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Case Laws
Showing 101 to 120 of 681 Records
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2009 (6) TMI 927 - CESTAT CHENNAI
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... ... ..... al/institutional consumers during the period in dispute was not covered under Sl. No.1C of the above Notification. We find that the very same issue was considered by the Tribunal in Grasim Industries Ltd. vs. Commissioner of Central Excise- Final Order No.1169/2008 dated 20.10.2008, wherein the Tribunal accepted the assessee 39 s contention that the benefit of Notification was available to the goods cleared to industrial/institutional consumers and that the goods in question would be covered either under Sl. No.1B or 1C of the Notification by virtue of the second proviso to the Explanation to Sl. No.1C. The Grasim Industries decision was followed in Dalmia Cements (Bharat) Limited vs. CCE, Trichy- Final Order No.1389/2008 dated 8.12.2008. Following the ratio of the above decisions which are applicable on all fours to the facts of the present case, we set aside the impugned order of the Commissioner of Central Excise and allow the appeal. Dictated and pronounced in open court
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2009 (6) TMI 926 - SUPREME COURT
Order of acquittal passed by the Allahabad High Court of the charge under Section 8/21 of the Narcotic Drugs and Psychotropic Substances Act, 1985
Held that:- The alleged recovery of heroin from the respondents was made in complete violation of the provisions of Section 50 of the Act. Apart from this the non-examination of the two independent witnesses of the search and recovery was another grave omission by the prosecution. It is significant to note here that a formal petition for discharge of the two witnesses was filed by the prosecution before the trial court and it is not that they were simply not produced before the court.
Therefore, satisfied that the High Court took the correct view of the matter and the judgment coming under appeal does not suffer from any infirmity. Appeal dismissed. The respondents are discharged from their bail bonds.
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2009 (6) TMI 925 - MADRAS HIGH COURT
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... ... ..... roduct included the value of components supplied by the customers. As far as the payment of excise duty is concerned, by virtue of the nature of levy of excise duty, the assessee was bound to disclose the whole of the value of the product and as rightly contended by the assessee, whatever excise duty is levied on the components supplied by the customers, to that extent, the customers get the benefit of modvat credit, which can always be claimed and availed at the appropriate time of removal of the product from the customer 39 s premises. 6. Having regard to the clear cut demarcation as between the instances of levy of excise duty and imposition of sales-tax liability, the conclusion of the Tribunal was perfectly in order and consequently, the first question of law raised in this appeal has to be necessarily answered against the petitioner. As a sequel to it, the second question of law is also held against the petitioner. The tax case revision fails and the same is dismissed.
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2009 (6) TMI 924 - MADRAS HIGH COURT
Whether in the facts and circumstances of the case, the Tribunal is legally correct on holding that the cotton borrowed and returned on loan basis is not a sale as defined under Section 2 (n) of the Tamil Nadu General Sales Tax Act, 1959?
Whether the order of the Tribunal is right in affirming the deletion of consequential penalty levied uner Section 12 (5) (iii) of the Tamil Nadu General Sales Tax Act, 1959?
Held that:- By virtue of the prescription of cotton as set out in Entry 2 of Second Schedule of the Act, the assessee who had borrowed cotton to certain value was only obliged to return the same value in order to fulfil and conclude the said loan transaction. Once the documentary evidence in the form of registers of the assessee as well as that of its sister concerns disclose that the loan transaction was fully discharged by the assessee, there was no occasion for the assessing authority to reopen the assessment under the guise that the claim of loan transaction by the assessee was not fully established. Therefore, the conclusion of the Tribunal merits acceptance for the simple reason that the loan transaction in the case on hand, by any stretch of imagination, cannot be construed as a sale transaction in order to impose levy of tax. Questions of law raised in this revision are answered against the petitioner and in favour of the assesse.
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2009 (6) TMI 922 - MADRAS HIGH COURT
Whether, in the facts and circumstances of the case, the Tribunal is legally correct in having deleted the penalty levied under section 12(5)(iii) of the Tamil Nadu General Sales Tax Act, 1959 based upon the decision in Appollo Saline Pharmaceuticals (P) Ltd. v. Commercial Tax Officer (FAC) [2001 (10) TMI 1100 - MADRAS HIGH COURT] while for the assessment year 1980-81 penalty is leviable under section 12(5)(iii) of the Act for filing of incorrect and incomplete returns and therefore the said decision cannot be applied to this case?
Held that:- The conduct of the respondent-assessee in not including the freight charges and packing charges in the taxable turnover cannot be held to be a deliberate or intentional act on its part with a view to defeat its tax liability. On the other hand, the submission of the return of the respondent-assessee during the relevant year was fully supported by the Division Bench decision of this court which held the field till the year 1992 when it came to be reversed in the decision of the honourable Supreme Court in Ramco Cement Distribution Co. Pvt. Ltd. v. State of Tamil Nadu [1992 (10) TMI 228 - SUPREME COURT OF INDIA]. As held in the decision of this court reported in Appollo Saline Pharmaceuticals (P) Ltd. v. Commercial Tax Officer (FAC) [supra], under section 12(4) specific expression used is "may " for the purpose of levying of penalty.
We are convinced that the order of the Tribunal in having set aside that part of the order of the Assistant Commercial Tax Officer in having imposed penalty was justified and the same was perfectly in order. We therefore answer the question of law against the appellant and in favour of the assessee
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2009 (6) TMI 921 - MADRAS HIGH COURT
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... ... ..... the petitioner before it, vis-a-vis the statements contained in his reply, before fastening any liability of tax on the petitioner. Such an exercise would enable the Assessing Authority to verify as to whether or not the purchases made by the petitioner already suffered tax at the hands of the seller either by virtue of the local purchase made by them or by virtue of the tax collected from the petitioner at the time of its sale to the petitioner. Inasmuch as such issues relate to very many minute details of facts, we deem it appropriate to direct the Assessing Authority to carry out the said exercise in the interest of justice. Therefore, while setting aside the order impugned in this revision as well as the order of the Assessing Authority, we direct the Assessing Authority to hold an enquiry afresh by giving an opportunity to the petitioner, examine the factual position in detail and pass orders in accordance with law. Consequently, tax case revision is allowed. No costs.
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2009 (6) TMI 920 - CESTAT CHENNAI
CENVAT credit - duty paying invoices - credit on capital goods denied on the ground that it was taken on the strength of an endorsed Bill of Entry and sales invoice of the importer who was not registered with excise authorities - Held that: - there is no requirement in Rule 9 of the CENVAT Credit Rules 2004 that the importer per se is required to be registered with the excise authorities and it is only an importer issuing an invoice from his depot or from the premises of the consignment agent of the said importer who is required to be registered in terms of Rule 9(1)(iii) - the assessees are entitled to credit as the invoices issued by the importer read with the Bill of Entry under which the goods were imported are eligible documents for taking credit - appeal allowed - decided in favor of appellant.
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2009 (6) TMI 919 - CESTAT CHENNAI
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... ... ..... ar to batteries of UPS of that case. 7. We find that the Commissioner rejected the clarification issued by the CBEC in F. No. 6/87 dated 12-6-87 as not applicable. In the said circular CBEC had clarified that remote control apparatus for TV sets would be classifiable under Tariff Heading 85.25 applicable to TV sets when cleared along with TV sets. It appears to us that the clarification supports the claim of the appellants and that control panels which are undisputedly essential to operate single phase submersible pump sets and cleared along with such pump sets are, prima facie, classifiable under the heading appropriate to pump sets and liable to be assessed under the heading appropriate to pump sets on the combined value. In the circumstances, we find strong prima facie case against the impugned demand of duty, interest and penalty and order complete waiver of pre-deposit and stay recovery thereof pending decision in the appeal. (Order dictated and pronounced in open Court)
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2009 (6) TMI 918 - CESTAT BANGALORE
SSI exemption - clubbing of clearances - mutuality of interest - Held that: - The appellants are two Private Limited Companies. They have separate existence. The investigation reveals that the clearances of one unit were done with the other and vice versa in order to remain with the exempted limit and thereby evading payment of Central Excise duty. If that is the case, the investigation ought to have decided the real clearances of each unit and demanded the duty accordingly in respect of each unit. However, in the present case, the duty has been demanded collectively from both the units. If the Department feels that out of the two units, one unit is dummy, then the dummy unit should have been identified. In that case, the value of the clearance of dummy unit could have been clubbed with the clearance of the real unit and duty demanded. This has not been done.
Collective demand by clubbing clearances of two Private Limited Companies is not sustainable - appeal allowed - decided in favor of appellant.
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2009 (6) TMI 917 - CESTAT BANGALORE
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... ... ..... hat the quantification of the demand needs to be re-worked out by the adjudicating authority. The penalties imposed on the appellants are also needs to be re-determined based upon the duty that has to be worked by the lower authorities. 8. On the question of limitation, we find that the Show Cause Notice issued within a reasonable period of one year and eight months after the investigation started as the appellant has been writing letters to the Superintendent of Central Excise explaining his position. Hence, on limitation, we do not find any merit in the appeal filed by the appellants. 9. Accordingly, holding on limitation and merits against the appellants, we remit the matter back to the Adjudicating Authority for re-quantification of the amount of the duty as indicated herein above and for arriving at a conclusion for imposition of penalties on the appellants on such re-quantification. The appeals are disposed of as hereinabove held. (Pronounced in open Court on 19-6-2009)
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2009 (6) TMI 916 - COMMISSIONER OF CENTRAL EXCISE (APPEALS), PUNE-II
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... ... ..... ust enrichment and the appellant also has given detailed reply to the SCN with the support of various higher appellate forums as to how his claim was not hit by the principle of unjust enrichment, it is a duty of the Assistant Commissioner to give reason for rejection. Instead of giving findings on the above matter, he has simply rejected the claim on lsquo time-bar rsquo and concluded further that he is not taking further issues advanced by the appellant for consideration. Since the principle of unjust enrichment was also raised in the SCN, it is imperative on the part of the lower authority to give findings. But he has failed to do so. That is the reason, I hold that his order is cryptic to the core and is grossly violative of one of the facts of the rules of natural justice. Under the above circumstances, I hold that the cryptic order is not maintainable in law. 6. Accordingly, I allow the appeal by setting aside the impugned OIO with consequential relief to the appellant.
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2009 (6) TMI 915 - CESTAT NEW DELHI
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... ... ..... 10. There is contrary decisions of both the Single Member Benches on this issue. In the case of Brakes India Ltd. (supra), it is held that entry in RG-23A, Part-I was made within the stipulated period, Modvat Rules substantively complied with. The other Single Member Bench in the case of SPAC Tapioca Products (India) Ltd. (supra) held that date on which inputs entered in RG-23A Part-I is irrelevant. As there is contrary decision of both the Single Member Benches, it is fit and proper to refer the matter before the Division Bench to decide the following questions of law - ldquo Whether the time limit for taking the credit under Rule 57G of the erstwhile Central Excise Rules, 1944 would be reckoned from the date of entry in RG-23A Part-II Register or from the date on which entry made in RG-23A Part-I Register? rdquo 11. Registry is directed to place this matter before the Hon rsquo ble President for appropriate orders. (Order dictated and pronounced in open court on 29-6-2009)
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2009 (6) TMI 914 - CESTAT BANGALORE
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... ... ..... ions submitted by the appellant before him, more specifically the judgment of Hon rsquo ble Supreme Court in the case of Mirah International (supra). It is a settled law that the evidence of contemporaneous import value has to be produced by the revenue to bring home charge of undervaluation. In this case, the appellants having produced the evidence of contemporaneous imports, it should have been appreciated property by the Adjudicating Authority instead of dismissing it summarily. 5.3 In sum, we find that appreciation of evidence needs to be done by the Adjudicating Authority. In view of this, we set aside the impugned order and remand the matter back to the Adjudicating Authority to reconsider the issue afresh, after appreciating the evidences which may be led by the appellant before him. It is needless to mention that a conclusion be reached only after granting an opportunity of personal hearing. Appeals are allowed by way of remand. (Pronounced in open Court on 17-6-2009)
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2009 (6) TMI 913 - MADHYA PRADESH HIGH COURT
Whether the appeal before the First Appellate Authority was maintainable in law?
Whether in the facts and circumstances of the case, the Tribunal was justified in holding that as refund has been issued under Circular No. 285 independently of the Income-tax Act, 1961, the appellant is not entitled for interest on the refunded sum?
Held that:- In the present case the appellant was not liable to deduct the tax under the Act. It did so on its own on an erroneous impression and the IDBI clarified the said position. In view of the aforesaid the appellant does not become a deemed assessee and further the refund is not under the Act. Once he is not an assessee as per section 244 of the Act does not gets attracted. Refund that has been directed has been made in pursuance of the circular. The provisions under the Act relate to an assessee. As there was no statutory liability on the part of the appellant to deduct tax, we are of the considered opinion, he is not an assessee. As it is an appeal we cannot deal with the concept of compensation for the delayed payment for simon-pure reason the appeal has to be decided within the parameters of statutory law. Appeal dismissed.
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2009 (6) TMI 912 - CALCUTTA HIGH COURT
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... ... ..... charged the entire cargo into private barges. The Kolkata Dock System was no way concerned and not in a position to issue Out Turn Report. 8. By an order dated 11th September, 2006 in an appeal preferred by the respondent authorities, the Division Bench directed the respondents authorities to file their Affidavit-in-opposition to this writ petition within two weeks after the long vacation of the year 2006. No Affidavit-in-opposition has been filed. The averments in the writ petition remained uncontroverted. 9. From the communication of the Port Trust Authorities it is absolutely clear the basis of the show cause notice is an erroneous assumption. There can be no question of any show cause or any penalty on the petitioners. 10. The writ application is allowed. The impugned show cause notice dated 4th September, 2001 is set aside and quashed. 11. Urgent certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
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2009 (6) TMI 911 - KARNATAKA HIGH COURT
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... ... ..... e the apex court. Therefore, learned counsel for the Revenue has requested this court to admit these appeals and await the decision of the special leave petition. 4. This submission cannot be considered by this court in view of the observation made by the learned single judge that the respondent-assessee filed memo before the learned single judge undertaking that they will abide by the assessment order to be passed by the authorities, if this court so directs the authority to pass assessment order and if are aggrieved and statutory remedy is to be availed of they will not raise the plea of limitation for passing such order . 5. In the circumstances, there is no need to admit these appeals and await the decision of the special leave petition. 6. Since the grounds raised are already considered in the aforementioned W. A. No. 572 of 2007. There is no need to consider the same once again. 7. Appeals are dismissed for the reasons stated in the order passed in W.A. No. 572 of 2007.
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2009 (6) TMI 910 - CESTAT BANGALORE
Permission of storing the goods outside factory premises - Held that: - The shortage of space is one of the reasons which may be a guiding factor for seeking permission to store the goods outside the factory premises under Rule 4(4) of the Central Excise Rules, 2002. It is also to be noted that no assessee would like to store his goods outside the factory premises, as, such storing of the goods outside the factory premises is open to many vagaries of nature including theft, pilferage, etc. If the assessee applies for such permission, he must be doing it so under compelling situation. In our opinion, the learned Commissioner should consider such compelling reasons before coming to any conclusion - appeal allowed by way of remand.
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2009 (6) TMI 909 - CESTAT BANGALORE
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... ... ..... gorically submits that they are not challenging that part of the proceedings. Learned Commissioner (Appeals) has set aside the demand of interest and penalty. 6. To my mind, setting aside the demand of interest seems to be improper as the respondent had availed the cenvat credit and utilized the same. In view of this respondent is liable to pay interest. 7. As regards the penalties imposed, I find that the respondent contended that they were not aware of the improper invoices, seems to be justifiable, because they had taken the credit on the invoices from the registered dealer. In the absence of any contrary evidence, I find that the impugned order to the extent it sets aside the penalty is liable to be upheld and I do so. 8. Accordingly, the Revenue rsquo s appeal partly upheld to the extent of setting aside of the interest and rejected on the challenge to setting aside of penalties. Thus, the appeal is disposed of in the above manner. (Pronounced and dictated in open Court)
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2009 (6) TMI 908 - CESTAT BANGALORE
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... ... ..... issued without any authority of law, the same should be made applicable to the other Central Excise jurisdictions also. There is a clear cut clarification that the benefit of Notification 75/86, as amended, would continue to be applicable to nozzle and nozzle holders even when they are coupled together to form injectors. In view of this, we hold that the benefit of the exemption notifications would be available to the appellants. 6. emsp Summing up, we hold that (1) There is no manufacture of nozzle holder in the construction of Injectors. (2) The classification is not examined in view of our findings in para 5.5. above. (3) The lsquo nozzle rsquo captively consumed is not marketable. (4) The lsquo nozzle holder rsquo and lsquo nozzle rsquo are entitled for the benefit of Notification Nos. 217/85-C.E., dated 8-10-1985 and 75/86-C.E., dated 10-2-1986. 7. emsp In view of the above findings, we allow the appeals with consequential relief (Pronounced in open Court on 23-6-2009)
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2009 (6) TMI 907 - CESTAT MUMBAI
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... ... ..... y, therefore, considering the law laid down by the Bombay High Court in the case of Jupiter Exports reported in 2007 (213) E.L.T. 641, Shri Sudhakar Y. More and Pundole Shahrukh and Co. could not have been separately penalized and, therefore, the penalty imposed against Pundole Shahrukh and Co. is liable to be stayed till the disposal of the appeal. 16. In the result, the application partly succeeds as far as it relates to Pundole Shahrukh and Co. As regards others, the applications are rejected. The impugned order, therefore, to the extent it relates to the Pundole Shahrukh and Co. is stayed till the disposal of the appeal and the said firm is not required to deposit the amount demanded till the disposal of the appeal. Applications accordingly stands disposed of in above terms. 17. Needless to say all the observations herein above are for the purpose of the disposal of the appeal and stay. The amount to be deposited within eight weeks. Compliance to be reported on 27-8-2009.
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