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Case Laws
Showing 101 to 120 of 497 Records
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2005 (6) TMI 475 - ITAT DELHI
Deductions u/s 80-IB - The amount of duty drawback is eligible or not for deduction u/s 80-IB - industrial undertaking - HELD THAT:- The issue involved in the instant case of the assessee under consideration before me is also identical because in this case also the assessee has claimed deduction for the amount of duty drawback u/s 80-IB of the Act claiming the same to be an income derived from a business of industrial undertaking u/s 80-IB of the Act. Ratio of the decision of the Hon’ble Delhi High Court in the case of Ritesh Industries Ltd. [2004 (9) TMI 36 - DELHI HIGH COURT] fully applies to the facts and the issue involved in the instant case of the assessee and so, respectfully following the decision (supra), which is binding upon this Tribunal, being a decision of jurisdictional High Court, it is held that a sum received by the assessee on account of duty drawback cannot be considered as income derived from the business of an industrial undertaking so as to entitle the assessee to a deduction u/s 80-IB and, hence, the order of the CIT (Appeals) in allowing the impugned deduction is set aside. Ground of appeal taken by the Revenue is allowed.
In the result, the appeal filed by the Revenue is allowed.
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2005 (6) TMI 474 - ITAT MUMBAI
Appellate Tribunal - condonation of the delay - Unexplained Cash credits - HELD THAT:- In our opinion there is no mala fide imputable to the assessee. The delay in our considered opinion in filing the appeal is the result of some omission on the part of its Tax Consultant’s staff. It must be remembered that in every case of delay there can be some lapse of the litigant concerned. That alone is not enough to turn down the plea and to shut the doors against him. If the explanation does not smack of mala fide or it is not put forth as a part of dilatory strategy, the Courts must show utmost consideration to such litigant. As observed by the Hon’ble Supreme Court in the case of N. Balakrishnan [1998 (9) TMI 602 - SUPREME COURT] the length of delay is immaterial. It is the acceptability of the explanation. That is the only criteria before condoning the delay. Therefore, taking into consideration the overall circumstances we condone the delay in filing the appeal and proceed to decide it on merit.
According to section 68 of the Act if any sum is found credited in the books of account of an assessee maintained for any previous year and the assessee offers no explanation about the nature and source thereof or the explanation offered by him is not satisfactory in the opinion of Assessing Officer then the sum so credited may be charged to income-tax as the income of the assessee of that previous year. Therefore, for explaining the cash credit found to be recorded in the books of an assessee he is required to explain the source of such credit, identity of the creditors and genuineness of the transaction. This section contemplate that onus is upon the assessee to explain the availability of the cash in the books of account. Once the assessee discharged its primary onus it will be for the revenue to prove that evidence produced by the assessee are not reliable. In the present case assessee failed to discharge the primary onus put upon it.
Even for the sake of arguments we ignore proceedings taken by the Assessing Officer u/s 133(6) for procuring information from the creditors or information gathered from the bankers u/s 131 then no other evidence is available justifying the claim of the assessee.
As far as grant of opportunity of hearing is concerned. ld. First appellate authority has reproduced the written submission of the assessee in para 5 of his order. Ld. Assessing Officer has also granted sufficient opportunities but it is the assessee who failed to submit the requisite details. It did not choose to comply with the directions of the Assessing Officer in the assessment proceedings. When a specific finding of fact has been recorded against it, assessee did not rebut that finding by producing sufficient material, then did not bother to challenge the order of the ld. CIT(A) in time. Even before us did not file any paper book and failed to show us the alleged confirmation. Hence taking into consideration the overall casual approach of the assessee at every stage, more particularly keeping in view the stand of the assessee that creditors are family members of the directors from whom it can easily file confirmation etc.
Therefore, in our opinion assessee cannot draw any benefit from both these decisions. We find no merit in this appeal. It is rejected.
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2005 (6) TMI 473 - ITAT DELHI
Income escaping assessment, Income from house property ... ... ... ... ..... the provisions of section 25B of the Act have been introduced only prospectively from assessment year 2001-02, we are of the view that the assessee should win insofar as these five appeals before us are concerned. We, therefore, delete the additions as made by the learned Assessing Officer insofar as the arrears of rent received by the assessee after the expiry of relevant financial years. 26. During the course of hearing before us the assessee has also challenged the levy of interest under sections 234B and 234C. On consideration of the matter we do not see any substance in those grounds of appeal. In the assessment orders the learned Assessing Officer has specifically ordered for charging of interest under sections 234B and 234C. We, therefore, reject these grounds of appeal. However, the Assessing Officer shall re-compute the amount of interest under sections 234B and 234C, if any, after giving effect to this order. 27. In the result, these five appeals are partly allowed.
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2005 (6) TMI 472 - CESTAT, MUMBAI
Printer/Scanner - Multi-function digital printers ... ... ... ... ..... al held that such machines fell for classification under CTH 8471.60. There is no distinction between these two orders of the Tribunal and the present case, as the machines involved in all the cases including the present one are multi function machines which have connectivity and capability of being connected to an external computer and can also function in stand alone mode and in these circumstances there is no reason to differ from the earlier decisions. I, therefore, agree with the ld. Member (Technical) that the machines in question fell for classification under CTH 8471.60. 20. emsp The file is now returned to the Referring Bench for passing the majority order. Sd/- (Jyoti Balasundaram) Vice-President FINAL ORDER In view of the majority decision, the appeal is allowed by classifying the machines in question under Chapter Heading 8471.60 of the Customs Tariff Act, 1975. (Pronounced on 7-10-2005) Sd/- (Krishna Kumar) Member (Judicial) Sd/- (S.S. Sekhon) Member (Technical)
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2005 (6) TMI 471 - CESTAT, MUMBAI
Fabric - Embossed pleated fabrics - Dutiability - Manufacture ... ... ... ... ..... wn case. The Tribunal has followed the ratio of the Supreme Court in M/s. Sidheshwari Cotton Mills (P) Ltd. and an Order dated 21-1-98 issued in terms of Section 37B of the Central Excise Act, clarifying that process of embossing and pleating on fabrics amount to manufacture under Section 2(f), held that ldquo demand based on Boards Circular will have effect from the date of its publication. Therefore, even if it is held that the process carried out by the appellants amount to manufacture, the demand cannot be sustained in the present case rdquo . The period covered in the impugned order in this case is from October 97 to January 98. The Tribunal decision following Section 37B order, issued subsequent to this period. Therefore, we find no reason to disagree with the earlier order of the Tribunal and do not uphold the impugned order passed by the Commissioner (Appeals) and set aside the same. 6. emsp The appeal is allowed setting aside the impugned order. (Pronounced in Court)
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2005 (6) TMI 470 - CESTAT, NEW DELHI
Confiscation, fine and penalty ... ... ... ... ..... bber is allowed at port of Kolkata and Vishakhapatnam. 4. emsp The contention of the appellant in the present appeals that the provisions of Section 111(d) of Customs Act cannot be invoked as the import is not unlawful and the notification issued by the DGFT is without jurisdiction. I find that regarding import of natural rubber as per DGFT Notification dated 19-12-2001 the import of natural rubber is permitted only at the port of Calcutta and Vishakhapatnam. This notification was issued under Section 5 of the Foreign Trade (Development and Regulation) Act, 1992 read with the.... of Export and Import Policy 1997-2002. The Tribunal cannot go into the issue whether the notification is without jurisdiction or not. Therefore, in these circumstances as the import of natural rubber is made at other port than Customs port of Kolkata and Vishakhapatnam, therefore, I find no infirmity in the impugned order. The appeals are dismissed. (Dictated and pronounced in open Court on 8-6-2005)
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2005 (6) TMI 469 - CESTAT, NEW DELHI
Demand - Clandestine manufacture - Shortages in inputs - Confiscation ... ... ... ... ..... ame of the customer is mentioned as lsquo Anupam rsquo in the private record, whereas the same goods were cleared to Girza Steel on payment of duty. Similarly appellants explained the entries made in the private record showing the clearance of the final product on payment of duty. In this situation the demand on account of receipt of excess raw material and clearance of finished goods without duty is not sustainable. 12. emsp In respect of the currency seized from the premises of the Director, we find that the currency was confiscated on the presumption that it relates to the clearance of the excisable goods without payment of duty. The appellant explained the source of receipt of money. As discussed above, as we are holding that there was no shortage of the inputs and there was no clearance of final product without payment of duty, therefore, the order in respect of confiscation of currency is also not sustainable. The impugned order is set aside and the appeals are allowed.
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2005 (6) TMI 468 - CESTAT, CHENNAI
... ...
... ... ..... o had passed an order in favour of the respondents. The Commissioner (Appeals) observed that the foreign suppliers have confirmed the short packing of their impugned goods and also subsequently shipped them against a no-charge invoice. As the impugned goods were not originally shipped, the importers are not required to pay duty under the provisions of the Customs Act. 2. emsp Heard ld. JDR Shri C. Mani on behalf of the appellant and none represented the respondents despite notice. 3. emsp After going through the records of the case, we are convinced that the foreign supplier had short shipped the impugned goods and the respondents had already paid duty on the goods short shipped. Hence there is a clear case of excess payment and the respondents are entitled for the refund. In these circumstances, the order of the Commissioner (Appeals) is legal and proper. Also, there is no merit in the appeal of the Revenue. Hence the same is rejected. (Dictated and pronounced in open court)
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2005 (6) TMI 467 - CESTAT, MUMBAI
Rectification of Mistake - Dutiability - Dryers ... ... ... ... ..... at site to be dutiable, they should have a new identity, character and use, distinct from the inputs/components that have gone into it rsquo s production. rdquo In the case of the Appellant rsquo s lsquo VFBD Dryers rsquo on assembly at customers rsquo site, no new identity, character and use distinct from the disassembled components received arise. So, no manufacture and no dutiability. So, the question of lsquo VFBD Dryer rsquo on assembly site, being movable or immovable is absolutely a redundant issue. Hence, the Respondent rsquo s conclusion noted above does not merit any consideration and is simply to be set aside. and we find no reason to upset these submission endorsing the same, we find no merits to uphold the impugned order. 2. emsp In this view of the matter and the findings, the order cannot be upheld and is to be set aside. 3. emsp Appeal to be allowed as proposed to be added to assessable value cannot be upheld. 4. emsp Ordered accordingly. (Pronounced in Court)
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2005 (6) TMI 466 - CESTAT, MUMBAI
Manufacture - Packing from loose receipt in unit boxes ... ... ... ... ..... and Panchsheel Soap Factory 2002 (145) E.L.T. 527 , Lal International Pvt. Ltd. 2003 (154) E.L.T. 520 will not be of assistance in this case, this is case is not only of such goods, wherein MRP simplicitor with bar code labels logos were being placed. The position of packing in unit containers, being conducted herein from loose merchandise, was not the fact considered in any of these decisions. (c) We would therefore uphold the order as regards duty as such shoes which were packed from loose receipt in the unit boxes and not cases which were already received packed with in the unit boxes i.e. unit containers, and where bar code MRP logo were only placed as submitted by ld. SR. Advocate. 3. emsp We would therefore uphold the levy of duty and remit the matter back to the Commissioner to grant abatements, if any, on proof of such shoes having been received in unit containers is produced to the satisfaction of the Commissioner. Appeal allowed in above terms. (Pronounced in Court)
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2005 (6) TMI 465 - CESTAT, MUMBAI
... ...
... ... ..... aluation Rules to levy duty on values of sale price of M/s. United Phosphorous. (b) Board rsquo s Circular No. 619/10/2002-CX., dated 19-2-2002 prescribes that, for job work valuation under new provisions of Section 4 and the rules, the formula for valuation has to be as per Ujjagar Prints rsquo decision. (c) We find no reasons to depart from the valuation as arrived at by the appellants in this case and by no interpretation the sale price of trader getting the goods manufactured could be reckoned as assessable value under the Central Excise Act, 1944. (d) The duty demands and penalties as arrived are not upheld and set aside. 3. emsp Consequently, appeals are allowed. (Pronounced in Court)
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2005 (6) TMI 464 - CESTAT, NEW DELHI
... ...
... ... ..... gated and who retracted his statement regarding non-receipt of gold bars for preparing ornaments from Jayanti Lal, for having obtained under duress/coercion. Even his statement was not recorded by any competent officer and as such could not be taken note of. He was also not produced for cross-examination when asked for by the appellants. Mukesh Kumar had produced the evidence regarding import of the seized gold bars under a package receipt and the genuineness of which had not been doubted. Therefore, he had a lawful possession of the gold bars which were delivered by him to Jayanti Lal, appellant for preparation of ornaments, from the goldsmith. 6. emsp In the light of discussion made, above, the impugned order regarding confiscation of the seized goods and imposition of penalties on the appellants, as detailed therein, cannot be sustained and is set aside. The appeals of the appellants are allowed with consequential relief as per law. (Dictated and pronounced in open Court)
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2005 (6) TMI 462 - CESTAT, MUMBAI
Clandestine removal - Proof - Goods removed to job worker - Confiscation - Justification of - Evidence - Witnesses - Summoning of
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2005 (6) TMI 461 - CESTAT, NEW DELHI
Appellate Tribunal - Jurisdiction - Demand and penalty ... ... ... ... ..... period, the appellants cannot re-export the goods. The appellant also tried to challenge the order passed by the Chief Commissioner whereby the warehousing period is extended till 30-1-2004 and the order was communicated on 28-1-2004. We have no jurisdiction to adjudicate in respect of the order passed by the Chief Commissioner of Customs as per provisions of Section 129E of Customs Act. The impugned order before us is passed by the Commissioner (Appeals). In this order, the Commissioner (Appeals) allowed the appellant to clear the goods to domestic tariff area or without payment of duty for purpose of export within three months. In the order passed by the Commissioner (Appeals) the grievance of the appellant that they were not allowed to re-export the goods is already considered and allowed by the Commissioner (Appeals). In these circumstances, we find no infirmity in the impugned order, therefore, the appeal is dismissed. (Dictated and pronounced in open Court on 27-6-2005)
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2005 (6) TMI 460 - CESTAT, NEW DELHI
Cenvat/Modvat - Rebate - Wrongful availment of credit ... ... ... ... ..... the observations of the adjudicating authority recorded at page 9 of the order-in-original. 2. emsp The ld. Counsel has produced copy of the two orders dated 5-12-2003, and 9-12-2003 vide which the rebate claims were sanctioned to them by the competent authority. The rebate claim for the period in dispute, i.e. March, 2003, had been already sanctioned to them. Therefore, they are only liable to reverse the entry in their RG-23A Part-II. This amount cannot be recovered by the Revenue, as a duty on the ground that there was a wrongful availment of the credit by the appellants. The ld. Counsel has stated that entry had been already reversed in the Cenvat account by the appellants. However, proof, in this regard shall be furnished by them to the competent authority. The impugned order confirming the duty demand against the appellants with penalty is set aside. The appeals of the appellants stand disposed of in the above terms. (Dictated and pronounced in open Court on 24-6-2005)
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2005 (6) TMI 459 - CESTAT, BANGALORE
... ...
... ... ..... ars referred to supra which holds that the deductions should be allowed on cash discounts clearly applies to the facts of the case. Furthermore, the ruling of the Apex Court rendered in the cases of Bombay Tyre International Pvt. Ltd., Madras Rubber Factory Ltd. and that of Perfect Circle Victor Ltd. apply to the facts of the case. The ratio of CCE v. Dharampal Satyapal Ltd. also is on this issue itself. We also find that the discount given by the appellants is to be considered as a special discount granted to specific contracting parties and is an admissible deduction as held by the Tribunal in the case of Nestle (India) Ltd. v. CCE and that of Swastik Fragrance v. CCE. The order of the Commissioner is not sustainable in law in the light of the judgments and discounts given by us supra. The same is set aside as not legal and proper. The appeal is allowed with consequential relief, if any. (Operative portion of this Order was pronounced in open Court on conclusion of hearing)
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2005 (6) TMI 458 - CESTAT, MUMBAI
Demand - Cenvat/Modvat - Returned goods ... ... ... ... ..... sp When manufacture has taken place, duty liability as per Section 3 read with Section 4 valuation has to be determined on clearance of such re-returned goods. Demands under Rule 57F(i)(ii) are not called for. Since goods are not virgin quality foils. The reduced value ipso facto cannot be doubled since it is a commercial reality that non virgin quality products would fetch a lower price. Differential duty demands therefore as proposal cannot be upheld. 2.9 emsp Differential duty demands on Scrap and clearance of removal of returned goods in this case where input credit was awailed is therefore not upheld. The refund, under Rule 173L/173H on returned goods as cleared will have to be reconsidered by the proper officer on case to case basis. Appeal is to be remitted for such determination. Penalty in the facts of this case is not called for and is to be set aside. 3.1 emsp In view of the findings, the appeal is allowed as remand in above terms. (Pronounced in Court on 1-7-2005)
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2005 (6) TMI 457 - CESTAT, MUMBAI
Valuation - Expert opinion - Re-valuation ... ... ... ... ..... Expert Panel. This plea has not been dealt with by the Commissioner. The ld. DR opposed this plea on the ground that the representatives of the appellants were present at the time of valuation undertaken and they could have objected to the value arrived at by the Panel at that time itself. He, therefore, pleaded that the value arrived at by the Expert Panel is correct. 4. emsp Heard both sides. We find that the appellants have been contesting against the constitution of the Panel right from the beginning. Interest of justice demands that the valuation should be done by independent experts consisting of one member chosen by the appellants and the other by the department. The goods should be re-valued in the above manner and a decision arrived at during the remand proceedings. We, therefore, remand the matter to the Adjudicating Authority to have a Panel constituted as directed above and take a final decision. The stay application as well as the appeal are disposed of as above.
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2005 (6) TMI 456 - CESTAT, BANGALORE
SSI Exemption - Brand name ... ... ... ... ..... rsquo used on Cakes and Pastries is being done in their own right and not in terms of the Agreement with M/s. Oriental Cuisines (P) Ltd and nothing forbids them from using the same. This plea has taken support from the citations noted supra. On a careful consideration we find that the appellants are entitled to use the brand name lsquo Hot Breads rsquo on different items manufactured by them viz. Cakes and Pastries, which were not the item manufactured by M/s. Oriental Cuisines (P) Ltd. 6. emsp The Commissioner has taken a new ground inasmuch as that the appellants have used a foreign brand pertaining to a foreign company of the appellant. This is a new ground, which was not alleged in the Show Cause Notice. On this ground also, the impugned order is required to be set aside for the reasons given supra. The impugned order is not sustainable and the same is set aside by allowing the appeal. (Operative portion of this Order was pronounced in open Court on conclusion of hearing)
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2005 (6) TMI 455 - CESTAT, MUMBAI
Appeal to Appellate Tribunal - Res Judicata ... ... ... ... ..... rder of Commissioner (Appeals) have already been finally decided by the Tribunal in its Order No. C-I/563-564/WZB/2003, dated 28-2-2003. Thus, the impugned orders passed by Commissioner (Appeals) are not maintainable as the issue has already been decided by the Commissioner (Appeals) under Order-in-Appeal Nos. 317 to 323/97 (91 to 97-Ahd.)/CE/Commr.(A), dated 12-6-97. It is not made clear to us that in what circumstances the second set of appeals were filed by the department when the matter had already been decided by the Commissioner (Appeals) and the department had gone in appeal before the Tribunal. 4. emsp We, therefore, set aside the impugned orders of Commissioner (Appeals) and remand back the matter to him to find out the correct facts and to reconsider the issue in the light of the decision of the Tribunal in Order Nos. C-I/563-564/WZB/2003, dated 28-2-2003. 5. Both the appeals are disposed of in the above terms. (Dictated and pronounced in the open Court on 3-6-2005)
............
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