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Showing 401 to 420 of 692 Records

• 2010 (5) TMI 483 - GUJARAT HIGH COURT
  

  Cenvat credit of service tax paid - CENVAT credit availed of by the respondent in relation to cement and steel, air-conditioners, club fees, services provided to importers by Customs House Agents, rent-a-cab operators, mobile phones etc. - Tribunal confirmed the demand in relation to cement and steel as well as service tax paid on club house fees, whereas insofar as the demand in relation to input credit in respect of service tax paid on mobile phones, CHA and surveyor charges, rent-a-cab, club house fees and professional charges paid to consultants for construction, soil testing and labour, as well as credit of duty paid on the air-conditioners etc., was concerned, it was held that CENVAT credit of duty paid in respect thereof was admissible - order of the Tribunal does not suffer from any legal infirmity so as to warrant interference – Appeal dismissed

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• 2010 (5) TMI 482 - CESTAT, NEW DELHI
  

  Valuation – job work - goods manufactured by the Appellant on job work basis - after manufacture of the goods cleared depots of principal manufacturer - duty paid on the ex-factory price of the principal manufacturer, which is not correct - matter is remanded to the original adjudicating authority for determining the assessable value in accordance with the judgement of Hon'ble Supreme Court in case of Ujjagar Prints and others v. UOI (1988 -TMI - 42346 - SUPREME COURT OF INDIA) and (1989 -TMI - 42390 - SUPREME COURT OF INDIA)

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• 2010 (5) TMI 481 - CESTAT, BANGALORE
  

  Security Agency Services - bona fide belief - Co-operative society consisting of ex-servicemen - Commissioner (Appeals) while setting aside the demand confirmed by the Adjudicating Authority has not considered the point of tax is due only on the amount of value of services, which has been collected by them from their service receivers - no reasoning given by the learned Commissioner (Appeals) for coming to such a conclusion by setting aside the Order-in-Original - order set aside and matter remanded back to the learned Commissioner (Appeals) to reconsider the issue afresh after following the principles of natural justice

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• 2010 (5) TMI 480 - GUJARAT HIGH COURT
  

  Cenvat credit – Period of limitation - It is settled legal position as laid down by the Apex Court in a catena of decisions that it is not sufficient in a judgment to give conclusions alone but it is necessary to give reasons in support of the conclusions arrived at. In the present case, as is apparent from a plain reading of the order of the Tribunal, the Tribunal has not given any reasons as to why the larger period of limitation could not have been invoked and as to why the findings recorded by Commissioner (Appeals) on question of invocation of the extended period of limitation were erroneous. Besides, it is also apparent that the matter has been taken up for hearing while considering the application for waiver of pre-deposit and the revenue has not been given any opportunity of hearing on the question of limitation, and as such the impugned order of the Tribunal stands vitiated on the ground of breach of principles of natural justice and as such cannot be sustained. – Matter remanded to Tribunal for fresh consideration

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• 2010 (5) TMI 479 - CESTAT, BANGALORE
  

  Port service – royalty charges - royalty received by the appellant is not a consideration for any port services rendered – Held that: - Port service means any service rendered by a port or other port, or by such port or other port, in any manner in relation to a vessel or goods - assessee pays service tax as demanded, the same will be available to it as cenvat credit, and can be used to meet its liability on services rendered - demand not liable to be sustained

  Ownership/lease hold rights of the equipment of the appellant shall stand transferred to the licensee from the date of receipt of first installment of the upfront payment. The leasehold rights and ownership of crane leased from M/s. ABG Heavy Industries Ltd., was also passed on to the licensee. The consideration received was accounted in the financial records of CPT as sundry debtors and the value of the assets written off at the written down value of Rs. 7.6 crores. Even if the equipment is held to have been leased to IGTPL and not sold, - no tax can be levied on the consideration as it is not received towards port services rendered by CPT.

  The assessee did not put up jetties but collected charges for licenses granted to other persons to put up structures on the waters coming within the administrative jurisdiction of CPT. These charges are collected in accordance with Cochin Port(licensing of jetties, slipways and boat pen) Regulations, 1968 - these charges for licenses as not classifiable under port services or taxable under that head.

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• 2010 (5) TMI 478 - CESTAT, CHENNAI
  

  Waiver of pre-deposit – cenvat credit – Inputs suppliers working under area based exemption Notification No. 32/99-C.E. – Excess duty paid by suppliers on freight and insurance charges by including them in assessable value and refund of whole duty including excess duty received in terms of notification - if credit of excess duty paid is allowed, the exchequer would suffer a loss by refunding equal amount to the suppliers and giving credit of the same amount to the appellants - appellants do not have a case in their favour for full waiver of pre-deposit - The appellants have also not disclosed the fact that they have taken credit of duty paid on freight and insurance charges as recorded by the lower appellate authority and hence their claim for non application of extended period of time, prima facie not sustainable - Directed to deposit 50%.

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• 2010 (5) TMI 477 - CESTAT, CHENNAI
  

  Release of goods pending appeal – Tribunal to invoke its powers under Rule 41 of the CESTAT (Procedure) Rules, 1982 - Tribunal has allowed provisional redemption of confiscated goods on payment of duty and redemption fine without insisting on payment of penalty - reason given in this interim order that only duty and fine are related to the goods and not the penalty - Commissioners (Appeal) and the Tribunal have only discretionary power to waive the requirement of pre-deposit of duty, interest and penalty in case of undue hardship for the purpose of hearing an appeal under Section 129E but not for release of goods prior to deciding an appeal - importer, has a choice to take release of the goods on payment of duty, redemption fine, and penalty adjudged, subject to the outcome of an appeal before the appellate authorities.

  It is thus clear that the petitioners who are in the business of marble and have become a habitual importer of goods inspite of the fact that they are very well aware of ie law that the imports have to be backed by a valid licence. Inspite of this, if the petitioners are repeatedly including in importing marbles without licence, or subsequently obtain licence to cover up illegal imports then it would be a duty of writ Court to arrest such tendency prevailing amongst the importers of the goods.

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• 2010 (5) TMI 476 - CESTAT, NEW DELHI
  

  Confiscation and penalty – smuggling - respondent had no evidence of ownership of the goods - self-contained code which speaks for itself to be considered as relevant in a proceeding - Relevancy of such evidence has been considered in various decisions of the Apex Court holding that such a useful evidence recorded by customs officer is admissible - no evidence to refute the allegation calls for setting aside of the first order and to restore the order in original - ordered accordingly

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• 2010 (5) TMI 475 - CESTAT, NEW DELHI
  

  Payment of service tax – Excess service tax paid - excess amount paid becomes refundable to the assessee - Revenue having disagreed for adjustment, the demand arose - Held that: When the Rules are subordinate to the legislation, that should not act as master to deprive the deserved, who may be considered for grant of appropriate adjustment of the excess tax paid. The Adjudicating authority shall workout the modality as permissible under law to settle the dispute at its level in both cases.

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• 2010 (5) TMI 474 - CESTAT, MUMBAI
  

  Regarding contention of appellant for non supply of test report - If there was at least one letter after receipt of test result till personal hearing in 2001 informing the department of upgradation of facilities, result of laboratory of OPL and seeking re-test, this claim would have been sustainable. It is all the more surprising that appellants did not seek re-test when the results were negative and they had upgraded the facility. - It is not the case of the appellant here that the report was in their favour and it was deliberately withheld. No evidence has been brought out to show that the gist of the report communicated by the department was different from the actual report.

  Regarding provisional assessment - it has also been pointed out that OPL themselves had written a letter vide No. C/217/01 in 1989 wherein OPL had spoken about execution of bond in connection with provisional assessment of the goods covered under Chapter 27. - On going through RT-12 returns, it was noticed that quite a few were provisionally assessed. RT-12 returns produced before us were found to be assessed provisionally from Jan. 93 to Feb. 94. - provisional assessment endorsements speak of assessment being provisional only in respect of Benzene and Toluene. No differential duty has been indicated in respect of other products in any of the assessment endorsements produced before us. In view of the fact that the provisional assessment memorandum was available upto Feb. 94 and thereafter clearly there was no provisional assessment memorandum, it has to be held that upto Feb. 94 assessment was definitely provisional.

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• 2010 (5) TMI 473 - CESTAT, MUMBAI
  

  Refund - limitation – duty paid under protest – provisional assessment - finalisation of provisional assessment was made - MODVAT credit of the CVD part of the duty paid by them was availed by the assessee - no appeal was filed by the assessee – Held that: - the assessee chose to take the benefit of the finalised assessment by availing MODVAT credit of CVD - assessee is estopped from contending that the refund claim should be considered as a challenge to the assessment order - appeal is dismissed

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• 2010 (5) TMI 472 - CALCUTTA HIGH COURT
  

  Refund - limitation – duty paid under protest – SCN for its non-payment based on a CBEC circular - circular was quashed by this court – Held that: - not a case of erroneous deposit, but a deposit of duty in response to a show cause notice under protest - limitation the respondents could not refuse to refund - Since payment without any valid reason - respondents are directed to refund all amounts paid

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• 2010 (5) TMI 471 - CESTAT, BANGALORE
  

  Works contract – stay order - appellant, a turnkey contractors, having executed a contract with state Government for the construction of a reservoir and canal meant for irrigation of agricultural land - activity treated as taxable under the category of “works contract services” - CESTAT granted unconditional waiver to Lanco Infratech Ltd.’s case (2009 -TMI - 77813 - CESTAT, BANGALORE) - appellant has made out a prima facie case for waiver of pre-deposit – Waiver allowed

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• 2010 (5) TMI 470 - CESTAT, BANGALORE
  

  Charge of service tax under section 66A of the Finance Act, 1994 – Services received from abroad – services received prior to enactment of section 66A, i.e., with effect from 18-4-2006, that taxable services received from abroad by a person belonging to Indian are taxed in his hands – demand, set aside

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• 2010 (5) TMI 469 - KARNATAKA HIGH COURT
  

  Interest Tax Provisions - Whether the Appellate Authorities were correct in holding that the Assessee had entered into only a hire, purchase transaction with third parties and therefore no interest was received by the Assessee - by following the judgment of the Division Bench in the case of ICDS Ltd. - order set aside and the matter remitted back to the appellate authority – Decided in favor of the assessee by way of remand to appellate authority

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• 2010 (5) TMI 468 - CESTAT, NEW DELHI
  

  Waiver of pre-deposit – cenvat credit of service tax - appellant’s claim for credit of service tax paid on air travel agent, tour operator and travel agent services stands denied - on the presumption that the said services might have been used for the travel of family members of the Director and for the personal visits of Directors and the employees – finding not supported by any evidence - invoices issued by the agents did not indicate the purpose whether the tours were official or personal is erroneous as no agents can indicate whether the tours are personal or official - credit taken has not been utilised and therefore, the applicant has not gained any monetary benefit - appellant has made out a case for waiver

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• 2010 (5) TMI 467 - CESTAT, NEW DELHI
  

  Appeal - whether the process of larger diameter to lesser diameter and lacquering same with enamel amounts to the manufacture or not – If such an issue can be considered on the basis of the materials already on record, there can be no difficulty in allowing the appellants to raise the additional ground - application seeking to raise the additional ground is allowed.

  the fact remains that the charge against the appellants was that of clandestine removal of the goods. Undoubtedly, the burden in this regard primarily rested upon the department. It is also not in dispute that the department did discharge the burden by referring to the difference in the weight of the inputs and that of the final product. However, one cannot forget that the process of manufacturing involved drawing of the wire from thicker to thinner diameter and thereafter the process of lacquering with enamel. The technical opinion clearly revealed that such process involves atleast 6% of loss in weight. We do not find any material having been placed by the Department to dispute the correctness of the said technical opinion. - Matter remanded for limited purpose to adjudicating authority to decide the liability of the appellants bearing in mind the loss factor to be calculated based on whatever materials available on record.

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• 2010 (5) TMI 466 - CESTAT, NEW DELHI
  

  Demand – voluntary disclosure of income – income could not be added to the taxable value unless there is evidence to prove the same - no evidence to show that the income disclosed is the part of taxable service – no any infirmity in the impugned order - appeal are rejected

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• 2010 (5) TMI 465 - CESTAT, BANGALORE
  

  Waiver of pre-deposit – cenvat credit of service tax – Input service – Credit of service tax paid on telephone service availed - providing services of ‘Authorized Service Station’ – as per vide Circular No. 59/8/2003-S.T, Service Tax credit availed cannot be denied - prima facie case for the waiver of the pre-deposit – pre-deposit waived

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• 2010 (5) TMI 464 - ITAT, JABALPUR, LB
  

  Block assessment proceedings - AO did not found any undisclosed income from the seized record of the persons searched, but he has initiated the block assessment proceedings just to examine the veracity of the creation/source of investment - block assessment proceedings can be initiated only for assessment of undisclosed income found as a result of search and not for the verification of capital accretion or source of investment - observation not tenable in view of the decision of the Hon’ble Supreme Court in the case of Manish Maheshwari [2007 (2) TMI 148 - SUPREME COURT OF INDIA] wherein held that satisfaction must be recorded by the AO that any undisclosed income belongs to any person other than the person with respect to whom search was made u/s 132 of the Act - matter remanded to regular Bench for deciding the appeals in conformity with the opinion of the majority

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