|
Advanced Search Options
Case Laws
Showing 481 to 500 of 14810 Records
-
2013 (12) TMI 1285
Rejection of refund claim - Bar of limitation - Held that:- Appellant cleared the goods under the excise invoices showing appropriate payment of duty. The claim of the appellant is that the appellants are job workers and paying duty at the value at which the principal cleared the goods. Subsequent to the clearance of the goods, the principal had given certain discounts to their customs and the principal manufacturers issued credit notes in respect of the excess duty paid - assessments were not provisional, therefore, subsequent change in respect of the value will not affect the payment of proper duty at the time of clearance - Decided in favour of assessee.
-
2013 (12) TMI 1284
Duty demand - Exemption of duty - Benefit of Notification No. 50/2003-C.E. - Held that:- exemption should be available to the appellants because the factory premises is within the specified Khasra numbers and only a drainage on the boundary of their land is falling under Khasra No. 281. So we grant waiver of the pre-deposit of dues including the penalty on both the appellants arising out of the impugned order for admission of the appeals - Stay granted.
-
2013 (12) TMI 1283
Demand of duty - Held that:- orders have been passed by the original authority and the lower appellate authority subsequent to the order of remand by the Tribunal, which was not challenged by the department. The lower appellate authority has confirmed the order of the original authority in regard to the demand of duty, interest and penalty. The order of review passed by the Committee of two Commissioners nowhere points out to what extent duty demand confirmed by the original authority is wrong nor any basis has been provided for questioning the demand amount confirmed by the original authority. As such, I find no material in the review order requiring interference with the order passed by the lower appellate authority - Decided in favour of Revenue.
-
2013 (12) TMI 1282
Classification of goods - Classification under Heading 8427 or under 8431.20 - Held that:- impugned goods are attachments for back hoe and loader, which is classifiable under Heading 8427,which covers fork lift trucks and other works trucks fitted with lifting or handling equipment. As such, the impugned goods require to be classified under 8431.20 which cover parts suitable for use solely or principally with the machinery of Headings 8427 - Following decision of Shinhan Plasto (I) P. Ltd. v. CCE, Chennai [2008 (2) TMI 157 - CESTAT, CHENNAI] - Decided against Revenue.
-
2013 (12) TMI 1281
Small scale exemption - Amount received less than the limit prescribed – Entitlement for exemption under Notification No. 6/2005 – Held that:- There was no merit in the argument that value of services rendered when the service was not taxable should be included in the aggregate value of clearance, if such value is received after the service became taxable - the contention that non-filing of declaration when the assessee crossed value limit of Rs. 3 lakhs is fatal to the claim of the respondent for exemption under Notification No. 6/2005 cannot be accepted - Revenue has mechanically raised demands without looking into exemptions available to the assessee – also the assessee was a small service provider, the Department was duty bound to provide proper guidance – Decided against Revenue.
-
2013 (12) TMI 1280
Duty liability as per Rule 8 of Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008 – Waiver of Pre-deposit – Held that:- Rule 8 of Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008 is applicable when there is addition of packing machines in the factory during a particular month - the appellant has installed two new packing machines in the month of July 2009 - when there is addition or installation of a new machine on any particular day of the month, it has to be treated that the total number of machines working on any particular day were working for the entire month - As such the duty for the entire month is prima facie payable by the appellant – there was no prima facie case in favour of Assessee – thus, the assessee is directed to deposit the entire amount of pre-deposit – stay not granted.
-
2013 (12) TMI 1279
Demand of tax - Single judge directed that proceedings be kept in abeyance, on remitting 1/3rd of the amount - Held that:- there was no chicken business during the period 2009-10, and the amount is very huge, which was directed to be paid - Order of single judge modified - Decided partly in favour of assessee.
-
2013 (12) TMI 1278
Reopening of assessment - Bar of limitation - Concealment of sales - Held that:- in the Sales Tax Act, 1969, reopening of assessment was permissible when the Commissioner had a reason to believe that any turnover of sales, or turnover of purchases of goods chargeable to tax has escaped assessment, or has been underassessed, or assessed at a lower rate. In such cases, if there was any element of concealment of sales, etc., he could issue a notice for reassessment of the escaped turnover within eight years from the end of the period to which such turnover related. In other cases, he could issue such a notice within five years from the said date and not later. The entire Sales Tax Act was repealed by the VAT Act. In the VAT Act, provision for reassessment made significant changes. Under Section 35(1), reassessment is permissible in cases of escapement of assessment or underassessment, or application of lower rate, etc. Subsection (2) of Section 35 of the VAT Act, however, provides that no order shall be made under subsection (1) after the expiry of five years from the end of the year in respect of which or part of which the tax is assessable.
Ordinarily period of limitation is considered as a procedural provision and any change in the period of limitation by an amendment in the Act or by enactment of a new statute repealing the original one, is made applicable also retrospectively. This is of course subject to the exception that if under the repealed provision, the cause of action had become time barred as per the period of limitation prescribed any subsequent change or extension in period of limitation would not revive such a cause. Another area where the Courts have taken slightly different view is where in the successor statute, a shorter period of limitation is prescribed and by virtue of the existing provisions of the earlier Act, the limitation has not yet expired but by application of the shorter period of limitation prescribed in the successor Act, the cause would stand barred by limitation. In such cases, the question would arise whether the period of limitation of the successor Act should be applied thereby taking away the right of the party to file proceedings for asserting his right.
It would therefore be necessary to ascertain for ourselves whether it can be stated that by the time VAT Act was enacted, the petitioners had under the Sales Tax Act acquired, accrued or incurred any obligation or liabilities. If the case of the petitioners fall within such expression, the Department would be justified in pursuing such cases under the VAT Act with reference to period of limitation contained in the Sales Tax Act despite repeal of the Sales Tax Act.
petitioners had filed the returns at the relevant time under the Sales Tax Act. Such returns were also processed as per the provisions of the said Act. Till the Sales Tax Act was repealed by the VAT Act, no further action was taken by the Department. To be precise, no notices for reopening such assessment were issued till the Sales Tax Act was repealed. It is true that the Sales Tax Act permitted period of eight years from the end of the period to which such turnover related for issuance of notice of reassessment, if the Commissioner had reason to believe that the dealer had concealed such sales or any material particulars thereof or knowingly furnished incorrect declaration or returns. However, in our opinion, mere right to issue notice within the said period cannot be equated with accrual or incurring of any obligation or liability. If notices were already issued, it may have been possible for the Department to contend that the assesses having already been visited with such notices, their liability to be so reassessed having already accrued, any repeal of the Sales Tax Act would not obliterate such liabilities by virtue of proviso to subsection (1) of Section 100 of the VAT Act.
In the present group of cases for reopening the assessment, provisions contained in the VAT Act and in particular Section 35 thereof, would apply. Admittedly, when such provisions do not permit reopening beyond the period of five years from the end of the period to which the sales relate, and admittedly when no notices much less final orders were passed, the action of the authorities must be held to be lacking jurisdiction. All the cases of reassessment are, therefore, declared invalid - Decided in favour of assessee.
-
2013 (12) TMI 1277
Pre-deposits ordered to be made – Reduction of the amount of pre-deposit – Plea of financial hardship - Held that:- Assessee contended that they had been incurring losses - the activities of the appellant company are closed down and the order passed by the Tribunal requires modification - the interest of justice would be served taking into account the correct financial condition of the appellant if it is directed to make a pre-deposit of Rs.55,00,000 – upon such submission rest of the duty to be waived till the disposal – Partial stay granted.
-
2013 (12) TMI 1276
Stay application - Demand of service tax - Works Contract Service - Held that:- department should have provided better guidance to the applicant when he appeared before them to give a statement. Considering the facts and circumstances of the case, the applicant is directed to deposit Rs.24,000/- (Rupees Twenty four thousand only) within a period of 4 weeks and report compliance by 25.6.2013 for admission of appeal. Upon such deposit, predeposit of balance dues arising from the impugned order is waived and there shall be stay on collection of such dues during pendency of appeal - Prima facie case not in favour of assessee - Stay granted partly.
-
2013 (12) TMI 1275
Entitlement for cenvat credit - Scope of Input service under Rule 2(l) of the CENVAT Credit Rules 2004 – Services used in relation to business activity or not – Held that:- Following CCE, Nagpur Vs. Ultratech Cement Ltd. [2010 (10) TMI 13 - BOMBAY HIGH COURT] -the question whether CENVAT credit on sponsorship service and renting of immovable property service was admissible to the respondent during the period of dispute requires to be addressed afresh by the Commissioner (Appeals) – order set aside in so far the services is concerned and the said question regarding 'CENVAT ability' of the two services (sponsorship service and renting of immovable property service) is directed to be reconsidered by the learned Commissioner (Appeals) – Decided against Assessee.
-
2013 (12) TMI 1274
Demand of tax - Collection of certain expenditure towards documentation, inspection and royalty charges from the importers - Calculation of taxable value - Reimbursable expenses - Held that:- amount deposited by the respondent could be kept with the Revenue till disposal of the appeal. Prima facie, it appears that the respondent admitted that the expenses were charged from the customers. Hence, it is ordered that the deposit made by the respondent would be kept with the Revenue till disposal of the appeal - Decided in favour of Revenue.
-
2013 (12) TMI 1273
Demand of service tax - Intellectual Property Services - Imposition of interest and penalty on the goodwill towards transfer of trademark licences - Held that:- Goodwill is assigned with the Trademark of the business concern. The value of Goodwill pertaining to right to use would be paid for a period of 10 years from 01.05.2007. Thus, the applicant failed to make out a prima facie case for waiver of pre-deposit of the entire amount of adjudged dues - Conditional stay granted.
-
2013 (12) TMI 1272
Waiver of pre-deposit of the Service Tax interest and penalties - Exemption under Notification No. 24/2004-S.T., dated 10-9-2004 - Held that:- applicant is an Institute providing Vocational Training Courses to various students like fashion designing, graphic arts, media communication and digital communication etc. These courses are only vocational course and not an academic course and they are covered by the exemption under Notification No. 24/2004-S.T., dated 10-9-2004 and not required to get themselves registered with Service Tax department - applicants are entitled for benefit of exemption Notification No. 24/2004 having a strong prima facie case on merit. Therefore, we grant waiver of pre-deposit of entire amount of Service Tax along with interest and various penalties and stay recovery thereof during pendency of the appeal - Stay granted.
-
2013 (12) TMI 1271
Demand of service tax - Club or Association Services - Following decision in the case of M/s. Indian Performing Right Society Ltd. - prima facie the activity undertaken by the appellant is not covered under the category of “Club or Association Services” - Stay granted.
-
2013 (12) TMI 1270
Demand of service tax - Commercial and Industrial Construction Services - Held that:- appeal of the appellant have been dismissed for non-compliance of the stay order wherein the appellants were asked to make a pre-deposit of service tax along with interest. As the impugned order is passed without considering the merits of the case, we feel that the matter should be heard on merits by the Commissioner (Appeals) and thereafter pass an appropriate order on merits of the case. In view of this observation, we remand the matter back to the Commissioner (Appeals) for deciding the issue on merits without insisting any pre-deposit for hearing the appeal - Decided in favour of assessee.
-
2013 (12) TMI 1269
Waiver of pre deposit - Service Tax demand - ‘Club or Association’ service - Held that:- The applicant are receiving remuneration on the licence allotted by them to their clients. Out of the total remuneration received by them, they distribute the money to the various members of their society who has assigned their copyright to them and retains certain amount for their own expenditure. Revenue wants to demand service tax on the amount retained by the applicant for their expenditure and membership fees received from the members of the society under the category of ‘Club or Association’ service - prima facie, the activity undertaken by the applicant are not covered under the relevant category ‘Club or Association’ service. Accordingly, we waive the requirement of pre-deposit of the entire amount of service tax, interest and various penalties and stay recovery thereof during the pendency of the appeal - Stay granted.
-
2013 (12) TMI 1268
Availment of CENVAT Credit - Rent-a-cab service - Clearing & forwarding service - Whether ‘rent-a-cab’ service used by them as conveyance for their employees and ‘clearing & forwarding’ service used for transportation of goods from factory to the port for export during the period of dispute (June, 2005 to June, 2008) are covered by the definition of ‘input service’ under Rule 2(l) of the Cenvat Credit Rules, 2004 - Held that:- Rent-a-Cab service is provided by the assessee to these workers to reach the factory premises in time which has a direct bearing on the manufacturing activity. In fact the employee is also entitled to conveyance allowance. It also would form part of a condition of service and the amounts spent on the conveyance of the employees is also a factor which will be taken into consideration by the employees in fixing the price of the final product. By no stretch of imagination can it be construed as a welfare measure. It is a basic necessity. To ensure that the work force comes on time at the work place, the employers have taken this measure which has a direct bearing on the manufacturing activity. At any rate it is an activity relating to business - appellant is entitled to Cenvat credit on rent-a-cab service used for conveyance of their employees to and from factory.
In respect of the export consignments, the Bill of Lading inter alia serves as the document indicating ownership - incurring the freight and incurring charges for transit insurance could not be a sole consideration to decide the ownership or the point of the sale of the goods. In the present case, undisputedly, the ownership transfer takes place through Bill of Lading, which is issued at the port of export after loading of the goods on board the ship - Therefore view taken by the lower authorities against the party in relation to C & F service cannot be sustained - Following decision of COMMISSIONER OF CENTRAL EXCISE, MADURAI Versus M/s STANGL PICKLES & PRESERVES [2011 (2) TMI 462 - CESTAT, CHENNAI] and Commissioner v. Stanzen Toyotetsu India (P) Ltd. [2011 (4) TMI 201 - KARNATAKA HIGH COURT] - Decided in favour of assessee.
-
2013 (12) TMI 1267
Business income vs Capital Gain - Income from sale of shares – Held that:- Following the principles laid down in Sugamchand C. Shah vs. ACIT [2010 (1) TMI 942 - ITAT, Ahmedabad] - if shares are not held even say for a month, then the intention is clearly to reap profit by acting as a trader and he did not intend to hold them in investment portfolio - Where shares are held for more than a month, they should be treated as investment and on their sale short term capital gain should be charged - When shares are held for less than a month, gain on them should be treated as profit from business – Following assessee’s own case for A.Y. 2006-07 - basic data required to work out the frequency of transactions of holding period is not collected by the AO – The issue was restored for fresh decision.
-
2013 (12) TMI 1266
Disallowance of entertainment expenses – The assessee was carrying on the business of network marketing for procuring and promoting the business he had to travel outside and had to incur expenses on entertaining the people - Held that:- The assessee could not provide the bills for the expenses incurred – Bills cannot be provided for such small expenses incurred for entertaining people – The appeal was partly allowed in favour of assessee.
Disallowance of travelling and conveyance – Held that:- No receipt can be obtained from Taxi operator or for local conveyance, auto rikshwa or manual rikshwa - The expenditure made for refreshment to various agents for which vouchers may not be available – Partly allowed in favour of assessee.
Disallowance of personal expenses – Telephone and mobile expenses - Held that:- For telephone only 10% of the telephone expenses is to be treated for personal usage – Depreciation on mobile phone should be allowed as the expenses have been treated as capital expenditure – Partly allowed in favour of assessee.
Car running and maintenance expenses – Held that:- In the absence of details of personal usage, confirmation of personal usage cannot be denied - In case of motor car expenses only 10% of the expenses, can be disallowed towards personal a usage – Partly allowed in favour of assessee.
Addition on account of household expenses – The assessee has shown a sum of Rs. 30,000 towards household withdrawals - The assessee's wife had also shown household withdrawals of Rs.13,756 – Held that: - Keeping in view the gross receipts of Rs. 23 lakhs of assessee, the AO estimated household expenses of Rs.10,000/- per month - Many expenses which has been claimed were held to be bogus by the Assessing Officer - Sufficient cash which is shown to have been incurred towards such bogus expenses, is available with the assessee – Decided in favour of assessee.
............
|
9911796707
