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Showing 501 to 520 of 19685 Records
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2015 (12) TMI 1407
Estimation of Gross Profit rate - Gross Profit rate of 11.5% confirmed by CIT(A) - Held that:- It is undisputed that the books of accounts were never produced before the Assessing Officer. Certain other alarming facts were also found by the Assessing Officer, the obvious conclusion made by him was to reject the books of account. The assessee preferred not to press the ground related to rejection of books of accounts before us. In such a scenario the estimation of Gross Profit rate is a must. The assessee cannot plead to accept the Gross Profit rate as declared by him, when books of A/c and details were not produced before authorities below. The CIT(A), in this case has given a very detailed reasoned finding as to the fact that, why a Gross Profit rate of 11.5% may be applied.
Considering facts of case it is clear that there is increase in turnover of assessee as compared to earlier years. The Ld. CIT(A) considered past history of assessee for estimating profit when no books were produced before AO. We rely on decision of Punjab & Haryana High Court in case of CIT Vs. Rajinder Parshad Jain, [ 2014 (12) TMI 567 - PUNJAB & HARYANA HIGH COURT] - No infirmity in the order of CIT(A) on this issue. The Gross Profit rate 11.5% as estimated by the CIT(A) seems reasonable in the facts & circumstances of the case.
As we have upheld the estimation of Gross Profit @ 11.5% while adjudicating the earlier grounds, no other disallowance of any expenses separately is called for. In view of the above, income having been estimated. Any other disallowance is not warranted. - Decided in favour of assessee.
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2015 (12) TMI 1406
Transfer pricing adjustment - DRP/AO/TPO benchmarking the foreign currency loan transaction using the fixed deposit rate of scheduled commercial banks and ignoring the internal CUP analysis performed by the assessee - Held that:- The comparable adopted by the assessee, in his transfer pricing analysis, is the rate at which the Exim Bank of India had extended similar foreign currency loan to the assessee, and the TPO has rejected the same on the basis that such a rate constitutes costs of funds to the assessee which is irrelevant, in the considered view of the TPO, for the purpose of benchmarking the loan to its AE. What, however, the TPO overlooks is the fact that the credit rating of the AE, which is a newly formed and one hundred percent subsidiary of the assessee, is, in the normal course, expected to be the same as that of the subsidiary and if a credit institution like Exim Bank is offering the foreign currency loan to the assessee at a particular price, it is reasonable to proceed on the basis that the foreign currency loan, on similar terms, to the AE could be an arm’s length transaction - Decided in favour of assessee.
Adjustment on account of interest on outstanding interest receivable from AE - Held that:- In the present case, however, ALP adjustment by way of charging interest is in respect to delay in payment of interest itself, and APL determination of interest is also before us. While dealing with the preceding ground of appeal, we have already held that the loan arrangement with Exim Bank is a valid internal CUP for this international transaction as well, and, therefore, even the question as to whether the delayed payment of interest will invite compounding of interest can be addressed in the light of the terms of the internal CUP. For this limited purpose, the matter is restored to the file of the Assessing Officer. Whatever be the rate of interest and terms applicable in a materially similar situation of delay in payment of interest to Exim Bank will apply mutatis mutandis in this fact situation as well.- Decided in favour of assessee for statistical purposes.
Determining the ALP of the Guarantee fee @ 2% of the Guarantee amount extended by the appellant on behalf of its AE - DRP/AO/TPO rejecting the internal Comparable Uncontrolled Price (‘CUP’) submitted by the Appellant and instead considering external data - Held that:- There is no scientific basis for coming to the conclusion that 2% guarantee commission is an arm’s length price of the corporate guarantee commission, but then there was no information furnished by the assessee to assist in ascertainment of the ALP. The assessee has not even given complete details about the guarantees issued by the assessee, nor has he offered any assistance whatsoever in ascertaining the arm’s length price of the corporate guarantee issued by the assessee. In view of these discussions, as also bearing in mind entirety of the case, we deem it fit and proper to remit the matter to the file of the TPO for the limited purposes of ascertaining the arm’s length price of the corporate guarantee issued by the assessee. The assessee is directed to fully cooperate by furnishing necessary information and inputs to the TPO and assist in expeditious disposal of the remanded matter. As the matter is being remitted to the file of the TPO for adjudication de novo, we consider it appropriate to give liberty to the assessee to raise such legal and factual arguments as the assessee may deem appropriate. With these directions, while the ALP adjustment is upheld in principle, the quantification of ALP adjustment is restored to the file of the TPO for adjudication de novo in accordance with the law, by way of a speaking order and after giving yet another opportunity of hearing to the assessee.- Decided in favour of assessee for statistical purposes.
Non granting exemption under section 10(1) of the Act in respect of agricultural income - Held that:- The issue is covered against the assessee, by Hon’ble Karnataka High Court’s judgment in assessee’s own case for the assessment year 2001-02, inasmuch as the matter has been thus remitted to the file of the Assessing Officer for fresh adjudication.
Disallowance under section 40(a)(ia) of the Act on account of non-deduction of tax at source on procurement and processing charges - Held that:- The payments did not attract tax deduction under section 194C and, as such, there is no occasion for invoking disallowance under section 40(a)(ia).- Decided in favour of assessee
Disallowance of deduction in respect of employees’ contribution to Provident Fund (PF)- amount paid beyond the due date but before the due date of filing the return of income - Held that:- Respectfully following the esteemed views of Hon’ble jurisdictional High Court in assessee’s own case, and in the light of undisputed factual position to the effect that the payments were made before the due date of filing of income tax return, we uphold the grievance of the assessee and direct the Assessing Officer to delete this disallowance - Decided in favour of assessee
Depreciation on goodwill - Held that:- A petition dated 16th April 2015 seeking admission of additional evidence in support of this grievance, and contended that “on becoming aware of the decision of Hon’ble Supreme Court in the case of CIT vs SMIF Securities Limited (2012 (8) TMI 713 - SUPREME COURT ), the assessee has raised a ground in respect of allowability of deduction for goodwill” and prayed that the same may be adjudicated on merits. A reference is also made to Hon’ble Supreme Court’s judgment in the case of NTPC Ltd Vs CIT (1996 (12) TMI 7 - SUPREME Court) in support of the contention that this issue can be raised even at this stage. We are of the considered view that the matter should be remitted to the file of the Assessing Officer for adjudication on merits on this issue.- Decided in favour of assessee for statistical purposes.
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2015 (12) TMI 1405
Denial of refund claim - Notification No.17/2009-ST dated 7.7.2009 - claim for refund on transportation/freight - Held that:- Board Circular seeks to explain the scope of Section 154 of the Customs Act. This provision enables correction of arithmetical mistake in any decision or order passed by the Central Government, Board or any officer under the Customs Act, 1962. The corrigendum dated 14.8.2012 was however explicitly issued in exercise of powers under Section 74 of the Finance Act, 1994. Section 74 authorizes rectification of any mistake apparent from the record. It is axiomatic and this is also not contested by the respondent/Revenue that appellant was entitled to refund of service tax on transportation/freight charges incurred on transportation of exported goods from the place of clearance to the port of export though not on transportation of empty containers. A clarification dated 19.7.2012 addressed by the appellant, in response to the departmental notice dated 24 21.6.2012 contains the clear assertion that transportation and freight charges were not incurred on empty containers. - appellant is entitled to succeed. - Decided in favour of assessee.
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2015 (12) TMI 1404
Demand of service tax - Goods Transport Operator service - Notification Nos, 42/97-ST & 43/97-ST both dated 05.11.1997 read with Rule 2 (c) (d) of Service Tax Rules, 1994 - Held that:- Issue is squarely covered by the earlier ruling of this Tribunal in the cases of L.H. Sugar Factories Ltd. (2005 (7) TMI 106 - SUPREME COURT OF INDIA) &. Hi-Tech Carbon (2004 (8) TMI 7 - CESTAT (NEW DELHI)). Accordingly, the impugned order is set aside - Appellant, has pointed out that the total demand of ₹ 8,03,076, was raised on the Assessee, out of which, ₹ 3,74,294/- was paid by them before issuance of show-cause notice and during investigation, they also paid ₹ 4,28,782/- on 27.11.2003 before passing of the Order-in-Original. In the present circumstances, it is not an issue of unjust enrichment involved and the Appellant is also entitled to refund - Decided in favour of assessee.
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2015 (12) TMI 1403
Demand of service tax - franchise service - presumption and arbitrary quantum while doing best judgement assessment - Suppression of facts - invocation extended period of limitation - Held that:- Adjudicating authority has observed that the appellant “deliberately tried to suppress the facts from the Department” and then adds that “M/s. Carlsberg India Pvt. Ltd. wilfully suppressed all the material facts regarding nature of service provided by them in respect of “Intellectual Property Services other than Copyright” and the gross amount received by them during the aforesaid period as royalty / franchisee service and at no stage did they enquire about taxability of their services”. It is obvious that the paragraph has been written without application of mind because in the present case no amount was received by the appellant “as royalty/franchise service”; indeed the appellant paid the amount to foreign based company. The appellant did not provide the alleged services, but was the recipient of the alleged services.
In the Show Cause Notice dated 18.10.2012, the figures for 2011-12 have been taken to be 10 times those for 2010-11 under the “best judgment assessment” without any basis / reason which almost smacks of outright mala fide and the adjudicating authority blindly adopted those figures under “best judgment assessment” without even a whisper as to how such a quantum jump (tenfold) in the assessable value was justifiable as 'best judgement assessment' under Section 72 ibid
Appellant made elaborate arguments in its written submissions that the service received by it did not satisfy the definition of franchise service under Section 65 (105) (zze) ibid, but the adjudicating authority summarily states (without any analysis) that its contentions do not hold ground. Indeed, as brought out hereinabove, perusal of paragraphs 36 to 41 of the impugned order quoted above makes it so amply clear that the order fatally suffers from lack of analysis/discussion regarding the contentions and arguments of the appellant and makes a mockery of the quasi-judicial process in-as-much-as it is not merely non-speaking, but also absurd in parts.
In the absence of analysis/reasoning with reference to the contentions of the appellant, the conclusions drawn in the impugned order are rendered lifeless - we set aside the impugned order and remand the case to the adjudicating authority for de novo adjudication after giving the appellant an opportunity of being heard. - Decided in favour of assessee.
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2015 (12) TMI 1402
Undervaluation of goods - Related person - Appeal against the decision of Tribunal [2006 (10) TMI 66 - CESTAT CHENNAI] - When department fails to prove any one of the following condition the allegation of under valuation is not sustainable (i) mutuality of interest, (ii) price is lower to the normal price and (iii) buyer and seller are related person - Held that:- Tribunal has arrived at the aforesaid findings by giving cogent reasons on the basis of evidence that was produced by the respondent(s)/assessee(s). - these are pure findings of fact arrived at by the Tribunal. In fact, in the appeal filed by the Department it is not even a ground that these findings are perverse - No question of law arises - Decided against Revenue.
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2015 (12) TMI 1401
Denial of provisional assessment of the goods as per the provisions of Rule 7 of the Central Excise Rules, 2002 - Held that:- Legislature intent is very clear inasmuch as regards the provisional assessment is concerned, which is indicative that the Assistant Commissioner or the Dy. Commissioner of Central Excise, as the case may be, may order allowing payment of duty on provisional basis. There cannot be any other view from the plain reading of the provisions as reproduced herein above. In the case in hand, rejection of request of provisional assessment only for not providing the records to finalize assessment, cannot be a reason as the department in many cases have undertaken the exercise of finalizing the provisional assessment belatedly. Secondly, the reliance placed by the first appellate authority as well as the learned AR on the decision of the Hon'ble High Court of Kolkata is totally misplaced as the same is in respect of the provisions of Section 18 of the Customs Act, 1962 asking the provisions assessment of duty on direction of the proper officer. That is to say when an import takes place, assessee cannot claim provisional assessment as matter of right. While the Central Excise Act and the Rules made thereunder (the provisions of Rule 7) which are reproduced herein above, authorized the Assistant Commissioner or Dy. Commissioner of Central Excise to allow the clearance of the goods on provisional assessment. - Decided in favour of assessee.
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2015 (12) TMI 1400
Denial of CENVAT Credit - the case of the Revenue that Associated Capsules Ltd. was not manufacturing aluminium foils but was engaged in cutting/slitting jumbo rolls into smaller rolls and the said activity does not amount to manufacture and the duty discharged by M/s Associated Capsules Ltd. is not Central Excise duty. - Held that:- department filed an appeal against the order of the Commissioner dropping the proceedings initiated against M/s Associated Capsules Ltd., before the Tribunal in appeal [2014 (2) TMI 721 - CESTAT MUMBAI] and the department's appeal was dismissed by the Tribunal as reported in [2014 (2) TMI 721 - CESTAT MUMBAI] and produced a copy of the same. I find that the Tribunal has upheld the duty discharged by M/s Associated Capsules Ltd. as correct and if that be so CENVAT credit taken by the respondent in the case in hand cannot be disputed, as the fulcrum of the revenue to deny credit on the ground that Associated Capsules could not have discharged duty, is now set aside. - Decided against Revenue.
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2015 (12) TMI 1399
Denial of CENVAT Credit - whether the appellant who has procured ethyl alcohol from M/s Andhra Sugars, on payment of duty of excise can be disallowed the credit of the said duty on the ground that the supplier of the inputs should not have paid the duty - Held that:- Revenue has not raised any objection at the time of payment of duty by M/s Andhra Sugars. It stands held in number of decisions that the recipient of the goods/inputs cannot be denied the CENVAT Credit of duty paid by the supplier of the inputs on the ground that the supplier should not have paid such duty. One such reference can be made to a latest decision of the Tribunal in the case of Cummins Diesel Sales & Service India Ltd Vs CCE Pune [2014 (11) TMI 238 - CESTAT MUMBAI]. Reference can also be made to the majority decision of the Tribunal in the case of Asian Colour Coated Ispat Ltd. Vs CCE Delhi [2014 (9) TMI 974 - CESTAT NEW DELHI] where originally there was difference of opinion between two Members and as per the majority decision it was held that CENVAT Credit cannot be denied to an assessee on the ground that manufacturer of final product was not required to pay duty by utilising the credit, as the activity at his end did not amount to manufacture. - there is no dispute that M/s Andhra Sugars cleared the inputs on payment of duty. As the issue is settled, I find no merits in the said stand of the Revenue - Decided in favour of assessee.
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2015 (12) TMI 1398
Levy of personal penalties on the directors and partners of the defaulting company and firms for wrong claim of SSI Exemption - Appeal of the Main Assessee was already dismissed for non compliance of stay order - Heldthat:- A. R. Majmudar was involved in wrong availment of SSI exemption benefit. Thus, the imposition of penalty on Shri Majmudar as Director of M/s. Bakul is justified. We agree with the submission of the Learned Advocate that the imposition of penalty on Shri A.R. Majmudar as partner of M/s Pocono is liable to set-aside, as he is already penalized as Director of M/s. Bakul on the same transaction. The imposition of penalty on Smt. A.A. Majmudar proprietress of M/s Shonar, we find that Smt. A.A. Majmudar had knowingly involved in irregular availment of the SSI exemption by M/s. Bakul. Hence, the imposition of penalty on her is justified. - Rule 209A of the erstwhile Central Excise Rules, 1944 provides any person who acquires possession of, or is in any way concerned in transporting, removing, depositing, keeping, concealing, selling or purchasing, or in any other manner deals with, any excisable goods which he knows or has reason to believe are liable to confiscation under the Act, or these rules, shall be liable to a penalty. The expressions in any other reasons have wide amplitude. It is the case of Revenue that Mrs. Majmudar knowing fully was involved in wrong availment of benefit of SSI exemption by M/s. Bakul, who cleared the goods without payment of duty, liable for confiscation. - However, penalty imposed is reduced - Appeal disposed of.
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2015 (12) TMI 1397
Denial of CENVAT Credit - Service tax paid on outward transportation - Held that:- As per the provisions of section 4 (3) (c) of the Central Excise Act, 1944, the place or removal in this case shall be the buyers factory, where the goods are ultimately delivered by the appellant. Reading of the inclusive part of definition of 'input service' makes the position clear that if the place of removal is premises of consumer, then the assessee shall be entitled to cenvat credit of service tax paid on the freight element for movement of goods from the factory to such destination point - if under the terms of the contract, the sale takes place at the destination, then that place will be considered as the place of removal and service tax paid on GTA service for transporting the goods, up to the destination, will be available for Cenvat credit - since the freight amount inclusive of service tax has been charged in the bill and the billed amount was paid by the buyer to the appellant, in my considered opinion, the service tax component on which the appellant took Cenvat credit is forming an integral part of the price of goods. - No merit in impugned order - Decided in favour of assessee.
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2015 (12) TMI 1396
Denial of CENVAT Credit - Manpower service for maintenance of garden - Held that:- In the case of Stanadyne Amalgamations Pvt. Ltd (2011 (2) TMI 644 - CESTAT, CHENNAI) , the statutory requirement under the pollution Control norms for maintenance of garden was not the issue before the Tribunal. Further, in the case of Grasim Industries (2010 (11) TMI 266 - CESTAT, CHENNAI) , no specific reason has been assigned by the Tribunal as to why service tax paid on the maintenance service shall not be eligible for cenvat credit. Since, the issue in hand is squarely covered by the decision in the case of Hindustan Zinc (2013 (11) TMI 407 - CESTAT NEW DELHI) , I am of the considered view that the appellant shall be eligible for cenvat credit of service tax paid on manpower supply service, utilized for maintenance of the gardens within the factory. - No merit in impugned order - Decided in favour of assessee.
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2015 (12) TMI 1395
Denial of CENVAT Credit - No manufacturing activity is done - Held that:- Commissioner (Appeals) has allowed the benefit to the respondent on the ground that once the duty has been paid on the final product, the same should be treated as reversal of the ineligible credit taken on the inputs and there is no requirement for insisting the assessee again to pay/ reverse the cenvat credit. I find that the observations of the Ld. Commissioner (Appeals) are in conformity with Rule 3(5) of the Cenvat Credit Rules, 2004, which provides that in case of removal of inputs as such from the factory, the manufacturer of final products shall pay an amount equal to the credit taken in respect of the inputs. Further, I find that the dispute in the present case has arisen because of the fact of taking cenvat credit on the disputed inputs used for conversion of the final product. Assuming that no credit has been taken for the activities not amounting to manufacture then there was no scope for payment of any Central Excise Duty on removal of final product. However, since the final product has suffered duty, reversal of credit taken by the Respondent on the inputs will not result in any loss of Revenue to the Government exchequer. - no infirmity in the impugned order - Decided against Revenue.
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2015 (12) TMI 1394
Denial of CENVAT Credit - service tax paid on the freight charges for transportation of goods up to the buyer's premises - transportation service has not been used either directly or indirectly in or in relation to manufacture of assesse's final product - Held that:- Facts are not in dispute that the ownership of the goods and the title in the goods remained with the respondent till delivery of the goods in acceptable condition to the purchaser at his door step; that the Respondent bore the risk of loss or damage to the goods during transit to the destination; and that the freight charges were an integral part of the price of the goods. The term 'place of removal' has been defined in section 4(3)(c) of the Central Excise Act, 1944, which also includes "any other place of removal where the excisable goods are to be sold after their clearance from the factory". In the present case, since the title or ownership of goods passed on to the buyer at their site, such site of the buyer will be considered as the "place of removal" and as per the definition of input service, the freight payable for such transportation of goods will be considered as input service for the purpose of taking cenvat credit. - Decided against Revenue.
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2015 (12) TMI 1393
Denial of MODVAT Credit - appellant had removed molasses from the sugar factory to the Kachcha pit situated outside the factory premises - Held that:- Receipt of the disputed input i.e. molasses in the chemical unit of the appellant and their use within the factory for the intended purpose have not been disputed either in the adjudication order or in the impugned order. However, the modvat credit has been denied on the sole ground that the bill issued from the kachcha pit to the chemical unit is not a proper/ valid document prescribed under Rule 52A of the erstwhile Central Excise Rules, 1944 read with Rule 57G for taking the modvat credit - Notification dated 09.02.1999 issued by the Central Government has not been considered in proper prospective by the authorities below while denying the modvat benefit to the appellant. According to the said Notification, the modvat benefit shall not be denied, if the duty paid character of the input and its receipt and utilization in the factory for the intended purpose is not in dispute. In the circumstance of the present case, since the original authority has not carried out proper exercise, I am of the view that the matter should be remanded back to the jurisdictional Assistant/Dy. Commissioner of Central Excise, who shall verify the documents as provided under the said Notification and if maintenance of such documents are in conformity with the requirement of the said Notification, the Modvat benefit should be allowed to the appellant. - quantum of shortage/loss is negligible in comparison with the total material handled by the appellant. Thus, negligible difference due to various factors should be ignored and full credit should be allowed to the appellant - Appeal disposed of.
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2015 (12) TMI 1392
Duty demand - Manufacture - Whether the activity of the appellant installation of signaling system at site is manufacture of excisable goods and would be attract excise duty - Held that:- activity of the appellant no excisable goods come into existence. Moreover, it is also not disputed that similar show cause notices issued by jurisdictional Additional Commissioner, Bangalore, Ahmedabad and Mysore have been dropped by the concerned Additional Commissioners. We are also convinced with the contention that the elements required for invocation of extended period under proviso to section 11A(1) are absent in this case. Prima facie, the show case notice dated 31.10.2012 for demand of duty issued for the period October, 2007 to December, 2009 is therefore time barred. - stay granted.
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2015 (12) TMI 1391
Reversal of CENVAT Credit - Duty demand u/r Rule 6 (3) - Department has alleged that common Cenvat credit availed input services have been used in or in relation to manufacture of dutiable final product (Carbon Black) and exempted final product (steam and electricity) and therefore in respect of sale of steam and electricity an amount equal to 5%/10% of the sale value would be recoverable under Rule 6 (3) of the Cenvat Credit Rules. The appellant's contention, however, is that the services being used are three type. The first type of services are those which are directly used in or in relation to manufacture of Carbon Black and in respect of such services the provisions of Rule 6 (2) readwith Rule 6 (3) would not apply.
Held that:- The appellant's plea, however, is that they have reversed the total credit on all the common input services. If this is so, there would be no case for invoking Rule 6 (3) against them. Hon'ble Allahabad High Court, which is the Jurisdictional High Court, in the case of Hello Minerals Water Pvt. Ltd. vs. Union of India [ALLAHABAD HIGH COURT] has held that if the Cenvat credit initially taken is reversed subsequently it would amount to not taking Cenvat credit and same view has been taken by the Tribunal in the case of JCT Ltd. vs. CCE, Jallandhar [2015 (2) TMI 600 - CESTAT NEW DELHI]. Therefore if the appellant have fully reversed the credit in respect of common services or in other words not taken any Cenvat credit in respect of the common services there would be no justification for invoking Rule 6 (2) readwith Rule 6 (3) and the duty demand would not be sustainable at all.
Without going into the question as to whether the steam and electricity are excisable goods or non-excisable goods, we set aside the impugned order and remand the matter to Commissioner for denovo adjudication. In denovo proceedings, the Commissioner should examine the appellant's plea that the input services are of three types as described above. In respect of the services which are exclusively used for manufacture of Carbon Black and the services covered by Rule 6 (5) in respect of which Cenvat credit has been taken upto 31/3/11 the provisions of Rule 6 (2) readwith Rule 6 (3) would not apply. If in respect of the common input services of third category, the appellant have fully reversed the Cenvat credit, the provisions of Rule 6 (2) readwith Rule 6 (3) would not apply and the demand confirmed under Rule 6 (3) would not be sustainable - Matter remanded back.
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2015 (12) TMI 1390
Goods imported against advance authorization scheme - claim of exemption towards (1) whole of the Customs Duty leviable thereon; (2) whole of the Additional Duty under section 3 of the CTA, 1975; (3) Anti- Dumping Duty under section 9A of the CTA, 1975; and (4) Safeguard Duty under section 8B of the CTA, 1975 subject to the terms and conditions set out in the said Notification. - Notification No.96/2009-Cus. dated 11th September, 2009 - Held that:- in the Foreign Trade Policy 2015-2020, the Government for the first time in its Policy decided to also exempt the Transitional Product Specific Safeguard Duty (imposed under section 8C), in addition to Safeguard Duty (imposed under section 8B). This Transitional Product Specific Safeguard Duty is the duty imposed under section 8C of the CTA, 1975 for imports from the People's Republic of China.
Up until 2015 no exemption was ever granted from payment of Safeguard Duty levied under section 8C of the CTA, 1975. Notification No.96/2009-Cus. dated 11th September, 2009 only granted exemption from payment of Safeguard Duty imposed under section 8B. This being the case, we, in our jurisdiction under Article 226 of the Constitution of India, cannot direct the Government to grant an exemption that was never granted earlier. No person has a vested right in the grant of an exemption. An exemption by its very nature is a freedom from an obligation which the exemptee is otherwise liable to discharge. It is a privilege granting an advantage not available to others. An exemption under a statutory provision in a taxing statute is by its nature a concession granted by the Government so that the beneficiaries of such a concession are not required to pay tax or duty they were otherwise liable to pay under such statute. The recipient of the concession has no legally enforceable right against the Government to grant of such a concession, save and except to enjoy the benefits thereof during the period of its grant.
Even if the Petitioner is called upon to pay the Safeguard Duty levied under section 8C on Carbon Black imported by it from the People s Republic of China, no prejudice would be caused to the Petitioner because the Petitioner could always claim a drawback of the same on establishing that the very same product imported on payment of Safeguard Duty was ultimately used in the manufacture of final products that were exported out of India. In fact, to be fair to the Respondents, this is also the stand taken by them in their affidavit in reply to this Writ Petition. We therefore do not think that in these circumstances, this is a fit case where we ought to exercise our equitable, extraordinary and discretionary jurisdiction under Article 226 of the Constitution of India in favour of the Petitioner.
Provisions of sections 8B and 8C of the CTA, 1975 operate in two different fields. The Safeguard Duty imposed under section 8B is on a specific article that may be imported from any country. On the other hand, the Transitional Product Specific Safeguard Duty under section 8C is not only article specific but also country specific. In other words, the Safeguard Duty imposed under section 8C is on a particular article specifically imported only from the People s Republic of China. There is therefore a clear distinction between the Safeguard Duty imposed under section 8B and under section 8C. The two sections operate in a totally different fields and are a category by themselves. It is not as if by granting exemption from payment of Safeguard Duty imposed under section 8B and denying the exemption from payment of Transitional Product Specific Safeguard Duty imposed under section 8C, the Government has created any sub-classification excluding one sub-category even when both the sub-categories are of same genus. The Safeguard Duty imposed under section 8B and 8C fall in separate categories by themselves and can never be classified as sub-categories of the same genus.
It is not as if the payment of Transitional Product Specific Safeguard Duty imposed under Section 8C was exempted under the Notification No.96/2009-Cus. dated 11st September, 2009 and the same was thereafter retracted without any justification. As stated earlier, this exemption was never granted by the Government. In fact, it is the case of the Petitioner that by not granting this exemption the Government has committed an error or mistake. A party can never have a vested right in claiming an exemption that was never granted in the first place as held by the Supreme Court in the case of J. K. Udyog. ( 2004 (9) TMI 381 - SUPREME COURT OF INDIA) In this view of the matter, we find that the reliance placed by Mr. Sridharan on the decision of the Supreme Court in the Indian Express Newspaper s case (1984 (12) TMI 65 - SUPREME Court) is of no assistance to the Petitioner. - Supreme Court held that there must be rational basis of discrimination between one commodity and another for the purpose of imposing or not imposing the tax. As stated earlier, in the present case, any Transitional Product Specific Safeguard Duty imposed under section 8C of the CTA, 1975 was never exempted under Notification No.96/2009- Cus. dated 11th September, 2009. It is not as if the exemption was initially granted and was thereafter withdrawn without any justification. In the case before us, the Petitioner seeks a mandamus, which in effect, would be to direct the Government to grant an exemption which was never granted earlier. In these facts, we find that the judgment of the Supreme Court in the case of Deepak Fertilizers (2007 (5) TMI 323 - SUPREME COURT OF INDIA) has no application to the facts of the present case and the reliance placed thereon is also wholly misplaced.
It was only in the Foreign Trade Policy 2015-2020 that Transitional Product Specific Safeguard Duty imposed under section 8C of CTA, 1975 was sought to be exempted so long as the goods imported were used in the manufacture of final products that were exported out of India. Keeping in tune with this Foreign Trade Policy, a Notification was issued on 1st April, 2015 whereby apart from the Safeguard Duty imposed under section 8B, Transitional Product Specific Safeguard Duty imposed under section 8C was also exempted. It is in this light that we have come to the conclusion that there was no conflict between the Foreign Trade Policies framed by the Government of India from time to time and the corresponding Notifications issued to implement the said Policies. - There is no doubt that the exercise of power, whether legislative or administrative, would be set aside if there is a manifest error in exercise of such power or the exercise of the power is manifestly arbitrary. We do not find any such case before us. In fact, in the present case, the Petitioner in effect wants us to direct the Government to grant an exemption which was never granted in the first place until it framed the Foreign Trade Policy 2015-2020. - no merit in this Writ Petition - Decided against assessee.
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2015 (12) TMI 1389
Whether the coals imported by M/s. JSW Steel Ltd (JSWSL for short), the appellant, i.e. for use in Corex Furnace and declared as weakly Coking/Soft Coking/Semi Soft Coking/Corex Coal are "Coking Coal" classifiable under tariff item 27011910 of the Customs Tariff Act and eligible for exemption from payment of customs duty under Sl. No. 68 to notification No. 21/2002-Customs dated 1.3.2002 or these were in fact thermal coal/ Steam Coal classifiable under tariff items 27011920 and 27011990 leviable to Customs duty @5% Adv - Held that:- The issue is covered by the judgment of the Tribunal in their own case, reported in [2013 (1) TMI 301 - CESTAT, CHENNAI], wherein it was held that the exemption to coking coal under S. No. 68/68A of Notification NO. 21/2002-Cus would also be available to coal "suitable" for use in admixture with other coal for making coke. It was held that the mere adoption of a new technology enabling the use of coal without first converting the same into coke in admixture with other coal cannot be a ground for denying the benefit of the exemption. It was further held that the criteria regarding 1 CSN and 0.60 MMR, which were introduced in the Notification granting exemption to coking coal with effect from 1.3.2011, cannot be given retrospective effect. - coking coal imported by the appellant for its Corex Plant had weak caking properties with CSN of more than 1 and less than 3 clearly comes out from the statements of Shri AVRP Dasu, General Manager - 4MT (Iron Making) dated 19.9.2011 and of Shri B.M. Reddy, Deputy General Manager - 10MT (Iron Making - Quality Management Centre) dated 29.9.2011. The evidence resumed show that before approving the use of any soft/semi-soft/weakly coking coal from a particular mine, the same was first type-tested for its suitability for use in the Corex process. During the course of investigations, the hard disk of Shri Arvind Rajagopalan (GM Commercial) had been seized and sent to the Central Forensic Science Laboratory, Hyderabad. From the said seized hard disk record, a report dated 29.5.2008 tabulates the CSN of the various coals, being used in the Corex process from the various mines, to be between 1 to 1.5
The exemption to coking coal was not linked to any particular end-use and that any coal which fulfilled the criteria of being a coking coal was eligible for the benefit of exemption. It is settled law laid down in the following judgments that where a notification contemplates an end use, the Central Government has to necessarily provide for a mechanism to monitor the said end-use. - it would be useful to refer to some of the technical literature on the characterization and categorization of various kinds of coal. From the IS standards 770-1977, we find that in Table 2 of the standards, the bituminous coal is classified into categories such non-caking, weakly caking, medium to strongly caking, weakly to medium caking, strongly caking. And further in comparison with the IS standards 1353:1993 we note that the weakly caking, medium to strongly caking and weakly to medium caking categories have a CSN number which is greater than 1 whereas non-caking has a CSN less than 1. In the remarks column in table 2, against strongly caking coal, the purpose of utilization is 'metallurgical Coke making'. According to learned Spl counsel only such coal can be considered as coking coal. However we notice that against the weakly/medium caking coal varieties, the purpose of utilization is written as 'blending'. This indicates that such coal can be used for blending with the strongly caking coal for steel making.
An interesting aspect is that the appellant in one case of import at Goa, which is not related to the imports in the present case, requested for retest of samples in which the chemical Examiner at Goa found the CSN to be 1 in respect of four consignments. We are informed that on retesting the CSN of the same samples was found to be 5 to 5.5. The appellant requested for cross examination of the chemical Examiner. From the records of cross-examination, it transpired that the samples were not drawn in the manner prescribed in IS 436 not was the procedure for testing prescribed in IS 1353"1993 completely adhered to in as much as against three readings of CSN, only one reading of CSN was recorded. It has been held by the Hon'ble apex Court in the case of Tata Chemicals Ltd. It versus Commissioner [2015 (5) TMI 557 - SUPREME COURT] that if samples are drawn contrary to the provisions of law, the test reports cannot be relied upon. We realize that the testing does not pertain to the consignments in dispute. But having noted the difference in the results of internal tests by the appellant (not brought on record by revenue) and the testing in Govt Laboratory in the present case, the benefit of doubt must go to the appellants in view of our detailed findings from all angles. The onus was on Revenue in the preceding paras to disprove the appellant's own reports. Noting the totality of evidence in favour of the appellant, we do not agree with the findings of the Commissioner in confirming the demand of duty in respect of 21 bills of entry. - Impugned order is set aside - Decided in favor of assessee.
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2015 (12) TMI 1388
Import of goods without having the IE Code at the time of importation - Penalty u/s 117 - Confiscation of goods - goods are not available and have already been released on payment of duty - Held that:- There is no indication as to what is the value of the goods imported, what is the duty liability involved. No doubt the goods may be liable to confiscation strictly going by the proviso to Section 111(d) read with Foreign Trade Act. However the Revenue never chose the option of imposing penalty under Section 112 at the original stage in both these cases and not resorting to confiscation, in my opinion it is too late or the matter to be reopened. The proper course to be adopted would have been to remand the matter to the original authority so that the importers are given an opportunity to contest proposal for confiscation, imposition of redemption fine (in the absence of goods) and imposition of penalty under Section 112. It is settled law that when goods are not available and have already been released on payment of duty, they cannot be confiscated. Only in the case of provisional assessment where goods are released conditionally, confiscation can be resorted to and fine can be imposed if the goods are not available. - No doubt penalty can be imposed for rendering the goods liable to confiscation. In my opinion, for the only offence of not having the IE Code at the time of importation, imposing penalty under Section 112 and remanding the matter for that purpose may not be necessary - Decided against Revenue.
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