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Case Laws
Showing 461 to 480 of 1429 Records
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2014 (2) TMI 970
Availment of CENVAT Credit - Penalty u/s 11AC - Interest u/s 11AB - Held that:- appellant discharged excise duty liability on the activity of repacking and this payment of duty by the appellant was not challenged by the Revenue. Revenue's contention is that the activity does not amount to manufacture and therefore, the appellant is not eligible for the credit of the CVD paid on the input materials - Even if the appellant had not discharged any excise duty liability, they could have claimed drawback of the Customs and Excise duty paid on the input materials. Therefore, there is no incentive for the appellant to undertake repacking activity and discharge duty liability with an intention to gain any undue benefit - Therefore, we are of the prima facie view that the appellant has made out a case in their favour for grant of stay and accordingly we grant unconditional waiver from pre-deposit of the dues adjudged against the appellant and stay recovery thereof during the pendency of the appeal - Stay granted.
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2014 (2) TMI 969
Valuation - determination of cost of prodcution - Incorrect CAS-4 figures - Held that:- Adjudication order that the applicant withdrew their application seeking provisional assessment and assured that after finalization of annual accounts they will produce details of cost construction. It is also seen from the adjudication order that the applicant had not furnished the documents as assured by them. We also notice that Deputy Director (Cost) opined that Cost/Unit shown against Sl.No.20 with particulars "cost of production of goods disposed” should be taken for determination of cost of production for levy of duty in terms of Rule 8 of the “Valuation Rules”. We find that the duty was demanded on the basis of the opinion given by the Deputy Director (Cost), who is also an authority on this issue. In view of that, the applicant failed to make out a prima facie case for waiver of pre-deposit of the entire amount of tax - Conditional stay granted.
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2014 (2) TMI 968
Valuation - Deduction of breakage allowance from assessable value in terms of sales policy - Held that:- Any allowance in speculation is not permissible in law. Therefore, ld. Authority below have rightly pointed out that an imaginary deduction was claimed by the appellant. Such observation of the appellate authority does not require intervention - Decided in favour of assessee.
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2014 (2) TMI 967
Demand of differential duty - Shortage in stock - Held that:- there is a shortage of 11.8 tones of finished goods in the factory premises when the officers visited the said premises. Today also, there is no dispute as to the shortage of finished goods as the appellant herein is only claiming that the shortage is not worked out correctly and they are unable to ascertain the correct shortage since the Revenue has not given the calculation sheet which was drawn at the time of stock taking. In my considered view, the shortage was sought to be explained by the Manager and the Director of the company by giving an explanation that over a period of time there could be shortage due to the sizing of all the ingots manufactured by them. To my knowledge, even such an explanation could have been accounted for only few kgs but could not be considered valid for entire shortage which has been noticed.
Shortage which is detected by the department is of the finished goods manufactured by the appellant. I also note that the appellants have never challenged the shortages. On the background of such a factual matrix, I find that there is no corroborative evidence adduced by the Revenue either in form of any statement of the purchaser or a transporter or the statement of the director or the general manager as to the allegation of removal of these goods which were found short. Since there is no allegation of clandestine removal, but there is a shortage of finished goods. I hold that the appellants are liable to pay the excise duty on the said finished goods shortages which is noticed by the authorities during the stock verification.
As regards the penalties imposed on the individuals who are General Manager and Director of the appellant-assessee, I find that there is no reason for visiting them with penalty under Rule 26 of the Central Excise Rules, 2002 inasmuch as, there is no evidence of there being a clandestine removal of the finished goods nor there is any role attributed to the individuals/appellant in the shortages which was noticed during the stock taking by the authorities. In the absence of any such evidences, I am of the view that the penalties imposed on these individuals unsustainable and are liable to be set aside - Decided partly in favour of assessee.
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2014 (2) TMI 966
Levy of interest - Deemed manufacture - refined oil - Period of dispute - Held that:- in Finance Bill, 2005 refining was specifically brought into the scope of Chapter 15 - In the bill it was stated that the said note shall be effective from 1-3-86 and ending 28-2-2005 - Examination of the provision enacted by the 2005 Finance Bill shows that clearances of refined oil made by the appellant for the period 17-12-2004 to 12-1-2005 was dutiable which is claimed to have suffered duty on 2-3-2005. Till the position is made clear by Finance Bill, 2005, Assessees were not in a position to determine their liability - Therefore let the dispute come to an end without levy of interest as has been held by learned Commissioner (Appeals) - Decided against Revenue.
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2014 (2) TMI 965
Waiver of predeposit of duty - captive consumption - Cement cleared to units in Special Economic Zone (SEZ) without payment of excise duty - Applicants had also claimed exemption on clinker captively consumed in manufacture of cement as per Notification No.67/95-CE dated 16.3.1995 - Exemption denied - Held that:- demand has been confirmed on clinker manufactured as an intermediate product in the course of manufacture of cement which has been cleared to units in SEZ, for the reason that as per the proviso to Notification No. 67/95-CEd dated 16.3.95 the benefit of captive consumption exemption is not available to inputs used in or in relation to the manufacture of final products which are exempt from whole of the duty of excise or additional duty of excise leviable thereon or chargeable to nil rate of duty thereon other than those cleared - prima facie proviso to Notification No.67/95-CE is not attracted against the assessee - Following decision of Dalmia (Bharat) Cements Ltd. Vs. CCE [2008 (10) TMI 466 - CESTAT, CHENNAI] - Stay granted.
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2014 (2) TMI 964
Disallowance of CENVAT Credit - Non production of ST-XXVI-A forms during the course of investigation - Certain quantity and value of goods did not reach factory of respondent for which Cenvat credit was to be disallowed - Held that:- Nothing has come out from the adjudication order that the extent of goods which entered the State of Himachal Pradesh has gone elsewhere without reaching to the factory of the respondent. In absence of cogent evidence by Revenue to prove the diversion of goods after that reached the State of Himachal Pradesh, the order of learned Adjudicating Authority granting relief to the extent of Rs. 21,35,577/- cannot be disbelieved - Decided against Revenue.
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2014 (2) TMI 963
Imposition of penalty - penalty on signatory - Appeal dismissed for non-compliance to the stay order - Held that:- Appellant was dealt with as authorised signatory in Para 1.5 thereof. The allegation therein shows that there was failure to make entry of certain transactions by this appellant. That adjudication order does not show role of the present appellant causing prejudice to revenue. Learned Adjudicating Authority simply basing on an affidavit held that the appellant had a criminal intention. Unless cogent evidence is brought to record to say that retraction in affidavit is untruthful and the appellant was instrumental to create fake documents, role of the appellant cannot be appreciated. For lack of examination and corroborative evidence proving the retraction was under influence, but there were fake documents proposition of penalty of Rs. 60,000/- on the appellant is not possible to be sustained - Decided in favour of assessee.
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2014 (2) TMI 962
Assessment of turn over tax – Compoundment u/s 7 of the KGST Act – Assessment on the basis of the actual sales turn over of IMFL – Held that:- On a reading of section 7 of the KGST Act (as amended) it is evident that Bar attached Hotels were permitted to make payment of turn over tax at the compounded rate, notwithstanding the normal liability for payment of tax at the rate as contemplated under section 5(2). The facility is not extended to Hotels having classification above '3 Star' level and for Heritages or Clubs. With respect to others compounding is permitted at their option In such case the assessees are permitted to pay TOT at the turn over calculated at 140% of the purchase value of the liquor, with respect to hotels situated within municipal area. It is pertinent to note that, under section 7(b) an alternate method for calculation of the turn over is provided for adopting 150% of the highest turnover tax conceded with respect to the previous 3 consecutive years. But when calculating the turn over under the two alternate methods whichever is higher need be adopted - methods of calculation provided under section 7(a) and 7(b) are on the alternative. The authority can fix the turn over by adopting the method as provided under sub section (a) when it is not possible to adopt the method of calculation under section 7(b) - Decided against assessee.
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2014 (2) TMI 961
Valuation of the right to receive compensation - whether the value of enhanced compensation awarded to the assessee in includible under wealth tax assessment - Held that:- Following the decision of Hon'ble Supreme Court in the case of CIT vs. Ghanshyam, [2009 (7) TMI 12 - SUPREME COURT], decided in favor of assessee.
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2014 (2) TMI 960
Denial of refund claim - Objection on assessment not considered within stipulated period - Held that:- what the respondent has done was that instead of granting the refund they had raised demands equivalent to the refunds claimed vide four separate default assessment order Nos. 1539-1542, all dated 23.02.2007. According to the petitioner these default assessment orders were time barred. Anyhow, the fact of the matter is that the Tribunal has set aside these demands and has ordered accordingly. The consequence of which would be that the refund claims of the petitioner were to be allowed as prayed for. Despite this the respondents have not paid the refund amounts. Going through the provisions of the statute it becomes clear that the refunds are to be paid promptly and the decisions are to be taken as per the time schedule prescribed in the Act - Amount to be refunded subject to furnishment of bank guarantee - Decided partly in favour of assessee.
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2014 (2) TMI 959
Condonation of delay - Held that:- The Rules of limitation are not meant to destroy rights of parties. They virtually take away the remedy. They are meant with the objective that parties should not resort to dilatory tactics and sleep over their rights. They must seek remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The statute relating to limitation determines a life span for such legal remedy for redress of the legal injury, one has suffered. Time is precious and the wasted time would never revisit. During efflux of time, newer causes would come up, necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The statute providing limitation is founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). It is for this reason that when an action becomes barred by time, the Court should be slow to ignore delay for the reason that once limitation expires, other party matures his rights on the subject with attainment of finality. Though it cannot be doubted that refusal to condone delay would result in foreclosing the suiter from putting forth his cause but simultaneously the party on the other hand is also entitled to sit and feel carefree after a particular length of time, getting relieved from persistent and continued litigation.
If delay has occurred for reasons which does not smack of mala fide, the Court should be reluctant to refuse condonation, will not help the petitioner in any manner keeping in view the kind of explanation rendered herein since I find that here is a case which shows a complete careless and reckless long delay on the part of applicant, which has remained virtually unexplained at all - No question of law, in my view, has arisen in this case, particularly when findings of fact recorded by first appellate court as well as Tribunal are also not shown perverse or contrary to material on record - Condonation denied.
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2014 (2) TMI 958
Maintainability of Revenue appeal - Review of order by the Committee of Chief Commissioners - Valuation - GTA service - inclusion of delivery charges collected from the customers - Held that:- the proposition in the judgement in Bhushan Ltd [2008 (10) TMI 397 - CESTAT, NEW DELHI] does not reflect the correct position in law.
There may be instances where one Commissioner alone records a decision to review. Illustrations may be multiplied. The essential fact however is that the decision of Committee of Commissioners or Chief Commissioners as the case may, be is a sine qua non for a legitimate appeal to be preferred and if such opinion is absent either because of a fundamental infirmity in the composition of the Committee or on account of absence of a manifestation of opinion, there would be no valid decision in the eye of law and consequently no valid appeal could be said to have been preferred. - Following the decision of Delhi High Court judgement in Kundalia Industries [2012 (8) TMI 789 - DELHI HIGH COURT], appeal dismissed - decided against the revenue.
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2014 (2) TMI 957
Services of widening of road, repairing and maintenance of roads etc - retrospective amendment inserted by virtue of Section 97 and 98 of the Finance Act, 2012 relating to repair and maintenance of road service. - Held that:- the demand to that extent is not sustainable in law.
Computation error - Held that:- appellant could not place sufficient reasons as to why the records could not be produced before the Ld. Adjudicating authority either by filing their reply or attending the hearing before Commissioner - matter remanded back subject to pre-deposit of small amount towards demand of service tax.
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2014 (2) TMI 956
Payment of service tax using CENVAT credit account under reverse charge mechanism for the services availed by them overseas. - first issue is whether the respondent has paid any remuneration towards the service received or not? - Held that:- no amount is paid, therefore, payment of service tax does not arise. - Decided against the revenue.
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2014 (2) TMI 955
Waiver of pre-deposit - Classification of servcie - Management and Repair Services or Works Contract Service - Cleaning Services - Construction Services of premises namely, hospitals and educational institutes - Held that:- pplicant have failed to substantiate their claim that they were rendering services under ‘Works Contract Service’ for the relevant period.
Repairing & Maintenance of roads, Renovation Works for the railways and Civil Construction Services to non-commercial premises would fall within the exclusion Clause of taxable services viz. Commercial & Industrial Construction Service - Applicant could not able to make out a prima facie case for total waiver of predeposit of the dues adjudged. - stay granted partly.
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2014 (2) TMI 954
Waiver of pre-deposit of Service Tax - Penalties under Sections 76 & 77 - Man Power Supply Service - Held that:- appellant has been awarded contract by the dairy for a specific job which is evident from the contract which is attached to the appeal memorandum - appellant has made out a prima facie case on merits and hence we allow the application for waiver of pre-deposit of amounts involved and stay the recovery thereof till the disposal of appeal - Following decision of Ritesh Enterprises [2009 (10) TMI 182 - CESTAT, BANGALORE], Divya Enterprise [2009 (12) TMI 155 - CESTAT, BANGALORE] and K. Damodar Reddy [2009 (9) TMI 386 - CESTAT, BANGALORE] - Stay granted.
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2014 (2) TMI 953
Demand of service tax - Man Power recruitment and supply agency - Held that:- Despite giving the time to assessee to produce invoices on which the payment was received from M/s Radhe Renewal Energy Development Pvt. Ltd, the assessee chose not produce the invoices before us and did not produce the same before the lower authorities also - appellant should be put to some condition to hear and dispose the appeal - Conditional stay granted.
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2014 (2) TMI 952
Residential Complex Section 65(91a) – whether Construction of Complex Service is chargeable to service tax – Held that:- Following decision of S KADIRVEL Versus COMMISSIONER OF CENTRAL EXCISE, SERVICE TAX, TIRUCHIRAPALLI [2013 (8) TMI 262 - CESTAT CHENNAI] - Conditional stay granted.
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2014 (2) TMI 951
Depreciation - Legality of lease agreements – Genuineness of the transaction - Entitlement for depreciation – Assets put to use or not - Whether the lease agreements entered by the assessee with the six concerns are sham transactions and whether they are entitled for a claim for depreciation and whether the assets purchased by the assessee before 31.03.2001 were put to use – Held that:- The transaction is a fraudulent transaction by noticing the conduct of the asessee in the manner in which the lease transactions were finalised, much prior to the sanction of the loan by IREDA. Further, the certification of the lanterns were in the godown of PHOTON and not in the place where it was installed or in the premises of the so called lessees to whom it was stated to have been despatched. – assessee is not entitled to the claim for depreciation. - decided against Assessee.
Claim of advance in the income - Whether the amount received by the assessee from DLWL claimed by the assessee as advance, is income of the assessee for the relevant assessment year – Held that:- The advances shown by the assesssee are nothing but payment received on account of the completion of work executed by the assessee and the Assessing Officer made the addition - The Tribunal after carefully analysing the entire facts and referring to the MOU and the FIR rightly held that payments received by the assessee and shown as outstanding in the accounts are to be treated as income and assessed to tax – Decided against Assessee.
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