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Showing 361 to 380 of 14810 Records
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2013 (12) TMI 1406
Addition on account of unexplained cash deposit – Agricultural income form land - Held that:- a person can be expected to have a reasonable cash in hand when he is having the bank account - Nothing has been brought on record by either of the parties what was the position of the attempts made by the assessee and what was the standard of the family of the assessee - The agricultural income have been accepted during the year and to that extent the Revenue has allowed the credit to the assessee, while accepting the course of the deposit of Rs.4 lakhs to the extent of Rs.2,10,360 - It cannot be denied that the assessee was not having any opening cash in hand – Partly allowed in favour of the assessee.
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2013 (12) TMI 1405
Deduction u/s 80HHC – Whether loss can be set off against duty drawback received - Held that:- in view of amendment made by Taxation Laws (Amendment) Act, 2005 with retrospective effect from 1.4.1992 by inserting Fifth proviso to section 80HHC(3) - The total turnover of the assessee is export turnover - Assessee is entitled to set off 90% of the incentive received by way of duty draw back against loss in respect of its trading activity - Assessee is entitled to get the deduction u/s.80HHC – Decided in favour of assessee.
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2013 (12) TMI 1404
Cross examination of noticee - Held that:- It is for the Commissioner of Customs (Import) to decide whether to grant cross examination of the persons asked for by the petitioner depending upon the facts and evidence arising for consideration in the case - if an order adverse to the petitioner is passed in the adjudication proceedings, it will be open to the petitioner to raise all available contentions including the fact that the petitioner had made the aforesaid applications dated 21 May 2013 and 26 September 2013 for cross examination, in case the applications are not granted.
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2013 (12) TMI 1403
Duty demand - Exemption from duty - Whether the goods in question, imported by the petitioner, under the Bill of Entry No. 7048716, dated 8-6-2012, would fall under the category of Secondary and Defective Galvanized Coils, requiring the certification from the Bureau of Indian Standards, New Delhi, for the levying of Customs duty - Held that:- issue could be resolved, only after the samples of the goods imported by the petitioner are tested by the Bureau of Indian Standards, New Delhi. The samples of the goods, after being tested, may be certified, as to their classification, based on which customs duty would be levied by the authorities concerned. The claim of the petitioner that the goods in question would fall under the category of ‘Scrap’ may also be considered, after the samples of the goods in question are tested by the Bureau of Indian Standards, New Delhi - respondents are directed to send samples of the goods imported by the petitioner, for testing and certification by the Bureau of Indian Standards, New Delhi, to enable the respondents to classify the goods, for the levying of customs duty and for their release. Such process shall be completed by the respondents, within a period of four weeks from the date of receipt of a copy of this order. Thereafter, the goods in question shall be assessed and released - Decided in favour of assessee.
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2013 (12) TMI 1402
Waiver of pre-deposit - Duty demand - Import of certain goods under the advance licence without payment of duty - Denial of the benefit of advance licence obtained - Held that:- as the advance licence under which the goods were imported by the applicant is obtained by submitting forged documents. Therefore it is not a case for waiver of pre-deposit of duty and interest. The applicant is directed to deposit the amount of duty along with interest within a period of eight weeks. On deposit of the above mentioned amount, the pre-deposit of the penalty is waived and recovery of the same is stayed during the pendency of the appeal - Conditional stay granted.
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2013 (12) TMI 1401
Denial of refund claim of customs duty - Import of copper concentrate - Appellant filed refund claim of 2% education cess paid by them on account of basic customs duty, which was debited through D.E.P.B. scrip vide their refund claim dated 30-12-2005 - Held that:- assessments were originally provisional and were finalised subsequently. As such, admittedly, their was an assessment order involving lis between the appellant and the Revenue. The said lis was decided in favour of the Revenue by the final assessment order. Admittedly, the said assessment order having not been challenged by the appellant - Following decision of Priya Blue Industries Ltd. v. Commissioner of Customs (Preventive) [2004 (9) TMI 105 - SUPREME COURT OF INDIA] - Decided against assessee.
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2013 (12) TMI 1400
Waiver of pre-deposit of duty - Exemption from Basic Customs Duty and CVD on the goods - Held that:- duty has been paid by making debit entry in the DEPB Scrip. Hence, prima facie we find no merit in the applicant’s case the goods in question are exempted from payment of duty therefore we find no ground to waive the pre-deposit of education cess in respect of duty paid on the goods in question - Decided against assessee.
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2013 (12) TMI 1399
Waiver of Pre-deposit – Held that:- Following Bharati Tele Ventures Limited Vs. Commissioner of Central Excise, Pune-III [2010 (11) TMI 77 - BOMBAY HIGH COURT] - Pre-deposits waived till the disposal and the matter needs to be decided on merit – Stay granted.
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2013 (12) TMI 1398
Goods detained because of non-payment of duty - Manner of payment of duty under Rule 8(3A) - Whether the petitioner was correct in making use of the Cenvat credit for the purpose of discharging the duty liability – Held that:- There is no question of invoking the Cenvat Credit Rules, 2004 in its entirety except for understanding the meaning of the term ‘duty’ or ‘duty of excise’ - the rigour of Section 8(3A) operates notwithstanding anything contained in sub-rule (1) and (4) of Rule 3 of Cenvat Credit Rules - Sub-rule 4(b) of Cenvat Credit Rules permits utilisation of Cenvat credit for payment of duty of excise on any final product - This provision makes the position very clear that Cenvat credit cannot be used as a matter of right for payment of duty of excise, in case the assessee defaults in payment of duty before the cut off period under Rule 8(3A) of Central Excise Rules, 2002.
The purpose of explanation that the expression ‘duty’ or ‘duty of excise’ shall also include the amount payable in terms of the Cenvat Credit Rules, 2004, would not amount to a permission for utilising the Cenvat credit for paying the excise duty - Rule 8(3A) is very specific when it provided that the entire duty should be paid without utilising the Cenvat credit - There is no question of utilising the explanation for the purpose of using the Cenvat credit for paying the outstanding duty amount – Thus, the assessee is liable to pay the excise duty in accordance with the Central Excise Rules, 2002 with interest for the belated period and there is no provision for utilising the Cenvat credit for such belated payment - The petitioner is liable to pay the entire duty amount with interest without utilising the Cenvat credit - decided against Petitioner.
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2013 (12) TMI 1397
Availment of benefit of Cenvat credit - Inputs/capital goods used for manufacture and clearance of dutiable and exempted finished goods – Held that:- The remand had been made to the Tribunal and in the order of remand, it was also directed to consider the provision of section 11AC and the Tribunal had specifically noted that none of the two authorities below had availed any option to the assessee to pay duty demand with interest and penalty of 25% of the duty within 30 days from the date of adjudication - the Tribunal in its order maintained that the case of the assessee is squarely covered by the explanation to Section 11AC.
The duty determined under Section 11AC (2) was subsequent to the year 2000 - the case would be covered by the explanation to Section 11AC of the Central Excise Act - When no option was given by any of the adjudicating authorities after determination for payment of duty, interest and penalty of 25% of the duty – Decided against Revenue.
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2013 (12) TMI 1396
Extension of stay – Held that:- ITAT cannot extend stay orders u/s 35C (2A) or Section 129B of the Central Excise Act, 1944 and Customs Act, 1962 – ITAT cannot extend the stay orders which have been granted by the Tribunal due to the specific provisions of Section 254 (2A) of the Income Tax Act - Following JP. Transformers Versus CCE, Kanpur [2013 (8) TMI 709 - CESTAT NEW DELHI] - Tribunal has got an authority to extend the stay orders which have been passed – thus, extension for stay granted – decided in favour of assessee.
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2013 (12) TMI 1395
Clandestine clearance of goods – PCC poles cleared without paying the duty – Held that:- The goods which require testing and get consumed during such testing cannot be held to be marketable and hence excisable and duty not required to be paid on the said poles – Relying upon Collector of Central Excise v. M/s. Sudershan Beopar Co. Ltd [1992 (8) TMI 190 - CEGAT, NEW DELHI] - testing of PCC Poles is essential for making the goods marketable and without such testing the goods cannot be sold - no duty is required to be paid in respect of such Poles which get utilized in the factory for testing purposes - quality control test in respect of cement concrete Poles, being a mandatory requirement before the goods produced could be considered as fully manufactured are not required to discharge duty liability when such cement concrete Poles get destroyed.
Failure to maintain records – Held that:- The appellant have duly entered such PCC Poles in their daily stock account - If there was any mala fide intention on the part of the appellant to clear the said poles without payment of duty, the same would not have been entered by them in the statutory records - no duty liability can be fastened on the appellants in respect of such damage/broken poles - onus to prove the clandestine clearance is on the Revenue, which is required to be discharged by production of sufficient evidence – the entire case have been made out on the basis of non-production of records in respect of broken poles – Decided in favour of Assessee.
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2013 (12) TMI 1394
Classification of Goods - Chyawanprash Awaletha to be classified under Chapter Sub- Heading No.3003.30 of CETA, 1985 as Ayurvedic medicaments OR under Chapter Heading 2107.91 or 2107.90 of CETA,1985 as other edible preparations - Waiver of Pre-deposit – Penalty under Rule 173Q of erstwhile Central Excise Rules, 1944 – Held that:- Prima facie, there was force in the contention in the argument that the same products of the assessee manufactured at other locations have been assessed as Ayurvedic medicaments by other Commissionerates - uniformity and certainty is an important cannon of Taxation - same goods be classified uniformly irrespective of its place of manufacture – Thus, the applicant could able to make out a prima facie case for total waiver of amount – Pre-deposits waived till the disposal – Stay granted.
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2013 (12) TMI 1393
Availment of Cenvat credit – Goods used in the factory as inputs or capital goods – Waiver of Pre-deposit – Held that:- The period involved in the present case is from April, 2005 to June, 2009 and major portion of the demand has been raised beyond the normal period of limitation - The Tribunal has been taking a consistent view by allowing the stay petition un-conditionally in those cases, where cenvat credit is availed on the angles, channels, beams etc. used in the factory as capital goods or in the manufacture of capital goods – Following Vandana Global Ltd. Vs. CC Ex., Raipur [2010 (4) TMI 133 - CESTAT, NEW DELHI (LB)]- Pre-deposit directed for the normal period – Assessee is directed to deposit Rupees Seven lakhs as pre-deposit – upon such submission rest of the duty to be stayed till the disposal – Partial stay granted.
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2013 (12) TMI 1392
Penalty u/s 11AC of Central Excise Act r.w. Rule 15 of the Cenvat Credit Rules and Rule 25 of the Central Excise Rules – Reversal under Rule 3(5) of Cenvat Credit Rules, 2004 - Held that:-Commissioner has imposed penalty on the ground simplicitor that there has been procedural and technical violation of the Rules, even though he has held that there was no intention on the part of the assessee to do so – the detection of mistake was by the assessee himself - penal provisions are relatable to mala fide intention of the assessee, who is being penalized - As such it has to be first seen as to whether the provisions of Section 11AC are invocable or not – Following Union of India v. Rajasthan Spinning & Weaving Mills [2009 (5) TMI 15 - SUPREME COURT OF INDIA] - Section 11AC of Central Excise Act is not applicable to every case of non-payment or short-payment of duty - Conditions mentioned in Section 11AC should exist for imposition of penalty thereunder - the Commissioner has himself held that there is no mala fide on the part of assessee, thus, there was no reason to uphold the imposition of penalty upon the appellant – penalty imposed upon the assessee set aside – Decided in favour of Assessee.
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2013 (12) TMI 1391
Penalty u/s 11AC - Held that:- The assessee's intention was not to evade payment of duty as the assessee extended all possible help to finalise the issue - The appellants supplied the computerized ledger and paid the amount at the spot along with interest - The clearing of duty and part of interest prior to the completion of the proceedings pointed out their bona fide intention - As there was no intention to evade payment of duty by way of suppression of facts or misrepresentation penalty u/s 11AC cannot be imposed - Decided in favour of assessee.
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2013 (12) TMI 1390
Wrong credit of duty paid on inputs - Held that:- The supplier has wrongly paid the duty - The recipient of any inputs have no control over the supplier regarding whether they should pay the duty under a particular heading or not - The circumstances under which the supplier paid the duty is not forthcoming as no notice has been issued to them. The officers incharge of the manufacturing unit who may receive materials from several units cannot be allowed jurisdiction to determine whether each of the suppliers have rightly paid the excise duty or not - The denial of credit to the recipient of the materials on the ground that the supplier need not have paid the duty has been made without jurisdiction - Decided against Revenue.
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2013 (12) TMI 1389
Penalty on clandestine removal of goods - Held that:- Shortage of goods admitted to have been cleared from the factory without preparing Central Excise invoices and payment of duty - During investigation no question has been asked which could reveal the knowledge or even intention on the part of the authorised signatory - Penalty on a person cannot be imposed on assumption and presumption - The department has chosen to pursue vigorously such a case without disclosing how the finding of facts by the Commissioner (Appeals) is incorrect - Decided against Revenue.
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2013 (12) TMI 1388
Classification of goods - Shunt to classified under chapter heading CETH 9030 or CETH 8533 - Held that:- Shunt is an essential part of ammeter, used for measuring current - An ammeter is incomplete without the shunt - Shunts are solely and principally used with the ammeter, for which they are calibrated - Shunts are not general purpose parts and are not having any other function except to measure the current in DC circuits, along with the ammeter - The shunt consists of copper wire which works parallel to the ammeter Copper wire is the least resistant to the electricity, and therefore a best conductor - The role of resistor is to provide resistance - If resistance is required to be provided naturally it cannot be made of copper wire - The definition of ‘shunts’ as laid down in the Concise Chemical & Technical Dictionary reads as “low resistance connected in parallel with electrical mechanism such as ammeter coils to prevent too large a flow of current through the latter.” The very words “low resistance” in para would show that while the role of the shunt is to prevent too much of a flow of current which is not done by providing resistance at all - The very fact that copper wire is used the words “low resistance connected” -As per the product description provided it cannot be considered as a resistant - Decided against Revenue.
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2013 (12) TMI 1387
Recalling of ex-parte order of Tribunal – Held that:- The case was posted for hearing on 16-9-2010, it was the fourth occasion and the appellant had already been given adjournment three times previously - The request for further adjournment was denied - No sufficient cause was shown for the absence on 16-9-2010 either in writing or through a properly authorised Counsel – Decided against assessee.
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