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Case Laws
Showing 141 to 160 of 489 Records
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2006 (10) TMI 379 - CESTAT BANGALORE
... ...
... ... ..... nt and their plea was accepted and changed their registration within the category of Architect . The fact that they were sub-contractors to M/s. Chandravarkar and Thacker (P) Ltd., Bangalore is not contested by the Revenue, which is mentioned in the impugned order also. Now, the question is as to whether the Service Tax demand can be raised on the sub-consultant. The Tribunal in the above noted judgments has clearly held that the liability to tax arises only against the main consultant and not on the sub-contractor. In this regard, the Board circular cited supra has also issued clarification and Trade Notice has also been issued by New Delhi Commissionerate. The citations, Board Circular and Trade Notice clearly apply to the facts of the case. The demands raised against the sub-contractor for levy of Service Tax are not justified in law and hence, the impugned order is set aside by allowing the appeal with consequential relief, if any. (Pronounced and dictated in open Court)
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2006 (10) TMI 378 - MADHYA PRADESH HIGH COURT
... ...
... ... ..... f the contract between the parties which was necessary in view of the law laid down by the apex court in Hindustan Sugar Mills Ltd. 1979 43 STC 13. 19. In view of the aforesaid, we answer the question referred in following manner That the Tribunal was not justified in excluding the freight charges in the total sale price, though holding that the freight charges were shown separately in the bill and paid by the buyer and the transactions were f. o. r. destination without considering the terms of the contract or transaction between the parties. If as per terms of the contract or transaction, the delivery was complete when the goods were loaded on railway and thereafter the risk of transit was of purchaser then the freight cannot be included in the sale price but in case the seller was responsible for the risk of transportation up to the destination (railway station), then the sale price was includible with the freight charges. 20. The question referred is accordingly answered.
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2006 (10) TMI 377 - ANDHRA PRADESH HIGH COURT
Works contract - the contractor promises to carry out some obligations like the construction of building, fabrication of machinery etc in consideration of the employer promising to pay a certain amount in cash or in the form of some other valuable consideration.
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2006 (10) TMI 376 - CESTAT, BANGALORE
Stay/Dispensation of predeposit – Valuation ... ... ... ... ..... e of M/s. Alathur Agencies, in Appeal No. ST/196/2006, this Bench has granted waiver of pre-deposit of the amount and stay of the recovery. He prays for waiver of pre-deposit in the matter also as the demand is not sustainable in law. 2. emsp Heard the learned DR who opposes the prayer of the appellant. 3. emsp On a careful consideration of the matter, prima facie we find that the appellants are not required to bear the charges of principal discharging his rental, telephone charges, salary of the employees, transportation charges etc. In a similar case, the waiver of pre-deposit has been granted by this Bench in the case of M/s. Alathur Agencies, in Appeal No. ST/196/2006. Therefore the stay application is allowed by granting waiver of pre-deposit of the amount and staying its recovery till the disposal of the appeal. The appeal to come up for final hearing along with the appeal No. ST/196/2006 of M/s. Alathur Agencies, in its turn. (Pronounced and dictated in the open court)
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2006 (10) TMI 375 - CESTAT, CHENNAI
Appeal to Appellate Tribunal - Restoration of ... ... ... ... ..... n of the Central Excise Act, shall be heard by a Bench consisting of the same Members who heard the appeal and passed final order. This very Bench had passed Final Order No. 744/07 ibid and, therefore, the purpose of Rule 31A stands served. The question now is whether this application has to be entertained under Section 129B(2) of the Customs Act. The reason stated by the hospital in support of this application is that this Bench did not consider the ldquo substantial grounds rdquo raised in the memo of appeal. After revisiting the grounds of appeal, we find that we considered all the substantial grounds raised therein, and passed the final order as rightly pointed out by learned SDR. Misc. Application No. 592/07 is, therefore, dismissed on merits. 7. emsp If the party has produced the original certified copy of the final order for the purpose of the aforesaid applications, the same may be returned to them upon an application of theirs. (Dictated and pronounced in open court)
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2006 (10) TMI 374 - CESTAT, AHMEDABAD
Demand, confiscation and penalty - DEEC Scheme ... ... ... ... ..... evidence on record, it has to be held that the goods were cleared by the said job workers. Failure of the merchant exporter to export the same in terms of the Customs Notification, may result in denial of duty free imports to them, the said issue is not before us. As such, no observation are being made on the same. 15. emsp In view of our foregoing discussion, we hold that the confirmation of demand of duty against the texturised units or confiscation of goods or imposition of penalty upon them is neither justified nor warranted, the same is accordingly set aside. As regards imposition of penalty on the importers of POY or their representatives imposed under Rule 209A, we find that having set aside the duty liability against the job workers and confiscability of the yarn, the said rule cannot be invoked. As such penalty on them is also set aside. 16. emsp In a nutshell, all the appeals are allowed with consequential relief to the appellants. (Pronounced in Court on 31-1-2007)
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2006 (10) TMI 373 - CESTAT, BANGALORE
Cenvat/Modvat - Reversal of credit ... ... ... ... ..... areful consideration, we notice from the above ratio of the judgments that the assessee is not required to reverse the Cenvat credit availed on the pipes cleared by them on payment of duty. They had carried out certain process as noted supra and added the value addition, on which Cenvat credit was paid. The Revenue wants the assessee to reverse that portion of Cenvat credit or pay the duty, which is contested. As noted from the gist of above judgments, in the first instance there is revenue neutrality and furthermore, the Tribunal has held that Cenvat credit can be availed on the duty paid wires notwithstanding the fact that drawing of wires rods did not amount to manufacture. The same situation has arisen in the present case, therefore, the ratio of the above cited judgments clearly apply to the facts of the case. There is no merit in the impugned order and the same is set aside by allowing the appeal with consequential relief, if any. (Pronounced and dictated in open Court)
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2006 (10) TMI 372 - CESTAT, BANGALORE
Demand - Cenvat/Modvat - Availing of ... ... ... ... ..... on, we find that the issue decided by this Bench in the case of M/s. Hetero Labs Ltd. and Another is identical to the submissions made in the present case vis-a-vis facts alleged. The appellants have reversed 8 Cenvat credit in respect of exempted goods and, therefore, their availment of Modvat credit in respect of duty paying goods is justified. The ground that they had not maintained separate accounts with regard to both the items is not relevant as held by the Tribunal in the cited judgment. The confirmation of demand is not justified in the light of the Tribunal ruling already cited. Respectfully following the same, the impugned order is set aside and appeal allowed with consequential relief, if any. 2. emsp In view of the matter being settled by the above ratio of the judgments in assessee rsquo s own case on the same issue, we do not find any infirmity in the impugned order. The stay application and appeal are therefore dismissed. (Pronounced and dictated in open Court)
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2006 (10) TMI 371 - CESTAT, NEW DELHI
Confiscation of conveyance - Penalty on owner of vehicle used for carrying contraband goods ... ... ... ... ..... Shri Vinod Soni/Shri Akbar Husain had indicated that the current appellant was not aware of the vehicle being used for ferrying the contraband goods from one place to another. In the absence of any direct evidence, it would indicate that the current appellant had no knowledge that the conveyance was used for ferrying goods of smuggled nature and that they are liable for confiscation under Section 111 of Customs Act, 1962 under the circumstances the appellant cannot be visited with penalty under Section 112(b) of the Customs Act, 1962. 8. emsp Accordingly, the penalty imposed on the current appellant under Section 112 of the Customs Act is liable to be set aside and I do so. As regards, the redemption fine imposed on the confiscation of the vehicle, I find that it is excessive and the same is reduced to Rs. 20,000/-. 9. emsp Accordingly, the appeal is allowed partly and impugned order is modified as indicated in the above paragraphs. (Dictated and pronounced in the open court)
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2006 (10) TMI 370 - CESTAT, BANGALORE
Confiscation and penalty - Import of capital goods under EPCG Scheme ... ... ... ... ..... ificate from SBI dt. 7-9-2004 23-2-2001 100000 6. Certificate from SBI dt. 7-9-2004 2-3-2001 100000 Total towards Customs Duty 1075337 7. Challan Redemption fine under protest 1-9-2004 300000 TOTAL 1375337 6.2 emsp We are of the opinion that the amounts already paid by the appellants have to be adjusted against the differential duty after proper scrutiny. The letters from JDGFT also indicate that the Bank Guarantees encashed are to be adjusted towards customs duty. However, we remand the matter to the Adjudicating Authority for scrutiny of the evidences produced by the appellants and adjust the payments already made towards the differential duty demanded. Any amount which is not reconciled should be paid by the appellants. The above direction should be complied within a period of three months from the date of receipt of this order. We allow the appeal by way of remand for adjustment of duty demand from the amount paid by the appellant. (Pronounced in open Court on 31-10-2006)
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2006 (10) TMI 369 - SETTLEMENT COMMISSION, CUSTOMS AND CENTRAL EXCISE,
Settlement of case - Duty liability - Deemed credit ... ... ... ... ..... lue Duty Total duty BED AED 1 Co-operative societies 254400.03 6660436 730563 533065 1263628 2 Exporters 103592.35 4277807 342225 341056 683281 3 Ramraj Group K-15 2336033 64805535 4453370 4207945 8661315 4 Raghavendra Khadi K-60 291853 8388960 542283 658085 1200368 5 K Code series and other codes in folding statement attached with folding expenditure voucher (except K-15 and K-60) 1792905 52256045 4180484 3076210 7256694 6 Khadi - SCMPW 0 0 0 0 0 7 Khadi- MDP 0 0 0 0 0 8 MDP- Polyvastra 1020535 64655816 6084738 5323290 11408028 9 Parties to whom Fabrics processed and-cleared during 1996-97 to 1998-99 (quantity arrived based on the folding charges accounted in general ledgers for 1996-97 to 1998-99) 3943645.33 107131709 5617964 5617964 11235928 9742963.311 308176308 21951627 19757615 41709242 10 SCN dated 2-1-2002 225802.83 11302254 0 0 1808361 11 SCN dated 2-8-2002 428121.83 11727918 0 0 1876467 12 SCN dated 2-5-2003 426037.15 8983229 0 0 1077988 Total Duty Settled 46472058
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2006 (10) TMI 368 - CESTAT, NEW DELHI
Cenvat/Modvat - Inputs ... ... ... ... ..... 3Q(1). Accordingly, interest is also demandable. rdquo 7. emsp A perusal of the record indicates that the appellant have made several attempts to bring to the notice of the Department of the receipt of the goods and loss of invoice and they had also filed a copy of FIR in their communication. Only after waiting for more than four months and having found no response coming from the side of the Department, they have availed the Modvat credit. This fact has already been examined by the Asstt. Commissioner, who is since convinced that the goods have been received and consumed in their unit. Considering the facts and circumstances of the case, I do not find any merit in the observations of the Commissioner (Appeals), particularly because the veracity of receipt and utilization of goods by the appellant has not been questioned by the Department. I, therefore, set aside the order of the learned Commissioner (Appeals) and allow the appeals. (Dictated and pronounced in the open court)
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2006 (10) TMI 367 - CESTAT, CHENNAI
Rectification of mistake ... ... ... ... ..... of grant of proforma credit on inputs to the assessee where the final products were not dutiable. Learned SDR has prayed for amendment in our final order to this effect only. 4. emsp Accordingly, we substitute the following para for para-3 of Final Order No. 1464/2005 dated 2-11-2005 in appeal No. E/400/99 - ldquo After considering the submissions, we find that as the process of doubling/multifolding of yarns undertaken by the assessee during the period of dispute did not amount to lsquo manufacture rsquo and the resulting products (doubled/mulitifolded yarns) were not dutiable, their was no question of availment of proforma credit on inputs by the respondents during such period. The challenge in the Revenue rsquo s appeal against the assessee rsquo s claim for proforma credit succeeds and the appeal is allowed to this extent only. rdquo 5. The application is allowed to the above extent. The final order shall be read as amended herein. (Dictated and pronounced in open Court)
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2006 (10) TMI 366 - CESTAT, NEW DELHI
Refund - Unjust enrichment - incurred a loss - certificate from the Chartered Accountant - HELD THAT:- That the manufactured goods were sold at a loss is not conclusive on the question of passing on of excise duty. Loss making sales can take place in respect of non-excisable goods also. For refund purposes, the only relevant fact is whether the tax paid was being collected from the buyers. Whether a sale price is a profitable price or a loss making price is altogether irrelevant for the purpose of refund. Viewed from this perspective, it is clear that the certificate of the Chartered Accountant does not satisfy the requirement.
It is to be noted that Section 11B of the Central Excise Act makes no distinction in relation to refund, between a private enterprise and a Govt enterprise. Central Excise Act makes no distinction based on the ownership of an enterprise. The judgment of the Hon’ble Karnataka High Court in the case of CCE, Bangalore v. Karnataka State Agro Corn Products Ltd. [2006 (7) TMI 11 - HIGH COURT OF KARNATAKA (BANGALORE)] was in the context of the State Govt. unit producing items and supplying them to State Govt. authorities for free distribution. In the present case, situation is different. The appellant is a commercial enterprise selling its produce to buyers for money.
In the result, the appeal fails and is rejected.
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2006 (10) TMI 365 - CESTAT, CHENNAI
Cenvat/Modvat - Penalty ... ... ... ... ..... t case it is not established credit was taken fraudulently and that inputs received had not been accounted for. In the present appeals, the appellants rsquo challenge is against the imposition of penalty under Rule 173Q and 57-I(4). From the facts of the case narrated in the impugned order I am not able to countenance the finding of the lower appellate authority that the appellants were prevented from taking the credit ab initio. I further observe that the Original authority has imposed penalty under Rule 173Q and Rule 57-I(4) without specifically mentioning the quantum of penalty imposed under each Rule. In the facts and circumstances of the case and in view of the judgement of the Hon rsquo ble Apex Court in the case of Rashtriya Ispat Nigam (supra) and other judicial authorities cited by the Consultant, the combined penalty imposed under Rule 173Q and 57-I(4) are set aside and the appeals are allowed with consequential relief if any. (Dictated and pronounced in open Court)
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2006 (10) TMI 364 - CESTAT, CHENNAI
Customs House Agent - Appeal to Appellate Tribunal - Limitation ... ... ... ... ..... The CHAs are not insignificant cogs in the wheel that moves the machinery of clearance of the goods in India rsquo s trade with the rest of the world. Therefore, a code of conduct has been prescribed for the CHAs to prevent misuse of the system and frauds that can jeopardise the economy and security of the country. Therefore, the punishment meted out to a delinquent CHA who compromised his integrity for consideration and thereby helped smugglers to export red sanders worth Rs. 40 lakhs by acting as their benami, does not, in my opinion, call for interference, further leniency. It is another matter that a vigilant DRI outsmarted them and frustrated their enterprise. I find that the penalty imposed by the lower appellate authority is not excessive and so also the order of the Commissioner as regards suspension of the licence and forfeiture of security deposit. Accordingly, the impugned orders are upheld and both the appeals are dismissed. (Dictated and pronounced in open Court)
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2006 (10) TMI 363 - CESTAT, NEW DELHI
Cenvat/Modvat - Furnace oil ... ... ... ... ..... ich are used by emergency technical staff situated within the factory premises. On merit I find that the appellant have a very strong case and the impugned order denying the Modvat credit is not correct and is liable to be set aside. In the case law of SAIL (supra) cited by the learned D.R., the issue of denial of Modvat credit, the Tribunal, came to the conclusion of denial of credit on the inputs used for the electricity supplied to township based on the fact on the situation of the township. As regards the decision of Oil India Ltd. (supra) relied upon the learned D.R., I find that the same was not considering the denial of Modvat credit. 8. emsp Since I have already held in favour of the appellant on merits, the issue of time-bar, need be gone into in this case. 9. emsp Accordingly, in view of the facts and circumstances as mentioned above, the impugned order is liable to be set aside and I do so. Appeal allowed with consequential relief, if any. (Pronounced on 4-10-2006)
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2006 (10) TMI 362 - CESTAT, MUMBAI
Refund - Unjust enrichment ... ... ... ... ..... s passing on the burden of extra customs duty on the imported material does not arise. Their submissions and the evidence produced are all in support of the clear findings of the Assistant Commissioner sanctioning the refund claim in November, 2003. 5. emsp The direction of the Commissioner (Appeals) for de novo is based on the observation ldquo therefore, there is every possibility of including the duty paid in cost of raw materials and subsequently in cost of construction rdquo . He has not recorded any grounds for his apprehension. 6. emsp In the given facts and circumstances of the case, the order of the Assistant Commissioner dated 25-11-2003 sanctioning the refund is in order. There is no scope or need for interfering with the order of the Assistant Commissioner and unsettle the settled refund. The direction of the Commissioner (Appeals) remanding the issue once again to the original authority is not at all warranted. 7. emsp Appeal is allowed. (Pronounced on 5-10-2006)
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2006 (10) TMI 361 - ITAT AMRITSAR
Charitable or religious trust - Denial of exemption, Income escaping assessment ... ... ... ... ..... considered opinion that the learned CIT(A) was not justified in deleting the additions of Rs. 25 lakhs and Rs. 29 lakhs for the assessment years 1995-96 and 1996-97 by relying on fresh evidence without complying with the provisions of rule 46A and also without taking into account the contravention of provisions of sections 13(1)(c) and 13(1)(d) of the Act. We, therefore, set aside the orders of the CIT(A) and restore the appeals to his file to be decided de novo as per law and after complying with the provisions of rule 46A and also by taking into account the observations made hereinabove. Needless to say that while redeciding the appeals, the learned CIT(A) shall allow adequate opportunity to both the parties. We order accordingly. These grounds of appeals of the revenue are treated as allowed for the assessment years 1995-96 and 1996-97. 21. In the result, while the appeals of the assessee are dismissed, the appeals filed by the revenue are allowed for statistical purposes.
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2006 (10) TMI 360 - ITAT JODHPUR
Method of accounting - Estimation of profit ... ... ... ... ..... person and consequently the proceeding has to abate and the appeal would become null and void. 15. We have heard the rival submissions and perused the evidence on record. 16. The learned Authorised Representative has vehemently submitted that Shri Mangilal died on 28-1-2002 and he has also filed a copy of death certificate on record. We have gone though the various decisions relied by the learned Authorised Representative on this point. It is true that any appeal filed against the dead person is not maintainable in ease if respondent is only one. But in this case, the fact of death of Shri Mangilal, the assessee was brought to the notice of the ITO, only after he had filed appeal before the Tribunal. Therefore, this appeal shall not abate and only would amount to a curable irregularity. The revenue has corrected this mistake by filing the Legal Representatives on record. The title of the appeal is accordingly corrected. 17. In the result, both the appeals are partly allowed.
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