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Showing 321 to 340 of 354 Records
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2003 (6) TMI 36 - CESTAT, NEW DELHI
Service Tax ... ... ... ... ..... actor irrespective of the fact whether the same has been reviewed by the EIL/Owner or not. Further, review of design and drawings as above shall not absolve the contractor of any of his obligations under the contract. Any defect observed during commissioning and/or operating the plant shall be rectified by the contractor by carrying out all necessary modification or re-construction without any extra cost to the owner. 6. Thus, a perusal of the clauses of the contract leaves no doubt that the appellant contract with IOC was a work contract on turnkey basis and not a consultancy contract. It is well settled that a work contract cannot be vivisected and part of it subjected to tax. The impugned orders have proceeded to do precisely that. Therefore, they are required to be set aside. 7. In view of what has been stated above, the impugned orders are set aside and the appeal is allowed. The amount so far paid by the appellants to the department shall be returned without any delay.
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2003 (6) TMI 35 - CESTAT, NEW DELHI
Anti-dumping - Injury analysis ... ... ... ... ..... apacity utilization. Less than adequate unit price realization causes profitless production which in turn affects capacity to raise and service capital. During the period of investigation chosen for the review, anti-dumping duty was in force in respect of the exports by the appellant. Despite this the volume of imports rose and unit value of imports declined steeply. Even though much improvement took place subsequent to the imposition of duty in the domestic industry s situation with regard to price and capacity utilization, the Designated Authority has pointed out that the sale prices are below optimum and that, in the event of withdrawal of anti-dumping duty, injury would recur. This conclusion of the Designated Authority seems well justified by the factual data presented in the final findings. In this view of the matter, we do not find any reason to disagree with the finding of injury and causal link also. In the light of our findings above, appeals fail and are rejected.
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2003 (6) TMI 33 - CESTAT, NEW DELHI
Evidence - Statement - Smuggling - Proof - Misdeclaration - Adjudication - Conduct of - Confiscation and penalty
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2003 (6) TMI 32 - CESTAT, NEW DELHI
Valuation (Customs) - Royalty ... ... ... ... ..... ect to the limits as specified above. would also show that payment of licence fee or royalty is not a condition precedent for sale of the goods imported. According to us, Commissioner (Appeals) has wrongly applied the ratio of the decision of Essar Gujarat, 1996 (88) E.L.T. 609 to the facts of this case. The appellant is fully justified in contending that the present case would come within the dictum laid down by this Tribunal in Ferodo India (P) Ltd. v. Commissioner of Customs, 2002 (142) E.L.T. 343. We had occasion to consider similar situation in the case of Panalfa Dongwon India Limited (Appeal No. C/599/2002/NB-A) 2003 (155) E.L.T. 287 (Tri - LB) where we have held that the ratio in Ferodo India Pvt. Ltd. (supra) would be directly applicable. We find no justification whatsoever for adding the running royalty to the invoice price of the goods imported. 5. In the result, the impugned order is set aside and appeal is allowed with all consequential relief to the appellants.
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2003 (6) TMI 31 - CESTAT, NEW DELHI
Redemption fine - Valuation (Customs) ... ... ... ... ..... the higher price which on negotiation was reduced. This evidence produced by the appellants is not taken into consideration while passing the impugned order by the learned Commissioner. The adjudicating authority in the impugned order held that the value declared by the Trade Panel Members appears to be an appropriate against the declared value. We find that the learned Commissioner also held that the appellants failed to produce any documentary evidence in support of the transaction value in spite of the fact that the letters from the exporters were produced before him along with the reply to the show cause notice. In these circumstances, we find that the goods were imported at a negotiated price and the value was declared which was duly supported by the evidence by way of correspondence between the appellants and the exporters. Therefore, the allegation of misdeclaration in terms of value is not sustainable. Hence, the impugned order is set aside and the appeal is allowed.
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2003 (6) TMI 30 - CEGAT, NEW DELHI
Valuation (Customs) ... ... ... ... ..... taining the patent from Midrex. According to us in the facts in the present case the ratio of the decision of the Tribunal in Ferodo India (P) Ltd. v. CC, Mumbai would be directly applicable. In the above decision it was held that the licence fee and royalty payment being entirely related to the production in India and training the personnel by the foreign shareholder, these payments are in no way related to the imported goods or materials. 9.The Commissioner (Appeals) has erred in holding that the appellant was bound to purchase from their foreign collaborator in view of the terms of the agreement. He also committed a factual error in holding that the appellant had purchased capital goods or raw materials only from the collaborator. Commissioner s finding that the amount payable as royalty is liable to be included in the invoice value cannot be sustained. We, therefore, set aside the order impugned and allow the appeal. Appellant will be entitled to all consequential relief.
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2003 (6) TMI 29 - CESTAT, NEW DELHI
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... ... ..... I. (ii) 1-11-2002 to 5-11-2002 held additional charge of newly constituted Central Excise Commissionerate, Ghaziabad in addition to his parent charge of Commissionerate, Meerut-I 2. S.K. Goel 6-11-2002 to 11-11-2002 held additional charge of Central Excise Commissionerate, Ghaziabad in addition to his parent charge of Noida Commissionerate. 3. Vineet Kumar 12-11-2002 till date Joined as Commissioner, Central Excise, Ghaziabad on 12-11-2002. 2. We issue notice to the Commissioners/Dy. Commissioners and Asstt. Commissioners as above and direct them to file affidavits detailing the steps taken by them to implement the Final Order dt. 12-2-02 passed by this Tribunal. Along with the notices, copies of the earlier orders passed by us in this proceedings dt. 17-3-2003, 1-5-2003 and 30-5-2003 will be served on the above officers. The notice will be served through the CDR. 3. The affidavits as above shall be filed on or before 5-8-03. Post these cases for further orders on 26-8-2003.
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2003 (6) TMI 28 - CESTAT, NEW DELHI
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... ... ..... ted during investigation cannot be treated as duty paid for the purpose of Section 27 of the Customs Act, 1962. Applicant is therefore entitled to return of the above amount. 4. We have already taken the view in a number of similar applications that the applicants are entitled to interest on the amount to be returned. Under similar circumstances in Misc. Order No. 78/2003/NB(A) dated 1-5-2003 we have referred to and followed the decision of the Supreme Court in Kuil Fireworks Industries v. CCE - 1997 (95) E.L.T. 3. We therefore direct the respondent to return the entire amount of Rs. 7,15,350 with interest at 12 within two weeks from the date of receipt of a copy of this order and report compliance on 5-8-2003. 5. The issue regarding delay in implementing the order and fixing responsibility of the same on the officer or officers concerned will be taken up later after issuing notices to those officers who were in charge during the relevant period. Post the matter to 5-8-2003.
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2003 (6) TMI 27 - CESTAT, NEW DELHI
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... ... ..... of the legal advice given by Shri K. Veeraraghavan, Advocate and Central Government Standing Counsel under his communication dated 1-8-2001. Later when the correct position was made clear to them, the applicant has been granted refund of an amount of Rs. 11,87,317/- with interest 6 which will come to Rs. 16,72,277.66. 2. Since the officers have acted on the basis of the legal advice, we find no reason to proceed against them further in this matter. The Misc. Application, therefore, stands dismissed.
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2003 (6) TMI 26 - HIGH COURT OF KERALA AT ERNAKULAM
Demand/Recovery - Duty liability ... ... ... ... ..... will lead to a situation that the legal representatives of a manufacturer who had paid more duty, than is necessarily payable under the Act will be disabled to claim excess amount paid by their predecessor. The law will not create such an anomalous position. Therefore the liability as well as entitlement has to be viewed in the same angle with reference to the death of the predecessor-in-interest. 10.There is another moral principle behind it as well. If the manufacturer concerned had become unlawfully enriched, because of non-payment of Excise duty or short-levy of excise duty due to some mistake on the part of the Taxing Officer, that enrichment, after his death falls upon his legal representatives, in this case, the writ petitioners. The law will not permit unlawful enrichment. Such interpretation does not in any way militate against any provision at all. Accordingly, we set aside the judgment and hold that the proceedings as per Ext. P4 shall be proceeded with. No costs.
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2003 (6) TMI 25 - HIGH COURT OF JUDICATURE AT MADRAS
Refund - Protest ... ... ... ... ..... cation and the assessee need not particularise the grounds of protest and it is open to him to say that the duty is not exigible according to law and the acknowledgement of the letter of protest shall be the proof to show that duty had been paid under protest and in that case, the period of limitation of six months will have no application to him. The Apex Court has further held that where the duty is paid under the orders of Court pending an appeal/reference/writ petition, it will certainly be a payment under protest and in such a case it would not be necessary to lodge the protest. 10.Admittedly, in the present case, the petitioner has not made the payment of duty under protest and in that case, the period of limitation of six months will apply to the petitioner and the claim not being made within a period of six months from the date of payment has been rightly rejected by the respondent. 11.There are no merits in the writ petition. The writ petition is dismissed. No costs.
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2003 (6) TMI 24 - UTTARANCHAL HIGH COURT
Notice issued under section 147 read with section 148 - challenge to the notices is mainly on the ground that these have been issued after the expiry of four years from the end of the relevant assessment year even though the conditions as contemplated under section 147 of the Act were not satisfied. - the impugned notices dated May 29, 2001, issued under section 147 read with section 148 of the Act are without jurisdiction as the conditions precedent to reopen the assessment in terms of the proviso to section 147 are totally non-existent and, therefore, we allow the petition and quash the impugned notices.
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2003 (6) TMI 23 - GAUHATI HIGH COURT
"Whether, on the facts and in the circumstances of the case, the Tribunal was correct in upholding the order of the Commissioner of Income-tax (Appeals) in allowing exemption under section 54E of the Income-tax Act, 1961, on gains arising out of transfer of depreciated assets, when unabsorbed depreciation of earlier years was claimed and allowed to be set off?" - whether the assessee who has claimed and allowed depreciation on capital assets is entitled for benefits under the provisions of section 54E and claimed deduction while calculating his income or by virtue of section 50 - question is answered in favour of the assessee and it is held that the assessee is entitled for exemption or deduction as provided under section 54E of the Income-tax Act on capital gains.
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2003 (6) TMI 22 - CALCUTTA HIGH COURT
Whether a building of a cold storage is a plant. Revenue, had sought to draw a distinction between a plant and a building. According to him, if it is a setting or canopy for sheltering a particular business, then it would not be a plant. The building has a more durability than a plant. Therefore, only the thermocole part of the building is the plant and not the rest. - we remit the matter to the learned Tribunal for deciding the case afresh in the light of the observation as made hereinabove in order to allow at 33.33 per cent. on the part of the cold storage building housing the chambers, after giving opportunity to the parties.
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2003 (6) TMI 21 - GAUHATI HIGH COURT
The question involved in these appeals is whether the building in question is a "plant" and therefore the assessee is entitled to claim higher rate of depreciation. - we hold that the building in question is a plant and therefore the assessee is entitled to higher rate of depreciation as claimed by him. The appeals are allowed
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2003 (6) TMI 20 - CALCUTTA HIGH COURT
Non-resident - In the writ petition the petitioners have challenged two notices. One dated passed by the Deputy Commissioner of Income-tax. treating CESC Limited as "representative assessee"/"agent" of the non-resident assessee, u/s 163 of the Income-tax Act, 1961. The other notice is dated March 20, 2001, passed by the same officer under section 148 seeking to reopen the assessment - In the result, this appeal succeeds in part only with regard to the notice under section 148 relating to reopening of the assessment under section 147 on the ground that this notice was issued on March 20, 2001, when the return submitted by the principal was pending and the assessment whereof was not completed till March 30, 2001. The notice, dated March 20, 2001, issued under section 148 impugned in the writ petition is, therefore, hereby quashed
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2003 (6) TMI 19 - CALCUTTA HIGH COURT
By this writ application the writ petitioner has challenged an order, passed by the Settlement Commission refusing to entertain the case on the ground that the failure on the part of the petitioner in deducting tax at source does not come within the purview of section 245C(1) - I am unable to accept the contentions of the learned advocate for the petitioner that for the purpose of assessing the jurisdiction of the Commission the provisions contained in section 245C(1) of the Act should be ignored. I thus find that the Commission rightly refused to entertain the application filed by the petitioner as it had no jurisdiction to entertain the dispute involved. The writ application is thus devoid of any substance and is dismissed accordingly.
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2003 (6) TMI 18 - KARNATAKA HIGH COURT
Reassessment notice – exclusion from limitation - A time bared assessment cannot be reopened in the absence of any specific power available to the Revenue in the matter of reassessment. As observed by the apex court, finality has to be at one stage or the other. - These petitions are allowed. The impugned notices are set aside. A direction is issued to the respondent not to proceed further in the given circumstances by way of reopening of the assessment proceedings
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2003 (6) TMI 17 - GUJARAT HIGH COURT
"Whether, in law and on facts, the assessee is entitled to depreciation at the rate of 30 per cent. on two items, namely, (1) hot mixing plant, and (2) paver finishing machine used by the assessee in its activity of road building ?" - The Tribunal was not right when it allowed the appeal and directed the Income-tax Officer to grant depreciation at 30 per cent. in respect of the said machineries. - We answer the question in the negative, i.e., in favour of the Revenue and against the assessee.
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2003 (6) TMI 16 - GAUHATI HIGH COURT
Share transactions – loss - assessee has placed on record to indicate that all the share transactions entered into by the assessee-companies have been supported by contract notes and bills of recognized share brokers of stock exchange and also other documentary evidence showing that all the payments have been made/received through account payee cheques or drafts - no evidence on record placed by the Revenue to indicate that the disputed share transactions have been entered into between parties, who are close relatives or friends or the persons having common interests, nor there is any material placed on record to indicate that the share transactions have been entered in to between the same parties adopting the same modus operandi for a reasonable span of period – Held that share transactions were genuine and the assessee-companies are entitled to claim benefit under those transactions for the loss suffered
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