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Showing 461 to 480 of 14810 Records

• 2013 (12) TMI 1305
  

  Disallowance u/s 14A - Held that:- The provisions of Section 14A are attracted whether or not the shares are held as stock in trade or as investments, even though the provisions of rule 8D(2)(ii) and (iii) cannot be invoked in such a case , and even though the provisions of rule 8D(2)(i) are much narrower in scope than the scope of Section 14A - The matter was restored for fresh adjudication.

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• 2013 (12) TMI 1304
  

  Levy of penalty under section 271(1)(c). - taxability of income in the hands of trust or beneficiary - applicability of provisions of Section 61(1) - Held that:- Following CIT vs. T.A.V. Trust [2003 (3) TMI 39 - KERALA High Court] - By virtue of the provisions of s. 161(1) of the Act income from property received by the trust cannot be treated as income from property in the representative assessment which has to be made on the trustee - In the case of a trust which is having income from business as well as income from house property, by virtue of the provisions of s. 161(1A) of the Act, the income from the business earned by the trust shall be taxed at the maximum marginal rate treating it as a single unit and the income from house property has to be assessed in the hands of the trustee in the manner provided in s. 161(1) of the Act - The trust is a representative assessee and to that extent of income tax leviable on the incomes of the beneficiaries, assessment can be made either in the hands of the respective beneficiaries or in the hands of the assessee to that extent only, indicating the tax liability of respective beneficiaries by consolidated order - The Assessing Officer has not followed either of the procedures but still contending to hold that the entire income received on the fixed deposit is taxable in the hands of the assessee- trust, violating the directions of the learned CIT(A) and also violating the provisions of the Act - The orders of AO levying penalty is not only bad in law but also on facts - Penalty cannot be levied - Decided in favour of assessee.

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• 2013 (12) TMI 1303
  

  Disallowance of crane hiring charges, depreciation on machinery and other payment - Held that:- The assessee has made payments by way of cheques and hence they should have been encashed through some bank accounts only - The examination of the payees bank accounts will throw light about the genuineness of the transactions - The tax authorities have taken adverse view on the basis of enquiries conducted without examining the payees bank accounts - The statement given by Shri N Mohammed has been relied upon without confronting the same to the assessee - The enquiries conducted by the assessing officer are incomplete - The matter was restored for fresh adjudication.

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• 2013 (12) TMI 1302
  

  Taxability of amount collected from members of Housing Society - Exemption of share transfer fee, nominee occupancy charges and non-refundable security deposit - Held that:- Following assessee's own case for the A.Y. 2007-08 - All these itmes whether received from out coming or incoming members is not liable to tax because of principle of mutuality - Decided against Revenue.

  Interest Income - Held that:- The principle of mutuality relates to the notion that a person cannot make a profit from himself - The concept of mutuality has been extended to defined groups of people who contribute to a common fund, controlled by the group, for a common benefit - Any amount surplus to that needed to pursue the common purpose is said to be simply an increase of the common fund and as such neither considered income nor taxable - The issue was restored for adjudication.

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• 2013 (12) TMI 1301
  

  Confiscation of goods - Penalty u/s 112 - Conditional release of goods - Duty free import of goods - Notification No. 203/92 - Held that:- goods were cleared for home consumption under Section 47 of the Customs Act without payment of duty subject to fulfilment of the conditions set out in the exemption notification - post clearance conditions of the exemption notification have been violated. Therefore, the goods have been confiscated under Section 110(o) with an option to redeem the same by imposing fine in lieu of confiscation under Section 125(1). In such a case, the duty becomes payable on confiscation and in terms of Section 125(2) the assessee who is admittedly the owner of the goods is liable to discharge the duty liability on imposition of fine in lieu of confiscation, even if the assessee chooses not to redeem the confiscated goods.

  duty-free imported materials were cleared under Advance Licence accompanied with DEEC Book vide exemption Notification No. 203/92 and 204/92. DEEC book is part of the exemption notification, wherein the information would be recorded for monitoring the clearance of duty free import material, export of resultant product, name and address of the factories and its ancillaries when resultant products are manufactured and details of materials on which condition of notification are not complied with etc. It is pertinent to note that there is a time limit prescribed for fulfillment of export obligation in Advance Licences - penalty imposed under Section 114A and demand of interest under Section 28AB are liable to be set aside. But, penalty to the extent of 50% of the duty demanded is liable to be imposed under Section 112 of the Act on Appellant.

  Goods were released to the appellant on an application made by it and on the appellant executing a bond. Under these circumstances if subsequently it is found that the import was not valid or that there was any other irregularity which would entitle the customs authorities to confiscate the said goods, then the mere fact that the goods were released on the bond being executed, would not take away the power of the customs authorities to levy redemption fine - Decided partly in favour of assessee.

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• 2013 (12) TMI 1300
  

  Condonation of delay - Delay of 1234 days - Non delivery of order - Held that:- Merely explaining the revision remedy was sought, appellant is not absolved of its obligation to adhere to the limitation prescribed by law. Laxity does not add to longevity to a remedy which exhaust with the passage of time following doctrine of resjudicate. Casual approach of appellant shows its scanty regard to law. Had there been bonofide, the appellant would have pursued its right with the Previsional Authority. But that has also not come to record. No vigilant attitude of appellant is visible from record. Length of deliberate delay cripples a litigant to be successful applicant without a bonafide cause. Painting a gloomy picture, a litigant causes prejudice to other side and that is one of the ways of abuse of process of law. When a litigant prefers to postpone his remedial measure without being vigilant and unmindful of the consequence of delay and neither before limitation nor after that, he is conscious of his right of remedy within limitation, he forgoes his remedy with the lapse of time. An indolent without being vigilant, losses his right. A man of prudence and diligence does not prefer to prejudice his interest seeking remedy of appeal belatedly. While a vigilant only gets leniency for condonation of delay, an indolent fails to get such consideration - there is no ground in condonation of delay that too a length of 1234 days in absence of bonafide - Condonation denied.

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• 2013 (12) TMI 1299
  

  Mis declaration of goods - Goods declared as spare parts - Notification No. 29/99-Cus dated 28.2.99 - Whether the duty paid by the assessee at the time of import of goods stand collected by them from their buyers so as to make themselves unjustly enriched - Held that:- importer was entitled to the benefit of notification and was entitled to duty free clearance. However, they paid the duty under protest for clearance of the goods. The claim for refund of duty paid by the appellant under protest stand rejected by the lower authorities on the ground of unjust enrichment - Merely because the importers, in the table produced before the Commissioner (Appeals) has shown the landed cost of CD pick up lense unit as Rs. 109.49 which is inclusive of higher duty paid by them, does not mean that customs duty paid by them at the time of clearance of said pick up lense unit makes an integral component of their final product, which stand sold at the price lower than the manufacturing cost which stands arrived at by then by including the higher landed cost of the imported goods. The appellants have only tried to establish that after the higher duty paid cost of CD pick up lense is added in the manufacturing cost, the same comes to Rs.123/- which is admittedly higher than the unit sale price of the goods - If that be so, the differential duty paid on the imported goods i.e. CD pick up lense unit cannot be said to have been collected by the assessee from their customers - appellant has not recovered said amount from their customers and as such, the refund is not hit by provisions of unjust enrichment - Decided in favour of assessee.

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• 2013 (12) TMI 1298
  

  Change of cause title - Appeal filed against main Respondent only - Held that:- by filing this application the appellants have chosen a route to implead the respondents by this application as respondents to their main appeal which is not permissible in law as they have not filed any appeal against the intended respondents. Moreover, they have filed the main appeal against the main appellant, i.e., M/s. Chokhani Silk Mills Pvt. Ltd., in April, 2008 and they have made this application in November, 2010 - no appeal has been filed against the intended respondents, which are intended to be impleaded as respondents - change of cause title is not permissible - Following decision of CCE, Mangalore v. L.P. Shenoy [2003 (2) TMI 138 - CEGAT, BANGALORE] - Decided against Revenue.

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• 2013 (12) TMI 1297
  

  Classification of the goods under CTH 5806.10 or CTH 5806.32 - Import of manmade fabrics - Held that:- in absence of technical test report, nothing can be presumed against the respondent - In absence of any appeal by Revenue and no information in that regard given to us, following the judicial discipline in Viva International v. CC, Delhi [2004 (10) TMI 495 - CESTAT, NEW DELHI] - Decided against Revenue.

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• 2013 (12) TMI 1296
  

  Denial of SSI Exemption Notification No. 8/2003 – Goods to be treated as branded shoes – Waiver of Pre-deposit – Held that:- The applicant had exceeded the exemption limit of Rs.100 Lakh prescribed under the Notification - the entire amount of duty for the shoes had been discharged, which has not been disputed by the Revenue - since the amount of duty involved on the goods were already paid, thus the Applicant could 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 1295
  

  Clandestine Removal of Goods – Undervaluation of tiles manufactured – Clearance made by improperly declaring the retail sale price – Waiver of Pre-deposit – Held that:- The Tribunal has been following judgment of Hon’ble High Court of Gujarat that an assessee should deposit 8% of the amount of duty confirmed - The appellant has deposited an amount which is more than 8% of the duty liability - the amount already deposited is enough to hear and dispose the appeals – Pre-deposits waived till the disposal – Stay granted.

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• 2013 (12) TMI 1294
  

  Eligibility of cenvat credit - Duty paid on MS channels, angles plates and TMT bars – Goods used in fabrication - Extended period of limitation - Waiver of Pre-deposit – Held that:- The show cause notice is dated 21.04.11 and has invoked extended period of time to seek the reversal of cenvat credit availed by the appellant on these items - the appellant had filed monthly returns with the authorities - Prima facie, the demand is hit by limitation - The arguments as regards the appellant cannot have a bonafide belief post 2008, needs to be addressed which can be done at the time of final disposal of the appeal - the appellant has made out a prima facie case for the waiver of the amounts – Pre-deposits stayed till the disposal – Stay granted.

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• 2013 (12) TMI 1293
  

  Reversal of Credit being 8% or 10% - Baggasse/press mud cleared from the factory - the inputs utilised in the manufacturing of sugar – Waiver of Pre-deposit – Held that:- Following INDIAN POTASH LTD. Versus COMMISSIONER OF CENTRAL EXCISE, ALLAHABAD [2012 (12) TMI 347 - CESTAT, NEW DELHI] which is decided in favour of assessee - the appellants have made out a case for the waiver of amounts – Pre-deposits waived till the disposal – Stay granted.

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• 2013 (12) TMI 1292
  

  Clandestine Removal of Goods – Clearance made by improperly declaring the retail sale price – Waiver of Pre-deposit – Held that:- The Tribunal has been following judgment of Hon’ble High Court of Gujarat that an assessee should deposit 8% of the amount of duty confirmed - The appellant has deposited an amount which is more than 8% of the duty liability - the amount already deposited is enough to hear and dispose the appeals – Pre-deposits waived till the disposal – Stay granted.

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• 2013 (12) TMI 1291
  

  Imposition of Penalty u/s 11AC r.w. Rule 13 of the Central Excise Rules, 2002 – Held that:- As per the section 3 of the Central Excise Act, 1944, as the goods were lying in the factory of the assessee – thus, they were not required to pay duty - the respondents are not contesting duty liability and interest paid by them - as the duty is not payable, question of mandatory penalty does not arise – Decided against Revenue.

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• 2013 (12) TMI 1290
  

  Classification of chemical preparations - Revenue was of the view that the chemical preparations made during the processing of the films are classifiable as “chemical preparations for photographic uses" under CETH 3707 of the Central Excise Tariff – Held that:- The Tribunal while remained the matter back had clearly directed the adjudicating authority to apply his mind independently on the submissions made by the appellant as regards the marketability of the products and give a detailed and speaking order on the issue - Revenue has not led any iota of evidence which shows that the various chemical preparations made by the appellant while processing of the cinematographic films are marketable or are marketed – Following CCE Vs. Famous Cine Laboratory [1992 (2) TMI 241 - CEGAT, NEW DELHI ] - Prasad Film Laboratories, Famous Cine Laboratories and Navrang Cine Center (P) Ltd. (cited the chemical preparations used in the processing of cinematographic films are not goods known to the market and hence are not exigible to duty.

  The expert's opinion also clearly shows that the preparations are mixed prior to their usage and such mixed chemical preparations are prone to oxidation and other chemical reactions which could make them less effective and such chemicals are not marketed - The department has not tested any of the samples to ascertain the shelf life/other parameters relevant for examining the issue of marketability of the products - Merely because certain chemicals are marketed cannot lead to the conclusion that the chemical preparations made in situ by the appellant are also marketable and no effort whatsoever has been made by the Revenue to establish the marketability and Revenue has failed miserably in this regard - various chemical preparations produced by them in situ and captively consumed are not marketable goods falling under CETH 3707 of the Central Excise Tariff.

  Classification of Silver residue arises out of manufacture - Revenue was of the view that the processing of the film, silver residues which are also obtained are classifiable under Chapter 26 of the Central Excise Tariff – Held that:- The duty demand on silver residue which is arising during the processing of the film, as per Chapter Note to Chapter 26, silver waste arising in the processing of the cinematographic films stands excluded from Chapter 26 and are properly classifiable under Chapter 71 and during the material period, the silver residue was exempt from excise duty – Thus, the excise duty demand in respect of silver residue also does not sustain - Once the duty demands fail, all consequential demands towards interest and penalties also fail – Decided in favour of Assessee.

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• 2013 (12) TMI 1289
  

  Benefit of Cenvat credit denied as per Rule 8(3A) of Central Excise Rule, 2002 - Default persisted more than 30 days – Waiver of Pre-deposit – Held that:- Following Manjunatha Industries Versus CCE [2013 (4) TMI 534 - KARNATAKA HIGH COURT] - Cenvat Credit was unavailable, the question of utilizing such credit would be an exercise in nullity - the appellant directed to make a pre-deposit of ₹ 7,36,74,043 – upon such submission rest of the duty to be waived till the disposal – Partial stay granted.

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• 2013 (12) TMI 1288
  

  Undervaluation of goods – Held that:- From the debit notes, it is evident that the charge of undervaluation is in respect of the AC Compressor which the appellant has manufactured and supplied - it is the appellant who has charged for the drawings and designs of the dies and the purpose for which the same is charged and the goods manufactured using these drawings and designs are very well known to the appellant – thus, it cannot be pleaded that the appellant did not know in respect of which item, the undervaluation has been alleged and the differential duty is being demanded – Includability of the value of charges of drawings and design of dies etc. for the purpose of excise duty demand has been decided by the SC in Moriroku UT India (P) Ltd. Vs. State of UP[2008 (3) TMI 513 - SUPREME COURT OF INDIA] - amortized cost should be included in the price of auto components supplied for the purpose of levy of excise duty. The cost of the product sold would include not only the cost of raw materials, labour charges and other costs but also the various cost incurred in the manufacture such as cost of capital goods like machinery, tools, dies, etc. - if the appellant has not included the amortized cost of dies or the cost of drawings and designs developed for the manufacture of excisable goods, the consideration received would be includable in the assessable value of the goods manufactured using these drawings and designs.

  Demand of Service Tax - Consulting Engineers Service – Extended period of limitation - Held that:- The appellant is a manufacturer and not a Consulting Engineer - Only w.e.f. 1.5.2006, the law was amended to include any ‘body corporate' rendering such services liable to pay Service Tax. Since in the present case, the period involved is prior to 1.5.2006, the Service Tax demand on the appellant is not sustainable in law - The fact of developing designs/drawings etc. and collecting charges separately were not disclosed by the appellant to the department – hence, the charge of suppression of facts and consequent invocation of extended period of time to demand excise duty sustainable in law – Decided partly in favour of Assessee.

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• 2013 (12) TMI 1287
  

  Credit on calcium silica boards, anchors, electrodes availed - Goods to be treated as capital goods or finished goods – Waiver of Pre-deposit – Held that:- The items were cleared with the final product for using them in the kiln/furnace - they have paid duty when these goods were cleared as finished goods - There is no dispute about payment of duty on these items – Following Ashok Enterprises Vs Commissioner of Central Excise, Chennai [2007 (11) TMI 67 - CESTAT, CHENNAI]- assessee has made out a prima facie case for full waiver of the pre-deposit of duty, interest and penalty in their favour – Pre-deposits waived till the disposal – Stay granted.

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• 2013 (12) TMI 1286
  

  Waiver of penalty and interest - Clandestine removal of excisable goods - Held that:- When the issue was brought out, respondent paid duty payable on the goods along with interest and 25% of the duty amount as penalty immediately on issue of the show cause notice - where the payments as stated in Section 11A(1A) are made, all the proceedings in respect of the assessee and other persons shall be deemed to be conclusive as to the matters stated therein - Decided against Revenue.

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