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Showing 121 to 140 of 489 Records
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2006 (10) TMI 399 - CESTAT AHMEDABAD
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... ... ..... some overlapping days therefore, the adjudicating authority has imposed penalty only for 849 days at Rs. 100 per day being the minimum penalty imposable under the provisions of section 76 of the Finance Act, 1994. Since the adjudicating authority has imposed a minimum penalty under the said provisions and the said penalty has also been upheld by the Commissioner (Appeals) and the Commissioner (Appeals) has not found the reason given by the appellants being sufficient for the purpose section 80, I do not find any reason to interfere with the order passed by the lower authorities. As regards the penalty of Rs. 1,000 imposed under section 77 for late filing of the service tax returns, the same being minimum penalty is not questionable. Taking both the penalties together, they are still less than the amount of service tax involved in the case. I, therefore, do not find any reason to upset the order passed by the lower authorities. The appeal filed by the appellants is dismissed.
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2006 (10) TMI 398 - CESTAT CHENNAI
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... ... ..... eriodically during the entire period and, therefrom, the department is aware of the material facts. Admittedly, the show cause notice was issued beyond the normal period of limitation. The provision for invoking the extended period of limitation was inserted in the Finance Act, 2004 on September 10, 2004. Even from that date, the department took more than one year to issue the show cause notice and, that too, on the ground of suppression. Obviously, there was no suppression on the part of the appellants who admittedly filed their returns periodically. The appellants seem to have a good case on the ground of limitation and accordingly we grant waiver of pre-deposit and stay of recovery in respect of the tax amount. Having regard to the high stake involved in the case as pointed out by learned SDR we are of the view that the appeal should be disposed of as early as possible. Accordingly, we direct the appeal to be posted to December 19, 2006 to be heard along with S/106/ 2006.
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2006 (10) TMI 397 - KERALA HIGH COURT
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... ... ..... super glue made available. Product is evidently a glue used for joining things together. Ester of unsaturated acyclic monoacid comes under serial number 66 of the Third Schedule, which deals with industrial inputs and packing materials specified in List A of the Third Schedule. Super glue will not fall under that category, consequently the appellant was collecting tax at the rate of 12.5 per cent. Court in our view is guided by the manner of classification of goods which are brought to tax rather than the experts opinion or the etymological meaning of the product. We are therefore inclined to accept the stand of the State that the product will not fall under item No. 164(10) of List A of the Third Schedule to the VAT Act and that the product super glue imported and marketed by the appellant is taxable at 12.5 per cent which falls under serial number 3(8) of SRO No. 82 of 2006. Appeal lacks merits and the same is dismissed. I. A. Nos. 874 and 1512 of 2006 are also dismissed.
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2006 (10) TMI 396 - CESTAT AHMEDABAD
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... ... ..... ls) has therefore, restricted the amount to the service tax, i.e., payable from Rs. 79,621 to Rs. 73,293. The provisions of this section nowhere talk of any mens rea on the part of the appellants in failure to make the payment. Therefore, the contention of the learned counsel for the appellants that there was no mens rea on the part of the appellants in not paying the service tax on due date is extraneous to the provisions of section 76 and similarly the reliance placed by him on the case of Jain Pradeep and Co. 2005-TIOL-1303-Cestat-KOL is misplaced. I do not find any merit in the appeal filed by the appellants. The appeal is therefore, dismissed.
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2006 (10) TMI 395 - GUJARAT HIGH COURT
Levy of Entry Tax - Seeks to challenge the provisions of the Gujarat Tax on Entry of Specified Goods into Local Areas (Entry Tax Act) - violative of articles 301 and 304 of the Constitution of India - transportation and travel services to passengers in the State of Gujarat - HELD THAT:- On a fair reading of the provisions of article 304(a) and 304(b), if the levy of tax is found to be non-discriminatory, in that case, previous sanction of the President is not required. If the contention on behalf of the petitioner is accepted, then there is no purpose in enacting article 304(a) and 304(b) separately. If the argument is correct then what is mentioned in article 304(b) could have been mentioned in article 304(a) itself and both would not have been worded separately. Under the circumstances, the contention on behalf of the petitioner, that even if the levy of tax is found to be non-discriminatory in that case too it is to be established that the same is in the public interest and that it requires previous sanction of the President, cannot be accepted.
Considering the various provisions of the Statement of Objects, settled legal provision and facts stated hereinabove, it cannot be said that the provisions of the Act and the levy of the entry tax on the specified goods are violative of article 304 of the Constitution of India. We hold that, levy of entry tax is neither discriminatory between the goods so imported and goods so manufactured or produced in a local areas and the challenge to the constitutional validity of the Gujarat Tax on Entry of Specified Goods into Local Areas Act, 2001 (Entry Tax Act) and the levy of entry tax therefore fails.
The petition deserves dismissal and it is accordingly dismissed. Rule is discharged. However, there shall be no order as to costs.
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2006 (10) TMI 394 - CESTAT NEW DELHI
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... ... ..... e provisions as amended by Finance Act, 2003. In the result, we set aside the order impugned and allow the appeals. The Revenue was aggrieved by the abovesaid decision of the Tribunal in the case of L. H. Sugar Factories case 2004 61 RLT 142. Hence they took the issue to the honourable Supreme Court. The Supreme Court vide its judgment as reported in Commissioner of Central Excise v. L. H. Sugar Factories Ltd. 2006 4 VST 91 (SC) 2005 187 ELT 5 (SC) has upheld the decision of the Tribunal. In the present case, the issue is identical to the issue in the case of L. H. Sugar Factories case 2004 61 RLT 142. Since the honourable Supreme Court has upheld the order of the division Bench of the Tribunal, the ratio of the decision squarely covers the issue before me. Accordingly, respectfully following the judgment of the honourable Supreme Court in the case of L. H. Sugar Factories Ltd. 2004 61 RLT 142, all the appeals are allowed with consequential relief, if any, to the appellants.
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2006 (10) TMI 393 - MADRAS HIGH COURT
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... ... ..... der context, that a relative or a full time employee or an accountant of the dealer can even be authorised to represent his case before the taxing officers. It is not as if only the advocates are given monopoly to appear. When the intention of the Act is too wide, it is not proper on the part of the respondent to write a reply informing the dealer that he or she cannot send the proceedings through his/her lawyer and more so, the contents of para 5 of the impugned notice is totally unwarranted. In the absence of any prohibition under the TNGST Act, or the Rules made thereunder, it is open to the dealer to make his representation through his attorney by properly authorising the said attorney. In the circumstances, paragraphs 3, 4 and 5 of the impugned order are clearly illegal and are liable to be set aside and accordingly, they are set aside. The writ petition is disposed of to the extent indicated above. Consequently, the connected miscellaneous petition is closed. No costs.
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2006 (10) TMI 392 - CESTAT BANGALORE
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... ... ..... rvices is a well taken plea. The Revenue has not established that the training given to the employees of the purchasers would come within the category of consulting engineers . Therefore, this element added by the lower authorities is also set aside. With regard to the demands raised on the appellants clearing the goods to the C and F agent, it is seen that the show cause notice was issued after the amendment brought to the Finance Act retrospectively. Therefore, this element is also required to be set aside in the light of the apex court judgment rendered in the case of Laghu Udyog Bharati 2005 1 VST 24 1999 112 ELT 365, and the Tribunal 39 s judgment rendered in the case of L. H. Sugar Factories Ltd. v. Commissioner of Central Excise, Meerut-II 2004 165 ELT 161 (Tri.-Delhi). In view of the matter being covered in assessee 39 s favour and for the reasons given above, the demands raised on the appellants are set aside by allowing the appeal with consequential relief, if any.
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2006 (10) TMI 391 - KERALA HIGH COURT
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... ... ..... goods, namely, bullion was delivered to the exporters against receipt of substantial amount, the ultimate sale price is fixed later and only after fixing the price, invoice is raised, which happened in the subsequent year. We are unable to accept this contention because by delivery of goods against substantial payment received, the Bank has in fact effected sale as defined under section 2(xxi) of the Kerala General Sales Tax Act, 1963. In fact, the purchasers are exporters and on taking delivery of the goods from the petitioners, the exporters were free to manufacture ornaments from the bullion purchased and could export/sell the same. Therefore, delivery of goods is pursuant to contract of sale and all what is left is only finalisation of price and raising of final invoice. Since the sale takes place on delivery of goods under terms of contract, the transaction is rightly assessed in the year in which delivery was given. These tax revision petitions are therefore dismissed.
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2006 (10) TMI 390 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... ecurity deposits received from customers against cylinders/regulators at the time of release/sanction of connection as the sales are only a mode of carrying gas. The writ petitions in the case of Indian Oil Corporation, relying upon the pendency of which, questions of law were referred to this court for opinion, have also been decided by this court in favour of Indian Oil Corporation1 vide judgment dated January 8, 1999. 1. Reported as Indian Oil Corporation Limited v. Excise and Taxation Officer-cum-Assessing Authority 1998 114 STC 282 (P and H) For the reasons stated in Indian Oil Corporation 39 s case 2000 117 STC 333 (P and H), we answer the question against the Revenue and in favour of the assessee while holding that no sales tax is exigible on the amount of refundable security deposits received from customers against cylinders/ regulators at the time of release/sanction of connection as the same are only a mode of carrying gas. The reference is disposed of accordingly.
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2006 (10) TMI 389 - ALLAHABAD HIGH COURT
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... ... ..... te of tax. Unless section 3-G overrides the provisions of the Act, the benefit of concessional rate of tax cannot be given. Section 3-F is an independent charging section providing levy of tax on the value of the goods involved in the execution of works contract. Therefore, unless section 3-F is made subject to section 3-G the benefit of concessional rate of tax under section 3-G of the Act is not available. In other words, unless section 3-G overrides section 3-F, the benefit of concessional rate of tax cannot be allowed in respect of levy of tax under section 3-F. In the present case, tax had been levied under section 3-F of the Act. Prior to March 17, 1992, section 3-F was not subject to section 3-G, therefore, for the period prior to March 17, 1992, section 3-G was not applicable to the levy of tax under section 3-F of the Act. For the reasons stated above, revision has no merit and is liable to be dismissed. In the result, revision fails, and is, accordingly, dismissed.
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2006 (10) TMI 388 - PUNJAB AND HARYANA HIGH COURT
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... ... ..... 13(3) of the Act. In appeal, the assessee failed. It is not in dispute that though the assessee was hopeful that exemption would be restored later on with retrospective effect, it was not restored. Accordingly, in terms of the assessment framed, the amount of tax assessed on the basis of the turnover disclosed by the assessee was paid. As far as question of penalty is concerned, the fact that the assessee is a non-profit organisation and that on an earlier occasion, the exemption having been restored with retrospective effect, the fact having not been controverted by the State, we do not find any mens rea in assessee 39 s not depositing the tax along with the return and hold that the penalty, as mentioned above, was not leviable in the facts and circumstances of the present case. Accordingly, we answer the question in favour of the assessee holding that there was no justification for levy of penalty on the assessee. The petition is disposed of in the manner indicated above.
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2006 (10) TMI 387 - ALLAHABAD HIGH COURT
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... ... ..... entry check-post on physical verification which were mentioned in the transit pass, the detention of the goods and subsequent seizure of the goods were patently erroneous. Both the detention and seizure of the goods were as a result of harassment on the part of the Check-post Officer. The Tribunal has also not examined the matter judiciously, in accordance with law and based its decision on irrelevant considerations. In the result, the revision is allowed. The orders of the Tribunal and the authorities below seizing 99 drums of agro-chemicals are set aside. The Check-post Officer, T.P. Nagar, Ghaziabad, is directed to release the goods forthwith without any security within three days from the date of filing of certified copy of the order. The applicant is also entitled for costs, which I assess at Rs. 20,000 (rupees twenty thousand) to be paid within fifteen days. It will be open to the applicant to take appropriate action in accordance with law for the losses suffered by it.
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2006 (10) TMI 386 - SC ORDER
Duty demand - Supreme Court dismissed appeal where Tribunal, on facts, reversed the decision of the Commissioner and came to the conclusion that the Department is not entitled to extended period of limitation under Section 11A of the Central Excise Act.
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2006 (10) TMI 385 - SUPREME COURT
Whether the documents were material so as to enable the detenue to make an effective representation ?
Held that:- It is a trite law that all documents which are not material are not necessary to be supplied. What is necessary to be supplied is the relevant and the material documents, but, thus, all relevant documents must be supplied so as to enable the detenue to make an effective representation which is his fundamental right under Article 22(5) of the Constitution of India. Right to make an effective representation is also a statutory right.
The detaining authority moreover while relying on the said documents in one part of the order of detention could not have stated in another part that he was not relying thereupon. The very fact that he had referred to the said statements in ex tenso is itself a pointer to the fact that he had relied upon the said documents. Even in the earlier part of the impugned order of detention, i.e. detaining authority appears to have drawn his own conclusions.In view of our findings aforementioned, it is not necessary to consider the contention raised by Mr. Mukul Rohtagi that order of detention suffers from non-application of mind. The judgment of the High Court, therefore, cannot be sustained. It is set aside accordingly and the order of detention passed against Appellant is quashed. The appeal is allowed.
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2006 (10) TMI 384 - MADRAS HIGH COURT
Validity of assessment order - Tamil Nadu General Sales Tax - Concessional rate of tax - declarations on form XVII for turnover - engaged in a process or manufacture - default on the part of purchasing dealer - Violation of principles of natural justice - HELD THAT:- Section 3(3) levies concessional rate of three per cent on the sale of industrial raw materials to a manufacturing dealer for use in the manufacture of goods, except in the manufacture of alcohols and other goods mentioned therein. it is seen that concessional rate is subject to the production of Form XVII by the selling dealer obtained by him from the manufacturing dealer as prescribed in Rule 22. The concessional rate is not admissible for the sales of high speed diesel oil, light diesel oil and molasses to the manufacturer.
It is not the case of the Revenue that the seller has produced a false bill, vouchers, declaration, certificate or other document with a view to support or makes any claim that the transaction is not liable to be taxed or liable to be taxed at a lower rate. We fail to appreciate as to how Section 10(3) of the Act would be applicable to the facts of the present case. In fact, the assessing officer has referred to Section 12(3)(b) of the Act while imposing penalty and there is no reference to Section 10(3) of the Act. In the circumstances, it is impossible to agree with the view of the learned single Judge that the law laid down by this Court in State of Tamil Nadu v. Madras Petro Chem Ltd.[1991 (7) TMI 343 - MADRAS HIGH COURT] is no longer good law.
It is essentially a rule of policy, convenience and discretion and never a rule of law. In Harbanslal Sahnia v. Indian Oil Corporation Ltd., [2002 (12) TMI 564 - SUPREME COURT], held that the rule of exclusion of writ jurisdiction by availability of alternative remedy is a rule of discretion and not one of compulsion and the court must consider the pros and cons of the case and then may interfere if it comes to the conclusion that the petitioner seeks enforcement of any of the fundamental rights; where there is failure of principles of natural justice or where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged.
Thus, the issue involved is covered by several judgments of this Court and the Supreme Court, and it has been consistently held that for the contravention of condition of Form XVII, tax and penalty could be imposed only against the purchasing dealer and not against the seller, as per Section 3(3) of the Act. Therefore, the impugned order of the assessing authority is clearly without jurisdiction.
In the result, it is not possible to sustain the order passed by the learned single Judge and the same is hereby set aside. The writ petition as well as the writ appeal stands allowed with no order as to costs. Consequently, M.P. is closed.
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2006 (10) TMI 383 - GUJARAT HIGH COURT
TDS liability on Insurance companies - TDS u/s 194A - interest received on the compensation - Motor Accidents Claims - HELD THAT:- The income-tax liability of the concerned claimants to pay tax on the interest accrued on the compensation awarded to them shall arise if such interest income accrued in the concerned financial year together with other income of the respective claimants in that financial year exceeds the chargeable limit as specified in the provisions of the Income-tax Act, 1961 in force for the relevant years. It will, therefore, be open to the claimants to make appropriate applications/representations before the concerned income-tax authority for refund of such amount/s as may be due to them out of the amount which has already been deducted by the Insurance Company as tax deducted at source under the provisions of Section 194A of the Act.
It is necessary to obviate such a situation in future for other claimants who may be awarded compensation with interest thereon, and the amount of interest being deposited exceeds Rs. 50,000/-, but who may not be liable to have any tax deducted at source as per the interpretation placed by us on the provisions of Section 194A of the Act.
In the facts of the present case, since the Insurance Company had deducted tax on compensation u/s 194A(3)(ix) of the Act by treating the entire interest amount as one lumpsum amount, we direct that after giving the claimants the details of the amounts of interest spread over the relevant financial years and the break-up amongst several claimants, the Insurance Company shall, within one month from the date of receipt of a certified copy of this order, furnish to the claimants the certificate indicating the interest amounts computed for each year and with the break-up of the interest amounts payable to each claimant in each of those years as per the apportionment made in this order.
Thereafter it will be open to the claimants to make applications/representations before the appropriate income-tax authority which shall decide the same within six months from the date of receipt thereof.
We are not passing any orders on the prayers for disbursement of the amounts as the learned advocate for the claimants seeks leave to file a separate application with all necessary facts in support of the prayer.
Leave as prayed for is granted - The application is accordingly allowed in the aforesaid terms.
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2006 (10) TMI 382 - CESTAT BANGALORE
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... ... ..... perused the Paper Books and find that the appellants had given all the information required under the statutory provisions relating to Service Tax. The department has proceeded on the basis of the audit check and on the basis of the Returns. Prima facie, it cannot be said that there has been suppression in the matter. Prima facie, the plea of time bar is applicable in view of the fact that all the details had been furnished to the department and the Show Cause Notice has been issued beyond one year. The plea that loading/unloading, packing, weighing, statutory label charges, etc. cannot be added in the assessable value of Service Tax of C and F agent is also a good point raised by the appellants which is required to be considered prima facie, in their favour. Therefore, the stay application is allowed unconditionally granting waiver of pre-deposit and staying its recovery till the disposal of the appeal. Appeal to come up in its turn. (Pronounced and dictated in open Court)
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2006 (10) TMI 381 - ITAT MUMBAI
Exemption of income u/s 11 - incomes other than income under the head “Profits and gains from business and profession” - Object of “general public utility” - charitable purposes u/s 2(15) - HELD THAT:- It is not the Revenue’s case that the activities of the assessee cease to be in the nature of “general public utility”. The assessee was declined exemption only on the ground that it cannot be said that the assessee was “not involved in the carrying on of any activity for profit”. Post April 1, 1984, however, that aspect of the matter ceased to be relevant so far as the scope of “charitable purposes” u/s 2(15) is concerned.
The pre-1961 position thus stands restored. In those years, and following the Tribunal’s decision for the assessment year 1943-44, the assessee was held to be pursuing an object of public utility. The Revenue admits and accepts this position, as reflected from the stand taken by the Revenue authorities all along. The post-amendment section 2(15) being pari materia with section 4(3)(i) of the 1922 Act and the material facts being identical, the assessee thus continues to be eligible for exemption u/s 11. As for the disability u/s 11(4A), the same being confined to exemption of business income, the assessee will nevertheless be entitled to exemption in respect of other incomes, such as “income from house property”, “capital gains” and “income from other sources”.
We, accordingly, answer the questions Nos. 1 and 4 as follows :
(1) Whether the object of the assessee-trust is an object of general public utility u/s 2(15) of the Income-tax Act, 1961? - Yes. In the light of the amendments in section with effect from April 1, 1984, the assessee trust is eligible for being treated as pursuing an object of general public utility u/s 2(15) of the Act.
(4) If the answer to the first question is in the affirmative, does the earning of substantial profit by the assessee affect its status as a trust existing for an object of general public utility and consequently the claim for exemption under section 11, and if so, to what extent, in the light of the judgment of the Supreme Court in the case of Addl. CIT v. Surat Art Silk Cloth Manufacturers Association [1979 (11) TMI 1 - SUPREME COURT]? - While earning of substantial profit does not affect its status as “a trust existing for an object of general utility”, so far as business income is concerned, earning of substantial profits attracts the disqualification u/s 11(4A) of the Act, from exemption u/s 11. As for the exemption of income of the assessee-trust under the heads of income other than “profits and gains from business or profession” is concerned, the earning of substantial profit does not affect the said exemption.
The matter shall now go before the Division Bench for disposal of appeals in accordance with the law, and in the light of our above observations.
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2006 (10) TMI 380 - ITAT BANGALORE
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... ... ..... 1930 rdquo does not advance the case of the Revenue. It is not the learning alone that results in the source of income to the assessee in this case. In fact the other collaterals and relatives also are equally learned. The pooja rights in question have been acquired through inheritance and the assessee could have also performed the pooja by proxy by appointing a competent person. Income is of the Hindu undivided family and as held in paragraph 20.7, there can be no estoppel against law. Thus this plea of the assessee has to be allowed. Coming to the issue of disallowance of salary we find that the assessee has evidence in the form of recordings in a register. Similar claim of the assessee is allowed in the earlier years. We see no reason for part disallowance in these years. Thus we delete the disallowance and allow the claim of the assessee. In the result all the appeals of the Revenue are dismissed and the appeals of the assessee as well as the cross-objections are allowed.
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