printers (P) Ltd. v. Assistant Collector of Central Excise, as reported in 1992 (62) E.L.T. 684 (Cal.) In view thereof he has nothing further to say. 7. emsp We observe that it is a settled point of law that the assessee(s) could opt out of MODVAT claim even during the financial year and the benefit of exemption notification , if any due, could be extended to him irrespective of whether it had been claimed in the classification list or by way of separate (refund) application. We, therefore, set aside the impugned orders and remand the same to the Assistant Collector for consideration of their claims on merits in accordance with law.
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1994 (9) TMI 146 - CEGAT, NEW DELHI
MODVAT credit ... ... ... ... ..... e. Printing ink and other materials are used as input for packaging material and not for final product. Modvat is allowable only on packaging material and not on other products like ink etc. We therefore, hold that modvat benefit is available only for TDL Poster Paper and Glassine paper figuring against S.No. 16 and 17 of the Declaration dated 1-3-1987 in Appeal No. E/166/91-NRB. 7. emsp In case of appeal No. E/4304/91-NRB modvat has been denied in case of TDL Poster papers, OLB paper (Glassine), printed ink, H.R. Media Ethyl/Butyl Acetate, Wax, Cello Solve, Poly Granules, Fevicol Gum Tape and Adhesive tape etc. 8. emsp For the reasons stated above, we hold that Modvat will be available only for TDL Poster paper, OBL(Glassine) papers, gum tape, Self-adhesive tape figuring against S. No. 16, 17, 26, 27 in declaration dated 10-8-1990 and Modvat will not be available in case of materials like printing ink etc. 9. Both the appeals are partly allowed to the extent indicated above.
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1994 (9) TMI 145 - CEGAT, NEW DELHI
Classification ... ... ... ... ..... elsewhere specified were not covered by 1B and in the absence of any other suitable heading were classifiable under residual Item 68 only. 16. emsp It is noteworthy that initially the appellants had themselves maintained that their product was classifiable under Tariff Item 68 and the Assistant Collector had also classified it under TI 68 and correctly so. 17. emsp The question which falls for further consideration in the above context is whether the benefit of Notification No. 234/82 could be extended, in view of the above classification. In this respect it is found that the D.R. is correct in pleading that it is not a food product or food preparation of the type listed in the Schedule to this Notification although it is an edible preparation used as a food supplement. 18. emsp In view of the above discussion the order of Collector (Appeals) is set aside and the department rsquo s appeal is accepted. The order of the Assistant Collector is restored and confirmed accordingly.
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1994 (9) TMI 144 - CEGAT, NEW DELHI
Stock - Shortage in stock - Benefit of doubt ... ... ... ... ..... aps numbering excess 831 valued at over Rs. 2 lakhs. Here the stocks were not estimated but were actually physically checked. The present case however, is not a case of error in accounting. It is rather a case of error in applying estimation in working out shortages. There are no corroborative circumstances to show record or any other way like weight of raw material accounts etc. to sustain the extra pressure. Charge of confiscation of goods and penalty cannot be sustained by applying average of three lots of sample results to the entire stock. It was held in Prabhavati Sahakari Soot Girni Ltd. v. CCE, 1990 (48) E.L.T. 522 (Tribunal) that in case of small variation, benefit of doubt has to be extended. 7. emsp Considering that the method itself to ascertain the stock is not reliable to bring out the charge against the appellant and that such methods based on mere percentage sample survey is bound to give misleading results. I allow the appeal and set aside the impugned order.
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1994 (9) TMI 143 - CEGAT, NEW DELHI
Dutiability - Marketability of goods essential for levying excise duty ... ... ... ... ..... nd used in the textile industry falling under Heading 38.09 even then it would have to be considered as exempt during the relevant period by virtue of 11C Notification No. 18/89, dated 6-4-1989 which covers the period in question. 15. Ld. D.R. agrees that the product is covered by 11C Notification No. 18/89, dated 6-4-1989. 16. emsp We observe that Ld. Counsel rsquo s contentions have a lot of force. The department has not produced any evidence of marketability of the material in question. Hence, department rsquo s case remains unsubstantiated. 17. emsp However, even if it was considered as an excisable product the Ministry having itself issued the Notification No. 18/89 which admittedly covers the period in question, no duty would be chargeable. Therefore, whichever way, we may look at it the department has no case for demanding duty. 18. emsp In the circumstances we see no reason to interfere with the order of the Collector already passed. The appeal is therefore dismissed.
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1994 (9) TMI 142 - ITAT PUNE
Charitable Or Religious Trust, Educational Institutions, Income From Property, Scientific Research, Voluntary Contributions
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1994 (9) TMI 139 - ITAT PATNA
Unexplained Investments ... ... ... ... ..... ccepted. 31. We may mention in this connection that the Id. DR placed reliance on the decision of the Punjab and Haryana High Court in the case of Dina Nath v. CED 1970 77 ITR 193 for his contention that the valuation report of the DVO was not binding. However, on referring to the decision we find that the facts are distinguishable. There the valuation had been made by a registered valuer on behalf of the assessee and it was held that the report was both inaccurate and unreliable. In these circumstances, It was held that it could be rejected. In the present case, the report was prepared at the instance of the Assessing Officer himself by the DVO of the Government of India, who followed CBDT Instruction No. 1671 and his report has not been found to be incorrect or unreliable. The case law, therefore, does not help the department. 32. For the above reasons, the addition sustained by the CIT(A) is deleted. The assessee s appeal is allowed and the department s appeal is dismissed
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1994 (9) TMI 138 - ITAT PATNA
Cost Of Acquisition, Income Tax Rules, Mercantile System, Previous Year ... ... ... ... ..... ---------- Travelling and Rs. 43,000 Rs. 3,000 Rs. 1, 500 Conveyance Misc. Expenses Rs. 6,572 Rs. 1,000 Rs. 500 Office Expenses Rs. 17,749 Rs. 2,000 Rs. 1,000 Subscription and donations Rs. 1,788 Rs. 1,788 Rs. 1, 788 -------------------------------------------------------------------------------------------------------------------------------------------------- 16. The Assessing Officer made the disallowances on the ground that the expenses were unvouched and unverifiable. Thereafter, the CIT (Appeals) reduced the disallowances on estimate. 17. After hearing rival submissions, we are of the opinion that adequate material has not been placed on record to show that the expenses were unvouched and unverifiable inasmuch as not a single instance of inadmissible nature has been indicated and the assessee has been objecting to the finding all along. In the circumstances, the disallowances sustained by the CIT(A) are deleted. 18. In the result, the assessee s appeal is partly allowed
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1994 (9) TMI 135 - ITAT INDORE
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... ... ..... ssions, learned counsel for the assessee had referred to the decision of the Calcutta High Court in the case of Girdharilal Goenka vs. CIT (1989) 80 CTR (Cal) 140 (1989) 179 ITR 122 (Cal). On the other hand, the learned Representative for the Revenue has supported the disallowance. He has pointed out that some of the payees are located at Hamidia Road, Bhopal, that is, where the office of the assessee is situate and, therefore, there could be no difficulty in making payment by crossed cheques. 15. We have considered the rival submissions. It is evident that the Revenue authorities have not doubted the payment or the identity of the payee. We also see no reason to disbelieve the version of the assessee that the payees has insisted on cash payment. Applying the ratio of the decision in the case of Girdharilal Goenka, cited supra, we are of the opinion that the disallowance made is not justified. We accordingly delete the same. 16. In the result the appeal stands partly allowed.
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1994 (9) TMI 134 - ITAT INDORE
... ...
... ... ..... rdingly dismissed. 26. In the result, the Revenue s appeal is rejected. 27. ITA No. 289/Ind/90 mdash Ground Nos. 1 and 2 are identical to the grounds taken in respect of the preceding assessment year. For the reasons discussed in ITA No. 288/Ind/90 both the grounds are rejected and the Revenue s appeal is dismissed. 28. ITA No. 290/Ind/90 mdash The first two grounds are identical to the grounds taken in the preceding two assessment years by the Revenue. Both these grounds are rejected on similar reasoning. 29. Ground No. 3 relates to the direction given by the learned CIT(A) to allow claim under s. 32AB on Rs. 10,000. This issue has been discussed in the assessee s appeal in ITA No. 200/Ind/90 for the asst. yr. 1988-89 in Ground No. 1. It has been held therein that the CIT(A) had rightly restricted the assessee s claim under s. 32AB on Rs. 10,000. In this view of the matter, this ground of the Revenue is also rejected. 30. In the result, the Revenue s appeal stands dismissed.
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1994 (9) TMI 133 - ITAT DELHI-E
Assessing Officer, Assessment Year, Export Business ... ... ... ... ..... two different officers that is Form No. 36 has been signed by the Deputy Commissioner and the grounds of appeal has been signed by the Commissioner of Income-tax. Therefore, same is required to be dismissed. While no specific arguments were raised in support of the cross-objection taken by the assessee, in view of the decision in the case of CIT v. Calcutta Discount Co. Ltd. 1973 91 ITR 8 (SC), the assessee s plea is not accepted. In the aforesaid case it was clearly held that the Tribunal while deciding a case should not be unduly influenced by trivial procedural technicalities. The memo of appeal should be liberally seen and entertained. In case the necessary grounds have been taken in the appeal memo, there is no specific formula which is necessary for seeking relief in the hands of the Tribunal. In view of above, the assessee s cross-objection is rejected. 9. In the result, the departmental appeal is allowed whereas the cross-objection filed by the assessee is dismissed.
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1994 (9) TMI 132 - ITAT DELHI-D
Assessing Officer, Assessment Year, High Court, Tribunal's Order ... ... ... ... ..... irst time in the application filed onJuly 21, 1994. Thus, reference application with alleged reframed question has to be treated as flied on the date mentioned above. It is clearly out of time. To permit the applicant to reframe the question would tantamount to allowing the applicant to file the reference application in disregard to the period prescribed by the statute. It would also deprive the opposite party of rights accrued (sic) on account of lapse of period of limitation. Therefore, the applicant cannot be allowed to raise legal controversies for the first time, through amendment of questions after expiry of period of limitation. We, therefore, treat reframed questions as a fresh application filed beyond period of limitation and reject the same. In view of the aforesaid discussion, the original application and application with reframed questions are rejected without making any reference to the Hon ble High Court. 9. In the result, the reference application is dismissed.
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1994 (9) TMI 131 - ITAT DELHI-C
... ...
... ... ..... no orders of the Tribunal to the contrary have been brought to our notice by the Departmental Representative during the course of the hearing. 59. As regards the second issue, the CIT(A) referred to the items on which 100 depreciation had been claimed on the ground that these cost less than Rs. 750 and these being electric fans, calculators, internal telephones, cycles, etc. It was canvassed before the CIT(A) that all the aforesaid items came within the definition of plant . Reliance was placed on the decision of the Hon ble Supreme Court in the case of CIT vs. Taj Mahal Hotel 1973 CTR (SC) 480 (1971) 82 ITR 44 (SC) and that of the Madras High Court in the case of Sundaram Motors Pvt. Ltd. and Ors. vs. CIT (1969) 71 ITR 587 (Mad). After hearing both the parties, we do not find any reason to interfere with the decision taken by the CIT(A) to allow necessary relief to the assessee. 60. In the result, the assessee s appeal is partly allowed and that of the Revenue is dismissed.
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1994 (9) TMI 130 - ITAT DELHI-C
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... ... ..... and 7th Nov., 1994. We further direct that the appeal to which the present stay petition pertains be fixed for hearing in the third week of November, 1994, and notices be issued immediately to both the parties. It is further observed that if on the date of hearing the assessee applies for an adjournment without reasonable cause, the present order is likely to be vacated and in the event of such an eventuality taking place, the entire demand would become payable immediately. 5. We envisage a situation where the Department is likely to adopt coercive measures even after the fixation of the appeal by the Tribunal and the payment of a sum of Rs. 1 lakh by the assessee as directed. Taking this into account we would stay the demand which is outstanding against the assessee upto30th Nov., 1994. The parties are at liberty to approach the Tribunal after expiry of the aforesaid date in case the appeal has not been disposed of. 6. The stay petition is disposed of in terms of indicated.
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1994 (9) TMI 129 - ITAT DELHI-C
Assessing Officer, Assessment Year, Capital Gains, Written Down Value ... ... ... ... ..... ground in the appeal viz., 8.0 reads as under Further, without prejudice, the learned authorities below are not justified in refusing to make adjustment of brought forward depreciation and loss of earlier years, as provided in Explanation to section 115J. 64. The learned counsel urged that necessary directions be given to the Assessing Officer to allow relief as and when it became available as a result of modifications to the figure of income vis-a-vis brought forward depreciation and loss of earlier years. The learned Departmental Representative, on the other hand, opposed the aforesaid submissions on the ground that no such brought forward depreciation or loss existed for the earlier years and nothing was required to be set off. In our opinion, no prejudice would be caused to any party if we direct the Income-tax Officer to examine this issue while giving appeal effect to our order, but strictly within the parameters of law. 65. In the result, the appeal is partly allowed.
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1994 (9) TMI 128 - ITAT DELHI-A
Assessment Year, Failure To Pay Advance Tax, False Estimate, Penalty For Concealment, Revised Return
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1994 (9) TMI 127 - ITAT DELHI-A
Foreign Company, Foreign Technician, Income Deemed To Accrue Or Arise In India ... ... ... ... ..... C was obliged to pay the technicians not only for the period of the work but also for the off period. Clauses 2.1 and 2.2 of the Operating Services and Maintenance Contract between ONGC and AOI, which were extracted above, would clearly show that it is only during the days when the personnel were deputed for operation and maintenance that they were paid or the agreement to pay operates but not to the lay off period. That too what is payable by the ONGC was only the contractual amount to the AOI. It is the AOI who has to pay salaries to its technicians, ONGC has no direct obligation to pay salaries to the technicians. In our opinion this clinches the issue. Thus having regard to the gamut of facts on record, since they were paid for the off period in a foreign country and since it is not relatable to the services rendered by them in India, we hold that the first appellate authority went wrong in holding that they are taxable in India. 6. In the result, the appeals are allowed.
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