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Showing 321 to 340 of 1510 Records

• 2015 (1) TMI 1194
  

  Waiver of pre deposit - Non consideration of certain amount already paid - Held that:- If certain amount already paid was not taken into account throughout the proceedings till the matter reached the Tribunal, there is no harm in taking such amount into consideration for determining whether the appellants have made the pre-deposit as per the order or not. However we do appreciate the concern expressed by the learned AR that this submission unless verified by the Revenue with the cooperation of the assessee should not be accepted. Accordingly we direct the appellant to produce the paper book produced before us today giving details of payments made, P&L Account, Reconciliation of Account, copies of S.T.-3 Returns and ledger of payments and proof of payments etc. to the jurisdictional Commissioner who shall cause verification of the same and after getting the same verified examine whether the claim of the appellant that they had deposited ₹ 3.25 crores and that has not been taken into account while confirming the demand is correct or not. A copy of the verification report should be submitted to the Tribunal on or before 4-2-2015 and a copy of the report may be given to the appellant also. It is made clear if it emerges after verification that the appellant's claim of making the payment is not correct, the appellants have to make deposit of the balance amount and report compliance - Appeal disposed of.

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• 2015 (1) TMI 1193
  

  Denial of input service credit - Availment of service beyond place of removal - Held that:- CHA services have been availed by the appellant in the course of export of goods and in the case of the export goods, the place of removal is the port from where the goods have been exported. Therefore, we hold that the CHA service has been availed by the appellant till the place of removal. Further, we find that in the case of Commissioner of C. Ex., Nagpur v. Ultratech Cement Ltd., reported in [2010 (10) TMI 13 - BOMBAY HIGH COURT] wherein the Hon’ble High Court of Bombay has held that being a manufacturer of excisable goods if the assessee availed any services, the assessee is entitled to take input service credit in the course of their business activity. As it is not in dispute that appellant being a manufacturer has availed all the services in the course of their business. Therefore, we hold that appellants are entitled for input service credit on all the services discussed hereinabove. Accordingly, the impugned order is set aside - Decided in favour of assessee.

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• 2015 (1) TMI 1192
  

  Delay in filing of appeal - Bar of limitation - Power of Commissioner to condone delay - Denial of refund claim - Held that:- On a true and fair construction of the amended provision , it is clear that an appeal is required to be presented within two months from the date of receipt of the decision or order of such adjudicating authority, which is made on or after the Finance Bill, 2012, receives the assent of the President. Since the assent of the President was granted on 28-5-2012, the amended provision would not apply to the adjudication order passed by the Assistant Commissioner on 21-5-2012. The date of dispatch of the adjudication order on 13-6-2012, is a wholly irrelevant factor. - Since the adjudication order against which the appeal was preferred to the Appellate Commissioner was passed on 21-5-2012, (prior to the date the relevant provision of the Finance Bill, 2012 had received the assent of the President i.e., on 28-5-2012) the amended provision prescribing a new period of limitation and the proviso to sub-section (3A), which authorizes the Assistant Commissioner to condone the delay if the appeal is presented within further period of one month (beyond the normal period of limitation of two months) would not be applicable. The unamended limitation period as specified in Section 85(3) is the applicable provision.

  Conclusion recorded by the ld. Commissioner (Appeals) that the appellant herein had presented the appeal beyond the further period of limitation and outside powers of the appellate Commissioner to condone, qua the amended Section (3A) of Section 85, is a fallacious conclusion based on an imperfect analysis of the relevant provision, is unsustainable and is accordingly quashed. The matter is remanded to the ld. Appellate Commissioner for consideration of the COD application on its merits - Decided in favour of assessee.

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• 2015 (1) TMI 1191
  

  Business auxiliary service - appellant is undertaking the assigned job on behalf of their clients through contractors - Held that:- Admitted facts of the case are that the appellant had undertaken the job of laying of paver blocks at JNPT. In the impugned order in para 35, the adjudicating authority also held that prima facie there is force in the claim of the appellant as they claim to be carrying out the work of constructing the structure at port by using paver block only and that they are only laying paver blocks at roads, commercial premises etc. hence the service is classifiable under commercial or industrial construction.

  As per the provisions of the above Section, we find that the activity undertaken by the appellant, i.e. laying of paver blocks, more appropriately comes under the scope of ‘commercial or industrial construction service’ and the industrial construction service does not include any service provided in respect of roads, airports, railways, transport terminals, bridges, tunnels and dams. As commercial and construction activity is undertaken by the appellant at the port, therefore we find merit in the contention of the appellant that the activity undertaken by the appellant does not fall under the business auxiliary service. The impugned order is set aside - Decided in favour of assessee.

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• 2015 (1) TMI 1190
  

  Photography service - Power of Appellate Commissioner to remand the matter - Held that:- The position regarding availability of the power to remand to the Appellate Commissioner under provisions of the Finance Act, 1994 was directly considered by the Gujarat High Court in CST v. Associated Hotels Ltd. - [2014 (4) TMI 406 - GUJARAT HIGH COURT]. The High Court having considered several authorities including the judgment of the Supreme Court in MIL India Ltd., provisions of Section 35A(3) of the Central Excise Act, 1944 and provisions of Section 85(4) of the Finance Act, 1994, concluded that the power of remand continues to inhere in the Commissioner (Appeals), in an appeal preferred under provisions of 1994 Act. - Appellate Commissioner has the power to remand the matter to the primary authority having regard to the amplitude of the appellate jurisdiction conferred on him under Section 85(4) of the Finance Act, 1994 the contention by Revenue to the contrary does not commend acceptance by this Tribunal. The appeal is without merits - Decided against Revenue.

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• 2015 (1) TMI 1189
  

  Entitlement for exemption for 5 years u/s 4A(1) of the U.P. Trade Tax Act, 1948 – Exemption from the date of registration of the sale deed - Whether the Tribunal was wrong in ignoring the date of ownership accruing from the date of entry into possession with effect from 20.10.1986 i.e. the date of registration of the agreement to sale and when the petitioner came into possession of the property in question for the purposes of determining the ownership as being the first date for grant of exemption - Held that:- The word owned has been interpreted in Mysore Mineral Ltd. Vs. Commissioner of Income Tax [1999 (9) TMI 1 - SUPREME Court] wherein it has been held that the term "owned" as occurring in section 32(1) of the Income-tax Act, 1961, must be assigned a wider meaning - anyone in possession of property in his own title exercising such dominion over the property as would enable others being excluded there from and having the right to use and occupy the property and/or to enjoy its usufruct in his own right would be the owner of the buildings though a formal deed of title may not have been executed and registered as contemplated by the Transfer of Property Act, the Registration Act, etc. - the revisionist which is a private limited Company engaged in the manufacture and sale of Diesel, Engines, Generating Sets, Alternators etc. had purchased the land and building for establishing a new unit through registered agreement to sale - Vacant possession of the land and building had been given to the revisionist on 20.10.1986 on the basis of the agreement of sale dated 20.10.1986 - the revisionist under the registered agreement to sale had entered into possession of the land and building and the agreement to sale was registered on 20.10.1986, thus, the revisionist would be entitled for the grant of exemption from 20.10.1986 to 22.12.1991 – Decided in favour of revisionist assessee.

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• 2015 (1) TMI 1188
  

  Default in payment of duty - Wrongful availment of CENVAT credit despite restriction under Rule 8(3)(A) - Imposition of penalty - Held that:- counsel relies upon the decision of the Hon’ble High Court of Gujarat in Special Civil Application No.3344 of 2014 to submit that Rule 8(3)(A) relating to non-utilisation of CENVAT credit has been quashed and therefore there cannot be any demand. He also relies upon the decision of this Tribunal in the case of Allianz Steel Ltd. Vs. CCE, Indore [2013 (3) TMI 404 - CESTAT NEW DELHI] wherein unconditional waiver of predeposit and stay against recovery was granted. Since the decision of the Hon’ble High Court of Gujarat [2014 (12) TMI 585 - GUJARAT HIGH COURT] and the decision in the case of Allianz Steel Ltd. were not available to the original adjudicating authority, I consider it appropriate that the matter should be remanded for fresh consideration at this stage itself. Accordingly, the impugned order is set aside and the matter is remanded to the original adjudicating authority for fresh consideration in accordance with law after giving reasonable opportunity to the appellant to present their case. - Appeal disposed of.

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• 2015 (1) TMI 1187
  

  Method of Valuation - Glues and adhesives - MRP based valuation or transaction value - held that:- Both lower authorities have confirmed the demands raised on the appellant on the ground that they have wrongly adopted MRP based assessment under the provisions of Section 4A of Central Excise Act, 1944. It is noted from the records that the products “Glues and adhesives” were falling under Chapter 35 of the Central Excise Tariff Act, 1985; but the packing of the products manufactured by the appellant were indicating that they were supplied to industrial consumers and hence they were not covered by the provisions of Standards of Weight and Measurement Act, 1976 - As against such factual finding, the appellant in the grounds of appeal have not controverted the fact that they were selling the goods to industrial consumers, and also whether they have affixed MRP or not. In the absence of any evidence, we find that the first appellate authority has correctly upheld the demands raised and confirmed against the appellant. - Decided against assessee.

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• 2015 (1) TMI 1186
  

  CENVAT Credit - input services - Credit taken on the strength of debit notes - Imposition of equivalent penalty - Held that:- Appellants have availed input service tax credit based on the debit notes for the input services received on professional fees, and internet tele- communication service amounting to ₹ 83,722/-. The appellants relied upon the decisions of the Tribunal in the cases of Jalaram Plastic Work (2012 (4) TMI 130 - CESTAT, AHMEDABAD ) and Grasim Industries Ltd. (2011 (7) TMI 944 - CESTAT, NEW DELHI) wherein the Tribunal dismissed the Revenue's appeal and held that credit cannot be denied purely on the basis of debit notes. The decision of the Tribunal in the case of Friends & Friends Shipping Pvt. Ltd. (2013 (11) TMI 768 - CESTAT AHMEDABAD), as relied upon by the learned AR, is not applicable to the present case as in that case the issue related to eligibility of service tax paid by the CHA on behalf of the appellant for the service rendered by Kandla Port Trust and Kandla Dock Labour Board where the CHA issued the debit note. In the present case, the appellant availed the credit on the service tax paid on professional fee and internet telecommunication service. In view of the Tribunal's decision, as relied upon by the learned counsel, the appellants have made out a prima facie case for waiver of predeposit of entire dues. Accordingly, I grant waiver of predeposit of entire dues and stay its recovery during the pendency of the appeal - Stay granted.

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• 2015 (1) TMI 1185
  

  CENVAT Credit on "Steatite Ceramic" falling under CTH 6804 availed as 100% as inputs instead of 50% as capital goods during the first year - Held that:- Although the appellant is not in dispute as these are not capital goods and they are entitled to take CENVAT Credit to the tune of 50% of duty paid in the first year as per Rule 4(b) of Cenvat Credit Rules, 2004. Therefore, for the first year availement of CENVAT Credit is restricted to 50% of the duty paid but the appellant is entitled to take the remaining 50% CENVAT Credit in the subsequent year. In the circumstance, at the most, interest for the intervening period was required to be demanded from the appellant. The adjudicating authority has directed the appellant to reverse the excess 50% of CENVAT Credit for the first year along with the interest and also imposed penalty which were not required. In these circumstances, I dispose of the appeal of the appellant by confirming the demand of interest for the intervening period and setting aside the demand of duty and penalty against the appellant. - Decided partly in favour of assessee.

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• 2015 (1) TMI 1184
  

  Demand of interest and penalty on reversal of CENVAT Credit - payment of service tax on Manpower Recruitment Agency Service and taking cenvat credit of the same - Held that:- In this case the respondent has paid the service tax and taken suo motu credit. Although the respondent has committed an error, which was rectified immediately on pointing out by the department, therefore, it cannot be said that the respondent was having any malafide intention to avail inadmissible credit. Moreover, during the argument, the ld. AR submits that the amount of service tax paid by the respondent has already been refunded. This also supports the fact that there was no intention of the respondent to take inadmissible credit. In these circumstances, the Commissioner (Appeals) has rightly dropped the penalty against the respondent. Therefore, I do not find any infirmity in the impugned order, same is upheld - Decided against Revenue.

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• 2015 (1) TMI 1183
  

  Whether Rule 6 of the Cenvat Credit Rules, 2004 would apply in respect of bagasse and press-mud generated during the course of manufacture of sugar and the assessee-manufacturer is required to reverse Cenvat credit on the inputs contained in the waste product generated or in the absence of maintenance of separate records, whether payment @ 5%/6% of the value of exempted goods needs to be done? - Held that:- Tribunal considered the very same matter in the case of Commissioner of Central Excise, Pune-II v. DY Patil SSK Ltd. & Ors. - [2014 (4) TMI 52 - CESTAT MUMBAI] and held that the waste products arising in the course of manufacture of sugar such as bagasse and compost fertilizer, cannot be considered as final products, and, therefore, payment of a sum equal to 10%/5% of the price of the goods is not required to be made in terms of Rule 6(3) of the Cenvat Credit Rules, 2004. The said decision was based on the decision of the Hon’ble High Court of Allahabad in the case of Balrampur Chini Mills Ltd. v. Union of India - [2013 (1) TMI 525 - ALLAHABAD HIGH COURT]; and of this Tribunal in the case of Indian Potash Ltd. v. Commissioner of Central Excise, Allahabad - [2012 (12) TMI 347 - CESTAT, NEW DELHI]. Ratio of these decisions applies squarely to the facts of the present case. Accordingly, we set aside the impugned order confirming the payment of a sum of ₹ 2,01,087/- under Rule 6 of the Cenvat Credit Rules, 2004 and allow the appeal with consequential relief, if any, in accordance with law.- Decided in favour of assessee.

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• 2015 (1) TMI 1182
  

  Waiver of Cenvat credit - penalty imposed under Rule 57U(6) - Held that:- Period involved in the present case is from August, 1995 to February, 1997. Undisputedly, during the relevant period, in accordance with sub-rule (5) of Rule 57R and/or sub-rule (8) of Rule 57R, the assessee, who avails Modvat credit on capital goods and claim the value of such capital goods as revenue expenditure, then, they were barred from availing the benefits of Modvat credit on the capital goods. I also find that this position has been changed retrospectively by virtue of Section 149 of the Finance Act, 2003. In view of the above retrospective amendment, I do not find any merit in the impugned order and accordingly, the same is set aside - Decided in favour of assessee.

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• 2015 (1) TMI 1181
  

  Interest on the delayed payment of refund - Held that:- In the case of ITC - [2004 (12) TMI 90 - SUPREME COURT OF INDIA], the Hon’ble Apex Court held that the amount deposited while considering the stay application as duty and if that is required to be refunded the same should be refunded within three months from the date of application of refund. C.B.E. & C. vide Circular No. 387/5/2001-JC, dated 25-10-2004 held that the application for refund of pre-deposit has to be decided within three months from the date of disposal of the appeal, if not, the interest is payable. Following the above decisions, the learned Commissioner (Appeals) granted interest on the delayed refund. I do agree with the observations made by the learned Commissioner (Appeals) in the impugned order. Therefore, I do not find any infirmity with the impugned order and the same is upheld. - Decided against Revenue.

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• 2015 (1) TMI 1180
  

  Condonation of delay - Inordinate delay of 739 days - Imposition of penalty - Held that:- On 3-9-2013, the COD application was taken up for consideration and an order was passed observing that there was a dispute as to the date of receipt of the appeal in the Tribunal's Registry. The appeal in fact was physically filed on 6-2-2013, with a delay of 739 days. The Tribunal observed that in the COD application, the petitioner asserted that there was no delay as the appeal was sent to the Tribunal through a Courier service - M/s Time Pak Courier on 21-1-2011 and as per the Courier service receipt, the appeal was received by the Tribunal on 22-1-2011 along with a Demand Draft towards the appeal fee. In its order dated 3-9-2013, Tribunal directed the Registry to verify and report regarding the petitioner's claim of filing the appeal through Courier and whether the appellant had sent an e-mail enquiring about the filing of appeal, on 19-3-2012. Registry has furnished a report signed by the Registrar on 3-9-2013. As per this report, no appeal was received either by Courier, by post or by hand, earlier to 6-2-2013. The report also states that signature on the Courier receipt does not tally with the signatures of any officer of the Registry. The report also states that the e-mail sent by the petitioner on 19-3-2012 was received by the Registry along with the copy of the Courier receipt, on 19-3-2012. However no Demand Draft was received and there is no entry of receipt of a Demand Draft in the Demand draft register.

  Choice of the Courier is of petitioner/appellant and therefore the Courier service provider is an agent of the appellant. In the light of the report of the Registrar dated 30-9-2012, it is apparent that the appeal was not filed/received in the Tribunal prior to 6-2-2013, a date on which the appeal was physically filed by the petitioner. In the circumstances, the extraordinary delay of 739 days cannot be condoned as there is no valid justification established for such inordinate delay. - Condonation denied.

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• 2015 (1) TMI 1179
  

  Denial of CENVAT Credit - Disallowance of depreciation - Denial of claimed double benefit of CENVAT Credit as well as depreciation - Held that:- Commissioner (Appeals), relying on the order of the Income-tax Department issued under Section 154 of the Income-tax Act, 1961 which revised the Income-tax returns of the respondent on the ground that they have not claimed double benefit of Cenvat credit as well as depreciation, therefore, the respondents are entitled for Cenvat credit, and rejected the appeal of the Revenue. I also find that the Revenue has not given any reason as to why this order is not correct. Merely saying the impugned order is not correct is not a ground for filing appeal before this Tribunal. In view of the above, I do not find any infirmity in the impugned order and the same is upheld - Decided against Revenue.

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• 2015 (1) TMI 1178
  

  Maintainability of appeal - Imposition of penalty - Held that:- In this Tax Appeal the CESTAT has allowed the appeal of the Revenue and set aside the penalty of ₹10,000 imposed on the assessee - A Division Bench of this Court in the case of COMMISSIONER OF CENTRAL EXCISE & CUSTOMS V. STOVEC INDUSTRIES LTD., reported in [2013 (1) TMI 72 - GUJARAT HIGH COURT] held that in view of instruction dated 17.8.2011, tax appeal below ₹ 10 lakh is not maintainable and this instruction also applies to the pending appeal. Following the aforesaid decision of the Division Bench, we dismiss this tax appeal as not maintainable. - Decided against Revenue.

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• 2015 (1) TMI 1177
  

  Maintainability of appeal - Imposition of penalty - Held that:- In this Tax Appeal the CESTAT has allowed the appeal of the Revenue and set aside the penalty of ₹ 3,63,100 imposed on the assessee - A Division Bench of this Court in the case of COMMISSIONER OF CENTRAL EXCISE & CUSTOMS V. STOVEC INDUSTRIES LTD., reported in [2013 (1) TMI 72 - GUJARAT HIGH COURT] held that in view of instruction dated 17.8.2011, tax appeal below ₹ 10 lakh is not maintainable and this instruction also applies to the pending appeal. Following the aforesaid decision of the Division Bench, we dismiss this tax appeal as not maintainable. - Decided against Revenue.

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• 2015 (1) TMI 1176
  

  Denial of Permission for re-export of goods - Violation of principle of natural justice - Reason for decision not recorded - Held that:- Face of an order passed by a quasi-judicial authority or even an administrative authority affecting the rights of parties, must speak and it must not be like the inscrutable face of a sphinx . Recording of reasons operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power and it re-assures that discretion has been exercised by the decision maker on relevant grounds and by disregarding extraneous considerations. The authority shall adduce reasons which will be regarded as fair and legitimate by a reasonable man and will discard irrelevant or extraneous considerations. Therefore, the statutory authority, which is a decision maker, by exercising statutory power given under the Act, must assign the reasons while making the decisions and communicate the same to the aggrieved party. As already noted, the impugned communication was served on the petitioner with one sentence mentioning denial of re-exporting the consignment and admittedly, no reasons have been assigned in the impugned proceedings, dated 24.7.2012.

  It is clear that the re-export of the material can be made based on the declaration of the Director of testing Lab that the said drugs are not of substandard. In the present case, the Deputy Drugs Controller was of the view that the material itself is ‘spurious drugs’ since it has been imported by the petitioner without adequate registration and import licence and the documents furnished by the petitioner are forged and fake. For the risk of repetition, this Court reiterates that this Court cannot venture upon the issues, viz., whether the petitioner has imported the consignment based on the forged and fake documents from unregistered source contrary to the provisions of the Act and whether the detained material is a ‘spurious’, etc., since these are the allegations levelled against the petitioner, are the disputed questions of fact and are subject matter of the prosecution already launched against the petitioner. Therefore, it is not appropriate for the Deputy Drugs Controller to pre-determine that the drugs are ‘spurious’ now itself in order to reject the claim of the petitioner for re-exporting of the consignment. As regards the contention raised on behalf of the respondents that the material in dispute is the subject matter of the prosecution and it is required for marking during the trial as part of the evidence, is concerned, as rightly pointed out by the learned senior counsel that there is no need to detain the entire material for the purpose of marking as material object during the trial of the prosecution and it may be sufficient that a sample thereof may be retained for that purpose and the consignment can be permitted to re-export since the retention of the same is causing great prejudice to the petitioner since the funds of the petitioner to the extent of the invoice value of the goods has been blocked under the letter of credit. - Decided in favour of assessee.

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• 2015 (1) TMI 1175
  

  Waiver of pre deposit - Import of BMW cars under EPCG scheme - tourist purposes - Non maintenance of books of accounts - High Court after hearing both sides passed an order that There will be an order of interim stay on condition that the appellant deposits a sum of ₹ 25,00,000 only on or before 7-8-2014, failing which stay granted shall stand vacated. This appeal was filed by the assessee against the decision of Tribunal [2014 (8) TMI 359 - CESTAT CHENNAI].

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