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Case Laws
Showing 141 to 160 of 638 Records
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2010 (6) TMI 764 - CALCUTTA HIGH COURT
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... ... ..... traineeship he was learning the art of business and, therefore, how he could help in promoting the trade and export accordingly disallowance of 50 per cent of travel and tour in our view on the facts and circumstances of this case was just and proper. Mere production of the document for travel and tour cannot help. The purpose is whether a trainee’s travel and tour can be treated to be for promotion of business or augmentation of the business or not, we have already said in negative. Thus we allow this appeal to the extent as above. We, therefore, direct the assessing officer to delete the disallowance of the amount claimed by the assessee a sum of ₹ 14,27,531/- and also 50 per cent of the sum of ₹ 3,00,783/- and this shall be done forthwith on production of certified copy of this judgment. There will be no order as to costs. Certified xerox copy of this judgment and order, if applied for, be made available to the parties on compliance of usual formalities.
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2010 (6) TMI 763 - CESTAT BANGALORE
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... ... ..... led the law which is as under In this case, there was a divergent view of the various High Courts whether crushing of bigger stones or boulders into smaller pieces amounts to manufacture. In view of the divergent views, of the various High Courts, there was a bona fide doubt as to whether or not such an activity amounted to manufacture. This being the position, it cannot be said that merely because the appellants did not take out a licence and did not pay the duty the provisions of Section 11A got attracted. There is no evidence or proof hat the licence was not taken out and/or duty not paid on account of any fraud, collusion, willful mis-statement or suppression of fact. We, therefore, set aside the demand under the show cause notice dated 3rd May, 1993. 6.2. In view of this, I do not find any merit in the appeal filed by the Revenue. The appeal is rejected on limitation only without recording any findings on the merits of the case. (Pronounced & dictated in open Court)
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2010 (6) TMI 762 - ITAT AHMEDABAD
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... ... ..... has passed. In the case of T.V. Sundaram Iyengar & Sons Ltd. 222 ITR 344 , the Hon'ble Supreme Court stated that the addition of old advances and deposits of other parties has to be made only if the assessee has written off the creditors because due to efflux of time the liability is ceased to be operative and accordingly the same is required to be taxed u/s. 41(1). Further, in view of the decision of Hon'ble Supreme Court in the case of Sugauli Sugar Works (supra), no addition u/s. 41(1) can be made. Therefore, the addition made by the A.O. is deleted and this ground of appeal is allowed”. 11. In our opinion, the ld. CIT(A.) has given cogent reason for deleting the addition made by the Assessing Officer. We, therefore, incline to uphold the order of Learned Commissioner of Income Tax(Appeals). Resultantly, this ground of appeal is rejected. 12. In the result, the appeal filed by the Revenue is dismissed. The Order was pronounced in the Court on 04.06.2010
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2010 (6) TMI 761 - CESTAT CHENNAI
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... ... ..... assessment, excess duty paid is to be adjusted against duty short-paid and thereafter net difference in duty is to be either demanded or refunded as the case may be. Following the ratio of the above order, I hold that adjustment is permissible in law. 3. As regards credit of the refund amount to the consumer welfare fund, I find that the assessees issued credit notes subsequent to the passing of the duty incidence. Applying the ratio of the Hon’ble Rajasthan High Court’s decision in Union of India Vs. A.K. Spintex Ltd. - 2009 (234) ELT 41 (Raj.), I hold that refund is admissible to the assessees as the incidence of excise duty has been held as not to have been passed on to purchaser in cases where credit notes were raised by the assessees. Following the ratio of the above order, I hold that the assessees are entitled to the refund of amount in question. 4. In the result, I set aside the impugned order and allow the appeal. (Dictated and pronounced in open court)
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2010 (6) TMI 760 - ITAT AHMEDABAD
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... ... ..... neness for the loans, the finding arrived at by the appellate authority on the basis of such reliable material could not have been so cursorily dealt with by the Tribunal for the purpose of giving “one more innings” to the Assessing Officer. It was the duty of the Tribunal to ascertain the reasons which were given by the Commissioner of Income-tax (Appeal s) in whose order he order of the Assessing Officer had merged and not to base is decision merely on “a bit of negligence” of he Assessing Officer in no cross-examining the parties who were produced before him four to five times. In our opinion, the Tribunal has reached the conclusion which cannot reasonably be reached by any one, and there is no warrant for resorting the matter to the Assessing Officer on such specious grounds as are given by the Tribunal.” In view of the above facts and circumstances, we dismiss the appeal of the Revenue. 5. In the result, Revenue’s appeal is dismissed.
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2010 (6) TMI 759 - GUJARAT HIGH COURT
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... ... ..... M/s Binani Cement Ltd. (the respondent herein) which came to be decided by this High Court on 10.07.2008 in Tax Appeal No.1592 of 2007 and accordingly found that the said decision squarely covers the substantial issue arising in the appeal. The Tribunal further noted that the only issue which did not arise in the said decision was as to what would be the effect of an ab initio cancellation of DEPC licences by DGFT, which stood covered in favour of the respondent by the decision of the Supreme Court in the case of Collector of Customs, Bombay v. Sneha Sales Corporation, (2000) 121 ELT 577 (SC). Thus, the Tribunal has merely followed the decisions of the jurisdictional High Court and the Supreme Court. In the circumstances, it cannot be stated that the impugned order of the Tribunal suffers from any legal infirmity so as to warrant interference. (5) In absence of any question of law, much less any substantial question of law, as proposed or otherwise, the appeal is dismissed.
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2010 (6) TMI 758 - CESTAT BANGALORE
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... ... ..... ision of the Apex Court may not be applicable in the case of 'input services' as it was in the case of 'inputs' only. 7. I have given anxious consideration to the submissions made by both sides and perused the records. I find that the denial of cenvat credit on the service tax paid on the transportation services provided to the staff for pick up and drop from their residence to the factory and vice versa was an issue before the DB in the assessee's own case wherein the DB has held that such amount is eligible to be taken as credit. Since the decision of the DB in the appellant's own case is binding on me, I hold that the impugned Order-in-Appeal, which relies on the case of the various other decisions of the Tribunal, is not sustainable and is liable to be set aside. The impugned order is set aside and appeal allowed with consequential relief. The stay petition and appeal is disposed of as indicated herein above. Pronounced and dictated in open Court.
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2010 (6) TMI 757 - KARNATAKA HIGH COURT
Reversal of CENVAT credit - non-maintenance of separate accounts of inputs - Rule 6(2) of Cenvat Credit Rules, 2002 - Whether the Tribunal was correct in ignoring the statutory provisions of Rule 6 of CCR 2002 and the Board's Clarification issued vide Circular No.654/45/2002-CX dated 19.8.2002 and holding that the assessee had reversed the credit at the time of removal of goods and they are not required to pay 8% of the price of the exempted goods? - Whether the Tribunal was correct in holding that the principle laid down by the Apex Court in the case of Chandrapur Magnets case [1995 (12) TMI 72 - SUPREME COURT OF INDIA] continues to apply despite the introduction of Cenvat Credit Rules. 2002?
Held that: - it is manifest on the face of the order that the Tribunal has considered all the relevant material on record and has afforded reasonable opportunity and by placing reliance on the notification and also the judgment of the Apex Court in the case of Chandrapur Magnet Wires Pvt. Ltd., vs. CCE, Nagpur [1996 (81) ELT 3 (SC)] and applying the ratio of the said case to the facts in hand, has reversed the order passed by the assessing authority and held that assessee is not liable to pay 8% of the price of the exempted goods and consequently, allowed the appeal - there is no error in the Tribunal's order.
The period of effect of amendment to Rule 6 of the CENVAT Credit Rules. 2002, the period is extended from 1st day of March, 2002 to the 9th day of September 2004 (both days inclusive). In the instant case, the date of removal of friction welding machines is on 1.1.2004 and the said date comes within the extended period of September 2004 as per the Finance Act. Therefore, on this ground also, the appeal filed by the appellants is liable to be dismissed.
Appeal dismissed - decided against Revenue.
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2010 (6) TMI 756 - ITAT AGRA
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... ... ..... nt being S.B. Account No.4154 was opened with the State Bank of Patiala, Sanjay Place on 25.04.1999 in which the cheque received from M/s. Cosmos Financial Services (P). Ltd. were deposited on the same very date when the gifts were given by the assessee. No enquiry has been made from M/s. Diamond Steels (P) Ltd. whether the assessee has genuinely purchased and sold the shares. In our opinion, merely on the basis of the bank account that also belonging to business concern one cannot conclude that the assessee has duly explained the source of the deposit specially when the assessee has not filed Wealth Tax return showing cash in hand amounting to ₹ 20,00,000/- as on 31.03.1999 which was chargeable to Wealth Tax. Thus, in our opinion, the assessee has not discharged his onus and the explanation given by the assessee is not plausible. We accordingly set aside the order of the CIT(A) and restore the order of the A.O. 5. In the result, appeal filed by the Revenue is allowed.
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2010 (6) TMI 755 - CESTAT BANGALORE
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... ... ..... s and perused the records. The learned Counsel is correct in bringing to my notice that the issue has been decided by the decision of this Tribunal in the case of Stanzen Toyotetsu India Pvt. Ltd. (supra) wherein I was also one of the Members and the issue involved in that case and in the current case before me is regarding Cenvat credit of the service tax paid on the Group Mediclaim Policy and the Group Insurance Health Policy. Respectfully following the said decision, I find that the impugned order is liable to be set aside and I do so. To my mind, the issue raised by the learned JCDR needs a consideration of mention, to the effect that unless there is a clear quantification of the amount of the service tax paid towards the Group Insurance Policy of the permitted family members, the issue could not be taken up for any further discussion, cannot be looked into. In view of the foregoing, the appeal is allowed with consequential relief. (Pronounced and dictated in open Court)
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2010 (6) TMI 754 - KERALA HIGH COURT
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... ... ..... ribunal for denial of opportunity and hearing the matter exparte are not sustainable. Therefore, without going into the merits of the decision rendered by the Tribunal, we set aside the order in appeal and remand the matter to the Tribunal for issuing notice to the assessee and for giving an opportunity of hearing before orders are issued in appeal. However, since this is an appeal of 2006, there will be direction to the appellant or practitioner to approach the Tribunal and produce authorisation of the practitioner so that notice is served and the matter is disposed of within two months from date of receipt of copy of this judgment.
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2010 (6) TMI 753 - ITAT MUMBAI
TDS u/s 195 - Payment made for acquisition of telecast rights - Royalty as per Explanation 2 of section 9(1)(vi)(c) of the Act - Article 12(7) of DTAA - Chargeability of payment - economic link between the payment of Royalty and SET India or not? - Whether the CIT(A) erred in holding that the royalty has not arisen in India having regarding to the provisions of Article 12(7) of Indo-Singapore DTAA - HELD THAT:- We find no infirmity in the order of the Ld CIT(A). The payment made by the assessee to GCC cannot be said to arise in India under Article 12(7) of the Treaty since the payer ( i.e. assessee) is not a resident of India.
As per the first limb of Article 12(7) of the Treaty, royalties cannot arise in India, since the payer is not a resident of India. Such royalties under the first limb of Article 12(7) of the Treaty arise in Singapore since the payer (i.e. the assessee) is a resident of Singapore. The second limb of Article 12(7) of the Treaty deals with a scenario where the payments are made by a nonresident, where such non-resident has a PE in India.
However, a mere existence of a PE in India cannot lead to a conclusion that royalties arise in India. In addition to the existence of PE, for royalties to arise in India under Article 12(7) of the Treaty, it is essential that liability to pay such royalties has been “incurred in connection with” and is “borne by” the PE of the payer in India. Hence even if it is assumed that the payment for broadcasting cricket constitutes Royalty, in our opinion such royalty does not arise in India within the meaning of provisions of Article 12(7) of the Tax Treaty and hence the second ground raised by the revenue is dismissed.
There is no economic link between the payment of royalties and the alleged PE of the assessee in India (i.e. SET India ), the economic link is entirely with the assessee’s head office in Singapore. Thus, the payments to GCC cannot be said to have been incurred “in connection” with the appellant’s PE in India (i.e. SET India). Alleged PE in India (i.e. SET India) was also not involved in any way with the acquisition of the right to broadcast the cricket matches, nor did the PE bear the cost of payments to GCC. Thus the payments to GCC cannot be said to have been “borne by” the assessee’s PE in India (i.e. SET India).
Even if it is assumed that the payment for broadcasting cricket constitutes Royalty, in our opinion such royalty does not arise in India within the meaning of provisions of Article 12(7) of the Tax Treaty.
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2010 (6) TMI 752 - GUJARAT HIGH COURT
Remission of duty - Rule 23 of the CER, 2002 - non-compliance with the rules - Held that: - According to the Tribunal it was clear that the fire was accidental in view of the explanation in the panchnama wherein it was recorded that a worker had noticed the fire and immediately action had been taken to douse the fire - there was no doubt that the fire had occurred because of an accident.
Non-reversal of Cenvat credit - It was urged that the respondent had not reversed the cenvat credit on inputs and had not produced any evidence to show that it had not claimed/received the duty element of the value of the goods destroyed from the insurance company - Held that: - the Tribunal upon verification of the value in the invoices has recorded satisfaction that the insurance claim did not include the excise duty portion - it cannot be stated that the conclusions arrived at by the Tribunal are in any manner perverse or contrary to the evidence on record so as to warrant interference.
Appeal dismissed - decided against Revenue.
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2010 (6) TMI 751 - SUPREME COURT
Whether the State Government - a Revisional Authority under the Statute, could take upon itself the task of a lower statutory authority?
Whether the order passed or action taken by a statutory authority in contravention of the interim order of the Court is enforceable?
Whether Court can grant relief which had not been asked for?
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2010 (6) TMI 750 - HIGH COURT OF JAMMU & KASHMIR
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... ... ..... he appellate Court for its disposal, we are of the considered view that the discretion which was exercised by the assessing authority/respondent No. 1 given in the facts and circumstances of the case, was in accordance with the established principles of law, equity and justice. According to us, it was not a fanciful or arbitrary exercise of discretion. 9. It is accepted that exercise of discretionary power can be interfered with by the High Court only if the order passed is violative of some fundamental or basic principles of justice and fair play or suffers from any patent or flagrant error. 10. In view of the fact situation so projected in this appeal, it may be safely held that refusal of granting of stay order as sought for, did not infringe or contravene any legal right or, to say. fundamental right enforceable by the appellant under Art. 226 of the Constitution of India. 11. That being so, we do not find any merit in this appeal and the same stands dismissed. No costs.
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2010 (6) TMI 749 - CESTAT BANGALORE
Demand of duty - whether the clearance of 9991.20 MTs of molasses to katcha pits within the factory premises from the steel tanks installed in the factory amounts to removal and whether they are liable to pay the Central Excise duty on the molasses stored in katcha pits?
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2010 (6) TMI 748 - CESTAT AHMEDABAD
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... ... ..... . Notification No. 29/96 was mentioned before Commissioner (Appeals) but he did not consider the eligibility or otherwise of the respondents for the claim under this Notification but has allowed the appeal on the ground that Original Adjudicating Authority travelled beyond the scope of show cause notice. I do not find that adjudicating authority has travelled beyond the show cause notice. At the same time, the fact remains that new ground which was raised by the respondents about their eligibility under Notification No. 29/96 was not considered by both the lower authorities. In the interest of justice, I consider it appropriate that eligibility or otherwise under this Notification for refund is required to be considered. In view of the above discussion, impugned order is set aside and the matter is remanded to Original Adjudicating Authority to consider the eligibility or otherwise of the respondents for refund under Notification No. 29/96. (Dictated and pronounced in Court)
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2010 (6) TMI 747 - CESTAT BANGALORE
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... ... ..... above are very vital and factual. On a specific query from the Bench it has been informed that the Revenue has not filed any appeal against the letter, dated 25-8-2004 which is reproduced hereinabove. In the absence of any appeal against the reassessment, the findings of the learned Commissioner (Appeals) are correct and legal. We do not find any infirmity in the order passed by the learned Commissioner (Appeals). We also find that the decision of the Apex Court in the case of Priya Blue Industries Ltd., will squarely apply in this case and once there is no appeal against the reassessment order given by the O/O the Additional Commissioner of Customs on 25-8-2004, the question of rejection of the refund claim filed by the assessee cannot arise. Accordingly, we find that the appeal filed by the Revenue is devoid of merits. The impugned order is upheld and the appeal is rejected. (Operative portion of the order already pronounced in the open court on conclusion of the hearing)
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2010 (6) TMI 746 - CESTAT AHMEDABAD
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... ... ..... the Revenue revealed the forged nature of the shipping bills, the Revenue can always proceed ahead for the recovery of the sanctioned rebate claim. The law declared by the Hon’ble Supreme Court in a different context will have no applicability to the facts of the instant case. Further there are also no merits in the appellant’s plea of limitation. Admittedly when the claim was availed on the basis of forged shipping bills and such fact came to the notice of the Revenue only upon investigations made by them, the extended period would be available to the Revenue to cover the said amount. For the above proposition reliance is placed upon the recent decision of the Hon’ble High Court of Gujarat in the case of Commissioner of Central Excise, Surat v. Neminath Fabrics Pvt. Ltd. being Tax Appeal No. 338/2009, dated 22-4-2010 2010 (256) E.L.T. 369 (Guj.) . 6. In view of the above discussions, no merits are found in the appeal. The same is accordingly rejected.
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2010 (6) TMI 745 - CESTAT MUMBAI
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... ... ..... ny television sets specifically classified under Heading 8528. For the prior period we have valid reason to hold that the Tribunal’s earlier decision in the assessee’s own case is applicable. 5. In the above view of the matter, the appellant is liable to pre-deposit the amount of duty on the goods imported by them on or after 1-1-2007. We find that all the consignments covered by the second appeal of the party are prior to 1-1-2007, whereas all the consignments, barring 12 involved in the first appeal were imported after 1-1-2007. The amount of duty involved in the consignments imported after 1-1-2007 is said to be around ₹ 9.76 crores. The appellant has not pleaded any financial hardships in the present applications. Nevertheless, in a lenient approach, we are not requiring full deposit. The appellant shall pre-deposit an amount of ₹ 5,00,00,000/- (Rupees Five crores only) within four weeks and report compliance on 27-8-2010. (Dictated in Court)
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