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Showing 441 to 460 of 627 Records
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2007 (1) TMI 190
Issues involved: The issues involved in this case include the rejection of appeals by the first respondent on the grounds of being filed belatedly, the communication of orders under the Customs Act, and the authority of the appellate body to extend the period for filing appeals.
Rejection of Appeals: The petitioner imported goods classified under CTH 85249999, exempted from counter veiling duty u/s Notification No. 6/2006. The petitioner claimed benefit of the notification for refund of excess duty. Appeals were filed within the period of limitation, but rejected as belated by one day. The contention was that the appeals were filed within the extended period allowed u/s 128 of the Customs Act. The authorities have no power to extend the period for delayed filing, but the date of communication of orders is crucial for determining the limitation period.
Communication of Orders: The appellate authority rejected the appeals due to being filed belatedly, citing "notice" as bringing it to a person's knowledge. However, the statutory provision u/s 153 of the Customs Act specifies the manner of serving orders, which was not followed in this case. The petitioner's constructive knowledge cannot be accepted as a valid reason for rejecting the appeals. The absence of communication of orders as per statutory provisions renders the reasoning of the appellate authority legally unsound.
Authority to Extend Period: The appellate authority's reasoning on the knowledge of the petitioner and the lack of communication of orders was deemed extraordinary and not supported by statutory provisions. The service of notice must adhere to the prescribed manner in the statute. The orders impugned in the writ petitions were set aside, directing the appellate authority to entertain the appeals promptly and in accordance with the law. The judgment allowed the writ petitions and closed the connected M. PS without costs.
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2007 (1) TMI 189
Issues involved: Appeal u/s 35(G) of Central Excise Act, 1944 based on Tribunal's order, substantial questions of law raised regarding change of option u/s Rule 96ZP(3), effect of subordinate officer's action on compounded levy scheme, finalization of provisional annual capacity, and validity of hearing notice.
In the present case, the revenue filed an appeal u/s 35(G) of the Central Excise Act, 1944 based on the order passed by the Customs, Excise and Service Tax Appellate Tribunal. The substantial questions of law raised included whether the respondent could change their option u/s Rule 96ZP(3) within the same financial year, the impact of a subordinate officer's action on the compounded levy scheme, the correctness of the Tribunal's decision on finalization of provisional annual capacity, and the validity of a hearing notice issued by the Tribunal.
Regarding the first issue, it was undisputed that a show cause notice was issued under Rule 96ZP(1) of the Central Excise Rules, 1944, raising demand for duty for a disputed period. The Tribunal held that once a show cause notice was issued, no second notice raising demand of duty for the same period could be issued, especially after a significant lapse of time. The Tribunal referred to Rule 96ZP(3) to support its view that a second show cause notice could not have been issued and adjudicated for confirmation of duty against the assessee, particularly when it was time-barred. The period in dispute was clearly defined, and the second show cause notice was deemed time-barred, leading to the dismissal of the appeal.
In conclusion, the High Court dismissed the appeal as it found that no substantial question of law would arise due to the second show cause notice being without jurisdiction and time-barred. The decision emphasized the importance of adhering to procedural rules and time limitations in matters of excise duty demands and adjudication.
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2007 (1) TMI 188
Issues involved: The issues involved in the judgment include the jurisdiction of the second respondent u/s 11A of the Central Excise Act, finalization of provisional assessments, validity of the order passed by the third respondent, and the petitioner's approach to the Tribunal.
Jurisdiction of Second Respondent u/s 11A:
The petitioner contended that the second respondent lacked jurisdiction to invoke Section 11A for levy of excise duty as the assessments were provisional. The order passed by the second respondent was challenged as being without jurisdiction, considering the assessments were provisional and not final.
Finalization of Provisional Assessments:
The respondent argued that finalization of provisional assessments by the Assistant Commissioner in 1989 was unrelated to the impugned demand notice regarding undervaluation of excisable goods. The respondent emphasized that the petitioner, by submitting to the jurisdiction of the second respondent and appealing to the third respondent, cannot now question the jurisdiction of the second respondent through a writ petition.
Validity of Order by Third Respondent:
The order of the third respondent rejecting the plea that the assessments were provisional was put in issue. The Tribunal's order, dated 26-12-1997, was considered as an expression of opinion by the members, pending an enforceable final order. The petitioner's actions in stalling the Tribunal from passing an enforceable order were noted, leading to the dismissal of the writ petitions and a direction for the Tribunal to pass orders expeditiously.
Petitioner's Approach to the Tribunal:
The petitioner's approach to the Tribunal, filing appeals and additional grounds, was scrutinized. The Court highlighted that the matter had been pending for nearly a decade due to the writ petitions, emphasizing the importance of allowing the Tribunal to proceed and pass orders without hindrance.
This judgment addresses the jurisdictional aspects of excise duty assessments, the role of the Tribunal in finalizing orders, and the petitioner's conduct in approaching the legal process.
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2007 (1) TMI 187
Whether the use of articles or commodities not generally used in the manufacturing process can still be categorized as raw materials for the purpose of concession in the levy of taxes?
Held that:- To avail the concessional rate of tax under Section 10, the assessee has to satisfy 3 conditions he must be a registered dealer of any raw material;raw material must be used for the manufacture of goods; and the said manufacture in the State should be for the purpose of sale by him within the State or in the course of inter-State trade or commerce or in the course of export outside the territory of India.
As the respondent before us satisfy all the above tests and, therefore, the assessee-respondent, in our opinion, shall be entitled to such concessional rate as may be notified by the State Government.
The respondent-assessee used diesel as raw material for the manufacture of the end-product, namely, yarn and fabric. The diesel used by the assessee is a fuel and lubricant as defined under Section 2(34) of the Sales Tax Act. Thus the arguments advanced by learned counsel for the appellant has no force and merit. Appeal dismissed.
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2007 (1) TMI 186
Whether the product knitted fabric and cotton containing elastomaric yarn of width exceeding 30 cm. were, classifiable under Heading 6002.30 or under 6002.92?
Held that:- As the company in question and its assets/properties have already been sold and there is nothing which can be recovered by the revenue, we put an end to this litigation leaving the question of law open.
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2007 (1) TMI 184
Whether on the facts and in the circumstance of the case, the hon'ble Income-tax Appellate Tribunal was justified in law in holding that the Commissioner of Income-tax lacked jurisdiction to revise the order of assessment under section 263 of the Income-tax Act?
Whether on the facts and in the circumstances of the case, the hon'ble Income-tax Appellate Tribunal was justified in holding that the issue of excess deduction under sections 80HH and 80-I contained in the order under section 143(3) was merged with the order under section 154 particularly when no rectification under section 154 was made in this regard?
Whether the view taken by the hon'ble Income-tax Appellate Tribunal that the Assessing Officer did not consider the issue of excess deductions under sections 80HH and 80-I for rectification in his order under section 154 after due application of his mind, could in law justify its conclusion that there was no jurisdiction under section 263 in respect of the said issue in terms of the assessment order dated March 10, 1995?
Held that:- Initiation of a proceeding under section 263 of the Act cannot be held to have become bad in law only because an order of rectification was passed. No such hard and fast rule can, in our opinion, be laid down. Each case is required to be considered on its own facts. In a given situation, the High Court may be held to be entitled to set aside both orders and remit the matter for consideration of the matter afresh. But in our opinion, it would not be correct to contend that only because a proceeding for rectification was initiated subsequently, the revisional jurisdiction could not have been invoked under any circumstances whatsoever. If such a proceeding was initiated, in our opinion, the contesting parties could bring the same to the notice of the Commissioner so as to enable him to take into consideration the subsequent events also. It goes without saying that if and when the Commissioner of Income-tax takes up for consideration a subsequent event, the assessee would be entitled to make its submission also in regard thereto.
For the reasons aforementioned, the impugned judgment cannot be sustained. It is set aside accordingly. Our attention has been drawn to the fact that the Assessing Officer had allegedly taken into consideration the application of sections 80HH and 80-I of the Act. In our opinion, therefore, the interest of justice would be met if the Commissioner of Income-tax is directed to have a fresh look at the matter in the light of the order of rectification passed by the assessing authority. Appeal allowed.
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2007 (1) TMI 183
Cenvat / Modvat – Duty Paying Documents – Valid Documents – Loss of original and duplicate copies of Invoice - held that - Though Rule 52A in Sub. R. 3 lays down requirement of production of original and in absence thereof, a duplicate, one cannot oblivious of the fact that in some cases if original and the duplicate, both are lost, the claim cannot be defeated especially when department did not dispute receipt of the goods, their use in the manufacture of final product and duty paid character of inputs. Since the duty was paid for the inputs and inputs were used in captive consumption for manufacture of final product, merely because original and duplicate copy as required by Rule 52A, C, (i)(ii) were lost, the claim could not have been defeated especially when certified copy duly issued by the jurisdictional Superintendent was produced – credit allowed
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2007 (1) TMI 182
Cenvat Credit – Input versus capital goods – Catalyst – appellant taken credit on catalyst within the category of capital goods – revenue rejected the same being catalyst is not an eligible capital good falling under heading 3815 - it is very clear that the Tribunal had taken a consistent view that the catalyst is only input and not capital goods as claimed by the assessee. Further, it was also brought to our notice that the Tribunal by order dated 3-7-2003 in assessee’s own case for the earlier period had taken a view that the catalyst is an essential ‘input’ to accelerate the production and also it is a required ‘input’ for manufacture of the final product and hold that the catalyst is only ‘input’ and granted relief to the assessee in appeal E/461/02 – Tribunal’s order upheld.
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2007 (1) TMI 181
Commissioner (Appeals) hold that services of CHA availed by the appellant should not be treated as input service as these services were received after the clearance of the final products from the place of removal - claim for Cenvat credit in respect of service tax paid on the security services was rejected on the ground that such services were received at the residential colonies - Prima facie, the reasoning and findings reached by the Commissioner (Appeals) are on a correct interpretation of the relevant previsions – stay not granted
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2007 (1) TMI 180
Appellant reversed the credit at the direction of Excise officer - Subsequently, as no show cause notice was received or any order passed confirming the demand by denying the credit, the appellants were asked for refund of that amount - contention is that, there is no order passed by the competent authority for reversal of this credit– there is merit in the contention of the appellant that no show cause notice was issued nor any adjudication order was passed by the competent authority for denial of the credit in question - therefore, the appellants are entitled to this credit which was reversed
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2007 (1) TMI 179
Denial of opportunity of personal hearing – adjudicating authority proceeded to decide the matter on the basis of the reply and the case papers on record - Assistant Commissioner in impugned order confirmed the said adjudicating order without considering violation of principles of natural justice – hearing at the appellate stage cannot substitute the hearing which was required to be given by the adjudicating authority - impugned orders are set-aside - matter remanded to adjudicating authority
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2007 (1) TMI 178
Late payment of tax - imposition of penalty - Extraordinary Tax Payer Friendly Scheme - appellant had discharged the entire service tax liability and interest thereof on 5-1-2004 on his own while Scheme provided the till 30-10-04 - issue is covered by Tribunal’s decision in Bharat Securities Services & Workers’ Cont. where it was held that Scheme was applicable even to the assessees who discharged the service tax before the announcement of the said scheme – held that penalties not imposable
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2007 (1) TMI 177
Intention to evade duty - no allegation of suppression made in the SCN - appellants submission that, having regard to the smallness of the amount involved the appellants would pay up service tax of Rs. 5,690/-, but there was no warrant for imposing penalties, is acceptable - since the service tax of Rs. 5,690/- is upheld and no intention to evade duty is at all alleged in SCN, the appellant has made out a reasonable ground under Section 80, for waving the penalties
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2007 (1) TMI 176
Commissioner dropping demand on a charitable institution holding that activity of developing human resources at the rural level for staff of charitable organizations or Government bodies, does not come within the ambit of Management Consultant - application for condonation of delay by revenue – delay not explained - no time chart nor affidavit filed - appeal dismissed on ground of limitation - impugned order of Commissioner is upheld on merits also - condonation and stay application rejected
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2007 (1) TMI 175
Consulting Engineer Services - whether Service Tax is to be levied on the royalty and technical services fee paid by the Indian Companies to their foreign counterparts for transfer of technical documents including know-how, patents, trademarks etc. - issue is settled in assessee’s favour in decisions of all the Benches of the Tribunal, therefore, respectfully applying the ratio of the cited judgments, the impugned order is set aside - stay application and the appeals are allowed
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2007 (1) TMI 174
Adjustment of confirmed demand against the sanctioned refund - demand which was adjusted is upheld by the Tribunal and the reference filed by the appellants before HC is pending - appellant has not produced any order by HC staying the operation of the decision of the Tribunal - Section 11 of the Act empowers the officer in this regard to deduct any amount payable to the assessee from any money owing to the person from whom such sum may be recovered – adjustment is justified
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2007 (1) TMI 173
Primary orders passed by Tribunal, were accepted by the Revenue - Earlier decisions on the same question should not be reopened unless some fresh facts are found in the subsequent year – held that, if those orders were not challenged, there was no justification for the Revenue to file the present appeals which merely relied upon the primary orders passed – revenue cannot be allowed to recover tax from one assessee, while declining to recover tax from others – revenue’s appeal dismissed
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2007 (1) TMI 172
Earlier orders passed by Tribunal, were not challenged by the Revenue - Earlier decisions on the same question should not be reopened unless some fresh facts are found in the subsequent year – held that, if those orders were not challenged, there was no justification for the Revenue to file the present appeals which merely relied upon the primary orders passed – revenue cannot be allowed to recover tax from one assessee, while declining to recover tax from others – revenue’s appeal dismissed
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2007 (1) TMI 171
Whether the credit of Cenvat is allowable on the toothbrush cleared free along with toothpaste manufactured and cleared by the appellants – It is settled proposition of the law that the credit can only be availed on the bough out item, when value of such bought out item is included to the value of the main product - held that toothbrush cannot be considered as input for toothpaste. Therefore, the question of allowing Cenvat credit on duty paid on toothbrush treating them as input does not arise
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2007 (1) TMI 170
Issue involved in this appeal is the classification of waste and scrap generated during the manufacture of Printed Circuit Board classifiable under Tariff Heading 85 of the Central Excise Tariff - in the absence of any tariff entry regarding waste and scrap of printed circuit board we find merits in the contentions of the appellants that waste and scrap of printed circuit board is not excisable. In view of the above, impugned order is set aside and the appeal is allowed
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9911796707
