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2012 (4) TMI 507
Duty demand - Insurance charges collected from purchasers - Held that:- goods were sold by the appellants from the factory gate, which is the place of removal and delivery took place at the buyers end as per Section 4 of the Central Excise Act, 1944. In this connection I have perused the case laws of M/s. Escorts JCB Limited v. CCE, Delhi-II [2002 (10) TMI 96 - SUPREME COURT OF INDIA] cited by the appellants. I find that ratio thereof is squarely applicable looking to the facts and circumstances of the case. Moreover, Board vide its Circular N....... + More
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2012 (4) TMI 506
Waiver of pre deposit - Duty demand - Incorrect valuation of final products - Held that:- valuation is sought to be enhanced by the authorities, on the ground that the goods which are cleared by the appellants to their ICUs are sold by them on higher price. Learned adjudicating authority has proceeded on the ground that Rule 10 of Valuation Rules will apply. On perusal of the said Rule 10, we find that prima facie this Rule will not apply, as the said Rule talks about the arrangement of an assessee for sale of excisable goods, except to or thr....... + More
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2012 (4) TMI 505
CENVAT Credit - Printing of bags - Held that:- The case of the department is that the process undertaken by the appellant unit i.e. printing of polypropylene woven bags does not amount to manufacture and hence they are not eligible for Cenvat credit. However, Rule 3(5) of the Cenvat Credit Rules, 2004 provides that when the Cenvat credit availed inputs are cleared as such, an amount equal to the Cenvat credit required to be paid. Then even if the department’s stand that process undertaken by the appellant does not amount to manufacture is acce....... + More
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2012 (4) TMI 504
Quantum of penalty under Rule 25 - Held that:- The show cause notice does not specify the nature of breach of law alleged whether was covered by any of the clauses appearing under Rule 25 of Central Excise Rules, 2001. In absence of specific charge for levy of penalty, it is difficult to appreciate the levy itself. When the show cause notice did not provide foundation levelling appropriate charge to impose penalty which is independent of scheme of levy of duty, the assessee has right to know the charge to defend. But no circumstance was provid....... + More
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2012 (4) TMI 503
Penalty u/s 78 - Loading and unloading of washed coal as well as rejected coal - Business Auxilliary service - Held that:- Rajasthan High Court in S.B. Construction Corporation v. CCE - [2006 (8) TMI 28 - HIGH COURT OF JUDICATURE FOR RAJASTHAN (JODHPUR)] ruling that goods when moved within a factory cannot be considered as cargo. This is applicable for shifting of goods within mines also. Further the scope of the entry for cargo handling service was under dispute in the case of many assessees and there was bona fide reason for the Respondent t....... + More
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2012 (4) TMI 502
CENVAT Credit - Denial of refund claim - Held that:- There is confusion about the product involved in the instant case. Both in the order of the adjudicating authority and the appellate authority, they have referred to the goods as potable alcohol (rectified spirit) as an exempted item. Chapter Note 4 to Chapter 22 states “This Chapter does not cover alcoholic liquors that for human consumption”. Further entry 84 of List 1 (Union List) the Seventh Schedule to the Constitution itself makes it clear that alcoholic liquors for human consumption i....... + More
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2012 (4) TMI 501
Waiver of pre-deposit of duty - Denial of CENVAT Credit - denial the credit in present proceedings on the ground that the circular, dated 1-2-2007 is prospective nature and in view of the provisions of Rule 4 of the Cenvat Credit Rules which provides that the Cenvat Credit in respect of inputs may be taken immediately on receipt of the inputs in the factory of the manufacturer of output service - Held that:- proviso to notification No. 30/2004-C.E., dated 9-7-2004 states that ‘nothing contained in this notification shall apply to the goods in ....... + More
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2012 (4) TMI 500
CENVAT Credit - Malafide intention to evade duty - Rule 57S - Held that:- A plain reading of the Rule 57S indicate that the assessee needs to take prior permission before removal of the capital goods and if the capital goods are not brought back within a period of three months or within such extended period, they are liable to pay duty equivalent to the credit taken. In the instant case it is an admitted fact that the assessee did not take any permission from the department nor did they bring back the moulds and dies within the stipulated peri....... + More
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2012 (4) TMI 499
Eligibility of Cenvat credit - Tour operator service, garden maintenance service, waste management service and repair of fan service - Rejection on the ground that services are not integrally connected to the manufacture of final product - Held that:- input services on which Cenvat Credit has been availed by the appellant in the instant case qualifies as input service. In respect of many of these services, there are a large number of decisions passed by this Tribunal allowing such credit. In respect of photographic services, the learned, Advoc....... + More
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2012 (4) TMI 498
Duty demand - Discrepancy in description of goods given in the ARE-1 and the shipping bills - Held that:- examination and export sealing has been done at the factory gate by the jurisdictional Excise authorities and the ARE- 1 gives the description of the goods, which are covered by the export consignments. The ARE-1 number and date are indicated in the corresponding shipping bills under which the goods have been exported. The Customs have not examined the goods but based on the Central Excise examination, they have allowed the goods to be exp....... + More
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2012 (4) TMI 497
Interest on refund claim - Section 11BB - Held that:- refund claim was held admissible by the Commissioner (Appeals) and accordingly the refund was effected on the dates aforementioned. As per the explanation, the appellate Commissioner’s order sanctioning refund should be deemed to be an order passed under sub-section (2) of Section 11B, which would mean that the date on which the original authority first rejected the refund claim (8-5-1998) should be deemed to be the date of grant of refund claim. This legal position which was overlooked by ....... + More
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2012 (4) TMI 496
Deletion of penalty u/s 271(1)(c) – LTCG on sale of factory land and building at Siliguri - deduction u/s 54G denied and penalty imposed on ground that area where assessee's undertaking was located was not declared to be 'urban area' – Held that:- Claim is declined on the ground that the place where assessee's industrial undertaking is located has not been declared to be an 'urban area' - something which is highly technical and it cannot be against the preponderance of probabilities, particularly in the light of legal advice rendered to the as....... + More
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2012 (4) TMI 495
Assessee firm of solicitors and advocates- in reassessment proceedings AO noted that the assessee has made payments to various lawyers for their professional services, but has not deducted tax at source under section 194J such payments are to be disallowed under section 40(a)(ia) - assessee's contention that the amounts paid to the lawyers were reimbursed by assessee's clients, and, therefore, the amounts paid to the lawyers were never claimed as a deduction in the first place - It was then contended that when deduction is not claimed in respe....... + More
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2012 (4) TMI 494
Exercise of extraordinary jurisdiction conferred by Article 226 of the Constitution Of India- Petitioner is engaged in the business of turn key projects - a warranty clause providing for warranty of performance - a notice u/s 143(2) of the Act issued in respect of the assessment years 1995-96 and 1996-97 stating that there were reasons to believe that the petitioner s income, chargeable to income tax, as estimated assessment for the aforesaid assessment years, within the meaning of Section 147 of IT Act - petitioner submitted that the said not....... + More
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2012 (4) TMI 493
Direction for release the goods - issues involved in this writ petition is covered by the order of this Court, wherein, this Court had directed the respondent therein to release the goods concerned subject to certain conditions – Held that:- Release of goods is directed subject to conditions namely:(i)The petitioner shall pay the entire amount of duty, as per the declared value, which may be based on the contract or price etc.(ii)the petitioner shall provide sufficient bank guarantee in respect of 50% of the difference in duty, in favour of th....... + More
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2012 (4) TMI 492
Demand - Classification - erection commission and installation or works contract service - Held that: the activity undertaken by the applicant have been clarified by Board vide Circular no. B1/16/2007-TRU dated 22.5.2007 as covered under works contract services. - Decided in favor of the assessee
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2012 (4) TMI 491
Maintainability of application filed u/s 96(C) of the Finance Act, 1994 – whether subsidiary of a subsidiary of a Government company, could invoke the jurisdiction of Authority for advance ruling - questions, identical to the ones sought to be raised by the applicants, are pending before the CESTAT at the instance of the holding company – Held that:- If ruling is given in this case, it will bind only the applicants, this would mean CESTAT is free to render a ruling ignoring what is being ruled by this Authority. Such a situation should be avoi....... + More
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2012 (4) TMI 490
Interim stay of demand – assessee engaged in real estate business following completed contract method – addition of Rs 1.94 crores made under scrutiny assessment – stay petition filed before CIT got rejected – during hearing of writ petition, petitioner submitted to pay Rs 40 lacs for disposal of the appeal – Held that:- Petitioner is directed to deposit said sum within a period of 4 weeks from the date of receipt of a copy of this order. Thereon, third respondent shall hear and dispose of the appeal on merits within a period of four months.
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2012 (4) TMI 489
Recovery of duty - Petition to defer recovery proceedings initiated during pendency of appeal against the order and stay petition - Held that:- 2nd respondent is directed to decide on stay petition within a period of one month. Meanwhile further proceedings for recovering the amount due under said orders will be kept in abeyance.
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2012 (4) TMI 488
Jurisdiction Power of Commissioner - Assessee’s claim in respect of deductions on account of payment of bonus was allowed under Section 43B of the Act - said claim had been allowed in the assessment year 1994-95 also - proceedings initiated for rectification under Section 154/155 were dropped - initiation of suo motu revisional jurisdiction by seeking to revise order of assessment in lieu of the interest of Revenue as the assessee had claimed the deduction twice – CIT set aside the order of assessment and directed re-computation - the assessee....... + More
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