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Showing 421 to 440 of 19685 Records
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2015 (12) TMI 1488
Denial of Abatement claim - manufacture of branded unmanufactured tobacco - period of closure of factory - Whether the Phrase Continuous period of 15 days or more stipulated in Rule 10 of the said Rules would mean period of 15 days of a particular month or the same can be spilled over to the next calendar month, for computation of the period of 15 days - Held that:- factory of the appellant was closed during the period from 23.03.2013 to 26.09.2013. Though the factory was continuously closed for a period of about 6 months, the Department is of the view that since in the month of March 2013, the factory was closed only for 9 days, the benefit of abatement as provided in Rule 10 shall not be applicable. In this context, I find that the case of the appellant is supported by the decision of the Tribunal in the case of Kaipan Pan Masala (2013 (1) TMI 356 - CESTAT, NEW DELHI), holding that for computation of the period of 15 days, the remaining period in the next calendar month, during which the factory was closed, shall also be taken into consideration - appellant shall be eligible for abatement for the period from 23.03.2013 to 31.03.2013, which have been rightly allowed by the Original Authority. In view of above, the impugned order denying the abatement to the appellant is set aside - Decided in favour of assessee.
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2015 (12) TMI 1487
Admissibility of Cenvat Credit - Outdoor catering services and membership and subscriptions of various business association and business periodicals - Held that:- credit in respect of out door catering services was denied on the ground that the service charges to the extent Cenvat credit was proposed to be denied were recovered by the company from the employee. In this regard appellant made submission in the appeal that they have submitted revised quantification sheet according to which the amount of Cenvat credit attributed to the amount of service charges of out door catering service recovered from the employee comes to ₹ 60,871/- instead of ₹ 1,21,742/- as confirmed by lower authority. Therefore I find the amount demanded of ₹ 1,21,742/- does not appear to be correct and only credit of ₹ 60,871/- should be denied. However since lower authority have not looked into this re-quantification, I direct the adjudicating authority to verify this re-quantifications and if it is found correct then demand amount of ₹ 1,21,742/- shall be reduced to ₹ 60,871/-.
As regard the issue of Cenvat credit of membership and periodical of various business associations and law journals such as CII, Young President Pune Chapter, IEEMA, Economic Research India Ltd, MCCIA etc. I am of the view that all these member ship and subscriptions are directly related to the business activity of the appellant. Therefore I am of the view that Cenvat credit clearly admissible on these membership and subscription particularly when the amount is paid by the appellant, booked into their books of account as expenditure. - membership and business associations and subscriptions of business periodicals are admissible input services - Decided in favour of assessee.
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2015 (12) TMI 1486
Denial of CENVAT Credit - House-keeping and Rent-a-Cab service - Held that:- With regard to the service tax paid on housekeeping service, it is no doubt, a fact that the said service has been used for keeping the factory premises neat and clean, which is a statutory requirement of Section 11 of the Factories Act, 1948. Thus, said services has the nexus with the manufacture of final product, because without compliance with the provisions of the Factories Act, manufacturing activities are not possible. As regards, the rent-a-cab service for transportation of employees, it is not a welfare measure, but a basic necessity, for the reason that unless the workers reach the factory premises in time, the manufacturing activities either directly or indirectly will suffer. Thus, the disputed services should qualify as 'input service' for the purpose of getting the cenvat benefit - Decided against Revenue.
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2015 (12) TMI 1485
100% EOU - procurement of goods without payment of duty - The goods were received in the appellants factory and at the time of weigment while re-warehousing found to be short - penalty under Section 114A - Held that:- there is no allegation either in the show cause notice or in the order of the first appellate authority that there was any diversion of the goods after their import duty free. The number of bales received in the factory were the same as shown in the Bill of Entry and they were found to be intact and unopened at the time of re-warehousing in the factory which was done in the presence of the custom officer. Cotton is a kind of raw material which can vary in weight marginally depending upon its moisture content. Possibly for that reason only CBEC vide the circular dated 15.4.1983 stated that loss in weight up to 1% was condonable, although it gave no scientific basis as to how the figure of 1% was arrived at. Further, there is nothing sacrosanct about the figure of 1% mentioned in the said letter CBEC.
The entire quantity of bales of cotton imported was received in the factory intact and there is neither any allegation of diversion nor any evidence to that effect. Even the supplier reimbursed the amount towards shortage noticed in weight which also supports the view that there was no diversion of the duty free goods. Thus none of the conditions of the exemption Notification No. 53/1977-Cus. are violated. In these circumstances the impugned demand is totally unsustainable and is therefore set aside - Decided in favour of assessee.
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2015 (12) TMI 1484
Import of Pashmina and wool shawls - restricted items - Confiscation of goods under Section113(d), (e) and (l) of the Customs Act, 1962 - Imposition of penalty - Held that:- no one on behalf of the appellant appeared for personal hearing. We also find that in the reply to the Show Cause Notice the appellant did not seek any cross-examination of the Wildlife authorities. In its appeal it has stated that proper chemical analysis of the shawls was not conducted by wildlife authorities. The appellant has no basis to assert that when it did not seek any cross-examination of the wildlife authorities who tested the samples. There can be various ways to test a sample depending upon the purpose of test. In these circumstances, the order of confiscation of 41 shawls for containing material prohibited for export is sustainable. As regards the contention that other shawls (other than 41) found in packet 4 should not have been confiscated, we find that the primary adjudicating authority has ordered confiscation of only 41 shawls and has categorically stated “I order for unconditional release of remaining shawls out of 1290 shawls seized along with their respective packet.”
Thus, it is obvious that the confiscation ordered by the primary adjudicating authority and upheld by the first appellate authority was only with regard to the 41 shawls. As 41 shawls were liable to confiscation on account of being attempted to be exported in spite of being prohibited for export, the appellant is clearly liable to penalty. The penalty of ₹ 50,000/- imposed is neither unreasonable nor arbitrary. - Decided against assessee.
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2015 (12) TMI 1483
Confiscation of goods - Import of restricted goods - Importer does not license to import impugned goods - Held that:- impugned goods are not freely importable. Even the ITC (HS) classification for worn clothing and other worn articles against classification CTH 6309 declared these goods and to be restricted subject to import licence. Appellant was well aware that the impugned goods required licence to import as in its own case CESTAT Final Order No.151/2006, dated 07.04.2006 had upheld confiscation of worn clothing for the same reason. Therefore, the confiscation as ordered by the primary adjudicating authority is legally sustainable as the appellant did not have any import licence. We also find that the redemption fine and penalty are in the vicinity of 15% and 20% respectively of the assessable value which for these kind of goods and for a repeat offender are in no way excessive, arbitrary or unreasonable. - No infirmity in impugned order - Decided against assessee.
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2015 (12) TMI 1482
Benefit of Notification No.45/2002-Cus, dt.22.04.2002 under DEPB scheme - Fraudulent DEPB Licence - over invoicing - Held that:- Tribunal allowed the appeal of M/s Kanak Metal Industries in the said proceeding as reported in [2011 (8) TMI 924 - CESTAT, DELHI]. Revenue filed the appeal against the order of Tribunal, which was dismissed as reported in [2012 (7) TMI 927 - SUPREME COURT] (Commissioner Vs Kanak Metal Industries). - we do not find any reason to interfere the order of Commissioner (Appeals) - Decided against Revenue.
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2015 (12) TMI 1481
Demand of interest on delayed refund claim - Refund under Notfn. No 102/2007 and CBEC Circular No 6/2008-CUS dated 28.4.2008 - Held that:- Adjudicating Authority while deciding the refund claim of the appellant under OIO dated 13.9.2013 and 9.10.2013 has not passed any order with respect to claim of interest on the delayed payment of refund. Under such circumstances order, with respect to interest on the payment of refund, passed by the First Appellate Authority is set aside and the matter is remanded to the Adjudicating Authority to decide the claim of the appellant with respect to interest on delayed payment in the light of judgements relied upon by the appellant and the Revenue, during the course of hearing. The appeals filed by the appellant are allowed by way of demand to the Adjudicating Authority. - Matter reanded back - Decided in favour of assessee.
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2015 (12) TMI 1480
Import of materials for the manufacture of Heart Valve Prosthesis - claim of exemption - Suppression of facts - Imposition of equivalent penalty - Held that:- Dept. issued show cause notices on the same items in earlier period within the normal period. So, the Department was aware of the import of these items. It is noticed that the appellant claimed exemption benefit in respect of the entire consignment and out of that about ₹ 68 lacs, the Adjudicating Authority dropped the demand. Hence, the findings of the Adjudicating authority on suppression of the fact in respect of the balance amount cannot be sustained. It is a case of claim of exemption notification. - demand of duty alongwith interest is set aside, as barred by limitation. The penalties imposed on both the appellants are also set aside - Decided in favour of assessee.
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2015 (12) TMI 1479
Import of two Vessels for breaking purpose Demand of differential duty - bunker and stores - Burden to prove - Wrong classification of goods - Held that:- The Adjudicating Authority held that the fuel oil, engine oil and ship stores, as spare parts, food stuffs and others, as per sub para (C) of CBEC Circular No. 37/96-Cus., dated 03.07.1996, should be classified separately under heading no. 89.08 and the importer should pay the differential amount of duty of ₹ 3,81,865.00. By the impugned order, Commissioner (Appeals) upheld the adjudication order.
Appellant contended before the Commissioner (Appeals) that the burden was on the Department to prove that the subject goods bunkers and stores were imported and cleared by the importer through the Customs barrier. The Commissioner (Appeals) proceeded on the basis that the subject bunker and stores were declared by the master of the vessel in the manifest, which was statutory document. Hence, the contention of the appellant is not sustainable. - Decided against Assessee.
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2015 (12) TMI 1478
Export of goods - exporter did not produce the Shipping bills before the proper officer of Customs for grant of LEO and hence the goods were not cleared for exportation - Confiscation of goods - Imposition of penalty - Held that:- exporter has no control over the goods, once the goods enter into the port of export. I also find that the matter is squarely covered by the decision of the Hon'ble Bombay High Court in the case of Commissioner of Customs (Export) Vs. Kusters Calico Machinery Ltd. [2010 (3) TMI 474 - BOMBAY HIGH COURT] Accordingly, following the ratio of Kusters Calico Machinery Ltd. (supra), I set aside the penalty imposed on the appellant-exporter - Decided in favour of assessee.
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2015 (12) TMI 1477
Levying of tax under the Rajasthan Tax on Entry of Motor Vehicles Into Local Area Act, 198 - Jurisdiction of AO - Held that:- when one statute make a reference to another Act then it cannot be said that provision of that Act cannot be read into it, and as observed earlier when all the provisions of Rajasthan Sales Tax Act, 1954 are made applicable mutatis mutandis to the provisions under the Act, therefore, the assessment order passed by the Assistant Commissioner, Anti Evasion Wing, though may not be proper but the entire assessment order could not have been quashed and set aside for all times to come. At least when liability under the Act is fastened on an assessee who imports vehicle into the State of Rajasthan for personal use and such intention is to use the vehicle for all times to come, the provisions of the Act cannot be made redundant as held by the Tax Board that the Assistant Commissioner, Anti Evasion Wing had no jurisdiction.
CTO under Section 3(2)(b) had the jurisdiction to assess the assessee according to the area where one ordinarily resides or carries on business or provides any service, therefore, in the instant case assessment will have to be passed by the CTO in accordance with the place of residence or the place of business or place of providing service. In case the respondent-assessee is already assessed to tax by a particular CTO, the same officer would have jurisdiction to assess the assessee and in case some of the assessees are not assessed to sales tax, then the CTO will get jurisdiction to assess according to the place of residence of the person. - order of the Tax Board is quashed and set aside, the order of Dy. Commissioner(Appeals) insofar as direction to assess the assessee by the Assessing Officer (CTO) having jurisdiction, as above, is upheld - Decided in favour of Revenue.
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2015 (12) TMI 1476
Failure to VAT - Attachment of the petitioners' bank accounts and immovable property in the form of residential flat and office premises as per the details given in the petitions - Held that:- in the opinion of this court, the Government revenue is sufficiently secure in view of the attachment of the residential premises and office premises. Under the circumstances, the respondents do not appear to be justified in further attaching all the bank accounts of both the petitioners. In the opinion of this court, the attachment of the bank accounts must, in all probability, have brought the business of the petitioners to a standstill, inasmuch as, they would not be in a position to encash the cheques received by them nor make other payments by way of cheque. However, having regard to the submissions advanced by the learned Assistant Government Pleader, this court is of the view that while releasing the attachment of the bank accounts, the petitioners are required to be put to certain terms to maintain a particular balance in the bank accounts. - Decided in favour of assessee.
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2015 (12) TMI 1475
Detention of goods - petitioner has not raised any inter-state sale invoice or delivery notice in Form JJ required under CST Act - Imposition of compounding fees - Held that:- petition stands disposed of with a direction to the respondents to release the goods forthwith on condition that the petitioner pays the one time tax of a sum of ₹ 2,13,516. As regards the compounding fee demanded, it is always open to the petitioner to agitate the same in the manner known to law - Appeal disposed of.
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2015 (12) TMI 1474
Levy of purchase tax - Whether the Tribunal has erred in holding that “Naptha” was not “taxable goods” and so purchase tax cannot be levied under section 15B of the Sales Tax Act - Held that:- Controversy involved in the present case stands concluded by the judgment and order of even date rendered by this Court in Tax Appeals [2015 (12) TMI 119 - GUJARAT HIGH COURT] - there being no infirmity in the impugned order of the Tribunal, the same does not give rise to any question of law, much less, a substantial question of law so as to warrant interference. - Appeal disposed of.
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2015 (12) TMI 1473
Condonation of delay in filing of appeal - Power of tribunal under SAFEMA to condone the delay - Forfeiture of property - Detention order - Respondent No.3 and his wife failed to produce sufficient evidence to prove that the suit property was acquired from legal sources - Held that:- Appeal admittedly was filed on 6th June, 2012. Therefore clearly the appeal was filed after a period of 106 days from the date on which the order was served upon the Petitioners.
On an ex-facie reading of section 12(4), it is clear that the appeal is to be filed within a period of 45 days from the date on which the order is served on the aggrieved person. If the appeal is not filed within the aforesaid period, under the proviso to section 12(4), the Appellate Tribunal is given the power to condone the delay for an additional period of 15 days, but not thereafter. This is ex-facie apparent from the clear language of the proviso to section 12(4) which categorically stipulates that the Appellate Tribunal may entertain an appeal after the said period of 45 days but not after 60 days from the date aforesaid, if it is satisfied that the Appellant was prevented by sufficient cause from filing the appeal in time. The words "but not after 60 days" are of great significance. These words indicate that there is a clear mandate that beyond the period of 60 days from the date on which the order is served upon the aggrieved person, the Appellate Tribunal has no power to condone the delay.
SAFEMA is a special law and that section 12(4) provides for a period of limitation different from that prescribed under the Limitation Act, 1963. Section 29(2) of the Limitation Act, inter alia stipulates that where any special or local law prescribes for any suit, appeal or application, a period of limitation different from the period prescribed by the Schedule to the Limitation Act, provisions of section 3 thereof shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed by any such special or local law, the provisions contained in sections 4 to 24 of the Limitation Act shall apply only insofar as and to the extent to which, they are not expressly excluded by such special or local legislation. - under the provisions of section 12(4) read with the proviso thereto, the Appellate Tribunal had no power to condone the delay beyond the period of 60 days from the date on which the order impugned in the appeal was served on the aggrieved party. In the facts of the present case, admittedly, the appeal of the Petitioners was filed beyond the period of 60 days from the date on which the order was served upon them. We, therefore, find no infirmity in the impugned order dated 12th March, 2013 passed by Respondent No.1.
In view of the authoritative pronouncements of the Supreme Court as well as a Division Bench of this Court, we are clearly of the view that Respondent No.1 had no power to condone the delay beyond the period of 60 days from the date on which the order was served upon the Petitioners. As stated earlier, it is admitted that the appeal of the Petitioners was not filed within the aforesaid period, and therefore, clearly time barred. In this view of the matter, no fault can be found with the impugned order requiring interference in our extraordinary, equitable and discretionary jurisdiction under Article 226 of the Constitution of India. - Decided against the appellant.
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2015 (12) TMI 1472
SARFAESI Act - Whether a Company Court, directly or through an Official Liquidator, can wield any control in respect of sale of a secured asset by a secured creditor in exercise of powers available to such creditor under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for brevity ‘the SARFAESI Act’)? - Held that:- There is a discretion in the Company Court either to accept or reject the highest bid before an order of confirmation of sale is made. However, once the Company Court is satisfied that the price is adequate, the subsequent higher offer cannot be a ground for refusing confirmation. The price of immoveable property keeps on varying depending upon the market conditions and availability of a buyer. Such fluctuations may attract fresh higher offers but normally such offers cannot be made the basis for reopening the confirmed sale which was otherwise valid. In the present case, we are satisfied that the sale made in favour of M/s. Venus Realcon does not require any interference.
There is no good reason why the full price paid by Venus Realcon should be ordered to be refunded with interest etc. and possession which was delivered to Venus Realcon at the time of sale should be disturbed after passage of so much time. The money deposited in this case by the intervener M/s. Himalayan Infra Projects Private Limited should be refunded to it forthwith along with interest accrued thereupon. The judgment and order of the Delhi High Court is affirmed by holding that powers under the Companies Act cannot be wielded by the Company Judge to interfere with proceedings by a secured creditor to realize its secured interests as per provisions of the SARFAESI Act.
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2015 (12) TMI 1471
Right to be represented before the Redressal Committee through a lawyer - Held that:- As in the peculiar facts of this case the High Court while declaring the law relating to one's right to be represented before the Redressal Committee through a lawyer in favour of the petitioners, however permitted the respondents herein to be represented by a lawyer making it clear that the hearing before the Redressal Committee will be concluded in one day.
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2015 (12) TMI 1470
Computation for the income chargeable under the head 'capital gains' - whether the Tribunal after elaborately considering the clauses in the Settlement Agreement entered into between the parties, has rightly come to the conclusion that the 'capital gains' income is only towards the transfer of trademarks associated with the product 'SHARP' and not to the business of the assessee as a whole? - Held that:- The assessee has suffered a loss during the relevant assessment year as reflected in the assessment order and it is also submitted by the learned counsel appearing for the assessee that in the previous three assessment years also, the assessee had suffered loss. In such an event, it can be observed that the goodwill of a business of a company running under loss, may not have a potential value, profit would be sine qua non for the goodwill of a business. This factor also adds to hold that the goodwill of a business is not transferred. The goodwill of a trade mark associated with the business cannot be construed as a goodwill of a business, as already held, these are two distinct separate intangible assets, both cannot be intermixed.
We have perused the relevant clauses of the settlement deed entered into between the parties extracted supra, which clearly indicates, the assignment made by the assessee company to M/s Sharp Corporation, is only transfer of trademarks and the goodwill associated with the trade marks. It cannot be misconstrued to that of goodwill of a business. It is observed in the judgment of the ITAT, "it is common ground before us that the assessee did not sell its entire business undertaking to Sharp Corporation". This admitted fact itself proves that the assessee has transferred only the trade marks and not the goodwill of a business. Even assuming the goodwill related to the trade mark is transferred, it cannot be construed as the goodwill of a business. If the arguments of the revenue that the transfer of trade mark itself is goodwill of a business is accepted, then there was no necessity for the Legislature to amend Section 55(2)(a) of the Act inserting the words "trade mark" or "brand name" associated with the business by Finance Act, 2001.
In such view of the matter, we are of the considered opinion that the ITAT, after elaborately examining the terms of the settlement deed, has arrived at a right conclusion and the same does not warrant any interference by this Court. - Decided in favour of the assessee and against the revenue
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2015 (12) TMI 1469
TDS u/s 194I - assessee in default - Whether the Tribunal was correct in holding that the order passed under Section 201(1) and 201(1A) for the assessment year 2002-03 is barred by limitation? - Held that:- In the memorandum explaining the provisions in the Finance (II) Bill, 2009, it was clearly stated that ‘to provide sufficient time for pending cases, it is proposed to provide that such proceedings for a financial year beginning from 1st April, 2007 and earlier years can be completed by the 31st March, 2011’. As such, the memorandum itself clarified that the proviso is for pending cases, and not decided cases. The Circular dated 3.6.2010, issued by the CBDT, also clearly specifies that the said proviso would be for pending cases and not decided cases. With regard to the applicability of the amendment made by the Finance Act, 2009 with effect from 1.4.2010, it was also clarified to be from the assessment year 2011-12 and subsequent years. As such, it is clear that proviso to sub-section (3) did not legalize the cases where action had already been taken, but was meant for only such cases which were pending at the time of insertion of sub-section (3) to Section 201 of the Act. Thus, for the reasons given above, we find that the Tribunal was correct in holding that the order passed under Sec.201 (1) and (1A) of the Act on 28.1.2008 for the assessment year 2002-03, would be barred by limitation as the period of limitation would be four years from the end of the financial year in question. - Decided in favour of the respondent assessee and against the Revenue.
Liability to interest under Section 201(1A) - ITAT held that the assessee was liable to pay interest under Section 201(1A) of the Act for not deducting TDS, from the date when the payment was made by the assessee to the Recipient, till the date the tax was deposited by the Recipient - Held that:- the provision for tax deduction at source is only a mechanism for collection of tax by the payer, even though the liability to pay tax is that of the Recipient. The provision for payment of interest under sub-section (1A) of Section 201 of the Act is only of compensatory nature. It cannot be a means to penalise the payer. The provision for payment of interest would arise from the date when it ought to have been deducted i.e., from the date of payment by the payer to the Recipient. The liability to pay interest would end on the date when such tax has been deposited by the Recipient, either by way of advance tax or along with the return of income. Interest, herein, being compensatory in nature, cannot be thus charged for the period beyond the date when such tax has already been deposited by the Recipient. If the Revenue is permitted to charge interest even after the Recipient has deposited the tax, the same would amount to undue enrichment of the Revenue, as even after receiving the tax, it would continue to get interest on the amount which has already been paid or deposited with it. As such, the liability of the assessee herein would not be for payment of interest after the period of deposit of tax by the Recipient.- Decided in favour of the respondent assessee and against the Revenue.
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