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Showing 161 to 180 of 638 Records
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2010 (6) TMI 744 - CESTAT MUMBAI
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... ... ..... acie case for the appellant except the fact that the statutory provision for payment of interest of this kind under Section 61 of the Customs Act was not in existence prior to 23-12-1991. It would, therefore, appear that the appellant is liable to pay interest on the amount of duty paid by them on 31-3-2004, from 23-12-1991 under the provisions of Section 61(2) of the Act. In answer to a query from the Bench, the learned consultant has not been able to give us a break-up showing the amount of interest payable for the said period. In the circumstances, not having found any plea of financial hardships in the present application, we direct the appellant to pre-deposit an amount of ₹ 1,00,00,000/- (Rupees one crore only) within a period of four weeks under Section 129E of the Customs Act and report compliance on 20-8-2010. In the event of due compliance, there will be waiver of pre-deposit and stay of recovery in respect of balance amount of interest. (Pronounced in Court)
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2010 (6) TMI 743 - CESTAT BANGALORE
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... ... ..... of jurisdictional Deputy/Assistant Commissioner for transfer of the inputs or in process or the capital goods. Since there is no like allegation in the show cause notice and it being an admitted fact that the entire stocks/work force had been transferred to new entity, we are of considered view that prima facie demand on this point is unsustainable. As regards availment of Cenvat credit of duty paid on capital goods, we find that the provisions of Rule 4 (2) (a) does not envisage 100% availment of Cenvat credit on capital goods in the same financial year. In this case the assessee has availed the Cenvat credit of 100% in the subsequent financial year. In view of this, we find that the appellant has made out a prima facie case for waiver of pre-deposit of the amounts involved. Application for waiver of pre-deposit of the amounts adjudged against the appellant is allowed and recovery thereof stayed till the disposal of the appeal. (Pronounced and dictated in the court)
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2010 (6) TMI 742 - CESTAT AHMEDABAD
Valuation - inclusion of value of components received free of cost in assessable value - SSI Exemption - Reliance placed in the judgement of Tribunal in the case of Flux Engineering Ltd. v. CCE, Noida [2004 (8) TMI 547 - CESTAT, NEW DELHI], laying down that prior to amendment of N/N. 214/86-C.E., vide. N/N. 68/95-C.E., dated 16-3-1995, the machinery, plant, equipment, etc., were excluded. However, with the amendment, the exclusion clause relates only to packaging materials and plant, machinery which were excluded are no more covered in the exclusion clause. The Tribunal has also held that the benefit of N/N. 214/86-C.E. not only applied to the input but is also available to the capital goods.
The value need not be included in the assessable value - appeal allowed - decided in favor of appellant.
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2010 (6) TMI 741 - CESTAT AHMEDABAD
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... ... ..... 4. We find that the ratio of all the above decisions are that for the period prior to 2005, the assessable value of physician’s samples is required to be arrived at in terms of Board’s circular dated 1-7-2002, qualifying adoption of value at 115% cost of the production. Inasmuch as in the present 2 appeals filed by the assessee, entire period is covered by the above circular, by following the ratio of the above decision, we set aside the duty confirmation and penalty imposed upon the appellants and allow both the appeals filed by them. 5. As regards appeal filed by the Revenue, we find that the appellate authority has held in favour of the Revenue and has rejected the appellant’s plea, and no part of the order is against Revenue. As such, there cannot be any cause for grievance by the Revenue so as to file the appeal against the order of the Commissioner (Appeals). We, accordingly, reject the appeal filed by the Revenue. (Pronounced in Court)
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2010 (6) TMI 740 - KARNATAKA HIGH COURT
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... ... ..... eing aggrieved by the said order passed by the Appellate Tribunal, Bangalore, the appellants herein preferred these two appeals for considering the substantial questions of law as referred above. We have heard the learned counsel for the parties for considerable length of time. After careful perusal of the documentary and oral evidence, we are of the view that the Tribunal has recorded a finding of fact by assigning valid reasons at paragraphs 9, 10, 11 and 13 of its order. The Tribunal, after physical evaluation of the oral and documentary evidence and after giving opportunity to both the parties, held that the net value should be adopted instead of gross value. Therefore, we are of the view that it is a well-settled order passed by the Tribunal and hence we do not find any good ground as such made by the appellants. Hence, interference by this court is uncalled for. For the foregoing reasons, the revision petitions filed by the petitioners are dismissed as devoid of merit.
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2010 (6) TMI 739 - BOMBAY HIGH COURT
Whether, on the true and correct interpretation of the definition of 'sale price', as contained in clause (h) of section 2 of the Central Sales Tax Act, 1956, the Tribunal was justified in law in holding that the insurance charges will not form part of sale price, because the parties did not intend it to be so?
Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in taking a stand different from that taken by the Division Bench of the Tribunal and refusing to refer the issue of insurance charges to a Larger Bench for decision, on the ground that 'had the documentary evidence been placed before the Division Bench, the Division Bench would have come to a different conclusion' when the Division Bench has based its decision only on the interpretation of statutory definition of 'sale price' as contained in clause (b) of section 2 of the Central Sales Tax Act, 1956, and has nowhere in its judgment stated that its decision in respect of insurance charges is on account of non-production of any documentary evidence?
Held that:- The Tribunal, after examining the entire transaction between the respondent and its buyers, on the basis of the documents produced before it by the respondent, has come to a correct conclusion that the insurance is not intended to be treated as part of the "sale price" and the insurance charges have to be borne by the buyers independently and separately and such insurance charges are not to be included in the sale price. In view thereof, the submissions made on behalf of the Revenue cannot be accepted. We are also of the view that the Tribunal, in view of the evidence submitted by the respondent, was entitled to take a different view from its earlier view, pertaining to the same issue, in respect of the different assessment years. We therefore answer the questions set out in paragraph 2 of this judgment in the affirmative, i.e., in favour of the respondent and against the Revenue
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2010 (6) TMI 738 - KARNATAKA HIGH COURT
Whether the notification, annexure D, is "ex abundanti cautela" the consistent policy of the State, for over few decades exempting un-manufactured tobacco (including tobacco used for the manufacture of beedies) from tax under the KVAT Act?
Held that:- The petitions are allowed. The Notification No. FD.167. CSL.2007 dated May 15, 2007, annexure D, issued under sub-section (1) of section 5 of the KVAT Act, 2003, is declared to be ex abundanti cautela effective from April 1, 2007. The notice initiating action for reassessment of tax on sale of beedies followed by the orders of the authorities, the appellate authority and the order of the KVAT in the second appeals are quashed. As a consequence, the State is directed to forthwith refund all the monies paid by the petitioners pursuant to the notice of reassessment
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2010 (6) TMI 737 - KARNATAKA HIGH COURT
Constitutional validity of section 4(1)(c) and Schedule VI, item 23 of the Karnataka Value Added Tax Act, 2003 and the Explanation appended to rule 3(1) of the Karnataka Value Added Tax Rules, 2005 challenged
Held that:- Writ petitions are allowed. It is declared that section 4(1)(c) read with serial No. 23 of the Sixth Schedule to the KVAT Act does not enable the respondents to levy tax at the rate of 12.5 per cent in respect of declared goods used in the same form, in the execution of works contracts, which fall under section 14 of the Central Sales Tax Act, 1956. Consequently, proceedings initiated or concluded in respect of the petitioners seeking to levy tax, as questioned above, are hereby quashed to that extent.
"Explanation" to rule 3(a) to (g) of the KVAT Rules is contrary to section 4(1)(c) of the KVAT Act and article 366(29A)(b) of the Constitution of India and is hence, unconstitutional and invalid. Consequently, the levy of tax and penalty on advances received by the petitioner in W.P. Nos. 29046 to 29048 of 2009 at annexure A thereof is hereby quashed.
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2010 (6) TMI 736 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... ains so withheld shall be excluded for the purpose of calculation of interest under section 43." It is clear from bare perusal of the above provision that section 44(2) providing for exclusion of period during which refund was withheld for calculation of interest applies only if withholding of refund was valid. Once withholding of refund is held to be illegal, section 44(2) of the Act cannot be held to be applicable. In the present case, withholding of refund is not shown to be for a valid reason. Once it is so, section 44(2) of the Act had no application. We, accordingly, hold that section 44(2) of the Act will not apply in the present case. The period during which refund was withheld, cannot be excluded for calculation of interest under section 43 of the Act. The petitions are allowed accordingly. In view of above, the amount due may, accordingly, be calculated and paid to the petitioner within a period of three months from the date of receipt of a copy of this order.
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2010 (6) TMI 735 - KARNATAKA HIGH COURT
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... ... ..... days from the date of passing the assessment order. In the instant case, there is an inordinate delay of 826 days in questioning the correctness of the assessment order. When the jurisdictional authority has got no power to condone the delay, it has rightly considered and passed appropriate orders in consonance with the relevant provisions of the Act and Rules. Therefore, we are of the view that the Tribunal has rightly placed reliance on the judgment of this court in the case of Poshak Textiles v. Assistant Commissioner of Commercial Taxes reported in 2008 11 VST 572, wherein this court has held that the delay beyond 180 days cannot be condoned by the appellate authority. Hence, we do not find any good grounds as such made out by the appellant to entertain the relief sought in this appeal and hence, we decline to entertain this appeal. For the foregoing reasons, the appeal filed by the appellant is liable to be dismissed as devoid of merits and accordingly, it is dismissed.
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2010 (6) TMI 734 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... urisdiction. In Mukha Singh Chanda 1967 19 STC 426 (AP), it was held that validity of order of reassessment passed without complying with the statutory procedure could be examined at appropriate forum. These judgments do not consider the principle of laches. There is no doubt that an order, which is without jurisdiction, can be challenged in a writ petition but the remedy of writ must be invoked expeditiously and if the same suffers from laches, the court may not interfere with the same, as already observed. In view of above, we do not find any ground to interfere. The petition is dismissed. Before parting with the order, we direct the registry to send a copy of this order to the Chief Secretary, Punjab, who may require the concerned authority to look into the reasons, if any, for gross delay in initiating proceedings for recovery and take further action against concerned defaulting persons and also to take remedial steps to avoid such gross delay in recovering public money.
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2010 (6) TMI 733 - KERALA HIGH COURT
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... ... ..... e grains in the coarse form only are covered by the exemption clause 12 of the Third Schedule. We have considered the very same argument raised by counsel in this case in the decision in Thomson Paper Products v. Commissioner, Commercial Taxes 2009 19 VST 359 (Ker) 2008 3 KLT 254. We find that the Commissioner has taken the view consistent with what we have taken in the above decision. Consequently following our judgment above referred, we uphold the order of the Commissioner and dismiss the OTA. Tax necessarily has to be demanded in accordance with the Commissioner 39 s clarification. Demand has to be modified in line with the Commissioner 39 s order. If the appellant has collected more tax, the assessing officer will deal with such collection in accordance with statutory provisions. We make it clear that we have not dealt with incidence of tax with regard to processed oats sold under brand name because that is not an issue decided in the impugned order of the Commissioner.
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2010 (6) TMI 732 - KERALA HIGH COURT
Whether the Tribunal was justified in holding that "margarine" is an item falling under entry 64(8) (HSN No. 1517.10) taxable at 12.5 per cent under Notification S.R.O. No. 82 of 2006 issued by the Government under section 6(1)(d) of the Kerala Value Added Tax Act and not an item falling under entry 38(19)(d) of the Third Schedule to the KVAT Act, which provides for other edible oils, including vanaspati as claimed by the assessee?
Held that:- It is very clear that under the description of commodities, the H.S.N. Code for margarine is 1517.10. The contention of the petitioner that the item falls under entry 38(19)(d) of the Third Schedule to the KVAT Act cannot be accepted because none of the items covered by the sub-entry (19) has the same HSN code for margarine provided in the customs tariff. In fact it is clear from entry 38(19) that all four items referred to there are covered under six digit HSN 1516.20. We are of the view that petitioner's contention that margarine falls under other edible oils falling under entry 38(19) is incorrect and unacceptable. We, therefore, hold that margarine in all forms fall under HSN code 1517 under the customs tariff and consequently it is covered by entry 64(8) of S.R.O. No. 82 of 2006, which has the same HSN code taxable at 12.5 per cent.
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2010 (6) TMI 731 - KERALA HIGH COURT
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... ... ..... pe for addition. So far as tax is recovered and collected by the assessee in accordance with the provisions of the Act, the Department has no authority to question the incentives given by the assessee to the dealers, whether it be by way of freight or not. If the assessing officer has any doubt as to whether turnover disclosed is actual sale price reduced by the discount, it is for him to call for the entire invoices and verify with the dealer 39 s accounts which could be called for. We make it clear that if the petitioner has not reduced freight from the sale price reduced by discount while offering taxable turnover, there is no scope for addition of freight again, which will be a duplicity. We allow this revision by setting aside the order of the Tribunal and by remanding the matter to the assessing officer to verify the invoices and accounts for revision of assessment by reducing freight added if assessee is found to have included freight in the taxable turnover returned.
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2010 (6) TMI 730 - UTTARAKHAND HIGH COURT
Whether the appellate authorities erroneously arrived at the conclusion, that the truck under reference, bearing Registration No. HR38E-4721, was not impounded within the territory of the State of Uttarakhand?
Whether the respondent had violated the mandatory provisions of section 28A(2) of the Uttar Pradesh Trade Tax Act, 1948?
Held that:- The truck, bearing Registration No. HR-38E-4721, was impounded, while it was travelling over the territory of the State of Uttarakhand. In so far as the observations recorded by the Commercial Tax Tribunal, Uttarakhand (which have been extracted hereinabove) are concerned, we are satisfied that the same are merely conjectural in nature. Since conjectures/surmises cannot be the basis of recording a finding of fact, the findings recorded by the appellate authorities on the basis of the same must necessarily be ignored.
It is the admitted case between the learned counsel for the rival parties, that form XXXI, which was subsequently presented by M/s. Amrit Varsha Udhyog Ltd., Jashodharpur and accepted by the trade tax authorities, was of a date subsequent to September 11, 2003. Form XXXI, which was referred to by the appellate authorities, was not in existence on the date of the occurrence relevant in the present case, i.e., September 11, 2003, when the goods being transported by the respondent were found in the territory of the State of Uttarakhand. In the aforesaid view of the matter, we are satisfied that the respondent had clearly violated the mandatory provisions of section 28A(2) of the Uttar Pradesh Trade Tax Act, 1948.
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2010 (6) TMI 729 - UTTARAKHAND HIGH COURT
Whether the assessing authority has no occasion to repudiate the factual position depicted by the respondent before the appellate authorities?
Held that:- Neither before the Tribunal nor before this court any effort has been made by the revisionpetitioner to controvert the factual position projected by the respondent (on the basis of which the appeal preferred by the respondent was accepted). It is too late in the day for the revision petitioner now, and that, too without any material or cause to assail the findings recorded by the Deputy Commissioner (Appeals), as also by the Commercial Tax Tribunal, Uttarakhand, Dehradun.
The factual conclusions drawn by the Deputy Commissioner (Appeals) have remained unassailed. The respondent, has established that the goods which had entered the State of Uttar Pradesh from the entry check-post at Kulhal, had actually exited from the State of Uttar Pradesh from exit check-post of Ghaziabad, and had factually been sold in the State of Delhi. Thus viewed, the respondent fully established the onus placed on him in terms of the proviso under section 28B of the 1948 Act
Revision dismissed.
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2010 (6) TMI 728 - KARNATAKA HIGH COURT
Whether the authorities concerned including the Appellate Tribunal were not right in holding that the petitioner had not made out a case within the provisions of section 5A of the KST Act by holding that in the instant case there was no sale of the manufactured goods within the State and that there was only stock transfer which is not a sale?
Held that:- The transaction in question, namely, mere stock transfer of goods by the petitioner is not a "sale" within the meaning of the KST Act. Hence plaintiff No. 1 is answered against the petitioner. It is a transfer to branch offices in different companies of the country and hence, the petitioner is not entitled to the benefit under section 5A of the Act. The revision petition is dismissed by answering the question of law raised in this revision petition in favour of the Revenue and against the petitioner.
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2010 (6) TMI 727 - WEST BENGAL TAXATION TRIBUNAL
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... ... ..... we are of the view that assistance of external aid may be taken only when the internal aid, as contained in relevant statute, VAT Act in this case, cannot explain the entry properly. For interpreting the entry against serial No. 54B of Part I of Schedule C, we are of the view that it is not necessary to take into account the entries made in Central Excise Tariff Code. Since we are of the view that the items in question fall within the meaning of machinery and the petitioner has explained the use of such machineries in the process of manufacturing tea and in absence of any contrary findings, we cannot sustain the order dated March 4, 2009 of respondent No. 1. The said order is, therefore, set aside and we further hold that the items in question would come within the meaning of machinery for tea industry as in vide item 54B(i) of Part I of Schedule C to the VAT Act. The petition, thus, stands disposed of. No order as to costs. R.K. DATTA CHAUDHURI (Judicial Member). - I agree.
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2010 (6) TMI 726 - KARNATAKA HIGH COURT
Whether rejection of the rectification application by an endorsement dated October 16, 2007 is just and proper?
Held that:- All the authorities have failed to proceed in accordance with the Act and Rules. The manner in which they have proceeded and concluded the proceedings accepting the xerox copies of form Nos. 8 and 9, without cross verification in the register maintained in the Department for having received the original form Nos. 8 and 9 does not inspire the confidence of this court. This aspect of the matter has not been looked into nor considered nor verified as to whether the procedure prescribed under the statute has been followed.
Thus in view of non-compliance of the principles of natural justice and for not conducting proper enquiry in accordance with law and not deciding the matter strictly in accordance with the material on record, we are of the considered view that such orders cannot be sustained and are liable to be quashed. Taking all these relevant factors into consideration, it would suffice for this court to remand the matter before the original authority, i.e., before the assessing officer to decide the matter afresh, strictly in compliance with the provisions of the Act and Rules.
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2010 (6) TMI 725 - DELHI HIGH COURT
Refund claim - Held that:- We are clearly of the view that the petitioner is entitled to payment of the refund of the said amount of ₹ 12,99,718 forthwith along with interest thereon to be calculated in terms of section 42 of the said Act.
For the second refund claim the notice under section 59 in connection with refund has to be issued within the period of two months stipulated in section 38(3)(a)(ii). As a result, the submission of the learned counsel for the respondents that because of issuance of notice under section 59 of the said Act, albeit beyond the prescribed time, the refund was not payable, is not tenable.
For third claim of ₹ 13,35,537, we find that the return was filed on April 28, 2009 and the period of two months expired on June 27, 2009. In this case, there was no demand for any security within the period of 15 days, as stipulated in section 38(5). In fact, there has been no demand for security at all. Furthermore, no notice is even claimed to have been issued under section 59 in respect of the period of this refund. There is, therefore, absolutely no reason for the respondents to withhold the payment of refund to the petitioner.
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