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Showing 441 to 460 of 692 Records

• 2010 (5) TMI 439 - CESTAT, BANGALORE
  

  Appeal to Tribunal – restoration of appeal - appeal dismissed as withdrawn by the Tribunal - Tribunal accepted the proposition that if it had power to allow an application for withdrawal of appeal, it also had the power to allow, on sufficient grounds, an application for withdrawal of such an application – Held that: - the CESTAT Procedure Rules enabled the Tribunal to pass such orders as may be necessary to meet ends of justice - appeal deserves to be restored - appellant cannot be denied opportunity to seek relief admissible to it before the Tribunal for an apparent mistake of its Counsel - ROA application is allowed

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• 2010 (5) TMI 438 - ALLAHABAD HIGH COURT
  

  Reassessment – notice beyond 4 years - failure on the part of the assessee to disclose all material facts necessary for the assessment - assessee furnished complete details relating to the sale of equity shares - notice issued beyond four years, barred by limitation - petition allowed

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• 2010 (5) TMI 437 - CESTAT, AHMEDABAD
  

  Additional Excise Duty – duty paid under compounded levy scheme governed by notification No. 33/2001-C.E. – submission that Additional Excise Duty (Textiles & Textile Articles) is applicable on the duty specified in the 1st and 2nd Schedule of Central Excise Tariff Act, 1985, is not correct in view - In the absence of any specific exemption notification exempting the goods from Additional Excise Duty (Textiles & Textile Articles), this contention fails - Notification No. 33/2001 is not self-contained and therefore this contention cannot be considered – AED payable

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• 2010 (5) TMI 436 - CESTAT, NEW DELHI
  

  Waiver of pre-deposit – interest – delay in payment of duty - Right to appeal is a statutory right and the same can be subject to various conditions - a person aggrieved by an order of the original Authority desiring to avail the benefit of the appellate jurisdiction can avail such remedy subject to conditions imposed or attached thereto - appellant has to deposit the amount determined by the lower authority – Held that: - It cannot be disputed that if an assessee withholds the public money and utilises the same for himself without surrendering the benefit so derived from such utilisation in favour of public exchequer, it would amount to unjust enrichment - duty liability arising in the course of the adjudication proceedings before the authorities and appropriate steps being taken by the authorities concerned to safeguard the revenue while allowing the assessees to take the benefit of various facilities granted under the statutory provisions - appellant has made out the case as regards the penalty amount, but no case has been made out as far as interest amount is concerned - application is partly allowed and the penalty amount is waived till the disposal of the appeal

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• 2010 (5) TMI 435 - CESTAT, KOLKATA
  

  Demand of Service Tax, interest and penalty - Dredging service – dredging of river whether covered – Registration obtained under Dredging service but service tax liability contended as absent in respect of dredging of river - assessee submits that they were under a bona fide belief that the activities undertaken by them did not attract levy under dredging service – Held that: - Appellants have no reason to entertain the bona fide belief and that they have failed to file returns relating to dredging services undertaken by them, the penalties imposed are also justified - Appellants will calculate the Service Tax liability in terms of the Order and pay the same along with the penalties

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• 2010 (5) TMI 434 - CESTAT, CHENNAI
  

  Cenvat credit of service tax - Consultancy Services are for environmental evaluation work - disallowed on the ground that there was nothing to relate the service to the factory premises of the assesses – Held that: - they are entitled to cenvat credit of service tax - appeal allowed

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• 2010 (5) TMI 433 - CESTAT, MUMBAI
  

  Waiver of pre-deposit - Application of stay - Business Auxiliary Services and Market Research Services - export of Business Auxiliary Service by the assessee was at issue and it was, prima facie, held that such export would be exempted from Service tax even after rescission of Notification No. 6/99-S.T. - appellant during the material period, was engaged in the activity of analyzing market research reports coming from abroad - They were expected to get themselves registered with the department inasmuch as it is not their case that, they were committed to the above activity only for the purpose of export - They were expected to get themselves registered with the department inasmuch as it is not their case that, they were committed to the above activity only for the purpose of export. Prima facie, till August, 2003, the appellant suppressed material facts before the department and, therefore, the larger period of limitation was invoked rightly for demand of Service tax on 'Market Research Services' from the appellant - Decided in favour of the assessee

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• 2010 (5) TMI 432 - CESTAT, NEW DELHI
  

  Non-speaking order - cenvat credit of the service tax - Commissioner (Appeals) disposed of the appeal on the basis of the decision in the earlier appeal - ignoring the fact that the said decision was based on the materials which were available on the record in the earlier appeal and not in the matter in hand - Held that: - cannot be sustained and is liable to be set aside and the matter needs to be remanded to the Commissioner (Appeals) – disposed off accordingly

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• 2010 (5) TMI 431 - CESTAT, NEW DELHI
  

  Appeal - restoration of the application – dismissed on the ground authorization was not proper - note sheet copy filed by department - One Commissioner has signed the note sheet on 1-12-2008 while the other signed on 4-12-2008 - Committee comprises more than one Member to be called as a Committee - no Committee on either of the dates for a decision - restoration application is bound to be dismissed

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• 2010 (5) TMI 430 - CESTAT, NEW DELHI
  

  Cenavat credit - fake invoices - respondents sought to avail Cenvat credit – Held that: – manufacturer should obtained summon to the dealer to produce the necessary evidence - burden in that regard was squarely upon the manufacturer – demand under SCN confirmed

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• 2010 (5) TMI 429 - CESTAT, MUMBAI
  

  Interest on delayed refund – Amount claimed as refund deposited during investigation - matter was sub-judice before the Court - appellant is not entitled for refund claim is not acceptable in terms of the Board Circular dated 8-12-2004 - Revenue has to refund the amount deposited by the appellant during the course of investigation - which the department has failed to do - appellant is entitled for interest after three till the date of its realization - appeal is disposed of

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• 2010 (5) TMI 428 - CESTAT, NEW DELHI
  

  Refund claim - adjudicating authority rejected the said claim on the ground - commencement of production was prior to the exemption notification would not be admissible - Held that: - certificate had been issued by the said authority showing that the appellant had started commercial production only from 15-6-2002 - commencement of production the Department of Industry of the State Government may be consulted who should be in a position to advice on that aspect - Appeal is dismissed

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• 2010 (5) TMI 427 - PUNJAB AND HARYANA HIGH COURT
  

  Smuggling foreign currency out of India - Acquisition or possession of the foreign currency - petitioner Harinder Pal Singh Shergill, who was Pilot / Captain of Air India - The petitioner tried to explain that he was carrying the currency at the instance of Kuttie. One Yakub Mohammed contacted him and delivered the cloth belt containing the currency to be carried to Bahrain for Kuttie. He also gave him one extra cloth belt to be used in case of any damage to his belt. The additional belt was also recovered from his baggage and seized. He also admitted that he brought the currency tied to his waist to the airport by his personal Fiat car - Held that: - Tribunal has dealt with the real controversy and rightly decided the appeal in correct perspective, vide which, a penalty of Rs.10 lacs imposed on the petitioner was reduced to Rs.5 lacs. Thus, the contrary argument, "stricto sensu" deserves to be and are hereby repelled under the present set of circumstances. - Adjudicating Authority provided adequate opportunities to the petitioner before passing the impugned order and the Tribunal has rightly dismissed his appeal in the obtaining circumstances of the case.

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• 2010 (5) TMI 425 - PUNJAB AND HARYANA HIGH COURT
  

  Penalty and confiscation - misdeclaration - Held that: - There is nothing on record to show that the Respondent-Assessee was unaware of the actual description of the goods. It cannot be assumed that the assessee had been unaware of the description, as he himself had applied for first check. In the present case, duty was assessed on 26.04.2000 and thereafter during the course of examination, the goods were found to be TOR/Ribbed Steel Bars and the Respondent applied for mutilation on 26.05.2000 much after the detection of the offence. In these circumstances, it cannot be held that the Respondent acted in a bona fide manner and he is not liable to fine and penalty.

  A perusal of the case file shows that only those goods which are not usable because of breakage, cutting up wear etc. can be considered as waste and scrap. However, in the present case, the Chartered Engineer Shri Shori in his opinion has clearly opined that the goods are usable as such. It is clear that the usability and not the length is the criterion for deciding whether the goods are scrap or not. The goods reported in the present case were complete and contained MS rounds instead of HMS and could not be said to be waste material and, therefore, the Commissioner has rightly held that the invoice price for HMS is liable to be rejected as the importer has mis-declared the description as well as the value of goods with an intent to evade customs duty. - Decided in favor of revenue.

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• 2010 (5) TMI 423 - CESTAT, BANGALORE
  

  Penalty - stay of the recovery of an amount and penalty - Availment of irregular Cenvat Credit - Held that: - department also did not take appropriate steps to get the matter listed for hearing - Registry shall also issue notice to the concerned advocate about the hearing of the matter in addition to the notice to the party - Registry shall disclose in the notice that the entire matter including the appeals and stay application will be heard

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• 2010 (5) TMI 422 - CESTAT, NEW DELHI
  

  Rectification of mistake - financial hardship was not considered while disposing the matter – matter required re-consideration of the matter

  Waiver of pre-deposit - under-invoicing is based on data retrieved from the lap top and statements of witnesses coupled with some documentary evidences in relation to small percentage of clearances - evidence being not allowed to be tested by way of cross-examination - appellants have been able to make out prima facie case for grant of stay order and total waiver of the amount demanded till the disposal of the appeal

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• 2010 (5) TMI 421 - CESTAT, NEW DELHI
  

  Demand and penalty – short payment of duty - SCN alleging default in payment of excise duty - short payment of duty during those five months which stood paid by the assessee along with interest - SCN does not reveal the circumstances under which short payment has occurred – Held that: - short-payment that has occurred have not been dealt with in the show cause notice - default in payment and consequent liabilities are difficult to sustain - Rule 8(3A) cannot be invoked - order of the Commissioner (Appeals) in demanding differential duty and permitting credit of equal amount in cenvat credit account is set aside - penalty under Rule 25 of the Central Excise Rules is reduced - Appeal of the Department is rejected

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• 2010 (5) TMI 420 - KERALA HIGH COURT
  

  Business loss - In the return, filed declaring income, the assessee claimed 100 per cent. depre- ciation amounting to Rs. 3,60,19,500 as Cost - Since there is no business of lease transaction there cannot be any loss on such business - Neither is there any finding that the finding of the Assessing Officer or the first appellate authority that the alleged lease transaction is bogus is unsustainable nor that there was any lease transaction established - The additional documents produced before the Tribunal as well as before this court are not better than the documents produced before the Assessing Officer and rejected by him, which was confirmed by the first appellate authority - Held that: entire lease transaction are bogus and mere paper transactions - attempts to evade tax – Held that: - respondent is not entitled to any deduction towards the business loss - Decided against the assessee

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• 2010 (5) TMI 419 - CESTAT, NEW DELHI
  

  GTA - appellant is a service receiver - availment of Service Tax credit as well as the benefit of exemption under notification No. 1/2006 S.T - declared in the S.T. 3 return - scrutiny of this S.T. 3 return - Show cause notice issued - Held that: - That this is a bona fide mistake, is clear from the fact that this irregularity had happened - this is a case where the provisions of Section 80 can be invoked - there was reasonable cause for short payment of service tax - the impugned order rejecting the appellant's plea for invoking the provisions of Section 80 and upholding the penalty under Section 76 is not correct - appeal filed by the appellant is allowed and the appeal filed by the department is dismissed

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• 2010 (5) TMI 418 - CESTAT, MUMBAI
  

  Restoration of appeal - stay applications filed by the company and its Director were disposed of by this Bench by a common order - company was directed to pre-deposit - company did not deposit the amount, and consequently, their appeal came to be dismissed - Subsequently, restoration applications were filed by the company and its Director and the same were allowed on terms vide Order – Held that: - The appeal of the Director should not have been dismissed on the ground on which the appeal of the company was dismissed - Director of the company is liable to be restored and his stay application requires to be reconsidered on merits - we allow the present application by restoring the appeal.

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