|
Advanced Search Options
Case Laws
Showing 201 to 220 of 16027 Records
-
2014 (12) TMI 1237
Sale of shares - Short term capital gain or business income - Held that:- It is an admitted fact that around 90% of the total gains is from sale of the shares of FCS Softwares Solutions Ltd.
It is also an undisputed fact that the assessee had applied in the shares of the IPO of the said company from borrowed capital. Merely because the shares were applied through borrowed capital cannot be a ground for treating the capital gains as business income. The IPO funding availed by the assessee was to get more allotment but the fact of the matter is that the assessee was an investor and the sole intention of applying in the shares through IPO was to get higher allotment of shares. We also find that there are no repetitive purchase and sale of the same script which means that there is no churning of shares. The total number of days utilized by the assessee for investment in shares is 32 days. Considering all these facts in totality, we do not find any reason to treat the assessee as a trader. We, therefore set aside the findings of the Ld. CIT(A) and direct the AO to treat the Short Term Capital Gain on sale of shares as declared by the assessee. - Decided in favour of assessee.
-
2014 (12) TMI 1236
Expenditure pertaining to employee stock purchase scheme disallowed - Held that:- There is no dispute to the fact that the assessee in the impugned assessment year has issued 7590 equity shares to its employees at concessional price of R.100/- each under ESPS against the prevalent market price of ₹ 850/- per share. The difference amount of ₹ 53.92 lakhs has been debited by the assessee company as business expenditure. We find the Bangalore Special Bench of the Tribunal in the case of Biocon Ltd., (2013 (8) TMI 629 - ITAT BANGALORE) while deciding an identical issue has held that discount on issue of Employee Stock Option Plan (ESOP) is allowable as deduction in computing the income under the head “profits and gains of business or profession”.
It is on account of an ascertained liability and it cannot be treated as a short capital receipt. While doing so, the Special Bench of the Tribunal has also considered the decision of the Delhi Bench of the Tribunal in the case of Ranbaxy Laboratories Ltd. (2009 (7) TMI 1273 - ITAT DELHI) which has been relied on by the CIT(A) while rejecting the claim of the assessee.Respectfully following the decision of the Bangalore Special Bench of the Tribunal and in absence of any distinguishable features brought to our notice by the Ld. DR, we set-aside the order of the CIT(A) on this issue and direct the AO to allow the claim of expenditure - Decided in favour of assessee
Disallowance of Warranty Provision in normal tax computation - Held that:- The Hon’ble Supreme Court in the case of Rotork Controls Pvt. Ltd. (2009 (5) TMI 16 - SUPREME COURT OF INDIA ) has held that when large number of sophisticated goods are manufactured and sold with warranty and the past records show that defects existed in some of the items, the provision made by the assessee for warranty claims on the basis of past experience is an allowable deduction u/s.37. The various decisions relied on by the Ld. Counsel for the assessee also support the case of the assessee. Since the assessee in subsequent years has incurred expenditure against such warranty provision, therefore, we do not find any justification in the order of the CIT(A) restricting the disallowance to ₹ 44,94,000/- which was the amount outstanding as on 31-03-2003,i.e. after a period of 12 months from the end of the accounting year. We accordingly set-aside the order of the CIT(A) on this issue and direct the Assessing Officer to delete the entire disallowance - Decided in favour of assessee
Disallowance of Warranty Provision in computation of tax as per the provisions of section 115 JB - MAT - Held that:- CIT(A) while deciding the appeal found that assessee has subsequently incurred an amount of ₹ 65,84,078/- towards stamp duty on adjudication of court order and another ₹ 4,95,610/- towards professional fees. Therefore, he held that an amount of ₹ 70,84,078/- cannot be considered as unascertained contingent liability for which he allowed 1/5th of such expenditure as deduction u/s.35DD. The Ld. Departmental Representative could not controvert the above factual findings given by the Ld.CIT(A). Accordingly, the order of the CIT(A) is upheld on this issue and the ground raised by the Revenue is dismissed. - Decided in favour of assessee
Treatment to software expenditure - revenue or capital expenditure - Held that:- The issue stands squarely decided in favour of the assessee by the decision of the Hon’ble Bombay High Court in the case of CIT Vs. Lubrizol India Ltd.(2015 (8) TMI 134 - BOMBAY HIGH COURT) where it has been held that expenses incurred to obtain the application software which has to be upgraded from time to time due to change in technology has to be allowed as revenue expenditure. - Decided in favour of assessee
Adhoc additions on account of car expenses, communication expenses, and workman & staff welfare costs - Held that:- We find the issue stands decided in favour of the assessee by the decision of Sayaji Iron and Engineering Company Vs. CIT reported [2001 (7) TMI 70 - GUJARAT High Court ] where it has been held that partial disallowance of expenditure for maintenance of vehicles in case of a private limited company cannot be made. Addition, if any can be made in the hands of the concerned directors as perquisites but cannot be disallowed in the hands of a limited company. - Decided in favour of assessee
Unutilized CENVAT credit not be treated as income of the assessee - CIT(A) deleted the disallowance - Held that:- CIT(A) while allowing the claim of the assessee has also followed the decision of Chandigarh Special Bench of the Tribunal in the case of DCIT Vs. Glaxo Smithkline Consumer Health care Ltd. reported in [2007 (7) TMI 334 - ITAT CHANDIGARH ]. Further, the Pune Bench of the Tribunal in assessee’s own case has allowed the issue of unutilized Modvat credit in favour of the assessee for A.Y. 1993-94. The Ld. Departmental Representative could not bring any distinguishable features so as to take a different view than the view taken by the Ld.CIT(A). - Decided in favour of assessee
Addition on account of provision for discount on sale - Held that:- Since the Ld. Departmental Representative could not controvert the finding given by the Ld.CIT(A) that as against provision of ₹ 1.09 crores, the assessee has made payment to the tune of ₹ 1.11 crores towards the provision for discount on sales, therefore, under the facts and circumstances of the case, we find no infirmity in the order of the CIT(A) deleting the disallowance made by the AO. - Decided in favour of assessee
Addition on account of loss in Foreign Exchange Rate Fluctuation - Held that:- Hon’ble Supreme Court in the case of CIT Vs. Woodward Governor India Pvt. Ltd., reported in [2009 (4) TMI 4 - SUPREME COURT ] has held that losses suffered by the assessee on account of fluctuation in the rate of foreign exchange as on the date of the balance sheet is an item of expenditure u/s.37(1) of the I.T.Act. Considering the fact that loss amounting to ₹ 72,10,000/- was incurred by the assessee on account of foreign exchange rate fluctuation in respect of import and export transactions made during the year we find no infirmity in the order of the CIT(A) allowing the claim of loss of ₹ 72,10,000/- on account of foreign exchange rate fluctuation as a revenue expenditure. - Decided in favour of assessee
-
2014 (12) TMI 1235
Liability of Service tax - Management Consultancy Service - Whether the running, operating and managing the entire hotel business of M/s. Taj Lands End Ltd., Bandra under a ‘License Agreement’, from the date of agreements up to completion of final purchase of the hotel, would be covered under ‘Management Consultancy Service’ and service tax would be payable on the quantum of Gross Operation Profits earned/retained by the appellants or not.
Held that:- the contention of the appellant is convincing that IHCL had entered into a License Agreement with LHPL (later the name of LHPL was changed to Taj Lands End Ltd.) to the effect that the hotel which stood in the name of LHPL was given to IHCL on a license basis to enable the latter to run the hotel on its own. So, although the owner of asset is LHPL, whereas the owner of business of running the hotel is IHCL. Service can be said to be provided by one entity to another only when the first entity undertakes an activity or performs a service for another for a consideration. From the Agreements, it does not appear that IHCL was running the hotel as a service to LHPL. In fact IHCL was part owner of the asset, i.e., LHPL, the remaining part owner being ICICI I-Venture who had parted with a huge loan of ₹ 330 crores which was primarily utilized to repay the existing debt of LHPL. If IHCL was part owner of LHPL, it can hardly be said that IHCL was providing service to itself to the extent of its ownership of LHPL. The other owner, i.e., I-Venture was essentially a lender who was eased out of the ownership in 2006. Thus there is sufficient evidence to show that IHCL was running the hotel on its own and was not doing any service for another entity.
Therefore, it is clear that the IHCL are running the hotel and are not providing consultancy as mere holding of joint discussions between two entities does not mean that one entity is providing service to the other. Also the agreement states unambiguously that, for mutual benefit, IHCL shall run, develop, conduct, operate manage …. carry out all activities of running the hotel. The activities of IHCL in operating the hotel cannot be called as a service rendered under the category of Management Consultancy service results in no service tax payable.
Invokation of extended period of limitation - Held that:- by relying on the decision of Tribunal in the case of I2IT Pvt. Ltd. v. Commissioner of Central Excise, Mumbai [2014 (9) TMI 345 - CESTAT MUMBAI], the extended time period is not invokable once mens rea is not established.
Imposition of penalties - Section 76 & 77 of the Finance Act, 1994 - Held that:- Penalty is not imposable as there is no mens rea on the part of IHCL. - Matter remanded back
-
2014 (12) TMI 1234
Rejection of refund claim - SEZ unit - Refund claim rejected on 3 issues, (1) deficiency in invoices (2) the objection that the impugned service is not mentioned in the authorisation issued by the Unit Approval Committee of the SEZ unit (3) that the assessee has not provided basis for payment of service tax along with the evidence of tax payment for which the refund is being claimed.
Held that:- with respect to deficiency noted in the invoice, it is observed that the said invoices are issued by the vendor located outside India, who is not required to follow the procedure prescribed under the Service Tax Rules, 1994. Mere technical discrepancies in the invoices cannot be the ground for denying substantive benefit of refund available to an SEZ unit. It is the policy of the Government to exempt or refund the input taxes incurred by the SEZ Unit. Keeping this policy of the Government in mind and specifically in the light of sections 7 and section 51 of the SEZ Act, 2005, denial of refund claim on this ground is not sustainable.
With respect to the second objection, it is found that the Appellant has produced the authorisation dated 05 October 2009 in which at serial no. 27 Business Support Service is specifically mentioned. It is also found from the GAR 7 challan enclosed to the Appeal that service tax was paid by the Appellant under the accounting code 00440366 which is the accounting code for depositing service tax under Business Support Service category. When the Revenue has accepted service tax payment made by the Appellant under the accounting code of Business Support Service, and when the Business Support Service is included in the authorisation dated 05 October 2009 granted by the Unit Approval Committee, the objection on this count is also not tenable.
With regard to the third objection of reconciliation of service tax payment with evidence of challans, it is found that the same was produced before the lower authority and also before me and the same is satisfactory. - Decided in favour of appellant with consequential relief
-
2014 (12) TMI 1233
Penalty u/s 11AC - High Court dismissed the appeal filed by the Assessee against the decision of Tribunal [2014 (3) TMI 914 - CESTAT NEW DELHI] as withdrawn without prejudice to the right of the appellant to file an appropriate application reported in [2015 (1) TMI 843 - PUNJAB AND HARYANA HIGH COURT] - High Court do not find any reason to recall its order dated 24-9-2013. Therefore, dismissed this recall order application by providing the applucant a liberty to seek his remedy in accordance with law. - Application dismissed
-
2014 (12) TMI 1232
Allowability of premium paid on premature redemption of debentures - Held that:- The premium was paid on premature redemption of debentures. The expenditure was incurred in the previous year and was termed to be a allowable deduction. The Tribunal held that in the case of Madras Industrial Investment Corporation Ltd. vs. Commissioner of Income Tax (1997 (4) TMI 5 - SUPREME Court ), which was the other Judgment relied upon by the Revenue, the facts were that the Assessee issued debentures at a discount and was bound to repay them at face value value, after a period of 12 years.
The question that arose for consideration was as to whether the entire discount had to be paid in the year of redemption or whether the same had to be spread over, namely, the period for which the debentures were issued. The findings and conclusions of the Hon'ble Supreme Court were distinguished by the Tribunal and in our opinion, rightly. That was done to deal with the two contentions of the Revenue, namely that the expenditure was capital in nature and alternatively even if it is considered to be revenue expenditure, it should have been spread over the duration or the entire period of the debentures. Meaning thereby, the date on which the debentures could become redeemable as per its terms. The Tribunal held that if the debentures were redeemed by the Assessee prior to the period for which they were issued and there was a mutual arrangement for premature redemption thereof, then, the amount of premature redemption or premature redemption premium cannot be said to be a capital expenditure and need not be spread over. - Decide against revenue
-
2014 (12) TMI 1231
Right to Information - Held that:- The submission of Mr. Das that the applicant seeking information under the RTI Act is required to furnish reasons for the request to the Public Information Officer is incorrect. Section 6(2) of the RTI Act clearly provides that the applicant making a request for information is not required to give any reason for seeking the information or any other personal details except those that may be necessary for contacting him. Therefore, this argument of Mr. Das is untenable.
The CIC while passing the impugned order in the present case has observed that the information sought is not personal information but it pertains to individual CBI officers in respect of their public duty and therefore, the Central Bureau of Investigation has been directed to supply such information.
The reluctance of the CBI to supply the requisite information is palpable. The exemption claimed under Section 8 is unjustified and has no bearing on the information required. As a last attempt to avoid furnishing the information it was argued that the CBI does not fall within the clutches of the RTI Act in view of the notification issued on 9-6-2011 amending the second schedule to the Act. This submission is without merit. The application was filed under the RTI Act before the amendment and therefore, it would not be governed by it.
-
2014 (12) TMI 1230
Imposition of penalties u/s 112(a) & 114AA and fine u/s 125 of the Customs Act, 1962 - Confiscation of seized goods u/s 111 ibid - Import of second hand car by declaring as new - Held that:- car is liable to confiscation u/s 111(d) and 111(m) ibid. Appellant admitted making a payment of ₹ 7 lakhs by cash to the said supplier of the vehicle, over and above the recorded amounts involved in importing the vehicle and that out of this amount only an amount of ₹ 1 lakh was related to post-import activities. He also admitted that he had to make payment of the remaining amount of ₹ 6 lakhs without knowing the purpose for such payment. Such undocumented payment, made underhand in cash, does not appear to be bona fide expenditure towards import of the car and accordingly, for these reasons, the submissions by the applicant, that he had no knowledge that it was a used car cannot be accepted. The applicant, thus, does not deserve full immunity from penalty and fine.
Also the applicant has admitted the amount of duty demanded in the SCN and cooperated with the Commission during the settlement proceedings. The entire amount of the admitted duty liability has also been paid by the applicant and he has also deposited the interest demanded thereon. The Revenue has not disputed the interest amount as worked out and paid by the applicant. Therefore, the Bench settles the case under Section 127C of the Act. The above immunities from penalty and prosecution to the applicant are granted under sub-section (l) of Section 127H of the Act subject to the provisions contained in sub-sections (2) and (3) of Section 127H ibid. The immunities are granted only to the applicant who has approached the Settlement Commission.
-
2014 (12) TMI 1229
Registration under section 12A - whether the depreciation is allowable on the fixed assets, when the entire cost of assets have already been claimed as application of income towards objects of the trust? - Held that:- Such claims of depreciation, do not result in double deduction i.e., depreciation and capital expenditure on fixed assets. - Decided in favour of assessee.
-
2014 (12) TMI 1228
Demand of duty, interest and penalty - Export of Ferro Silicon - Obtained 54 DEPB licences by wilful misstatement and suppression of country of origin and availed export incentive on export of Bhutanese origin, therefore, no DEPB benefit to be available - DEPB licences were sold by the exporter and were utilized by the purchasers for payment of duty on goods imported by them.
Held that:- Out of total duty demanded ₹ 3,20,46,327/-, only a sum of ₹ 25,10,066/- has been demanded from the applicant and the balance from other importers. None of these importers have approached the Settlement Commission. As per sub-section (1) of Section 127B of the Customs Act, 1962, "Any importer, exporter or any other person may, in respect of a case, relating to him make an application before adjudication to the Settlement Commission to have the case settled". Further, an order of settlement under Section 127C(8) has to provide for the terms of settlement including any demand by way of duty, penalty and interest. In the present case, Bench is unable to settle these terms as none of the persons from whom a major portion of duty has been demanded in the SCN have approached the Settlement Commission and some of them do not even fall in the jurisdiction of this Bench. Therefore, in the absence of the same, the application to settle the duty demanded from those other importers by the applicant cannot be entertained. - Application rejected
-
2014 (12) TMI 1227
Eligibility for deduction u/s 80P - Held that:- We find that total income earned by the assessee included income on fixed deposits placed with Bombay Mercantile Bank, interest income from a scheduled bank and dividend income from Delhi Cooperative Bank. From the certificate as placed we find that Bombay Mercantile Cooperative Bank is a cooperative society registered under Maharashtra Cooperative Societies Act and we further find that the said society has been assessed u/s 143(3) as a cooperative society and its income was allowed to be exempt u/s 80P(2)(i) as held for Assessment Year 1990-91 and 1991-92 and for Assessment Year 1997-98/
Therefore it is held that fixed deposits placed with Bombay Mercantile Bank falls within the exemption granted by Section 80P(2)(d) of the Act. The assessee was also eligible under the provisions of Section 80P(2)a(i) as the funds placed by assessee in the form of fixed deposits can be said to be kept for the purpose of business of the assessee as the assessee had availed credit facilities also against such fixed deposits which were again used for the purpose of business of assessee - Decided against revenue
-
2014 (12) TMI 1226
Loss on account of Mark-to-Market loss - allowance of claim on valuation of forward exchange contracts on the closing date of the accounting year by CIT(A) - Held that:- The learned CIT(A) followed the decision of DCIT vs. Bank of Bahrain and Kuwait (2010 (8) TMI 578 - ITAT, MUMBAI) and also the decision of CIT vs. Woodward Governor India Pvt. Ltd. [2009 (4) TMI 4 - SUPREME COURT ] to hold that the liabilities for foreign exchange was incurred during the normal course of assessee’s business and in fact the gain earned on such revaluation having been accepted and brought to tax in the respective years, there is no reason to arrive at a different conclusion in this year merely because there is a loss. He accordingly correctly directed the AO to allow the impugned claim of the assessee. - Decided against revenue
-
2014 (12) TMI 1225
Waiver of penalty - Held that:- The fact that the company has almost closed business and is incurring losses continuously has not been disputed by the respondent. Prima facie the audit reports are in conformity with the arguments advanced that the company is incurring financial losses regularly. Considering the facts and circumstances as discussed above and in view of the case laws Special Director of Enforcement v. Anil Aggarwal and Anr.[2009 (3) TMI 1011 - DELHI HIGH COURT] and BHAVYA APPARELS PVT. LTD. Versus UNION OF INDIA [2012 (11) TMI 558 - GUJARAT HIGH COURT] we are of the view that the prima facie case for partial waiver of penalty is made out. In this view of the matter, it appears to be appropriate that the appellants be directed to deposit 15% of the amount of penalty imposed against each appellant and further furnished bank guarantee for the balance 85%
-
2014 (12) TMI 1224
TDS u/s 19C - TDS on payments made by the farmer’s Samiti in respect of various expenses including labour charges, transport charges, insurance charges etc. on behalf of farmers - Held that:- The supply of sugarcanes at the gates of factories of the respective assesses was a part of sale transaction, and therefore, we are of the opinion that the assesses are not liable to deduct TDS. See COMMISSIONER OF INCOME TAX (TDS) Versus KRISHAK BHARATI COOPERATIVE LIMITED [2012 (10) TMI 655 - GUJARAT HIGH COURT] - Decided in favour of assessee
-
2014 (12) TMI 1223
Imposition of penalties - Section 112 of the Customs Act, 1962 or Rule 26/ Rule 209A of the Central Excise Rules - Personal hearing conducted by one commissioner and order passed by another in Shri Puneet Rungta - Held that:- the practice followed in the case of Shri Puneet Rungta is against the principal of natural justice in view of the settled proposition of law as per various case laws relied upon by this appellant. Accordingly, OIO passed by the Adjudicating authority and the case of Shri Puneet Rungta is remanded to the Adjudicating authority to decide the matter afresh in de-novo adjudication, after affording him an opportunity of personal hearing. In respect of remaining appeals matter is more or less similar to the case of Shri T.S. Makkar vs. CCE, Surat [2012 (10) TMI 981 - CESTAT AHMEDABAD]. As the appellant has not dealt with or transported the goods in any manner. Nor it was established that appellant was aware of the forged/ fake nature of license, then no penalties are invokable under Section 112(b)ibid and or Rule 209A of the erstwhile Central Excise Rules. - Decided in favour of appellant
-
2014 (12) TMI 1222
Sustainability of clarification issued - Held that:- under the provisions of the Tamil Nadu Value Added Tax Act, there is no power for the Commissioner to issue a clarification and it has been so held by the. Therefore, in light of the decision of division bench of Delhi High Court in the case of Anchor Electricals (P.) Ltd. v. Commissioner, Sales Tax [2014 (4) TMI 294 - DELHI HIGH COURT] which is pari materia to the present case, the clarification issued by the respondent is held to be not sustainable in law, as the classification of the cables under the relevant statutory provision is applicable for the purposes of taxation under the provisions of the Tamil Nadu Value Added Tax Act.
Seeking clarification for rate of tax - High voltage cable - Held that:- industrial cables which are high voltage cables with application above 650 volts are taxable at five per cent. under entry 66 with the description, "industrial cables (high voltage cables, XLPE cables, jelly filled cables, optical fibre cables)" in part B of the First Schedule to the Act. - Decided in favour of petitioner
-
2014 (12) TMI 1221
Validity of impugned order - Manufacturer of industrial pumps, valves and its parts - Petitioner not claimed refund of ITC in form W therefore, required to reverse the ITC relating to the export after deducting the tax dues within 180 days from the date of export as it had lapsed to the Government according to section 18(3) of the TNVAT Act - Held that:- the assessing officer adopted a formula, viz., by stating that proportionate ITC due for refund on zero rated sale. It is seen that this formula adopted by the assessing officer has been done for the first time and such formula was not adopted while issuing show-cause notice dated June 19, 2014. Therefore, if only the dealer had been put on notice referring proportionate ITC due for refund on zero rated sale and proposing to calculate, then only, the dealer would be in a position to submit his objections. If show-cause notice does not disclose the basis to such calculation, then, the dealer would not be in a position to know what is passing in the minds of the assessing officer and that is the reason the dealer would not object to reverse the proposal effectively. Therefore, the resultant consequence would be the impugned proceedings and has travelled beyond the scope of the show-cause notice by adopting the procedure, which was not disclosed to the petitioner at the time of proposal. Hence, the impugned order suffers from serious procedural infirmity and the same is in violation of principles of natural justice.
Validity of impugned order - Reversal of ITC under section 19(2) of the Act - Manufacturers of goods within the State and goods purchased from registered dealers which are for the purpose of use in the manufacture within the State - Demand is purely on account of the amendment to section 19(2) by Amending Act 28 of 2013 and sought to justify as to how the said amendment would not affect the petitioner - Held that:- the assessing officer did not advert into any of the objections raised except to state that as per section 19(2)(v), the reversal was proposed as per the amended section; as per the section, there is no exception for manufacturer. The petitioner in their objection/reply elaborately dealt with the issue relating to section 19(2)(v) and the petitioner stated that the said provision was not attracted as the Legislature has not sought to restrict the credit in respect of goods which are for the purpose of use in manufacture or processing within the State. It is seen that the petitioner would state that they being manufacturers, they would fall within clause (ii) of section 19(2), i.e., inputs are for the purpose of use as input in the manufacture or processing of goods in the State. Therefore, the assessing officer while dealing with second issue regarding applicability of section 19(2) did not assign any reasons. Therefore, the impugned order is not valid. - Matter remanded back
-
2014 (12) TMI 1220
Real manufacturer - Duty demand - whether the goods under dispute did not bear the brand name “Deep”? - penalty imposed - Held that:- The main appellant was registered with the Directorate of Industry right from 1985. Similarly, Deep Metal Works was also registered with the Directorate of Industry with effect from 13-3-1990. We have also gone through the various invoices under dispute. All the invoices very clearly state the main appellant as the manufacturer of stainless steel articles. We also note that Shri Prakash Nahar has very clearly admitted in his statement that both the units are manufacturing cutlery items and he is looking after the day-to-day work of both the units. There has been no averment on his part that the main appellant, i.e. Deep Engineering Works, was a trading unit or was getting the goods manufactured from Deep Metal Works. We observe that such a stand has been taken by the main appellant only after the issuance of show cause notice. Even in reply to the show cause notice, though they have taken such a stand, they were not able to prove anything about the procurement of either the finished products or the raw material and related payment details from anyone. Under the circumstances, we are of the considered view that the main appellant is one of the manufacturing unit and has manufactured the goods under dispute, as has been claimed by them even, in the declaration filed by them as also in the various statements of Shri Prakash Nahar who was looking after both the units
The learned Counsel for the main appellant has argued that the goods were not seized by the visiting Excise officer. This itself proves that the finished goods did not bear any brand name. We are not convinced with this argument. First of all, the duty is not demanded in respect of the finished goods found during the visit of the officers but on their past declarations. Further, there is no indication whatsoever that the goods were not bearing the brand name. On the contrary, the statement recorded on that very day clearly indicates that the goods of both the units bear the brand name “Deep”. Under the circumstances, we reject the said contention of the appellant. We also note that the fact that the goods manufactured by the main appellant bear the brand name of other person was not disclosed to the department and this is a clear-cut suppression of facts. In fact the appellant has not even taken the Central Excise registration with the department. In such a situation, in our view, extended period of limitation would be clearly applicable. Once the goods are bearing the brand name of other person, the main appellant was not entitled for the SSI exemption and it was their duty to take the Central Excise registration and pay the duty. It is also stated that the sole proprietorship business firm is not a sui juris and it cannot be a party any proceedings. We note that the declaration was filed in the name of Deep Engineering Works and the notice was issued in the same name. The main appellant has replied and participated in the proceedings till date and under the circumstances, we do not find any force in the argument of the main appellant.
As far as the role of Shri Bharat Shah is concerned, it is clear from the details that he was aware that the goods are bearing the brand name and was therefore liable to pay duty and the goods were also confiscable, but as the goods had been cleared long back, the same could not have been confiscated. The penalty imposed under Rule 209A of the Central Excise Rules is in order.
We also find that Shri Prakash Nahar has been looking after both the units’ day-to-day activities and even during investigation he has agreed to pay the duty, but still he has not paid the duty. Undoubtedly, he has dealt with the goods in respect of which the demand has been raised. He was aware that the goods are bearing the brand name of other company and the penalty has been correctly imposed under Rule 209A on appellant No. 3.
-
2014 (12) TMI 1219
Seeking permission for withdrawal of petition - Pre-deposit of amount for entertainment of appeal - Furnishing of bank guarantee for 25% - in the event the appellants succeed in the pending appeal then the Bank Guarantee shall be returned. But if the order goes against the appellants then the amount of the Bank Guarantee shall be appropriated. Even if the appellants prefer further appeal, they shall not object to invocation of the Bank Guarantee. So, for determining the amount of Bank Guarantee, adjustment shall be made of the amount already deposited. - Apex court dismissed the writ petitions as withdrawn and appeal disposed of
-
2014 (12) TMI 1218
Liability of tax - Import of raw sugar and consequential sale - Raw sugar imported in to India was processed, converted into white sugar and re-exported and what has been sold locally is only the processed white sugar - Also violation of principles of natural justice - Held that:- if sugar is to attract sales tax under the First Schedule, then it must be one other than what is specified for grant of exemption under the Third Schedule. Considering the emphasis in the Third Schedule that the goods produced or manufactured in India as described in the Additional Duties of Excise (Goods of Special importance) Act, 1957 alone is taken up for consideration, the only sugar that can hence fall for consideration under First Schedule must be one other than what is enumerated in the Third Schedule. Rightly, entry 61 of Part B of the First Schedule gave the description of 'sugar' that is sought to be taxed in the First Schedule as, 'sugar imported into India from foreign countries'. Thus irrespective of the kind of sugar, once it is an imported sugar, the sales tax levy under entry 61 of Part B stands automatically attracted to the sales and if sold as such, retaining its original character attracts tax at four per cent under the First Schedule to the Act. But when once imported sugar is not dealt with as such for sale, but has been subjected to a manufacturing process, the liability under the First Schedule no longer stands attracted to the manufactured sugar. Therefore, the assessment is to be redone. - Matter remanded back
............
|
9911796707
