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Showing 401 to 420 of 1551 Records
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2024 (2) TMI 1151
Maintainability of petition - availing the remedy of filing the revision petition - Dishonour of Cheque - exercise of discretion rationally, by the Trial Court interim compensation - HELD THAT:- Petitioner cannot be permitted to seek a second revision in the garb of the present petition under Section 482 Cr.P.C. In Rajan Kumar Manchanda v. State of Karnataka, [1987 (11) TMI 404 - SUPREME COURT], the Supreme Court observed that the bar under Section 397(3) Cr.P.C. cannot be overcome merely by stating that petition was filed invoking inherent powers of the High Court under Section 482 Cr.P.C. In Surender Kumar Jain v. State & Anr., [2012 (1) TMI 352 - DELHI HIGH COURT] this Court observed that the High Court does enjoy inherent powers under Section 482 Cr.P.C. but that power has to be exercised sparingly and with great caution, particularly, when the person approaching the High Court has already availed remedy of first revision in the Sessions Court.
The power under Section 482 Cr.P.C. has to be sparingly exercised and should not be used as a substitute for a second revision albeit there can be no doubt that when there is a serious miscarriage of justice or abuse of process of the Court or where mandatory provisions of law are not complied with and when the High Court feels that the inherent jurisdiction has not been exercised correctly by the Revisional Court, it can interfere as held by the Supreme Court in Kailash Verma [2005 (1) TMI 406 - SUPREME COURT]. Thus, the question is whether Petitioner has made out an extraordinary case warranting interference by this Court exercising jurisdiction under Section 482 Cr.P.C.
Whether the Trial Court has exercised its discretion rationally, keeping into account the facts of the case and the conduct of the Petitioner and if the exercise of discretion warrants any interference by this Court while exercising inherent powers under Section 482 Cr.P.C.? - HELD THAT:- Impugned order dated 18.08.2023 shows that the learned Magistrate has passed a reasoned order supporting the award of compensation in favour of the Respondent. Trial Court observed that Petitioner has admitted her signatures on the cheque in question as well as the factum of issuance of the cheque from her account, leading to the mandatory presumptions under Sections 118A and 139 of the NI Act against her to the effect that the cheque was drawn by her for a consideration and the Respondent Company had received the same in discharge of a debt/liability, from the Petitioner. Trial Court rightly observed that the only factor which could then have come to the rescue of the Petitioner while deciding the application was that Petitioner was not responsible for dragging or delaying the proceedings.
Power under Section 482 Cr.P.C. has to be exercised sparingly and not as a substitute for second revision. High Court can entertain a petition under Section 482 Cr.P.C. where there is serious miscarriage of justice and abuse of process of Court or an error of jurisdiction or violation of mandatory provisions of law, however, this provision cannot be invoked calling upon the High Court to substitute its findings for that of the Trial Court or the Revisional Court, particularly, on findings of fact rendered therein or to interfere where discretion has been exercised by the Trial Court on sound reasoning - It is equally settled if the impugned orders record a finding of fact as concurrent findings, based on detailed appreciation of material before it, the High Court should be extremely slow in interfering. The object of Section 482 Cr.P.C. is to set right a patent defect or an error of jurisdiction of law which has to be a well-founded error in the given case.
This Court sees no reason to exercise jurisdiction under Section 482 Cr.P.C. in light of the findings of the Trial Court and a concurrent finding by the Revisional Court and the petition is dismissed being devoid of merits - petition dismissed.
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2024 (2) TMI 1150
Validity of Revision u/s 263 - Admisibility of Deduction u/s 80P, Deduction from total income under chapter VI-A and business expenses - HELD THAT:- AO has raised the issue on hand and has allowed the claim of the assessee after applying his mind on the issue. Thus, the contention of the ld. PCIT is nothing but making the review of the assessment under taken by the ld. FAO and PCIT intend to impose his view on the order passed by the FAO and the same is not permitted under the provisions of section 263.
It is not the case that the ld. AO had passed the order without conducting any inquiries into the issue under consideration and specific details regarding the deduction claimed was called for the ld. FAO and therefore after he has taken a plausible view in the matter and allowed the deduction u/s. 80P(2)(d) claimed by the assessee.
Thus the revisionary order thus cannot be passed merely to review the opinion formed by ld. AO for the reason that a higher authority does not concur with the view taken by ld. AO, without there being any substantive material in possession of such higher authority that has not been considered by ld. AO while forming such opinion.
As decided in M/s Malabar Industrial Co. Ltd [2000 (2) TMI 10 - SUPREME COURT] if the AO has adopted one of the two or more courses permissible in law and it has resulted in loss of revenue, or where two views are possible and AO has taken one view with which the CIT does not agree, it cannot be treated as an erroneous order and it is prejudicial to the interest of the Revenue, unless the view taken by the AO is totally unsustainable in law.
Based on the discussion so record we are of the considered view that no action u/s 263 is called for in this matter once the ld. AO has already examined the issue which the ld. PCIT is pointing out in his order as submitted the assessee. This submission of assessee is fortified from the observations in the case of CIT Vs. Max India [2007 (11) TMI 12 - SUPREME COURT] wherein held that phrase “prejudicial to the interests of the Revenue” in section 263 of the Income-tax Act, 1961, has to be read in conjunction with the expression “erroneous” order passed by the Assessing Officer. Every loss of revenue as a consequence of an order of the AO cannot be treated as prejudicial to the interests of the Revenue.
Even a bare reading of clause (a) to the Explanation 2 of Section 263(1) enables a deeming fiction for the CIT to treat the order of AO erroneous in so far as prejudicial to the interest of revenue if in the opinion of CIT the order is passed without making inquiry or verification which should have been made. This again substantiates that the assessee challenging the validity of Sec 263 is completely valid as in the present case the assessment order was passed after making due enquiry as well as verification from the assessee hence the CIT has no power to invoke the power provided u/s 263 - Appeal of assessee allowed.
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2024 (2) TMI 1149
Revision u/s 263 by CIT against reopening of assessment - AO had not made enquiries on capital gains, investment in time deposits with the Axis Bank and deduction u/s 54 thereby making his order erroneous and prejudicial to the interest of the Revenue - HELD THAT:- We find once the Ld. AO having recorded the reasons for reopening the assessment and having formed a belief that income of the assessee had escaped assessment, had not made any addition in the reassessment proceedings in respect of issues that are subject matter of reopening. Hence, the very basis of formation of belief for the Ld. AO vanishes. Hence, the Ld. AO could not have framed any reassessment per se.
Logically the Ld. AO should have simply dropped the initiation of reassessment proceedings instead of passing a separate reassessment order. Once, the reassessment order per se framed by the Ld. AO is not sustainable in the eyes of law, any revision order passed thereon u/s 263 seeking to revise such unsustainable order cannot be accepted in the eyes of law and consequential revision order also passed u/s 263 of the Act deserves to be quashed.
Our view is further fortified by the decision of Sh. Pramajit Singh vs. PCIT [2023 (12) TMI 1292 - ITAT DELHI] wherein the Tribunal placed reliance on the decision of Software Consultants [2012 (2) TMI 18 - DELHI HIGH COURT] AO did not make any addition for the reasons recorded at the time of issue of notice under Section 148 of the Act. This position is not disputed and disturbed by the Commissioner of Income Tax in his order under Section 263 of the Act. Sequitur is that the Assessing Officer could not have made an addition on account of share application money in the assessment proceedings under Section 147/148. Accordingly, the assessment order is not erroneous. Thus, the Commissioner of Income Tax could not have exercised jurisdiction under Section 263 of the Act - Appeal filed by the assessee is allowed.
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2024 (2) TMI 1148
Adjustment of "seized asset" against "existing liability" and levy of "interest u/s 234B" - outer time period of 120 days - HELD THAT:- It is undisputed fact that the AO accepted the returned income as the Assessed income of the respective assessees. The seized Cash and FDRs are from the disclosed source of income from the respective assessees only and therefore no addition or disallowance made by the AO while framing scrutiny assessments u/s. 143[3] of the Act. As the AO has not acted upon the Application for release/adjustment of Cash and FDRs, there was no occasion for him to record his satisfaction and prior approval from the Competent Authority for release of seized goods.
The second proviso to section 132B(1)(i) makes it clear that the assets are required to be released within a period of 120 days from the date on which the last of the authorizations for search under section 132 or for requisition under s. 132A, as the case may be, was executed. In the present cases last date of search action concluded on 15-05-2010 and the outer time period of 120 days expired on 15-09-2010, but the Ld AO has not acted upon the Application for release of the seized goods and thereby retained the seized Cash and FDRs beyond the period of 120 days prescribed in the 2nd Proviso to section 132B(1)(i) of the Act.
Coming to the main section 132B(1) of the Act, which prescribes that the assets seized u/s. 132 can be adjusted against any “existing liability” as per IT, WT or the amount of liability determined on the completion of regular assessment or reassessment including any penalty levied or interest payable in connection with such assessment or reassessment.
As per this sub- section, AO ought to have adjusted against the tax liability of Rs. 6,39,620/- while framing the regular assessment as against the seized Cash of Rs. 5,39,000/- and FDRs of Rs. 99,99,999/-. In that event also, the assessee is entitled for release of surplus FDRs seized by the Department as per section 132B [3] of the Act and therefore there is no question of levy of interest u/s 234B and C of the Act. Thus in our considered view, the Ld AO miserably failed to adhere to the provisions of section 132B[1] and the CIT [A] is not justified in confirming the interest charged u/s. 234B of the Act for the period up to 15-09-2010. Therefore we direct the Ld AO to rework the computation in accordance with the provisions of law after providing proper opportunity of hearing to the assessees. Appeals filed by the assessees are allowed for statistical purpose.
Non granting of Interest u/s 132B(4) on seized asset viz. FDR - CIT(a) held that mere seizure of the FDs, the appellant has not suffered any pecuniary loss by way of loss of interest, therefore, no interest u/s. 132B(4) can be granted to the assessee - HELD THAT:- Section 132(1)(c) of the Act reads "Any person is in possession of any Money, Bullion, Jewellery or Other Valuable Article or Things". Hence, Money is different from bullion, jewellery or other valuable article or things. Seized FDRs cannot be treated as “Money”, but only as “Other Valuable Article or Things”. As per section 132B[4][a] of the Act, the assessee is entitled to interest on the amount by which the aggregate amount of “Money” seized after 120 days. Thus the arguments of the assessee are not in consonance to the provisions of law and the same is liable to be rejected.
The case law of Ajay Gupta-Vs-CIT [2007 (4) TMI 42 - HIGH COURT, NEW DELHI] relied by the assessee is not relating to seizure of FDRs but of “Money” and hence not applicable to the facts of the present case. Whereas the Madras High Court judgment in the case of Anil Kumar Kedia [2011 (1) TMI 1171 - MADRAS HIGH COURT]which was relied by the Ld. CIT(A) is squarely applicable to the facts of the present case. Thus we do not any infirmity in the orders passed by the lower authorities and the same does not require any interference and the assessee appeals are hereby dismissed.
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2024 (2) TMI 1147
Disallowing credit of TDS - TDS credit is not reflected in Form 26AS - whether the credit claimed is allowable u/s 199? - HELD THAT:- In the case of Bhura Mal Raj Mal [1996 (4) TMI 114 - RAJASTHAN HIGH COURT] the High Court held that the credit for tax deducted at source should not be denied on the ground that the assessment year of the payer in which the deduction is made is different from that of the recipient.
In the case of Anup Rajendra Tapadia [2023 (3) TMI 35 - ITAT PUNE] ITAT held that in terms of Rule 37BA(3)(i), benefit of TDS is to be given for assessment year for which corresponding income is assessable, therefore, where assessee received rental income on 31.03.2020, benefit of TDS had to be allowed in Assessment Year 2020-21 even though tenant inadvertently reported same in AY 2021-22.
Thus we are of the considered view that in case the assessee has not claimed double deduction of credit of TDS, then the assessee is entitled to claim deduction of TDS in the year in which the corresponding income has been offered to tax by the assessee and the assessee has raised invoices on the payer.
In the instant case, the assessee’s contention is that both the services as well as invoices have been raised on the payer in the impugned assessment year i.e. A.Y. 2020-21 and further, the assessee has not claimed deduction of TDS in any prior assessment year as well.
Accordingly, matter is being restored to the file of AO with a view to verify whether the assessee has claimed TDS of the aforesaid amount in any other assessment year and accordingly, relief may be granted to the assessee as per law. Appeal of the assessee is allowed for statistical purposes.
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2024 (2) TMI 1146
Seeking refund the pre-deposit along with applicable interest - recovery of cash and seizure of goods of foreign origin - contravention of EXIM Policy - seized u/s 110 - seized goods released provisionally upon furnishing a bond and a bank guarantee - confiscation - penalty imposed - whether the petitioner is entitled to the claim of interest on the entire amount deposited by him as redemption fine and penalty ? - HELD THAT:- Admittedly, the redemption money and penalty was paid before filing the appeal by getting the bank guarantee encashed vide letter. Admittedly, the Tribunal has set aside the Order-in-Original and granted the consequential benefits to the petitioner. Revenue cannot be permitted to enrich itself at the cost of the petitioner. It may have earned the interest on the redemption and the penalty amount deposited by the petitioner, which amount was ultimately found to be refundable.
Relying upon the decision of the Supreme Court, the Division Bench of the High Court in R.H.L. Profiles Ltd. Vs. Commr. Of Cus., Ex. And Service Tax [2017 (4) TMI 1252 - ALLAHABAD HIGH COURT], held that on the amount which was illegally confiscated by the Revenue and ultimately refunded, the assessee-appellant is entitled to interest and the department is under obligation to pay the same.
Revenue has retained the redemption money and the penalty amount without any right and therefore in view of the decision of the Hon’ble Supreme Court in the case of Tata Chemicals Limited [2014 (3) TMI 610 - SUPREME COURT], we are of the view that respondent is under obligation to grant interest to the petitioner on the whole amount (redemption charges and penalty) and not just on the pre-deposit amount, which was the statutory requirement under Section 129E of the Customs Act, 1962.
We accordingly quash the impugned Corrigendum dated 10.02.2023 issued by Assistant Commissioner (Refund) and direct the respondent to refund to the petitioner along with interest at the rate of 6% per annum from the date of the deposit till the date of refund. Respondent is directed to process the refund within two weeks.
Petition is disposed of along with pending application.
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2024 (2) TMI 1145
Non-compliance to Orders of the appellate authority by the subordinate original authority - Waive detention and demurrage charges - seeking relief for release of the imported machinery for home consumption - classify the goods under Chapter 90 as Runway Friction Measuring Machine - imported friction testing vehicle - prohibited in terms of Section 2(33) - confiscation in terms of Section 111(d) - redemption fine and imposed penalty - HELD THAT:- In our view, it is settled law that the principle of judicial discipline requires that the orders of the higher appellate authorities should be followed unreservedly by the subordinate authorities. Applying this settled legal position, by the said Order dated 23rd March 2023, the Commissioner of Customs (Appeals) has set aside the confiscation of the imported machinery and ordered release of the same for home consumption.
Though an Appeal has been filed against the said Order dated 23rd March 2023, being Customs Appeal No. 86471 of 2023, neither the appellate authority nor any other competent Court has stayed the operation of the said Order dated 23rd March 2023.
Thus, the Respondents will have to be directed to release the Friction Testing Machine without prejudice to their rights and contentions in the Appeal filed by them.
Hence, we hereby pass the following Orders: a. The Respondents are directed to release the Friction Testing Machine for home consumption within a period of one week from the date of intimation of this Order, subject to the Petitioner furnishing a bond for payment of differential duty, in the event, the department succeeds in its Appeal filed before the Tribunal.
b. In regard to the demmurage and detention charges, the Respondents are directed to issue a waiver certificate to the Petitioner along with the release of the said goods.
c. The release of the machinery will be without prejudice to the rights and contentions of the Respondents in Custom Appeals No. 86471 of 2023 filed by them.
Petition is disposed of.
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2024 (2) TMI 1144
Denial of refund of SAD - goods supplied under sales invoice not contain rubber stamp and not computer printed - non-submission of the Chartered Accountant’s certificate - whether the burden of 4% SAD has been passed on by the importer or not - mandatory declaration required under Condition 2(b) of Notification No. 102/2007-Cus - HELD THAT:- The allegation that the stamping was not done in the invoices issued to the buyer has been examined by the Larger Bench of the Tribunal in the case of Chowgule & Company Pvt. Ltd. Vs. Commissioner of Customs [2014 (8) TMI 214 - CESTAT MUMBAI (LB)] wherein it was has held in that case that non-declaration of duty in the invoice issued to the buyer itself is an affirmation that no credit would be available.
Appellant has obtained the Chartered Accountant’s certificate and has submitted it before the Commissioner (Appeals). The Commissioner (Appeals) has held that non-submission of the Chartered Accountant’s certificate before the original authority is not a curable defect and has rejected the claim.
Board vide instruction circular issued from F.No. 275/34/2006- CX.8A, has stated that Commissioner (Appeals) while deciding the appeals filed before him u/s 128A of the Customs Act, 1962, shall, after making such further enquiry as may be necessary, pass such order, as he thinks just and proper, confirming, modifying or annulling the decision or order appealed against. He can direct the production of any document, or the examination of any witness to enable him dispose of the appeal. In the circumstances it was not proper of him to have rejected the appeal without examining it on merits and after issuing a proper speaking order.
Thus, it is proper to remand the matter back to the Original Authority who shall consider the Chartered Accountant’s certificate apart from the other documents already submitted by the Appellant at the time of filing the refund claim. He should also verify the invoices to check that they don’t indicate the payment of SAD. If so he shall accept the same in affirmation that no credit would be available, in line with the judgment of the Larger Bench in Chowgule & Company (supra). All other issues are left open. He shall point out discrepancies in writing, if any to the appellant and afford a reasonable opportunity of hearing to them for advancing their claim.
The impugned order is set aside on the above terms and the appeal is disposed of accordingly.
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2024 (2) TMI 1143
Confiscation of the gold and imposed penalties on various noticee - activity of buying and selling of gold and jewellery -legitimate Or Not - Seized 12 gold bars weighing 11990.82 gms - HELD THAT:- In this particular case, it is seen from the records that no such opportunity was given to the Appellant though they have made specific request to this effect. Therefore, we find that principles of natural justice has not been followed by the Adjudicating Authority. The Appellant has produced voluminous records of their ledgers, invoices, copies of Banking transactions etc. to prove that they were carrying legitimate activity of buying and selling of gold and jwellery. These documents have to be properly verified before any conclusion can be arrived at as to whether the seized Golds have the backing of proper licit documents or not.
Therefore, we remand the matter to the Adjudicating Authority with the following directions - After following the principles of natural justice, the Adjudicating Authority will pass a considered decision.
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2024 (2) TMI 1142
Challenged the rejection of classification - Goods imported for use as parts of motor vehicles - Commissioner relied on note 3 to section XVII to arrive at the distinguishing factor between the classification of the impugned goods in chapter 87 vis-a-vis chapter 84, 85 and chapter 72 onwards - HELD THAT:- Similar matters have been examined earlier in appellants own case as well as the case of Suzuki Motors Gujarat Pvt Ltd.[2022 (6) TMI 1089 - CESTAT AHMEDABAD].
It is noticed in the impugned order, that there were specific averment made by the appellants before Commissioner regarding satisfactions of all 3 conditions. The same has also been recorded in the impugned order however, the impugned order presumes that note 3 to Section XVII can override note 2 to section XVII. Note 3 only make the distinction in case of disputes in classification within chapter 86 to 88. It does not apply to the disputes involving classification in chapters other than chapter 86 to 88. Thus, if a item can be used in a car as well as in a railway loco motive than the classification has to be done with the heading for which it is used solely or principally. This note does not apply to chapter other than chapter 86 to 88.
Thus, the impugned order is set aside and matter remanded to original adjudication authority for fresh adjudication in the light of the decision of tribunal in appellant’s own case as well as in the case of Suzuki Motors Gujarat Private Limited.[2022 (6) TMI 1089 - CESTAT AHMEDABAD].
Appeal is allowed by way of remand.
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2024 (2) TMI 1141
Imposition of penalty and confiscation/redemption fine - repairing works for risers and pipes - repair activity done at DTA location instead of designated EOU location - violation of TSA bond furnished by ONGC - Validity of show cause notice issued to the parties - severally and jointly for confiscation - HELD THAT:- Show cause notice was not maintainable as per the provisions quoted and same has been confirmed by both lower authorities under wrong provisions. Firstly, we find that Section 54 of the Customs Act is applicable where any goods imported in a Customs station are intended for transshipment. It is by no way forthcoming that the goods were coming from any Customs station and meant for transshipment as envisaged in Section 54.
It is clear from the provisions of Manufacture and Other Operations in Warehouse Regulation, 1966 that, the regulations require that the persons removing the goods from warehouse has obligation to pay duty in case goods are not received within three months or such extended period as a proper officer may extend and in case the proof of receipt is not received then the permission is required to be cancelled and duty bond enforced.
Coming to the Clause 111(J), it is clear that the same can be thus enforced against the person who attempts to remove or actually removes goods from Customs area or warehouse without the permission of the proper officer or contrary to the terms of such conditions. The Clause comes into operation only when goods are removed from the customs area or warehouse without permission or contrary to the permission already granted. It does not deal with the warehouse goods in transit with which the above regulations i.e. Warehoused Goods (Removable) Regulations, 1963 have been provided and which make the goods dutiable in the hands of persons executing bond for any violation of conditions of bond. Thus, the liability under the bond is of the person executing it. As far as appellants are concerned, if intention was to evade service-tax, then show cause notice should have been issued under relevant provisions including penal provisions of Finance Act, 1994.
Thus, giving show cause to the party and same having been sustained without proper legal construction by the authorities below, we are inclined to set aside the proceeding of imposition of penalty etc. for violation of Section 111(J) against alleged recipients of the goods at this belated stage and particularly when duty of Service Tax has also been discharged and accepted by the department reckoning in the invoice that work has been done by E.O.U, even though E.O.U may not have normally paid service tax. Also the party executing the bond and its intermediary responsible for executed bond have neither been investigated, nor show caused in the matter. The forensic evidence regarding rebuttal of two statements not having been considered by lower authorities, we are not commenting either way on the same, nor are inclined to rely on testimonial evidence in the absence of proper defense examination including forensic having been afforded in such old matter and service tax penal provisions not having been invoked.
Appeals are allowed with consequential relief.
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2024 (2) TMI 1140
Classification of imported goods - electrical machines or Apparatus - ''Student interactive respond system'' under CTH 8471 60 29 - HELD THAT:- Appellant herein had classified the goods under CTH 8543 87 99 which covers electronic machines and apparatus having individual function specified or included elsewhere in the Chapter Note 85. Reliance is placed by the Appellant on Chapter Note 4 of Section XVI of the Customs Tariff Act, 1944 however as per the explanatory notes of the CTH 8543, this heading specifically states that “electrical appliances and apparatus of this heading must have individual functions.” It further states that “most of the appliances of this heading consist of an assembly of electrical goods or parts (valves, transformers, capacitors, chokes, resistors etc). The impugned goods do not satisfy any of the above criteria and therefore classification under CTH 8543 as an item with individual function is ruled out.
As rightly observed by the Commissioner in the impugned order the equipments are teaching accessories which enable students in a class to respond to queries and these equipments are used along with the ADP machine. Considering the above and the fact that similar items being cleared under CTH 8471 at Hyderabad and Chennai organizations as seen from the Bill of Entry placed before us, there is no merit in the Department Appeal and the same is rejected.
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2024 (2) TMI 1139
Classification of imported goods - 474.860 MTs of imported goods, namely, Petroleum Hydrocarbon Solvent (125/240) Grade M.T.O - to be classified under CTH 27101990 and therefore same being freely importable? - HELD THAT:- The test report of Customs Laboratory, provides that 90% of goods by volume get distilled at 195 degee C, i.e. below 210-degree C followed by 95% distillation at 207-degree C. We find that this issue is similar to the one decided by the Hon’ble SUPREME COURT in the matter of Krishna Technochem Pvt. Ltd [2022 (4) TMI 732 - SUPREME COURT] as well as Kunjal Synergies Pvt. Ltd Vs. C.C., Mundar [2023 (9) TMI 730 - CESTAT AHMEDABAD] of this bench only, wherein 95% distillation had taken place below 210 degree C and therefore interpreting at in the above said Chapter note as “upto” the benefit was allowed by classifying the goods under Customs Tariff Heading 2710 1990 and rejecting department’s classification under CTH 2710 12. We, therefore, agree with the aforesaid decision and hold that the classification made by the appellant is correct.
Appeal is therefore allowed with consequential relief.
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2024 (2) TMI 1138
Valuation - Import of “Christmas light” and others electrical items from China - adopted the NIDB data to enhance the value - revised the Customs Duty to be paid - HELD THAT:- We find that the Department has not made any attempt to follow the procedure given under the Valuation (Determination of Value of Importers Goods) Rules 2007 and has simply adopted the NIDB data and selectively enhanced value. Thus, Commissioner (Appeals), has given a detailed finding along with reasons while setting aside the Order-in-Original. We do not find any reason to interfere with the same. Accordingly, we dismiss the Appeal filed by the Revenue.
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2024 (2) TMI 1137
Illegally export goods from India to Nepal - unauthorized route without any valid documents using Bicycles - confiscation good - redemption fine and penalty imposed - HELD THAT:- It is only a presumption by the Revenue that the goods were attempted to be exported outside India without proper documentation and without proper channel and no corroborative evidence has been produced on record. Further, the statement of the appellant was recorded during the course of investigation wherein the appellant claimed the ownership of the goods and the ownership of the bicycles recovered during investigation. As no corroborative evidence has brought on record by the Revenue to allege that there is an attempt for illegal export of goods.
Thus, confiscation of the impugned goods is not sustainable. Accordingly, no redemption fine can be imposed and no penalty can be imposed. Hnece, set aside the impugned order in toto and allow the appeal with consequential relief, if any.
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2024 (2) TMI 1136
Seeking advance ruling u/s 28H - classification and applicability of notification - importation of goods i.e. ‘NIKON Camera Model N2120’ - classification under CTH 8525 89 00 with benefit of Notification No. 50/2017-Cus - commercial quantity - Whether ‘digital camera with still image as well as moving image capability’ would be eligible for exemption benefit under the entry as ‘Digital Still Image Video Camera’ - HELD THAT:- In view of the definition of ‘Digital Still Image Video Camera’ in C.B.I. & C. Circular 32/2007-Cus. whereby such cameras have the capability of taking still images and also include digital cameras that take moving images for a limited period of time, although they are primarily still image camera. Whereas regarding cameras which the applicant intends to import, recording time is not limited, it may appear that the subject goods fall outside the purview of ‘Digital Still Image Video Camera’.
As regards apprehension that the subject goods fall out of the purview of the Digital Still Image Video Camera, for the reason that recording time is not limited and in view of the aforementioned circular, it appears that the subject goods is not eligible for the benefit of S. No. 502 Notification No. 50/2017-Cus. However, the wording used in the said Circular lay emphasis on principal function and not excludes cameras which have the capability to record moving images for a unlimited period of time.
Language used in the Circular is of inclusive nature, whereby under the term. ‘Digital Still Image Video Camera’ includes digital cameras that take moving image for limited period of time although they are primarily still image cameras. This may lead to inference that exemption under the notification is admissible to only those digital cameras whose principal function relates to still photography even though such cameras are capable of recording moving images. Based on the reasons cited by the applicant in the application, said model of digital camera proposed to be imported by the applicant is principally a still image digital camera. Accordingly exemption under Serial Number 502 Notification No. 50/2017-Cus., is admissible on import of said model no. if digital camera.
In view of the above, I rule as under: - Nikon Camera Model No. N2120 with standard accessories proposed to be imported by the applicant is correctly classifiable under sub-heading 8525 89 00 of the First Schedule to Customs Tariff Act, 1975. Also, in terms of, ‘The Accessories (Condition) Rules, 1963’ the said camera along with the standard accessory, if presented together shall be chargeable under the sub-heading 8525 89 00. However, any item/accessory, optional in nature, would merit classification in the tariff heading appropriate to it.
The benefit vide S. No. 502 of Notification No. 50/2017-Cus., is available on import of the aforesaid Nikon Camera Model No. N2120.
The applicant has submitted that the device is not launched commercially in India and requested to ensure maintenance of its confidentiality. In this regard, I note that the commercial import of the subject goods in question is already underway, thus, I am, of the view that maintaining confidentiality by invoking proviso to Rule 27 of the Customs Authority for Advance Rulings Regulations, 2021, is not required in the instant matter.
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2024 (2) TMI 1135
Condonation of delay in filing appeal before the Commissioner (Appeals) - Dismissal of appeal on the ground that the appeal was delayed by thirty three days - Section 85 of the Finance Act, 1994 - exclusion of the period during which the matter was pending before the High Court. - HELD THAT:- The appellant could have no doubt filed an appeal before the Appellate Commissioner within the period of limitation prescribed under sub-section 3A of Section 85 of the Finance Act, 1994. However, for reasons best known to the appellant, it approached the High Court under the W.P. 5452/2018. However, the High Court while permitting the appellant to withdraw the said writ petition by its order dated 12.03.2018 also reserved liberty to the appellant herein to seek alternative statutory remedy available in law. Therefore, the period during which the matter was pending before the High Court, i.e. from 05.03.2018 to 12.03.2018 ought to be excluded since the High Court specifically granted liberty to the appellant herein to file the appeal before the Appellate Commissioner.
The appellant filed the appeal on 11.04.2018. If the period during which the matter was pending before the High Court, i.e. 05.03.2018 to 12.03.2018, is excluded then the appellant would have the benefit of the proviso to sub-section 3A of Section 85 of the Finance Act 1994. No doubt the said appeal has not been filed within the main provision but the proviso extends the period of limitation by one month. In the instant case, the appeal was filed on 11.04.2018 within a period of one month from 12.03.2018, which is the order of the High Court.
The interest of justice would be subserved in this case if, having regard to the proviso to sub-section 3A of Section 85 of the Finance Act, 1994, the delay in filing the appeal is condoned. In the above circumstances, it is condoned.
The impugned orders of the High Court, the Tribunal and the Appellate Commissioner are set aside - Matter restored on the file of the Commissioner (Appeals), Bhopal - appeal disposed off.
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2024 (2) TMI 1134
Extended period of limitation - liability of a subcontractor to pay service tax - Validity of order of CESTAT for directing the Commissioner to calculate the service tax liability for the normal period prescribed under Section 73 (1) of the Finance Act, 1994 without invoking the proviso that seeks to extend the period of limitation - HELD THAT:- It is an undisputed fact that the question about levy of service tax by the sub-contractor was subjected to adjudication in the matter of COMMISSIONER OF SERVICE TAX VERSUS MELANGE DEVELOPERS PVT. LTD. [2019 (6) TMI 518 - CESTAT NEW DELHI-LB], which was decided on 23-5-2019 by the larger Bench of the Tribunal, wherein the issue was set at rest that the sub-contractor was liable to pay service tax. Therefore, the said date in the facts of this case it was a doubtful issue as to who would be liable to pay the service tax. In the instant case the service tax was already deposited by the main contractor. The facts involved in this case that there was an interpretation issue about the liability.
The Supreme Court in the matter of THE COMMISSIONER, CENTRAL EXCISE AND CUSTOMS AND ANOTHER VERSUS M/S RELIANCE INDUSTRIES LTD. AND COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX VERSUS M/S RELIANCE INDUSTRIES LTD. [2023 (7) TMI 196 - SUPREME COURT] while dealing with the issue of suppression of facts, observed that if the appellant was under a bona fide belief based upon certain judgment then in such case the said bona fide belief cannot be stated to be a suppression of fact and Court held We note that the issue of valuation involved in this particular matter is indeed one were two plausible views could co-exist. In such cases of cases of disputes of interpretation of legal provisions, it would be totally unjustified to invoke the extended period of limitation by considering the assessee's view to be lacking bona fides. In any scheme of self-assessment it becomes the responsibility of the assessee to determine his liability of duty correctly. This determination is required to be made on the basis of his own judgment and in a bona fide manner.
Since the interpretational issue was disputed which was ultimately set at rest in 2019, it can very well be presumed that the same would not amount to suppression and the acts were bona fide whereby the proviso that seeks to extend the period of limitation under Section 73 of the Act can be pressed into motion.
The order of the learned Tribunal remitting back to the Commissioner to calculate the service tax liability for the period prescribed under Section 73(1) of the Act without invoking the proviso that seeks to extend the period of limitation appears to be justified - no question of law arises for consideration - Appeal dismissed.
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2024 (2) TMI 1133
Valuation of service - consulting engineering service - non-inclusion of value of expenses incurred by them for accommodation, travelling and foods expenses which were incurred on the visiting engineers of the service provider - HELD THAT:- The matter is no longer res-integra as Hon’ble Delhi High Court in the case of INTERCONTINENTAL CONSULTANTS AND TECHNOCRATS PVT. LTD. VERSUS UOI. & ANR. [2012 (12) TMI 150 - DELHI HIGH COURT] where it was held that What is brought to charge under the relevant Sections is only the consideration for the taxable service. By including the expenditure and costs, Rule 5(1) goes far beyond the charging provisions and cannot be upheld.
The above order of Hon’ble Delhi High Court has also been endorsed by Hon’ble Supreme Court in the case of UNION OF INDIA AND ANR. VERSUS M/S. INTERCONTINENTAL CONSULTANTS AND TECHNOCRATS PVT. LTD. [2018 (3) TMI 357 - SUPREME COURT] where it was held that value of free supplies of diesel and explosives would not warrant inclusion while arriving at the gross amount charged on its service tax is to be paid.
The impugned order-in-appeal is not sustainable and therefore set aside - appeal allowed.
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2024 (2) TMI 1132
Levy of service tax - body corporate or not as provided in the definition of banking and financial services - interest income under the head “Lease and Equipment Finance Income” - interest income-rental - interest income-funding - suppression of facts or not - Extended period of Limitation - HELD THAT:- This issue has been considered by various Benches of the Tribunal and here we may refer to the observation of the Tribunal in the case of KANSAI NEROLAC PAINTS LTD. VERSUS COMMISSIONER OF CUSTOMS, MUMBAI [2017 (2) TMI 262 - CESTAT MUMBAI] where it was held that Hence, banking and other financial services provided by a banking company or a financial institution or a non- banking financial company or any other service provider similar to a bank or a financial institution are liable to service tax under Section 65(105)(zm) of the Finance Act, 1994. Department of Posts is not similar to a bank or a financial institution and hence does not fall within the category of any other similar service provider.
Further, in the present case service tax under banking and other financial service has been demanded from the appellant on the lease and finance income received in respect of contract entered into prior to 16.08.2002. It is pertinent to note that financial leasing services provided by the appellant i.e. body corporate are taxable only from 16.08.2002 whereas in the present case service tax is sought to be demanded on the basis of the agreement prior to 16.08.2002 hence the impugned order confirming demand of service tax is liable to be set aside on this ground alone.
Interest income-rental - HELD THAT:- The appellant received rent for renting equipment, further the perusal of sample copies of agreements will indicate that the appellant is only providing its equipment on rent basis to its customers and is not providing any financial leasing services. These services is entirely different from the service of financial leasing for the purpose of levy of service tax.
Interest income-funding - HELD THAT:- For this purpose the appellant entered into equipment finance agreement with the customers which is on record whereby the purchaser could either make one time down payment for purchasing the equipment or could make the payment in installments as agreed between them. The ownership in the machine is not transferred to the customer in the beginning and the customer was to make payment in specified installments. This arrangement of sale and purchase cannot be subjected to service tax under financial leasing as has been done in the impugned order - Further, as per Section 67 of the act the interest income on loans is excluded from the value to calculate service tax on any service and the circular no. 80/10/2004-S.T. dated 17.09.2004 reiterates the same position. Further, as regards the finance income facility management, it is seen that this amount is received by the appellant for providing printing/copying equipment to the customers along with operator at the premises of customers and the customer paid to the appellant per impression charges based on the usage of the machine during a month - Ld. Commissioner has gone on presumption that this amount of Rs. 9,37,76,673/- has been received by the appellant for providing financial leasing service without taking into consideration the actual nature of the transaction. Hence, the demand is liable to be set aside.
Extended period of limitation - suppression of facts or not - HELD THAT:- All the facts were in the knowledge of the department w.e.f. 2004 i.e. the appellant got itself registered with the service tax authorities under the banking and financial services and paid service tax on agreements entered into after 16.08.2002. Before issuing the show cause notice dated 22.10.2007 a series of correspondence transpired between appellant and department which shows the department was aware of the transactions but in spite of that the show cause notice was issued after delay of three years alleging suppression. Further, the appellant is not liable to pay service tax on agreements entered into prior to 2002. Further, the appellant was maintaining proper records of service tax paid and regularly filed returns. Moreover, the issue involved in the present case relates to interpretation of complex legal issues. Further, the appellant was subjected to regular audits and the demand of service tax is raised on the basis of audit objections.
The impugned order is not sustainable in law and is set aside - appeal allowed.
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