|
Advanced Search Options
Case Laws
Showing 101 to 120 of 503 Records
-
2005 (11) TMI 433 - ITAT MUMBAI
Income escaping assessment ... ... ... ... ..... assessment year 1998-99 in ITA No. 1005/M/02, the issue was decided in favour of the assessee. Since facts and circumstances being the same, following above orders of the Tribunal, we decide the issue in favour of the assessee. This ground of the revenue is rejected. 18. The last ground of the revenue is that CIT(A) has treated sale of shares as capital gains instead of speculation income. It is claimed by the assessee that sale or purchase transaction had taken place as investment and not as stock in trade. The CIT(A) had reversed the finding of the Assessing Officer and held that assessee had held shares as investment and not as a part of stock in trade. Since, this finding of CIT(A) is not controverted, we uphold his decision that income from sale and purchase of shares is taxed under the head lsquo Capital gains rsquo . In view of this, this ground of revenue is also rejected. 19. Finally, the appeal filed by the assessee is allowed and that filed by revenue is dismissed.
-
2005 (11) TMI 432 - ITAT MUMBAI
Unexplained investments - cash credit - disallowance u/s 40A(3) - taxable profits - deduction u/s 80HHC - purchases by making cash payments - HELD THAT:- The case of the assessee is that the assessee is not bound to prove the source of sources. The immediate parties, from whom the assessee made purchases, confirmed their sales. revenue authorities are in fact doubting the capacity of the parties who sold diamonds to the assessee and also the assessee perhaps purchases the diamonds from open market and obtained bills from these parties. None of these facts, except the reasoning, are based on any evidence.
We have recorded the statement obtained by the revenue from Shri Rajan A. Pawaskar, chartered accountant, wherein he stated that the assessee is not engaged in diamond business activity rather the said transactions were merely used to launder black money of the assessee. But the fact remains that the assessee exported the goods, which is certified by the Customs Department. They rejected Shri Pawaskar’s statement. Therefore, the issue that whether assessee exported or not does not arise. The question is whether the assessee purchased the diamonds by paying cash. There is nothing on record to suggest to the above conclusion. The reasoning however powerful cannot take the force of evidence. No evidence has been brought on record to this effect.
As we have already noted, not even a single question was put to any of the parties from whom the statements were recorded by the Assessing Officer, as to whether the payment made by the assessee by cheque was withdrawn and paid back to the assessee. In the absence of any other evidence on facts, we are unable to accept the reasoning of the Assessing Officer that the assessee made the cash purchases.
Thus, further addition made by the revenue authorities, resorting to section 40A(3) also does not survive. Hence, we also hold that there is no material to recompute the profits for the purpose of deduction u/s 80HHC.
We have also noted hereinabove that the Assessing Officer worked out the peak credit and the CIT(A) enhanced the peak investment holding that the difference of 18 per cent (i.e. profit proposed to be restricted to 5.4 per cent as against 23.4 per cent declared by the assessee) is to be considered as inflated profit. Since we have already held that there is no basis for making any addition on account of cash purchases, this excess peak investment worked out by the CIT(A) automatically does not survive.
There is no case for the revenue that the assessee is hot maintaining books of account. The purchases are recorded in the books of account. Payments are made by cheque to the immediate purchasers. They accepted and confirmed the sale. To hold otherwise, there should be some evidence in the possession of the revenue. Suspicion, however strong, cannot take the place of evidence and that alone cannot be the criteria for deciding the matter.
According to the Assessing Officer, the diamonds worth crores of rupees, if they claimed to have transported, these diamonds should have been insured and the mode of transportation or at least the details of tickets, etc. of the persons who brought diamonds should have been mentioned. Be that as it may, we are not making any proposal. No question has been put to immediate suppliers to the assessee whether they purchased the material from the open market other than the parties who said to have supplied them from Surat. Therefore, the proposition that in the absence of insurance, mode of transportation, etc. the claim that the diamonds came from Surat cannot be accepted, is not a sound conclusion arrived at.
It is true, the profit shown by the assessee is extremely high, which may not be possible in this line of business, at least not a general trend m the market. But then, no similar cases of export have been mentioned anywhere by the Assessing Officer or by the CIT(A) to discredit the assessee’s claim of higher profit. Export of the assessee is accepted by the Customs Department, which shows that the export of diamonds cannot be doubted.
Coming to the decision in the case of Chanana Associates [1996 (7) TMI 106 - PUNJAB AND HARYANA HIGH COURT]), the assessee did not produce any material to show that belief that section 40A(3) was not attracted where the profit was determined on estimate basis after rejecting the book results of the assessee. The facts in the instant case of the assessee are not so. So also in the case of Chanana Associates (supra) there was no dispute that the payments were made in cash in excess of the prescribed limit under section 40(A)(3); whereas in the instant case of the assessee there is no evidence as record to show that the payments were made in the cash but it is an assumption, resorting to the modus operandi adopted by the business circle in diamonds.
Coming to the purchases made by the assessee on payment of cash also cannot be accepted as there is no evidence to this effect because the payment is made by the assessee by cheque, which is also reflected in the books of account of the purchasers as well as of the assessee.
In the result, appeal of the assessee stands allowed.
-
2005 (11) TMI 431 - CESTAT, NEW DELHI
Production capacity based duty - Demand ... ... ... ... ..... an be demanded nor penalty be imposed as discussed in the said final order. 8. emsp I have carefully examined the additional submissions as well as the submissions raised by both sides. I am of the view that the ratio adopted in the case of M/s. Mitra Steel and Alloys Pvt. Ltd. v. CCE, Raigad, supra, do not in any manner support the appellants rsquo contention in the subject case. As pointed out by the learned JDR in this case, the assessment is over well before the date of omission of the Section as well as the subordinate Rules made thereunder. Hence this case cannot be compared with the situation contemplated in the case of M/s. Mitra Steel and Alloys Pvt. Ltd. v. CCE, Raigad, supra. Relying upon the said decision, I do not find any reason to interfere with the orders of the lower authorities at this juncture, as this may amount to re-opening of the assessments which are already over. In view of the above, the appeal is rejected. (Dictated and pronounced in the open Court)
-
2005 (11) TMI 430 - CESTAT, MUMBAI
Refund claim - Unjust enrichment - Bar of ... ... ... ... ..... it is necessary for the petitioner/appellant to show that he has paid the amount for which relief is sought, he had not passed on the burden on consumers and if such relief is not granted, he would suffer loss. ldquo 7. emsp Any refund claim, therefore has to be tested on the anvil of unjust enrichment. In the present case we agree with the Commissioner rsquo s finding that the respondent is entitled for refund of MODVAT Credit reversed by him. But such a refund is subject to crossing of bar of unjust enrichment. We agree with the Revenue that the Commissioner failed to observe that the refund to be given as a consequence to his order is subject to bar of unjust enrichment. 8. emsp We therefore confirm the order of the Commissioner to the extent that it holds the appellant before him is entitled to refund and remand the matter to the original authority to examine the claim with reference to bar of unjust enrichment. 9. emsp The appeal of the Revenue is allowed in above terms.
-
2005 (11) TMI 429 - CESTAT,MUMBAI
Rectification of mistake - Mistake apparent on record ... ... ... ... ..... nch of the Tribunal in Om Prakash Bhatia v. CC, New Delhi, 2001 (131) E.L.T. 305. Applying the ratio of the Larger Bench decision, we hold that there can be no mistake apparent from the record on the ground that all the documents relied upon to support a particular contention were not dealt with specifically or independently by the Tribunal when it passed its final order, particularly when the issue of limitation was raised and considered. We also note that an appeal against the final order has been admitted by the apex court and, therefore, the applicants have chosen to pursue appellate remedy and, therefore, should not have approached the Tribunal by way of filing a ROM application which in the present case is in the nature of an application for review of the order, in the guise of a ROM application. We, therefore, hold that no mistake apparent on the face of the record arises in the Tribunal rsquo s final order, and accordingly dismiss the applications. (Dictated in court)
-
2005 (11) TMI 428 - CESTAT, BANGALORE
EXIM - Squids ... ... ... ... ..... The Respondent have filed their cross-objection and prayed for dismissal of the appeal. They have reiterated the points raised by them before the Commissioner and rely on his findings. 4. emsp On a careful consideration, we notice that the Commissioner has rightly given the findings pertaining to the utilization of the imported Item. for manufacturing the exported item. Further, it is seen that what was imported as raw material was of low quality squid, dis-coloured and of smaller size squids. Therefore, the finding recorded that production norms for rings cannot be automatically applied to the strips, tips and tentacles is correct. The Revenue has also not produced any evidence to show that the quantity of 49,406 kg. of squid was diverted for any other purpose by the Respondent. The finding of the Commissioner is legal and proper, there is no merit in this appeal and the same is rejected. (Operative portion of this Order was pronounced in open court on conclusion of hearing)
-
2005 (11) TMI 427 - CESTAT, NEW DELHI
Adjudication ... ... ... ... ..... ts appeal on other grounds. The learned DR is not able to satisfy me, why the Revenue has not preferred an appeal against O-I-A dt. 19-6-98 and has preferred this appeal against order in appeal dt. 28-9-98. 7. emsp In my opinion the Revenue rsquo s failure to file an appeal against the findings of the Commissioner (Appeals) order dt. 19-6-98, has restricted the hands of adjudicating authority. The adjudicating authority, in the absence of any appeal against the order dt. 19-6-98 was bound to follow and sanction the refund claim. Department rsquo s appeal against the current order in appeal dt. 23-10-2003 is an attempt to make a back door entry to set aside the order dated 19-6-98 of the Commissioner (Appeals). This is not a correct proposition and is against the settled law. 8. emsp In view of the above situation, I find that the Commissioner (Appeals) order dated 23-10-2003 deserves to be upheld. Department rsquo s appeal dismissed. Dictated and pronounced in the open Court
-
2005 (11) TMI 426 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit ... ... ... ... ..... is Tribunal cannot decide the appeal on merits. He, therefore, submits that the appellant may be asked to deposit the entire amount of duty. 2. emsp Accordingly, we direct the appellant to deposit the entire amount of duty of Rs. 1,80,588/- (Rupees One lakh eighty thousand five hundred and eighty-eight only) by 15-12-2005. Compliance is to be reported on 19-12-2005. It is made clear that failure to report for compliance will result in dismissal of the appeal without any further notice to the appellant. However, if the appellant makes pre-deposit, the appeal shall be remanded to the Commissioner (Appeals) to decide on merits. (Pronounced in Court)
-
2005 (11) TMI 425 - CESTAT, MUMBAI
Interest - Delayed refund of redemption fine paid under protest ... ... ... ... ..... est. While going through the following report presented before me it is not clear that the Apex Court has stayed the payment of interest because of the Order of the Tribunal to refund the amount of interest within one month or otherwise. As the Revenue has not been able to produce the full details of this case it is not possible to entertain such a piece meal information which is not complete by itself. 5. emsp I have examined the case record and heard both sides. I am of the view that the appellants rsquo claim of interest is both, legal and correct, particularly in terms of the case laws referred to by them (which also includes the Apex Court rsquo s direction in the case of I.T.C. Ltd.) and also Board rsquo s Circular dated 8-12-2004 presented before me. It is therefore directed that the interest may be granted as per prescribed procedure in the Board rsquo s Circular. The appeal is, therefore, allowed with consequential relief. (Dictated and pronounced in the Open Court.)
-
2005 (11) TMI 424 - CESTAT, NEW DELHI
Appeal by department - Limitation - Condonation of delay ... ... ... ... ..... ppeals), Gwalior and Commissioner (Appeals), Raipur. The four Commissioner (Appeals) have passed a large number of Orders-in-Appeal during the past period. The number of orders passed by the Commissioners of Appeals during the month of August, 2004 to February, 2005 is 682. The total number of appeals filed against orders of Commissioners (Appeals) during the month of August, 2004 to May, 2005 are 138. rdquo I find from the above reason that the additional load of work cannot be considered as valid reason for condoning the delay to the tune of 126 days delay. Accordingly application for condonation of delay is dismissed. (Dictated and pronounced in the Open Court.)
-
2005 (11) TMI 423 - CESTAT, MUMBAI
Demand on account of denial of exemption - Cum duty price ... ... ... ... ..... o them, also requires to be accepted in the light of the settled legal position on this aspect. Needless to say, the availability of the Modvat credit is subject to verification of duty paying documents. 5. emsp In the result, while holding that the benefit of exemption in terms of Notification 64/95, is not available to the goods in question, we remand the case for redetermination of duty liability in the light of our observations on the price being a cum duty price and also for examining and verifying the claim of the respondents to Modvat credit benefit on verification of the relevant duty paying documents to be produced by the respondents. However, we do not accede to the prayer of the Revenue for restoration of the penalty imposed under order-in-original dated 29-5-2000 (there is no penalty imposed in the other adjudication order dated 24-10-1999), as we hold that this is not a fit case for penalising the respondents. 6. emsp The appeals are thus partly allowed as above.
-
2005 (11) TMI 422 - CESTAT, NEW DELHI
Cenvat/Modvat - Penalty ... ... ... ... ..... ue is that M/s. Ambica Steels availed the credit on the basis of fake invoices issued by the appellant, therefore, they are liable to penal action. 5. emsp In this case, the allegation is that on the strength of fake invoices issued by the appellant M/s. Ambica Steels availed the credit. The business premises of the appellant was searched by the Revenue and nothing wrong was found and it was also found that the appellant was not produced anything from last one year. M/s. Ambica Steels who availed the credit is not party to the present proceedings. The appellant through out pleaded that these are fate invoices and are not issued by the appellant. There is no evidence on record to show that the appellant issued these invoices on the strength of which the credit has been availed by M/s. Ambica Steels. In these circumstances, we find that penalty imposed on the appellant is not sustainable and set aside. The appeal is allowed. (Dictated and pronounced in open Court on 30-11-2005)
-
2005 (11) TMI 421 - CESTAT, MUMBAI
Cenvat/Modvat - Duty paying documents ... ... ... ... ..... redit and the declaration on the reverse of the bill of entry, which is on the letter head of M/s. German Remedies Ltd., is to the effect that ldquo We intend availing ourselves of lsquo MODVAT rsquo under Rule 57-A of the Central Excise Rules 1944 in respect of the goods covered by this Bill of Entry. rdquo Similar endorsement appears in all the bills of entry on the strength of which credit was availed. 5. emsp We, therefore, agree with the learned SDR that the decision of the Larger Bench in Balmer Lawrie is applicable to the facts of the present case, particularly when no distinction has been made out before us between the nature of document involved in the Balmer Lawrie case, viz. invoice, and the present one, i.e. bill of entry. Following the ratio of the larger bench decision, we uphold the denial of credit. However, we are of the view that this is not a fit case for imposition of penalty and accordingly set aside the penalty. 6. emsp The appeal is thus partly allowed.
-
2005 (11) TMI 420 - CESTAT, MUMBAI
Cenvat/Modvat - Duty paying documents ... ... ... ... ..... ars as required in the certificate prescribed under the Notification (Invoice has been issued by M/s. Madhya Pradesh Iron and Steel Co., although who are not only manufacturer of the goods but also have depot and therefore issued dealers invoice). We, therefore, agree that the substantive benefit of Modvat credit cannot be denied for the reason that the particulars required to be incorporated in the certificate issued are already found in the relevant invoice. We, therefore, hold that they are entitled to credit of Rs. 19,984/-. Regarding the balance amount, we agree with the lower appellate authority that the appellants are entitled to credit only on duty actually paid by the input supplier and not the credit at the rate of 12 which is higher than the actual amount of duty paid by the input manufacturer. We, therefore, uphold the disallowing of credit of Rs. 47,729/-. The penalty imposed on the appellants is reduced to Rs. 2,500/-. The appeal is thus allowed partly as above.
-
2005 (11) TMI 419 - CESTAT, NEW DELHI
Cenvat/Modvat ... ... ... ... ..... ngly. 5. emsp The said notification and the circular was an issue before this Hon rsquo ble Tribunal in the case of Kamakhya Steels (P) Ltd. - 2000 (121) E.L.T. 247 (T-LB) and while considering the said circular and the notification, held that all minor error of these kind should be condoned and credit permitted, if there is no dispute regarding the receipt and consumption of the inputs in the factory premises and that the duty liability has been discharged on the said goods. 6. emsp It is very clear, as noted above in this case that the receipt and consumption is not in dispute. The discharge of duty liability is also not in dispute. Therefore, denial of Modvat credit to the appellants will be a miscarriage of justice. In view of the above discussion the order dated 28-11-2004 itself is required to be set aside. Accordingly, the impugned order is set aside to the extent of the Modvat credit to the appellants, and appeal is allowed. (Dictated and pronounced in the open Court)
-
2005 (11) TMI 418 - CESTAT, NEW DELHI
Appeal to Commissioner (Appeals) - Limitation ... ... ... ... ..... appeal within period of limitation. 2. emsp We find that appeal filed by the appellant was dismissed by the Commissioner (Appeals) as time bar. The appeal is to be filed within three months from the date of communication of the order and the Commissioner (Appeals) has the power to condone the delay of further three months as showing the sufficient cause for not filing the appeal in time. In the present case, the appellant was asking for speaking order as the goods were assessed and value was enhanced on the Bill of Entry. Appellant were asking for speaking order and made a request for supply of speaking order. In these circumstances, we find that appellant has shown sufficient cause for not filing the appeal within the period of limitation before the Commissioner. In these circumstances, matter is remanded to the Commissioner (Appeals) for a fresh decision on merit after affording an opportunity of personal hearing to the appellants. Pronounced and dictated in the open Court
-
2005 (11) TMI 417 - CESTAT, BANGALORE
Appeal by Department - Limitation ... ... ... ... ..... ved in this office only on 8-6-99. The appeal was filed on 2-9-1999 and is within 3 months period only. The delay in filing the appeal is noticed only after having been pointed out by the SDR CESTAT vide letter No. E/1518/99, dated 27-9-2005. The delay may please be condoned and the appeal may please be accepted. Sd/- xxxx (R.J. BELEY) COMMISSIONER rdquo 2. emsp None appeared on behalf of the Respondents. 3. emsp On a careful consideration of the matter, we notice that the Commissioner has not understood the procedure for filing an application for condonation of delay in filing the appeal. The delay has to be explained by sufficient cause and not file an application in the above manner. There is no explanation given in the matter, despite the directions to the Commissioner to file a COD application along with an Affidavit. The department had not complied with the directions for the last six years. The appeal is dismissed on time bar. Pronounced and dictated in the open Court
-
2005 (11) TMI 416 - CESTAT, CHENNAI
Appeal - Demand ... ... ... ... ..... by the original authority was erroneous, the only option for the Department was to issue a show-cause notice under Section 11A of the Central Excise Act for recovery of the amount. Again, this argument is untenable inasmuch as no cash refund was effected in this case. Unless any amount of money is actually paid to a person by way of refund of duty, there is no question of recovery under Section 11A. The order of the original authority, in the instant case, was one sanctioning refund of an amount of duty and the same was challenged by the Department before the Commissioner (Appeals). 4. emsp As the question whether M/s. TNNPL was entitled to cash refund of Rs. 67,954/- was conclusively settled by the lower appellate authority in Order-in-Appeal No. 331/2003, the challenge against Order-in-Appeal No. 336/2003 does not survive. In the result, the impugned order gets affirmed and this appeal is dismissed. (Operative portion of the order was pronounced in open Court on 28-11-2005)
-
2005 (11) TMI 415 - CESTAT, CHENNAI
... ...
... ... ..... No. 52/2004, dated 30-8-2004 in view of the earlier OIA No. 23/2004, dated 26-3-2004. Now that OIA No. 23/2004 stands set aside, OIA No. 52/2004 must also meet the same fate. In the result, the appeal No. E/1270/2004 is also allowed. 4. emsp Pursuant to OIA No. 23/2004, the Asst. Commissioner had sanctioned cash refund of Rs. 1,52,989/- to the assessee as per Order-in-Original No. 14/2004, dated 6-5-2004, against which the department filed an appeal with the Commissioner (Appeals). The appellate authority, by OIA No. 53/2004, dismissed the department rsquo s appeal as not maintainable as he had already decided the issue in favour of the party. Appeal No. E/1271/2004 of the department is against OIA No. 53/2004. Now that OIA No. 23/2004 stands set aside, the subsequent proceedings of the AC for sanctioning cash refund also require to be set aside. In the result, appeal No. E/1271/2004 also will stand allowed. (Operative part of the order was pronounced in Court on 28-11-2005)
-
2005 (11) TMI 414 - CESTAT, BANGALORE
Cenvat/Modvat ... ... ... ... ..... appellants have stated that several audit parties have visited the unit. The appellants appear to have indulged some undesirable activities like raising fake invoices etc. But demanding differential duty and denying Modvat credit on the same goods on the ground that they have not undertaken any manufacturing activity in the factory appear to be logically inconsistent situations. The original authority has reproduced the statement of several persons but his findings are not very clear. We are of the view that the order-in-original is not sustainable. The appellants had already paid differential duty demanded. In the absence of clear cut evidence, the charge of Modvat credit was utilised even without receipt of inputs cannot be sustained. The denial of Modvat credit cannot be sustained. There is no basis to demand differential duty. In these circumstances we set aside the impugned order and allow the appeal with consequential relief. (Pronounced in open Court on 28 Nov., 2005)
............
|
