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Showing 321 to 340 of 14810 Records
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2013 (12) TMI 1446
What is the procedure to be followed for recovery of dues payable under the Tripura Sales Tax Act, 1976 after the repeal thereof and the enforcement of the Tripura Value Added Tax Act, 2004 especially in a case where the proceedings for assessment are started after the TVAT Act came into force - Held that:- A bare perusal of sub-section (1) of section 89 shows that the Tripura Sales Tax Act, 1976 and Tripura Additional Sales Tax Act, 1990 have been repealed with effect from April 27, 2005, the date of commencement of the TVAT Act. The proviso to the section, however, clearly lays down that despite the repeal of the aforesaid Acts, any right, title, obligations or liabilities acquired, accrued or incurred under the previous Acts shall continue to be valid notwithstanding the repeal of the Act. - Sub-section (3) of section 89 of the Act also makes it clear that all arrears of tax, interest, penalty, fee or other amount due as on April 27, 2005 whether assessed or levied before the said date may be recovered, as if such tax, penalty, interest, fee or other amount is levied under the new Act. The appellate and revisional authorities shall also be as per the TVAT Act. Therefore, the intention of the Legislature is absolutely clear that though the recovery may be made as per the terms of the repealed Acts, the procedure for recovery and adjudication has to be that provided under the TVAT Act.
Therefore, it is only the officers under the TVAT Act who had the jurisdiction to exercise the powers under section 89(2)(b) of the Act and the order passed against the assessee is, therefore, without jurisdiction and it is accordingly set aside. - Decided in favour of assessee.
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2013 (12) TMI 1445
Attachment of the petitioner' current account maintained with the second respondent-Bank as well as withdrawal of a sum of ₹ 6,07,682/- from that account - Held that:- On perusal of the material on record, it is noted that the re-assessment order is passed in respect of M/s. Ambience Projects, which is a partnership firm. That order has no nexus to the petitioner firm and merely because one of the partners in M/s.Ambience Projects is a partner in the petitioner-firm also would not enable the Department to proceed against the petitioner partnership firm to the extent of withdrawing certain amounts from its current account. If recoveries have to be made by the Department, it should be from M/s.Ambience Projects or its partners. If any recovery has to be made from Sri.Hemanshu M.Shah who is one of the partners in M/s.Ambience Projects in his personal capacity then in that regard the details regarding his assets had to be known and hence, a notice could have been issued to the petitioner to furnish the details. - A coercive action against the petitioner who is stranger to the re-assessment proceedings would not serve the purpose at all. In that view of the matter, the attachment of the current account of the petitioner is illegal. - Decided in favour of assessee.
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2013 (12) TMI 1444
Levy of penalty - lorry driver obtained the endorsement from the RTO on the invoices, he has not obtained any endorsement from the check-post of Karnataka - Held that:- When it is clear from the material on record that the documents carried in the lorry was not tendered at any check-post in Tamil Nadu en-route to Karnataka and in Karnataka also it was not tendered at the check-post, the motive behind the same is very clear. The assessing authority rightly held that it is a clear case of non-compliance of the mandatory requirements of law and therefore, it attracts penalty. The first appellate authority was not justified in setting aside the said order solely on the ground that there was no liability of paying tax. The Additional Commissioner of Commercial Taxes, invoked suo motu proceedings and set aside the appeal order and restored the order of penalty passed by the assessing authority. We do not find any justification to interfere with the order. - Decided against assessee.
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2013 (12) TMI 1443
Whether jobwork carried out by an exempted unit can or cannot be included while calculating production for the purpose of rule 28A(11)(a)(i) of the Haryana General Sales Tax Rules, 1975 - Held that:- After considering the arguments and in essence recording conclusions, the Tribunal proceeded to abdicate its powers on an erroneous premise that it has no jurisdiction to opine whether an order passed by this court is no longer good law in view of the subsequent judgments of the honourable Supreme Court. The Tribunal was apparently unaware that law laid down by the honourable Supreme Court cannot be ignored merely because a Division Bench of a High Court may or may not have taken a contrary view. The Supreme Court of India sits at the pinnacle of the system of administration of justice, and its orders prevail over all other orders. A Tribunal, exercising judicial or quasi-judicial powers cannot refuse to consider judgments of the honourable Supreme Court by holding that it is for the High Court to decide whether its opinion subsists. The Tribunal, in our considered opinion, while recording that it has no power to consider the Supreme Court's judgments viz-a-viz a Division Bench judgment of this court, has misdirected itself and failed to comprehend the nature of its jurisdiction as a quasi-judicial authority. - Decided in favour of assessee.
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2013 (12) TMI 1442
Restoration of appeal - Non compliance of pre deposit order - Assessee has deposited 25% of deposit - Held that:- While deprecating this practice of filing repeated applications for rectification and appeals with the sole object of seeking deferment of payment of tax, but cannot ignore the fact that the petitioner has deposited the amount due though after a great degree of delay and, therefore, set aside the impugned order dated July 22, 2013 and remit the matter to the Deputy Excise and Taxation Commissioner to decide, the appeal on merits. The petitioner shall, however be liable to pay ₹ 15,000 as costs for delay and unnecessary wastage of the time of various Tribunals and courts, to be deposited with the Punjab and Haryana High Court Legal Services Committee within one month - Petition disposed of.
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2013 (12) TMI 1441
Applicable rate of tax of concrete cover blocks - Whether the cement block manufactured by the appellant is covered by entry 10(3)(a) of SRO No. 82/2006 taxable at the rate of 12.5 per cent. or does it come under entry 18(5) of the Third Schedule, attracting only four per cent. tax. - Held that:- Entry 18 relates to hollow bricks and other type of bricks, roofing tiles, etc., and specific entries are provided for bricks, blocks, therapeutic goods, etc. The learned senior counsel appearing for the appellant specifically referred to cement bricks, including hollow bricks which is entry 18(5). Hollow bricks are apparently used for constructing walls. The entry also takes care of blocks, cement bricks. Cement bricks again can be used for constructing walls and this product can be termed as a cement brick, though not used for construction of walls. It is used for the purpose of providing a space in between steel structure and the shutter. When flooring tiles are included in the entry, we are of the view that the item can possibly come under entry 18(5) of the Third Schedule. - Decided in favour of assessee.
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2013 (12) TMI 1440
Exemption from Central sales tax - Exemption notification 2000 - Petitioner claims that even after the amendment Act, 2003, the exemption under the Central Sales Tax Act, 1956 which was granted to the industries by way of the Incentive Act, 2000 read with Exemption Notification, 2000 and State Scheme of Incentives for Industries, 2003 continued to be in operation - Enforcement of promissory estoppel - After perusing the Industrial Policy of 1996 of the Government of Sikkim notified in the web-site of the Department of Commerce and Industries, under the caption “Concession on State and Central Sales Tax” wherein it was provided that “Central and State sales tax shall be exempted for a period of 9 (nine) years, from the date of commencement of actual commercial production” - Held that:- The Lease Deed produced by the petitioner itself supports the contention of the Government that the petitioner’s industry was established only on 21.09.2001. Annexure P-6 Certificate dated 06.07.2004 produced by the petitioner itself will show that the petitioner-company started commercial production from 09.10.2003. We do not find any difficulty to accept the argument of learned Additional Advocate General as the petitioner’s industry was established after the repeal of Industrial Policy, 1996 and during the currency of the SIPI Act, 2000. The petitioner-company cannot aspire for the benefit and concession extended to the entrepreneurs under the policy of 1996.
Under the notification dated 03.10.2000 concessions of State Excise Duty has been granted for 3 (three) years and for State Sales Tax for 5 (five) years for both existing and new industrial units as classified in paragraph 1 of the above notification. The argument of the learned Addl. Advocate General that the petitioner-company will be entitled only benefits and concessions granted under Annexure R-3 notification is sound and only to be accepted.
On a plain reading of the clauses it is clear that the exemption and benefit in the above notification is provided only in respect of State Excise Duty and State Sales Tax. If Sales Tax is interpreted to mean to include Central Sales Tax then the rate of exemption would be much higher than the CST levied. The rate of CST is only 4% whereas, exemption under Clause 3 for Sales Tax is given at 15% and 10%. The position, therefore, is quite clear that the word “Excise Duty and Sales Tax” used in the above notification mean only the State Excise Duty and State Sales Tax. According to us the position is re-clarified by the provisions contained in sub-section (3) of Section 12 (a) of the SIPI Act, 2000, wherein it is provided that the exemption of Central Sales Tax and Central Excise Duty will be governed by various notifications /orders issued by the Government of India in this regard.
It is clear from the materials placed on record before us that the three industries were established prior to 06.07.2000 and during the currency of 1996 Industrial Policy. True, the commencing of commercial production by some of these units may have been later and during the currency of SIPI Act, 2000. What is relevant for getting eligibility is establishment of the unit and unlike the petitioner’s unit, all the three units were established during the currency of Industrial Policy, 1996. Thus, the allegation that the petitioner has discriminated against vis-a-vis the three companies is without basis.
Petitioner has efficacious alternative remedy available in the form of appeal as provided under Section 20 of the CST Act, 1956, the petitioner is not entitled to seek the above relief under Article 226 of the Constitution of India. We also notice in this context that the petitioner-company has already filed a petition for review before the assessing authority and therefore the petitioner cannot aspire for any order of quashment of the assessment order - Decided against assessee.
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2013 (12) TMI 1439
Liability to Sales tax - supply of printed materials - Whether the Sales Tax Appellate Tribunal is right in proceeding on the footing that since the printed materials supplied by the assessee have no commercial value in the sense that they cannot be marketed in the open market, the impugned transactions were purely ones of work and labour and not liable to tax - Held that:- what was supplied by the dealer was only labels on which certain particulars had been printed to suit the requirements of a particular customer. This Court observed that the labels by themselves could not really be sold in the open market and they had no use since the same were not of any use in the open market. This Court pointed out that on the contractor undertaking to do the work for the particular customer therein, the labels would not necessarily be deemed to sell the materials the fact that in the execution of the contract for work some materials were used and the property / goods so used, passed to the other party would not by itself make the transaction a sale. In other words, the dominant intention was not for sale of labels. Hence, the transaction could not be treated as deemed sale for the purpose of assessing the turnover - Decided against Revenue.
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2013 (12) TMI 1438
Demand of service tax - Valuation of taxable service - Held that:- all the service charges are leviable on gross amount charged by the service provider, the service tax has to be paid on such entire gross amount. There cannot be any bifurcation of such gross amount and that the challenge to the valuation of taxable service based on any clarificatory letter issued by the Ministry of Finance, Government of India on the face of the clear provisions of charging section under Section 66 and the valuation of taxable service under Section 67, is not sustainable - value of taxable service includes gross amount chargeable to service tax and which also includes wages and the amount paid towards provident fund and employees state insurance realised from the customers - Decided against assessee.
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2013 (12) TMI 1437
Support services of business or commerce- The applicants filed this application for waiver of predeposit of service tax and penalties. Held that- the applicants only given on\hire one crane. Therefore, prima-facie, merit in the contention of the applicants and predeposit of amounts of service tax, interest and penalties are waived and recovery of the same is stayed during pendency of the appeal - Following decision of INDUSTRIAL SERVICES (GASES) Versus COMMISSIONER OF C. EX., HALDIA [2010 (4) TMI 339 - CESTAT, KOLKATA] - Prima facie case in favour of assessee - Stay granted.
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2013 (12) TMI 1436
Convention service - Rent-a-cab Service used for conveyance of employees – Waiver of Pre-deposit - ‘Rent-a-cab service’ was partly used for transportation of food from the Hosur unit of the company to the appellant-unit - no break-up of the CENVAT credit availed on ‘Rent-a-cab service’ is available on record and hence there is no way to ascertain the amount of CENVAT credit attributable to the transportation of food - the appellant was entitled to take CENVAT credit of the service tax paid on the convention service by the service provider inasmuch as the very definition of ‘input service’ included ‘coaching and training’ - Prima facie view in favour of the appellant in respect of ‘convention service’ as also in respect of ‘rent-a-cab service’ to the extent this service was used for conveyance of employees – appellant directed to deposit Rupees Twenty thousand as pre-deposit – upon such submission rest of the duty to be waived till the disposal – Partial stay granted.
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2013 (12) TMI 1435
Stay application - Demand of service tax - Construction of residential complex - Acitivity done by own labor - Held that:- Board’s clarification is about a person owning land who is constructing residential complex, using labour engaged by him because in such a situation there is no separate service provider and service receiver. If the person having land engages the services of another contractor for getting the complex constructed the contractor provides service of construction of residential complex to the land owner. In this case, the land is registered in the name of prospective buyers of residential units and thereafter the complex is constructed. So there is a service provided to the land owners by the applicant and the position is legally clear and made clear in the circular referred to by the applicant - Following decision of LCS City Makers Pvt. Ltd. Vs CST Chennai [2012 (6) TMI 363 - CESTAT, CHENNAI] - Prima facie case not in favour of assessee - Stay granted partly.
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2013 (12) TMI 1434
Stay Application - Free service provided during the warranty period - Benefit of exemption notification No.12/03-ST - Held that:- The entire dispute arises out of the fact that this service being provided is commonly referred to in this industry as free service. This is not free service at all. This is rendered at a cost both for the services and for the parts which are paid by the manufacturer to the appellant. However, the owner of vehicle is one of the beneficiaries of the activity. The vehicle manufacturer is also a beneficiary because such services enhances his brand value and the reputation of his goods and customer satisfaction which helps in further business. So the manufacturer pays for it and naturally it is a service provided to the manufacturer of vehicles. Similarly the person who pays for the parts is the person to whom goods are sold. Therefore, we are of the view that there is sale of goods in this case and the benefit of exemption notification No.12/03-ST dt. 20.6.2003 is prima facie available to the applicant - Prima facie case in favour of assessee - Stay granted.
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2013 (12) TMI 1433
Penalty u/s 76 & 78 - Commissioner set aside penalty - Held that:- Section 80 of the Finance Act,1994 provides notwithstanding any contained in Sections 76,77 or 78 of the Act no penalty is imposable on the assessee for any failure referred to in the said provisions if the assessee proves that there was a reasonable cause of the said failure - Respondent had paid the service tax of Rs.1,14,33,254/- for the period in dispute and there was a short payment of only Rs.15,41,427/- That also had been paid before the adjudication order. Appellant also paid the interest. In these circumstances, we find merit in the contention of the Respondents that there was a calculation mistake and there was no intention on the part of the Respondents to evade payment of service tax - Decided against Revenue.
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2013 (12) TMI 1432
Construction service - Construction of canteen building covered under the definition of Input services under Rule 2(1) of Cenvat credit Rules 2004 OR not – Held that:- Canteen can to be considered as integral part of the factory and cannot be considered as outside the factory - the construction service used in constructing the canteens should not be allowed - canteen is an integral part of factory and factory cannot be limited to the manufacturing area alone - Input service includes services used in relation to setting up of the factory as also, for an office relating to such factory - for purpose of definition of the input services as the definition of input services includes not only the factory but also the office relating to such factory - Relying upon Commissioner of Central Excise, Ahmedabad-I Vs. Ferromatik Milacron India ltd. [2010 (4) TMI 649 - GUJARAT HIGH COURT] - The appellant would be eligible to take the input service credit relating to construction services at the material time i.e. July 2005 - The definition of input service has undergone change w.e.f 1.3.2011, the situation may not be the same from that date – Decided in favour of Assessee.
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2013 (12) TMI 1431
Penalty u/s 78 - Waiver of penalty u/s 80 - Repeated failure to discharge service tax liability - Appellant also failed to submit statutory ST-3 returns from April 2008 onwards - Held that:- appellant had collected service tax from the customers but failed to remit the same to the exchequer. The failure on the part of the appellant to discharge the tax liability has taken place several times during the impugned period. Every time the department pointed out the mistake, the appellant used to make good the short-payment in service tax along with interest. It is also a fact that the appellant did not file ST-3 returns within the statutory period prescribed. The argument of financial difficulty raised by the appellant is bereft of any logic. If service tax amount has been collected from the customer, the appellant cannot plead financial difficulty in remitting the same to the exchequer. The argument that the appellant is only a matriculate is also not sufficient reason for non-compliance with the statutory provisions. From the records of the case, it is evident that the appellant was aware of the legal procedures and requirement. The appellant collected the service tax from the customers but failed to remit the same to the exchequer - Therefore, penalty is justified - Decided against assessee.
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2013 (12) TMI 1430
Waiver of pre deposit - Demand of service tax - Held that:- on a rough estimate of the amount involved is the tax amount on the differential value of the freight amount which is about Rs.35 lakhs in the two appeals together we direct the applicant to make a pre-deposit of Rs.7 lakhs within a period of six weeks from today for admission of the appeals - Stay granted partially.
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2013 (12) TMI 1429
Demand of service tax - Receipt of parchee fees - Classification under business auxiliary service - Parchee fees collected from the members engaged in transport business - Held that:- From the scheme and object of the law notified in Gazette aforesaid, it is difficult to construe the appellant to be commercial concern acting in a ‘commercial manner’. The very object of Section 15 of the Act aforesaid was to provide welfare measure without acting as a commercial concern. Accordingly, it is not practicable to direct the appellant to suffer service tax for the impugned period under adjudication for which appeal is allowed - Decided in favour of assessee.
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2013 (12) TMI 1428
Waiver of pre-deposit - Service Tax liability - Renting out of immovable property - SSI exemption as granted by Notification No. 6/2005-S.T., dated 1-3-2005 and amended vide Notification No. 8/2008-S.T., dated 1-3-2008 - Held that:- benefit of SSI exemption Notification No. 6/2005-S.T., dated 1-3-2005 as amended vide Notification No. 8/2008-S.T., dated 1-3-2008, grants the benefit of exemption of Service Tax per year, provided that the assessee has not crossed the threshold limit of rupees ten lakhs in the preceding financial year. In these cases, if the cheques for rent are received individually by all the appellants, it was indicated in the agreement between the individuals for the purpose of renting out of premises to another person so as to make it specific that individually they are renting out the property to a person. On perusal of the said notification, we find that the said notification talks about the aggregate value of the taxable services rendered, should be considered for the purpose of exemption and in this case if individually all the appellants be considered as provider of such service, their aggregate value does not exceed the threshold limit. Prima facie, we find that the appellants have made out a case for waiver of pre-deposit of amounts involved - Stay granted.
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2013 (12) TMI 1427
Abatement of 67% - Works contract - Held that:- There was no scope for classification before the adjudicating authority when there was no issue in that regard. If Revenue’s fresh ground of classification is entertained that shall cause prejudice to the interest of justice when the issue framed against the respondent at adjudication stage was not on that score. Therefore, it is not possible to make a fresh adjudication on a fresh ground at second appeal stage - Decided against Revenue.
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