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Showing 361 to 380 of 1510 Records
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2015 (1) TMI 1154
Disallowance u/s 14A r.w.Rule 8D - whether investment in shares and securities have been made out of borrowed funds, therefore, the provisions of s.14A are applicable? - Held that:- We uphold the finding of the First Appellate Authority that the income received from the sale and purchase of shares is to be taxed under the head “income from capital gains”. Hence we dismiss this appeal of the Revenue. - Decided in favour of assessee.
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2015 (1) TMI 1153
Rejection of claim of deduction u/s.80IA - prescribed monetary limit fr filling appeal - Held that:- On query from the Bench, the Ld. DR could not point out any of the exceptions as provided in the Circular as that this is a loss case having tax effect more than the prescribed limit, which should be taken into account,or that this is a composite order for many assessment years where tax effect will be more than the prescribed limit as per para 5 of above instructions, or that this is a case, where, in the case of revenue, where constitutional validity of the provision of the Act or I.T. Rules 1962 are under challenge,or that Board’s order, Notification, Instruction or Circular has been held to be illegal or ultra vires, or that Revenue Audit Objection in the case has been accepted by the Department and the same is under challenge.
The Ld. DR could not point out any of the exceptions as provided above. Accordingly, this being a low tax effect case, the appeal of the revenue dismissed in limine without going into merits. - Decided against revenue.
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2015 (1) TMI 1152
Allowance of expenditure - Held that:- In view of there being no change in facts and circumstances of these cases respectfully following the order of the Tribunal in Konichiva Builders Ltd. [2014 (4) TMI 533 - ITAT DELHI] the issue of allowability of expenses in similar lines is restored to the AO herein also requiring the assessee to prove its claim with cogent material the limited plea of the assessee is accepted. - Decided in favour of assessee for statistical purposes.
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2015 (1) TMI 1151
Disallowance of electric power charges - Held that:- The assessee has already been allowed depreciation on the amount of electric power capitalized and no case for allowing the same as revenue expenditure could be made before us, and accordingly, the ground no.1 of the assessee is dismissed. - Decided against assesse.
Disallowance of garden expenses - Held that:- Garden expenses were incurred by the assessee for the business purpose and copies of bills were also produced before the AO and the CIT(A), and therefore, there is no case for disallowance of 20% of the total garden expenses claimed by the assessee.- Decided in favour of assesse.
Disallowance u/s 14A r.w.r 8D - Held that:- The AO has estimated 10% of those expenses for the purpose of disallowance. For A.Y. 2007-08, we have also noted that the provisions of Rule 8D were wrongly applied being prospective in nature. We therefore, direct to delete the addition. The result is that the ground of the Assessee for A.Y.2006-07 and 2007-08 are allowed but for A.Y.2008-09 this ground is dismissed.
Exemption u/s 10A claim pertaining to SEZ unit. - Held that:- We find that the Assessing Officer has not allowed any opportunity to the assessee for claiming exemption u/s 10A after computing the business income of the alleged eligible undertaking at a positive figure for the first time. In our considered view, while making the assessment u/s 143(3) of the Act, the Assessing Officer is duty bound to compute the total income as per the provisions of Income-tax Act and therefore, in allowing deductions/exemptions also to the assessee which is statutorily allowable to the assessee. In the circumstances, we set aside the orders of the lower authorities on this issue and restore the matter back to the file of the Assessing Officer for verification of the claim of the assessee for deductions u/s 10A of the Act and thereafter passing an order in accordance with the law. - Decided in favour of assessee for statistical purposes.
Disallowance of professional charges - Held that:- The assessee has furnished the details of the expenditure hence it was unwarranted on the part of the AO to estimate the impugned disallowance in the absence of any specific contrary finding. We, therefore, reverse those findings and direct to allow the claim. - Decided in favour of assessee.
Taxing MAT liability - Held that:- AO is otherwise duty bound to recalculate the tax under MAT provision after giving effect of the Appellate orders. Naturally, if MAT credit is available as per law the AO shall grant the same to the assessee under the provisions of the Act. We order accordingly. - Decided in favour of assessee.
Addition made after making adjustment of Section 145A - Held that:- There was no fallacy in the findings of learned CIT(A) when it was found on facts that the amount in question was included in the closing stock and that the assessee is following this method year after year. We hereby affirm the factual as well as legal finding given by learned CIT(A) and dismiss this ground of the Revenue.- Decided in favour of assessee.
Penalty levied u/s.271(1)(c) - disallowance of expenditure held as capital expenditure and the disallowance made u/s.14A - CIT(A) deleted the levy - Held that:- Genuineness of the expenditure is not in doubt. No material has been brought on record to show that the assessee has concealed any particulars of income or has furnished any inaccurate particulars of income in this respect. On the basis of particulars furnished in respect of expense in question, it was inferred that the same was capital in nature and only depreciation was allowable to the assessee. The claim of the assessee was that it was a revenue expenditure as no tangible asset was acquired by the assessee by incurring the said expenditure. Thus the opinion of CIT(A) that the disallowance was because of difference of opinion and therefore, penalty u/s 271(1)(c) cannot be sustained is justified. - Decided in favour of assessee.
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2015 (1) TMI 1150
Interest paid on borrowed capital utilized for construction of house property - whether the interest credited to sundry creditor's account par takes the character of interest payable as contemplated u/s 24(b) or not? - CIT(A) confirmed disallowance made by AO - Held that:- It cannot be denied that for the relationship of lender (creditor) and borrower (assessee), it is not necessary that there should be actual flow of money between lender and borrower, but the borrowing can take place in different forms also. The true nature of relationship has to be considered and no restrictive meaning can be assigned to the term "borrowed capital" in section 24(b). If there is direct nexus between the interest payment and construction of property, which in the present case is through creditors, because they had supplied material for construction, then the said interest would come within the ambit of section 24(b). Therefore, in principle we agree with the assessee that interest payable to sundry creditors, who supplied material for construction of the property, is an allowable deduction u/s 24(b). As the assessee has not been able to substantiate its claim regarding supply of material by alleged creditors, inasmuch as the AO, inter alia, observed that the interest had not been paid and it was merely credited in the accounts of the parties year after year. Therefore, we restore the matter to the file of AO for verification of bills, confirmation of parties etc. which were filed before ld. CIT(A) and also to verify whether the payment of interest had been made to parties in subsequent years or not, as claimed by assessee. - Decided in favour of assessee for statistical purposes.
Disallowance of various expenses claimed by the assessee u/s 37(1) - Held that:- CIT(A) correctly restricted the disallowance to the extent of 10% out of salary claimed to have been paid to the employees, further restricted disallowance, and on estimate basis, to ₹ 6,500/- as against 11,500/- on account of telephone expenses; ₹ 24,000/- as against 54,000/- on account of security expenses; ₹ 14,610/- as against 24,610/- on account of conveyance expenses; ₹ 14,780/- as against 19,780/- on account of staff welfare expenses; and ₹ 6,670/- as against ₹ 12,670/- on account of office expenses. - Decided against assessee.
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2015 (1) TMI 1149
Penalty under Section 271(1)(c) - addition of the low G.P. and cash credit as income of the assessee - Held that:- The CIT(A) upheld the penalty levied by AO on the ground that the explanation offered by the assessee, herein, in respect of low G.P. And cash credit was either false or the assessee was not able to substantiate the same by producing convincing evidence in support, thereof. Having gone through the record, we find that it is neither the case of the respondent-revenue nor is there any material to show that there was any willful concealment or furnishing of inaccurate or incorrect details of income by the appellantassessee. In other words, there being no conscious concealment of income, the AO could not have imposed penalty under Section 271(1)(c) of the Act.- Decided in favour of the appellant-assessee
Penalty under Section 273(2)(a) - Held that:- penalty imposed by the AO under this section on the ground that the difference between the earned income and the assessed income of the assessee was more and that the assessee, himself, had declared income of ₹ 75,000/- by filing revised return. The Tribunal, further, observed that the CIT(A) had found that the assessee was not able to prove the source of cash credit, and therefore, CIT(A) upheld the penalty levied by the AO, which is confirmed by the Tribunal. However, while doing so, here again, the Tribunal failed to appreciate the fact that the assessee had not furnished any details pertaining to advance tax which was untrue. On the contrary, the additions were of such nature that the assessee could not have foreseen. We are, therefore, of the opinion that the order of the Tribunal cannot be sustained and deserves to be quashed and set aside. - Decided in favour of the appellant-assessee
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2015 (1) TMI 1148
Goods transport agency services - Recovery of erroneously granted refund - Held that:- Circular No. 423/56/98 dt. 22-09-1998 by referring to the decision of Hon’ble Supreme Court in the case of CCE Vs. Re-rolling Mills reported in 1997 (94) ELT 8 (SC) has clarified that timely demands should invariably be raised with in the normal period under section 11A of Central Excise Act, 1944. It also refers to the opinion of Law Ministry holding that the demand for recovery of erroneous refund has to be made under section 11A of Central Excise Act, 1944 within the limitation period. Similar view has been taken by this Tribunal in the case of Motor Industries Company Ltd Vs CCE reported in [1999 (6) TMI 124 - CEGAT, MADRAS]; in the case of Gillooram Gouri Shanker Vs CCE reported in [2000 (7) TMI 186 - CEGAT, KOLKATA] and also in the case of Rosemount (I) Ltd Vs CCE reported in [1998 (1) TMI 158 - CEGAT, MUMBAI]. I find that in the present case, show cause notice for recovery of erroneous refund under section 73 (1) has not been issued by the department. The Board Circular and the decision of Hon’ble Supreme Court as well as this Tribunal s judgment are squarely applicable in the present case. I, therefore, hold that the learned Commissioner could not have passed the impugned Order in Revision without issuing notice for recovery of erroneous refund under section 73 of Finance Act, 1994. The order is liable to be set aside on this ground alone. - Recovery of erroneously granted refund is not possible. Accordingly I set aside the impugned order - Decided in favour of assessee.
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2015 (1) TMI 1147
Denial of Input service credit - technical know-how fees and travel agent service - Held that:- the service tax paid on services provided by travel agent for travelling of company officials is eligible for CENVAT credit and even the Commissioner (Appeals) has conceded as much. However, he has not given any reason as to why the impugned credit was not admissible when the appellants clearly stated that the services were for the official travels of the officials for the purposes mentioned earlier. Thus, I do not find the denial of the said credit sustainable. - Following decision of Vidyut Metallics Pvt. Ltd. Vs. CCE [2012 (11) TMI 376 - CESTAT, MUMBAI].
Commissioner (Appeals) has denied the credit on the ground that the said amount of service tax was in relation to the technical know-how for production of two products namely Candisartan and Irbesartan and has been denied on the ground that the said products have not been manufactured by the appellants - observation of the Commissioner (Appeals) does not flow from any legal requirement. The technical knowhow once obtained begins to be utilised for the purpose of manufacture of products for which it was obtained as such technical knowhow is relevant/required right from the point of setting up the necessary wherewithals required for manufacturing the product. Further as per Rule 4(7) of Cenvat Credit Rules, 2004, CENVAT credit in respect of input services becomes available on or after the date on which payment is made for the value of the input service.
Commissioner (Appeals) has stated that they should have been initiated the production of their final goods utilising the said technical knowhow within a reasonable period of time, but has failed to elaborate what in his view would be a reasonable period of time or whether there is any legal yardstick to determine such reasonable period. - Commissioner (Appeals) has attempted to distinguish the judgement [2009 (8) TMI 172 - CESTAT, AHMEDABAD] on the ground that in that case the appellant had initiated the trial production. But as is evident, in that case also no duty was paid on the final product as it never reached the market. The ratio of the CESTAT judgement in the case of Cadila Healthcare Ltd. (supra) is clearly supportive of the appellants claim. Thus, I do not find sufficient reasons for denial of the impugned credits - Following decision of Cadila Health Care Ltd. Vs. CCE [2009 (8) TMI 172 - CESTAT, AHMEDABAD] - Decided in favour of assessee.
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2015 (1) TMI 1146
Club and Association service - Chariable service - Service provided to members - Held that:- In view of the decision in Ranchi Club Limited (2012 (6) TMI 636 - Jharkhand High Court), on application of the principle of mutuality, services provided by the appellants to their respective members would not fall within the ambit of the taxable "club or association" service nor the consideration whether by way of subscription/ fee or otherwise received therefor be exigible to service tax. In view of the decision of the Gujarat High Court in Sports Club of Gujarat Limited [2013 (7) TMI 510 - GUJARAT HIGH COURT], as the relevant provisions (namely Section 65(25a), Section 65(105)(zzze) and Section 66 of the Act), to the extent these provisions purport to levy service tax in respect of services provided by a "club or association" to its members is declared ultra vires, we hold that there are no operative legislative provisions of the Act legitimizing the levy and collection of service tax from the appellants, for providing "club or association" service, in so far as these relate to any services provided to members of these appellants.
Services provided to non members fall outside the ambit of "club or association" service prior to 01.05.2011 and subsequent to this date there is no specific allegation that the services provided to non-members fall within the expanded scope of this taxable service qua provisions of the Finance Act, 2011 - Following decision of M/s Federation of Indian Chambers of Commerce and Industry, M/s Electronic and Computer Software Export Promotion Council Versus CST, Delhi [2014 (5) TMI 183 - CESTAT NEW DELHI] - Decided in favour of assessee.
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2015 (1) TMI 1145
Imposition of penalty u/s 76 - Delay in payment of service tax - Held that:- There is delay involving 41 days, 10 days, 61 days and 31 days. Delays have continued over many months. Commissioner (Appeals) has rightly analysed a matter and upheld the imposition of penalty by the Adjudicating Authority - There are continuous delays. These cannot be said bonafide. I have also perused Tribunal's judgement in the case of same appellant. Delays were also referred. Such delayed cannot be continued and ignored. Penal action was rightly confirmed by adjudicating authority and approved by Commissioner (Appeals). As such, I do not find any force in the submission made by the appellant. I agree with the findings recorded by Commissioner (Appeals). - Decided against assessee.
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2015 (1) TMI 1144
Disallowance of CENVAT Credit - Various services - Held that:- Respondents are eligible for credit on Rent-a-Cab service. Regarding credit availed on Out-door catering, Insurance service, Pandal and Shamiyana services, testing and analysis, I find from the records that the respondents availed credit on these services for carrying out business activities and business meetings which are related to promotion of their business. In view of the Honble High Court of Bombay judgment in the case of CCE Vs. Ultratech (2010 (10) TMI 13 - BOMBAY HIGH COURT), the issue has already been settled in favour of the respondents and they are eligible for the credit on the above services.
As regards the input credit availed on Sodexo Coupons issued to their employees which can be used by them for various purpose of transactions and it has no nexus in relation to any business activities of the respondents. Therefore, the respondents are not eligible for the credit of ₹ 31,472/- availed on sodexo coupons under Business Auxillary Service.
Respondents are eligible for availing input credit on Rent-a-Cab Service, Outdoor Catering, Business Auxiliary Service, Insurance service, Pandal & Shamiana, Testing and Analysis, and Health & Fitness Service etc. other than Sodexo coupons. Accordingly, the impugned order is modified to the extent of credit allowed on sodexo coupons - Decided partly in favour of Revenue.
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2015 (1) TMI 1143
Taxability of Royalty - transfer of technology for manufacture of ball bearings - Consulting Engineer Service - Held that:- Respondent is a company incorporated in and operating from USA and has no branch office or any business establishment whatsoever in India. There is also no dispute that the service provided is transfer of technology for manufacture of ball bearings under licence agreement with M/s. NEI Ltd., Jaipur against payment of royalty. The service tax is sought to be recovered on the amount of royalty received by the respondent from M/s. NEI during the period 2003-04. First of all, in our view, the service provided by the respondent to M/s. NEI is not the service of Consulting Engineer but is Intellectual Property service, which became taxable w.e.f. 10-9-2004 under Section 65(105)(zzr) and, therefore, during the period of dispute, the service provided by the respondent would not attract any service tax.
Such receipt of a taxable service by a person in India from a foreign service provider became taxable by making the service recipient as the person liable to pay the service tax with effect from 18-4-2006 by introducing Section 66A of the Finance Act, 1994 and hence, during the period of dispute prior to this date, the service tax could not be demanded even from the service recipient. We also find that the findings of the Commissioner (Appeals) that no service tax can be recovered from the respondent, a company incorporated in USA and operating from USA and not having any branch or establishment in India are based on the judgments of the Tribunal in the cases of Relax Safety Industries & Others (2002 (4) TMI 143 - CEGAT, MUMBAI) and Philcorp Pte. Ltd. (2007 (3) TMI 93 - CESTAT, MUMBAI), wherein it was held that the service tax demand was not applicable to a person or company located outside India having no business or establishment in India. In view of this, we find no illegality or impropriety in the impugned order. - Decided against Revenue.
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2015 (1) TMI 1142
CENVAT Credit - Suppression of facts - whether Cenvat credit is admissible for the port services and CHA services utilised by the appellant in respect of their exported goods - Held that:- adjudicating authority has observed that the Board’s Circular, dated 23-8-2007 is a clarification only with respect to the eligibility of Service Tax paid on GTA services and is not applicable in respect of the Custom House Agent and port service. The adjudicating authority also referred to a letter No. NSAL/2009-10/87, dated 30-9-2009 wherein the appellant has stated that the place of removal is the factory gate. The adjudicating authority further held that in their monthly returns they have simply mentioned the gross amount of Service Tax credit taken and never disclosed the input services on which it is taken and therefore they are guilty of suppression and wilful mis-statement.
Adjudicating authority has not discussed the contentions of the appellant made in their submissions and have not recorded any definitive finding as to what is the place of delivery of the exported goods in the present case and yet has concluded that the place of removal for the exported goods is factory gate and not the port of shipment. The appellant’s letter, dated 30-9-2009 stating that the place of removal is factory gate is with reference to the department’s queries which did not refer to exported goods. It can be nobody’s case that an assessee necessarily has to have only one place of removal for all their clearances. It does come out from the adjudication order that the adjudicating authority may not be averse of allowing the credit of service tax paid on port services and GTA services if the place of removal is determined to be the port of loading.
The adjudicating authority has also not brought out as to how the appellant is guilty of wilful mis-statement or the suppression of facts. The adjudicating authority has merely stated that in their ER-1 returns they did not declare as to on which input services the credit was taken. He has not discussed whether the appellant was required under any provision of law to declare in ER-1 returns or otherwise the names/details of services in respect of which the appellant had taken the Cenvat credit. It is settled law that mere not telling is not suppression when there is no legal requirement to tell. - Matter remanded back - Decided in favour of assessee.
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2015 (1) TMI 1141
Disallowance of input tax credit - Nexus with business - Held that:- export, port is the place of removal. Accordingly the CHA Service, Airport Service, Port Services, etc., are incurred in the Ports and accordingly the same are allowed.
Services being Courier Services, Storage & Warehousing Services, Maintenance of Xerox/Fax Machines and Telephone Services are all related to the business of the appellant and same are accordingly allowed.
In respect of Security Services, I find that the same is specifically included in Rule 2(l) of Cenvat Credit Rules. Having consider the rival contention, I hold Security Services is required for smooth running of industry concerned, which is located in remote area and Cenvat credit is accordingly allowed.
As regards ‘Transport Services’, the appellant states that mainly transport is of the finished goods to its dealers across the country. Further on perusal of the Order-in-Original & Order-in-Appeal, I find that complete facts have not been mentioned, hence the disallowance is on ad hoc basis, which is not proper and against natural justice. Similar is the position with respect to amount of ‘other services’ head. Thus I set aside and remand to the adjudicating authority to re¬consider them as per the facts and law.
As regards the penalty imposed under various Sections like 76, 77 and 78, Rule 15(3), etc., the same are set aside. - Accordingly, no case of mala fide etc. is made in availing the Cenvat credit- Decided partly in favour of assessee.
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2015 (1) TMI 1140
Authorised service station service - Free services during warranty period - reimbursement or not of amount by the Car Manufacturer i.e. M/s. Maruti Udyog Ltd. - Held that:- Liability to service tax is on account of the said service provided to a customer. The service is provided to the car buyers who are the customers. For the free services, no amount is charged from the customers. As regards the contention that amount towards the free services is reimbursed by Maruti Udyog Ltd., it is seen that Maruti Udyog Ltd. have categorically stated that they do not reimburse any amount towards such free services to the dealers. The respondents have also stated that providing such free services is part of the functions and duties of dealers who are entitled to the dealership commission. Also the free services are rendered to the car buyers and not to M/s. MUL and the car buyers pay nothing therefor. Seen in this light it is evident that the demand of service tax as per column 5 of the table above is misconceived.
Coming to the demand of service tax on the amount received on account of salary of drivers of vans used for providing mobile service to the car owners shown in column 4 of the table, it is evident that the customer in this case is the car owner who is the recipient of service. M/s. MUL receive no service nor are M/s. MUL, the respondents’ customers. Thus the respondents have not provided the service of authorised service station to them (i.e. M/s. MUL). Accordingly this amount cannot be made liable to service tax under the category of authorised service station service - Decided against Revenue.
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2015 (1) TMI 1139
Cargo handling service - activity of stacking the bags on the railway wagons or trucks - Assessee contended that it did not provide cargo handling service since the urea manufactured by NFL was merely being collected in bags from bagging plants and these bags were stacked on the conveyor. - demand beyond the scope of SCN - Held that:- On analysis of the transactional documents including contract and the work orders, ld. appellate Commissioner also concluded that cleaning of the conveyor systems for transport of the fertilizer bags does not fall within the ambit of cleaning activity. Appellate Commissioner further held that assessee’s activity fall outside the ambit of manpower recruitment or supply agency since under the agreement with NFL persons employed by the assessee are its own employees and not of NFL therefore, there was no manpower recruitment or supply agency service provided to NFL by the assessee. - Neither in the show cause notice, the adjudication order nor the appellate order is there any indication which aspects of the activities of the assessee, under the same transactional documents, fall clearly within which of the three taxable services alleged. There are also no particulars provided as to what part of the consideration received by the assessee is attributable to each of the three taxable services allegedly performed/rendered by the assessee. - Decided against Revenue.
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2015 (1) TMI 1138
Notice for reassessment issued u/s 21(2) of U.P. Trade Tax Act – Grant of exemption on sale of books from payment of trade tax as per Notification No.TT-2-63/XI-9(116)/94-U.P. Act-15/48-Order-95 dated 16th January, 1995 – Held that:- There has been a total non-application of mind - the mere fact that the petitioner is importing ink for the purpose of importing books does not lead to any conclusion that the printing of books is for the purpose of execution of a works contract - there must be more material other than the purchase of ink to come to a prima facie satisfaction that the purchase of ink was for the execution of a works contract - mere purchase of ink is not sufficient to hold that the petitioner was engaged in the execution of a works contract - the order of authorization does not indicate that the authority had perused the terms and conditions of the contract, which led him to believe that the contract was nothing else but a works contract and was not a contract for the publication of books - The reasons given by the authority in the authorization order is, that since there exists a contract between the petitioner and the State Government, therefore, it is presumed that it is a works contract - On such presumption, notices under Section 21(2) of the Act cannot be issued nor can authorization be granted for reassessment.
The contract clearly indicates that it relates to printing and supply of printed material and is not a works contract - works contract is normally done on the basis of specification of printing given by the buyer, which in the instant case is lacking - there is nothing on record to indicate that the petitioner is executing the printing of the books as a works contract for a buyer - the foundational requirement of sub-section (1) of Section 21 of the Act for reopening the assessment is lacking - The reason to believe that income had escaped assessment is not based on any tangible material and the reasons to believe that has been formed that some income had escaped assessment is not based on any relevant material nor there is a live link between the formation of the belief and the material available before the authority - in the absence of a vital link having not being established between the reasons and the evidence before the authority, the reason to believe for reopening the assessment was not given in good faith but was based on extraneous or irrelevant consideration - the reasons recorded is not based on any material evidence and the order of authorization and the consequential notice issued for reassessment cannot be sustained – Decided in favour of petitioner assessee.
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2015 (1) TMI 1137
Benefit of Notification 162/86-CE dated 01.03.1986 which granted concessional rate of duty - whether the appellant is to be fastened with the duty liability on the vehicles which was deregistered as from taxis and registered as private vehicle; which was initially cleared by the appellant by availing the benefit of Notification 162/86-CE - Held that:- while clearing the vehicles from the factory premises, the appellant had adhered to the condition laid down in such Notification - Following decision of Maruti Udyog Ltd. [1998 (8) TMI 399 - CEGAT, NEW DELHI] - impugned order is liable to be set aside - Decided in favour of assessee.
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2015 (1) TMI 1136
CENVAT Credit - Business Support Services - interest and penalty under Rule 15 of Cenvat Credit Rules read with Section 11AC - Determination of place of removal - Held that:- In view of the Circular dated 23.8.2007, it is clearly provided therein that eligibility to availing CENVAT Credit of Service Tax paid is dependent upon the place of removal, in the facts and circumstances, which may even include sale taking place at the destination point and the Hon'ble High Court of Punjab & Haryana in the case of Ambuja Cements Ltd. Vs. UOI - [2009 (2) TMI 50 - PUNJAB & HARYANA HIGH COURT] in respect of Goods Transport Agency services, being outward freight, when paid by manufacturer upto customer's door step, have found that credit availed on such services is admissible, for ownership of the goods remained with the seller till delivery at customer's door step, transit insurance borne by the assessee and property in goods not transferred to buyer till delivery and freight charges forming part of value of excisable goods and borne by the assessee on FOR destination basis, CENVAT Credit is allowable and also held that CBEC&C's Circular is binding on the Revenue - Commissioner (Appeals) has erred in the facts and circumstances of the case, that the place of removal is not port, but the factory gate. I hold that in the facts and circumstances of the case, the place of removal is port and accordingly, I set aside the impugned order - Decided in favour of assessee.
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2015 (1) TMI 1135
Reversal of Cenvat Credit – Removal as such of capital goods after use - demand of reversal of entire credit with Interest - Held that: - The capital goods loose their identity as capital goods only when after use over a period of time, the same has become in-serviceable and fit to be scrapped. The object of Cenvat Credit on capital goods is to avoid the cascading effect of duty. If even after use for a couple of years, the Cenvat Credit is required to be reversed then it would certainly defeat the object of the scheme. To avoid misuse of the scheme in the Rules, it has been provided that if the machines are cleared as such the Assessee shall be liable to pay duty equal to amount of Cenvat Credit availed. The machines which are cleared after utilization cannot be treated as machines cleared as such. - The machine cleared after putting into use for nine years cannot be treated as Cleared ‘as such’. Insertion of proviso w.e.f. 13.11.2007 makes it clear that there is difference between machines cleared without putting into use and cleared after use – Following decision of Commissioner Central Excise Commissionerate Versus M/s Raghav Alloys Ltd. [2010 (4) TMI 294 - PUNJAB & HARYANA HIGH COURT] - decided in favor of assessee.
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9911796707
