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Showing 281 to 300 of 380 Records
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2012 (1) TMI 145 - PUNJAB AND HARYANA HIGH COURT
Claim of the refund along with interest withheld - whether once order withholding refund had been held to be illegal, the State was justified in not granting refund to the petitioner?
Held that:- The respondents while withholding the amount under section 41(1) of the Act had nowhere recorded any satisfaction that the withholding of the refund was in the interest of the Revenue.
In the absence of any valid sanction authorizing the State to retain the amount which had been deposited by the petitioner as cash security, the State was duty-bound to refund the same when the appeal had been decided in favour of the petitioner. The only conclusion that follows is that the amount which was withheld by the respondent was beyond jurisdiction. Once that is so, the assessee was entitled to refund along with interest after the expiry of the period of 60 days from the date the appellate authority decided the appeal in favour of the petitioner, i.e., August 31, 2010. As per stand of the State, the amount has already been released to the petitioner. Under the circumstances, WP disposed of by directing the State to pay the interest on the amount of refund in accordance with law within two months from the date of receipt of a certified copy of the order.
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2012 (1) TMI 144 - PUNJAB AND HARYANA HIGH COURT
Condonation of delay for restoration of appeal refused - Held that:- The petitioner under a bona fide belief that the period of limitation of 60 days was prescribed for filing restoration application, had filed the application on April 15, 2011 which, however, turned out to be delayed by 30 days. The plea of the assessee is plausible one and under the circumstances, it cannot be said that the delay was intentional or with mala fide intention. Further, the petitioner would not gain anything intentionally by filing the restoration application belatedly. Accordingly, the delay in filing the restoration application is condoned.
While taking up the order dated January 21, 2011 passed by the Tribunal, it needs to be referred that counsel for the petitioner before the Tribunal Shri Mohit Malik had sent an application seeking an adjournment stating that he was suffering from viral fever which was supported by medical certificate. In such circumstances, it cannot be said that the medical certificate, a copy of which has been appended as annexure P5 with this petition was not a genuine document. The Tribunal was, thus, not justified in passing the order dated January 21, 2011 in the absence of the counsel for the petitioner. W.P. allowed
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2012 (1) TMI 143 - PUNJAB AND HARYANA HIGH COURT
Tax evasion - penalty under section 51(7)(c) of the Punjab VAT Act, 2005 - Whether or not under the circumstances of the case, penalty can be imposed especially when the entire payment is routed through bank and major portion of payment is made in advance through bank for same transaction?
Held that:- The Tribunal recorded that the goods were booked on September 5, 2009 at Delhi and the same were lying in the booking agency on October 26, 2009. The goods were not dispatched immediately and the same were found at Amritsar which was not the route from Delhi to Jammu. The assessee-dealer was unable to give explanation much less satisfactory about the goods which were found at Amritsar as to in what circumstances, the transporter preferred to go via Amritsar. Under the circumstances, the Tribunal recorded that there was possibility of goods being disposed of at Amritsar and there was attempt to evade tax. Accordingly, the penalty imposed by the assessing authority and the appellate authority was upheld by the Tribunal. No illegality or perversity could be demonstrated in the findings of fact recorded by the assessing authority and also the appellate authorities. Accordingly, no substantial question of law arises in this appeal and the same is dismissed.
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2012 (1) TMI 142 - MADRAS HIGH COURT
Whether, in the facts and circumstances of the case, the Appellate Tribunal is right in deleting the penalty imposed over a transaction of the REP licence when the transaction has not been disclosed in the returns?
Held that:- While considering the appeal, the Appellate Assistant Commissioner had not gone into the question of bona fides of the assessee. Nevertheless, by placing reliance on the judgment of this court in P.S. Apparel's case [1994 (4) TMI 366 - MADRAS HIGH COURT] while affirming the levy of penalty, had reduced the penalty from 150 per cent to 50 per cent which, according to the assessee, was not in accordance with the said judgment. Since the claim of the assessee was that they were under the bona fide belief that the sale of REP licences/exim scrips was not goods, they did not disclose the same in the returns and they preferred appeal to the Tribunal. The Tribunal also upheld their contention and allowed the appeal. In our opinion, as the issue has been settled by this court in the abovesaid judgment, we are unable to take a different view on the facts and circumstances of this case. Accordingly, we are of the view that the Tribunal is correct in deleting the penalty and we confirm the order of the Tribunal and dismiss the tax case (revision).
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2012 (1) TMI 141 - PUNJAB AND HARYANA HIGH COURT
Rate of sales tax on motor tyres/tubes - whether State authorities can levy tax from retrospective date?
Held that:- The written statement filed by the respondents does not spell out any justification for enforcing the notification, annexure P3, retrospectively from August 20, 1992 instead of April 1, 1992. The respondents vide notification dated November 9, 1990 had amended the notification dated December 2, 1982 reducing the rate from 12 paise to 9 paise in a rupee on motor tyres and tubes up to March 31, 1992 and vide notification dated December 28, 1990, the rate of sales tax on tractor tyres and tubes was reduced from eight per cent to six per cent up to March 31, 1992, which was later on continued up to March 31, 1994 vide notification dated August 20, 1992 (annexure P3). However, vide notification dated December 1, 1992, the rate of nine paise in a rupee on motor tyres and tubes and six paise in a rupee on tractor tyres and tubes has been made effective from August 20, 1992 instead of April 1, 1992 without giving any reasonable ground for adopting such date. Further, the petitioner has refunded ₹ 10,79,659 on the basis of notification, annexure P3, which fact has not been specifically denied by the respondents in the reply. The notification, annexure P5, thus, cannot be held to be valid and is hereby quashed.
The respondents cannot be held entitled to charge sales tax at 12 paise in a rupee on motor tyres and tubes and at eight paise in a rupee on tractor tyres and tubes from April 1, 1992 to August 20, 1992. W.P. allowed. It is held that the petitioners shall be liable to pay sales tax for the period from April 1, 1992 to August 20, 1992, in accordance with the notification, annexure P3 and the assessing authority shall determine the liability, if any, accordingly.
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2012 (1) TMI 140 - KERALA HIGH COURT
Whether the Tribunal was justified in declining rebate of tax under section 12(1)(a) of the Kerala Value Added Tax Act read with rule 38(5) of the Kerala Value Added Tax Rules on the purchase turnover of old gold ornaments from the tax determined on estimated turnover based on inspection done during the return period, August 2006?
Held that:- "Tax paid" under sub-section (2) of section 6 or section 12(1)(a) will mean tax paid based on return filed or the tax payable based on assessment made by the officer so that in either case the liability under section 12(1)(a) is net tax liability after providing for rebate on purchase tax. This position is only clarified by the subsequent introduction of rule 38(5) which expressly grants the benefit of rebate on purchase tax payable under section 6(2) to the dealer in the case of assessment made by estimation of turnover.
We do not think the Legislature or the Government intended denial of rebate on purchase tax liability under section 6(2) against tax payable by the dealer for any return period. So much so, the contention of counsel for the petitioner that the rule is only clarificatory is tenable. We accordingly allow the revision for the limited purpose of granting rebate of tax determined as payable under section 6(2) against the tax payable on the estimated sales turnover for the return period August 2006. Revision is allowed in part by sustaining turnover assessed and confirmed by the Tribunal but by directing the officer to grant rebate of purchase tax as stated above.
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2012 (1) TMI 139 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... d the revisional order dated April 23, 1993. According to the learned counsel, the Division Bench of this court on April 4, 2011 following the judgment of the apex court in 20th Century Finance Corpn. Ltd. v. State of Maharashtra 2000 119 STC 182 (SC) had held that note 4 cannot be held to be applicable to transfer of right of use of goods outside the State of Haryana merely because the goods were within the State at the time of use when such goods are not in the State at the time of transaction. The writ petition was allowed and order dated April 23, 1993 to the extent of including in turnover, transaction taking place outside the State of Haryana was quashed. Learned State counsel fairly accepted that the present writ petition is covered by the aforesaid decision. 4. In view of the above, the present writ petition is disposed of in the same terms as in CWP No. 6691 of 1993 (Sandan Vikas (India) Limited v. State of Haryana 2013 59 VST 160 (PandH)), decided on April 4, 2011.
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2012 (1) TMI 138 - PUNJAB AND HARYANA HIGH COURT
Pre-deposit demand
Held that:- The Tribunal was right in holding that the amount of 25 per cent to be deposited was to be calculated on the total amount of tax, interest and penalty which was imposed. Accordingly, no question of law much less a substantial question of law arises in these appeals. There is no merit in these appeals and the same are hereby dismissed.
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2012 (1) TMI 137 - PUNJAB AND HARYANA HIGH COURT
Notification giving retrospective effect to the applicability of the provisions of the Haryana General Sales Tax Act, 1973 from May 17, 1988 challenged whereas the notification had been issued on March 26, 1991 - Held that:- The petitioner has been burdened with liability only on the basis of the aforesaid amendment by virtue of notification annexure P1 while passing the assessment order to which it was not liable earlier. Under the circumstances, the plea of the State that the amendment is clarificatory cannot be accepted. Further, the State in the written statement nowhere has furnished any justification for amending entry 2 and inserting entry 2A and Explanation 1 in the Schedule D of the Act with effect from May 17, 1988 by notification dated March 26, 1991. In the absence of any reasons enumerated for retrospectivity of the notification, its validity to that extent cannot be upheld.
Accordingly, the writ petition is allowed to the extent that the impugned notification shall not operate retrospectively. As a sequel, the liability, if any, of the petitioner shall be determined afresh by the assessing officer in accordance with law.
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2012 (1) TMI 136 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... e Court rendered in the case of Titaghur Paper Mills Co. Ltd. v. State of Orissa 1983 53 STC 315 (SC); 1983 142 ITR 663 (SC); AIR 1983 SC 603, holding that where alternative remedy is provided in a statute it should have been availed of by the petitioner. 5. In view of the fact that remedy of appeal is available with the petitioner, we deem it appropriate to relegate the petitioner to avail of that remedy first. Accordingly, it is directed that if an appeal is filed by the petitioner against the orders impugned in these petitions within a period of four weeks, the appellate authority would take a decision in the matter. Since stay in respect of recovery of penalty has been operating, therefore, the question of limitation for filing the appeal would not come in the way of the petitioner. The stay order is extended till decision of the appeal. 6. These petitions are disposed of in the above terms. The office is directed to ask the counsel for the petitioner to note this order.
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2012 (1) TMI 135 - MADRAS HIGH COURT
Whether the Appellate Tribunal is right in law in modifying the taxable turnover to ₹ 3,02,641 being the 50 per cent difference of turnover arrived by the assessing officer as against the reported taxable turnover?
Whether the Appellate Tribunal is right in law in having set aside the order of the Appellate Assistant Commissioner and restore the order of the assessing officer does have any valid materials to sustain the turnover of 50 per cent of the difference of the turnover arrived at by the assessing officer as against the reported taxable turnover?
Whether, in the facts and circumstances of the case, the Appellate Tribunal is right in law in deleting the penalty of ₹ 1,04,069 under section 12(3)(b) of the Tamil Nadu General Sales Tax Act, 1959 even though the assessee has not reported the turnover as taxable and paid tax which amounts to filing of incorrect and incomplete return?
Held that:- The order of the Tribunal is based on valid material. It is a question of fact. It is not a perverse order. We find no illegality or error in the order of the Tribunal that warrants interference by this court. Therefore, no question of law arises for consideration in admitting this tax case revision.
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2012 (1) TMI 134 - ANDHRA PRADESH HIGH COURT
Disputed tax under the second proviso to section 19(1) of the said Act not paid - Whether the petitioner can take shelter under the order of the Commissionerate of Industries in sanctioning the incentive (sales tax deferment)?
Held that:- In this case, the petitioner/dealer did not comply with the second proviso while filing appeal before the ADC and, therefore, the order of the ADC and the order of the STAT upholding the former cannot be faulted. Except fettering the discretion of the appellate authority in the matter of admitting the appeal for further hearing the amendment has not brought in any major change. Therefore even if the dispute is with regard to the assessment year 2001-2002 as the petitioner filed appeal only on July 12, 2005 the law as on that date must be applied and the argument of the non-applicability of the amended provision cannot be countenanced.
Furthermore the petitioner, in these cases, has annexed the revised final eligibility certificate fixing eligibility for sales tax deferment issued by the Commissionerate of Industries. Clause 11 (ii) thereof categorically makes the incentive subject to the condition that, "the sales tax incentive should be utilized for the deferment of industry only and should not be utilized for any other purpose". Therefore, the plea of the petitioner that by reason of incentives sanctioned to them the disputed tax deemed to have been paid and, therefore, the condition that the proviso to section 19(1) of the APGST Act stands waived is misconceived and cannot be accepted. The STAT has also considered this aspect and, in our considered opinion, came to correct conclusion. Appeal dismissed.
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2012 (1) TMI 133 - PUNJAB AND HARYANA HIGH COURT
Writ petition under articles 226/227 of the Constitution of India challenging assessment order dated March 31, 2011, annexure P3, for the assessment year 2007-08
Held that:- We refrain from interfering with the assessment order and dispose of the writ petition by relegating the petitioner to the appellate authority to challenge the assessment order before it. It is, however observed that in case the appeal is filed within 15 days from today, then application for condonation of delay shall be considered by the appellate authority sympathetically.
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2012 (1) TMI 132 - CESTAT NEW DELHI
Waiver of pre-deposit of duty and identical amount of penalty - goods recovered from the Kerala dealer indicated the manufacturer of the goods either located in Jodhpur or at A-248, DSIDC, Narela, Delhi - Held that:- Admittedly the factory of the appellant is located at E-679, DSIDC Industrial Area, Narela, Delhi. Surprisingly, no investigations were conducted from the manufacturer located at A-248, DSIDC, Narela, Delhi or at their Jodhpur factory. As such, we find that though there is evidence to show that the recovery from the dealer revealed the manufacturer located at A-248, DSIDC, Narela, Delhi or at Jodhpur, they were neither visited by the officers, nor questioned. There is no direct statement or any direct evidence indicating that the goods stands manufactured by the appellant’s factory located at E-679, DSIDC Industrial Area, Narela, Delhi - recovery of records from the booking agent as well as railway receipts mentioning only quantity without any reference to name of consignor or consignee can be made the ground for demand on clandestine removal, is appropriate - Following decision of Sunrise Foods Products [2008 (9) TMI 729 - CESTAT NEW DELHI] - Stay granted.
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2012 (1) TMI 131 - CESTAT NEW DELHI
Duty demand - Shortage of raw material - Clandestine removal of goods - Held that:- admittedly the shortage of raw material detected at the time of visit by the officers are not sufficient to manufacture the quantity of final products, on which the demand stands confirmed by the lower authorities. To confirm the demand based upon the shortage, only one raw material which is not main raw material, cannot be sustained, especially in the absence of evidence showing procurement of other raw materials, required for manufacture of final products. As such, I am of the view that there is no infirmity in the order of the Commissioner (Appeals) - Decided against Revenue.
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2012 (1) TMI 130 - CESTAT NEW DELHI
Confiscation of goods - Intention to evade duty - Variation in the description of the goods - Held that:- It is very clear that in this case, the equipment was moved from one 100% EOU to another 100% EOU after due intimation and no case of contravention of any terms of import policy or evasion of Customs duty is brought out. All telecommunication equipment is allowed to be freely imported. There is no duty implication because goods were transferred from one 100% EOU to another. So I find Revenue has made out a case without any substance. Therefore, I find that this is a case where pre-deposit of duties can be waived for admission of the appeal and same is waived and appeal itself is taken up for hearing since the equipment is lying unutilized for long time - Decided in favour of assessee.
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2012 (1) TMI 129 - CESTAT NEW DELHI
Denial of CENVAT Credit - Notification No. 53/2003, dated 1-4-2003 - Credit in debit entry in certificates - Held that:- Cenvat credit is available in respect of duty debited in DFCE certificate in view of Clause 7 incorporated in Notification No. 53/2003, dated 1-4-2003 with effect from 17-11-2004. This position should be effective from the date when said clause has been introduced. The matter before me relates to import made after 17-11-2005 - Decided in favour of assessee.
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2012 (1) TMI 128 - CESTAT CHENNAI
Classification of goods - Classification under under the Heading 5506 or 5606 - Revenue sought classification thereof under SH 5606 - Held that:- Nothing was brought to our notice by the appellant to show that the goods manufactured by it using polyester fibre and Viscos fibre was without special mechanical stimulation by a special electronic device which created an effect of thick and thin features in the yarns while spinning to impart slub effect. That established that the slub yarns manufactured were not normal yarns and Revenue’s classification remain undisturbed - there is no scope to interfere to the first appellate order - Decided against assessee.
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2012 (1) TMI 127 - CESTAT NEW DELHI
Wrong availment of CENVAT Credit - contravention of Rule 3 of Cenvat Credit Rules readwith Rule 7 of the Cenvat Credit Rules - Held that:- Commissioner (Appeals) in this case has held that amount deposited in terms of Section 35F of the Central Excise Act, 1944 as pre-deposit cannot be considered as payment of duty. He held that since the pre-deposit is not a duty question of taking of Cenvat credit of the pre-deposit does not arise. We find that in the assessee’s own case [2013 (9) TMI 378 - CESTAT NEW DELHI], this Tribunal has already taken a view that the Cenvat credit of pre-deposit of duty paid under Section 35F of the Central Excise Act can be availed and the demand confirmed on this account is not sustainable - Cenvat credit of the pre-deposit made under Section 35F of Central Excise Act is admissible to the appellant - Decided against Revenue.
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2012 (1) TMI 126 - CESTAT NEW DELHI
Denial of exemption under Notification No. 22/2009-C.E., dated 7-7-2009 - investment in four CD writers - Held that:- certificates issued by the District Industries Centre and the recommendation given by the Range Superintendent and accepted by higher authorities at the relevant time have to be given more weightage rather than statements recorded by an investigating agency four to five years later from a few employees. If any objection that they were not eligible for the exemption, because they had not made investment worth a few thousands, was raised at the relevant time, they could have demonstrated that it was done or bought another CD writers to satisfy Revenue. Having accepted the claim at the relevant time raising the issue of such a minuscule investment after four to five years is prima facie not justified. Considering the nature of exemption and the commodity manufactured and investment required, there was no way the Revenue could have stopped the appellants from availing the exemption by raising issues at the relevant time - Decided in favour of assessee.
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