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Showing 121 to 140 of 537 Records
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2004 (11) TMI 505 - ITAT MUMBAI
Travelling expenses, Deductions - Royalty, etc., from certain foreign enterprises ... ... ... ... ..... irect costs, the learned CIT(A) has set aside this issue to the Assessing Officer vide his order for assessment year 1992-93 with the direction to the Assessing Officer to verify whether the expenses related to the local earning of the income of commission and, if so, the expenses should not be included in indirect costs. However, the learned CIT(A) has allowed the appeal of the assessee in this behalf also without noticing his order for assessment year 1992-93 in which he had simply restored the matter. It is, therefore, considered appropriate to set aside the orders of the lower authorities in this behalf and restore the matter to the Assessing Officer with similar directions as given by the CIT(A) in his order for assessment year 1992-93. The Assessing Officer is directed to decide the matter afresh. Ground No. 2 is partly allowed with the aforesaid directions. 50. Department rsquo s appeal for assessment year 1993-94 is partly allowed in terms of the aforesaid directions.
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2004 (11) TMI 504 - ITAT MUMBAI
Deductions - Royalty, etc., from certain foreign enterprises ... ... ... ... ..... the Tribunal is not bound by departmental circulars. 10. The reliance of the department on the decision of the Supreme Court in the case of Petron Engg. Construction (P.) Ltd. v. CBDT 1989 175 ITR 523, is also misplaced. In Petron Engg. Construction (P.) Ltd. (supra), the facts are at variance with the ones in the present appeals. There, irrefragably, the services were rendered by the assessee to a foreign branch of an Indian company. Here, as we have seen, the services rendered by the assessee are to M/s. Caribjet Inc., an international wet lease airline company, which is not a foreign branch of any Indian company. Petron Engg. Construction (P.) Ltd. (supra) is, therefore, not applicable. 11. For the above discussion, no fault can be found with the allowance of benefit under section 80-O to the assessee, which has rightly been granted by the learned CIT(A). The order of the learned CIT(A) is, therefore, confirmed. 12. Resultantly, the appeals of the department are dismissed.
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2004 (11) TMI 503 - ITAT BANGALORE
Business expenditure ... ... ... ... ..... are required to be allowed. The proviso inserted in section 69C is w.e.f. assessment year 1999-2000 and accordingly not applicable for the year under appeal. We accordingly direct the Assessing Officer to delete the addition of Rs. 98,290. 6. The last ground of appeal relates to charging of interest under sections 234A, 234B and 234C of the Act. The same are consequential in nature. This ground is accordingly dismissed. I.T.A. No. 139/Bang./2001 7. The only issue in appeal relates to deletion of disallowance of outstanding kist payment invoking the provision of section 43B of the Act. 7.1 At the time of hearing both the counsels agreed that the issue is covered in favour of assessee by decision of Hon rsquo ble Karnataka High Court in Sri Balaji and Co. v. CIT 2000 246 ITR 750 . In view of the decision of Hon rsquo ble Karnataka High Court (supra), the deletion of disallowance is upheld. In the result the appeal of assessee is partly allowed and that of revenue is dismissed.
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2004 (11) TMI 502 - ITAT BANGALORE
Assessment after partition ... ... ... ... ..... ongst various members of HUF cannot remain silent over the right of each member on the ground that it will require signature of all co-parceners particularly when all the so called co-parceners have given Power of Attorney to the Karta to execute the sale deed. An affidavit of the assessee cannot be taken lightly. When the Karta signs the affidavit on 12-2-1988 holding the property as HUF property, he will not be unaware of the fact having partitioned the property. We accordingly do not find any material to dislodge the above finding of Assessing Officer and CIT(A). 5. The assessment for various years under income-tax and wealth-tax are made consequent to non-recognition of the partition of HUF. Thus so long as the HUF is not recognised by necessary order under section 171, the property continues to be joint family property and hence income thereof and the wealth of such family are required to be assessed in the hands of HUF only. In the result, all the appeals are dismissed.
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2004 (11) TMI 501 - CESTAT, CHENNAI
Demand - Limitation - Suppression of facts ... ... ... ... ..... Supreme Court rsquo s judgment in the case of Pahwa Chemicals Private Limited v. CCE, Delhi 2005 (189) E.L.T. 257 (S.C.) wherein it was held that, where all the relevant facts were within the knowledge of the department, there would be no wilful suppression of such facts by the assessee. In this case the assessee had filed the details of the credit taken on all capital goods spares received during the period of dispute, in Form-1 as required under Rule 7 (5) of the Cenvat Credit Rules, 2001/2002 along with copy of the relevant extract of capital goods credit register while filing monthly returns with the department. Ld. Commissioner (Appeals) has also found to this effect. Having found so, it was not open to him to record a finding of suppression against the assessee and invoke the extended period of limitation for demanding the aforesaid amount. 2. emsp This appeal succeeds on the ground of limitation and is accordingly allowed. (Order dictated and pronounced in open Court)
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2004 (11) TMI 500 - CESTAT, NEW DELHI
Cenvat/Modvat - Duty paying documents ... ... ... ... ..... inal, by the supplier to the appellant and those were supplied to the appellants as is evident from letter dated 23-3-99. The adjudicating authority allowed them Modvat credit as the appellants had complied with the procedure laid down in the Trade Notice No. 117/94. The duty paid nature of the goods and the receipt of the same through the invoices in question, had not been disputed by the department. When the supplier of the goods had described the invoices as original for the buyers and the appellants had proved the loss of the duplicate copy of the invoices, the adjudicating authority had rightly allowed the Modvat credit specially when the procedure laid down in the above said Trade Notice was complied with by the applicants. 4.In the light of the discussion made above, the impugned order of the Commissioner (Appeals) cannot be sustained and the same is set aside. The appeal is allowed with consequential relief as per law. (Order dictated and pronounced in the open Court)
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2004 (11) TMI 499 - CESTAT, NEW DELHI
Appeal to Appellate Tribunal - Valuation ... ... ... ... ..... respect of classification of the goods as before Commissioner (Appeals), the appellant accepted the classification as held by adjudicating authority. We agree with the contention of Revenue in this regard as before the Commissioner as appellant had conceded in respect of classification, therefore, the appellant cannot challenge the classification before the Tribunal. In respect of valuation of the goods, the value declared by the appellant was enhanced on the basis of import made by M/s. Fancy Fashions. We find that M/s. Fancy Fashions imported the goods from Taiwan whereas the present import was made from China, therefore, value declared by M/s. Fancy Fashions cannot be made basis for enhancing the value for the goods imported from other country. In these circumstances, the impugned order enhancing the value of the imported goods is set aside and the appeal is in this respect is allowed. In respect of classification, the appeal is rejected. Order dictated in the open Court.
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2004 (11) TMI 498 - CESTAT, NEW DELHI
Valuation - Second-hand goods - Confiscation, fine and penalty ... ... ... ... ..... o mentioned in the certificate that goods in question are having no model No. or year of manufacture. The transaction value is not challenged on the ground that the importer had paid over and above the transaction value. In these circumstances, the enhancement of the value of the imported goods is not sustainable, therefore, set aside. The appellant are not challenging the confiscation of the goods as the same were imported in violation of import policy and in respect of misdeclaration of quantity of some parts. Therefore, keeping in view the facts and circumstances of the case, the redemption fine is reduced to Rs. 2 lakhs. The adjudicating authority has already imposed a penalty of Rs. 1 lakh. We find no reason to interfere on the amount of penalty. The appeal is disposed of as indicated above. The appellants are entitled for consequential relief, if any, in accordance with law. Cross-objection also disposed of as indicated above. (Dictated and pronounced in the open Court)
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2004 (11) TMI 497 - CESTAT, NEW DELHI
Cenvat/Modvat ... ... ... ... ..... Baroda after endorsing the invoices and as such, the respondents are entitled to claim Modvat credit is only misconceived and cannot be accepted. No credit on the endorsed invoices could be legally availed. The respondents neither got invoices from the manufacturer nor made the payment of the goods directly to them but received goods from M/s. Blue Star Ltd. Baroda and made payment to them. Therefore, mere installation of the goods/machinery in their factory did not entitle the respondent to claim Modvat credit. It was not a procedural lapse on their part in not getting their name inserted in the invoices as observed by the Commissioner (Appeals). The view taken by the Commissioner (Appeals) is wholly erroneous and cannot be subscribed being contrary to the provisions of rule 57G of the Rules. 3.In view of the above discussion, the impugned order is set aside and the appeal of the revenue is allowed with consequential relief as per law. (Dictated and pronounced in open Court)
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2004 (11) TMI 496 - CESTAT, NEW DELHI
Cenvat/Modvat - Inputs ... ... ... ... ..... not of any help to the respondents in this case. Those cases were under the Sales Tax Act and no issue of availability of Modvat credit to the assessee was involved therein. Moreover, in those cases, the assessees were engaged in the manufacture of Hot jobs and the workmen were required to handle corrosive substances. But, in the instant case, hand gloves cannot be treated as integral part of process of manufacture of the final product by the respondents. Under no circumstances, the hand gloves can be treated as inputs under Rule 57A of the Rules for allowing the Modvat credit to the respondents. 4.In the light of the discussion made above, the impugned order passed by the Commissioner (Appeals) cannot be sustained being devoid of law and the same is set aside. The order-in-original of the adjudicating authority disallowing the Modvat credit and imposing penalty on the respondents is restored. The appeal of the Revenue is accepted. (Dictated and pronounced in the open court)
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2004 (11) TMI 495 - CESTAT, NEW DELHI
... ... ... ... ..... ovisions of Section 11A(2) of the Central Excise Act, the Adjudicating Authority has to determine the amount of duty of excise due from the person whom the show cause notice was issued to. As it has not been done by the original Adjudicating Authority, the Commissioner (Appeals) could not have bifurcated the duty amount among the different parties. We, therefore, remand the matter to the jurisdictional Adjudicating Authority to decide the matter afresh after considering the various submissions made by the appellants and after affording a reasonable opportunity of hearing to the appellants. The Adjudicating Authority is directed to quantify the amount of duty, if any, confirmed against the individual appellant. Similarly, the penalty, if any, to be imposed on each individual appellant, should be indicated separately in the Adjudication Order now to be passed by him. Both the appeals are allowed by way of remand. (Operative part of order pronounced in open Court on 11-11-2004).
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2004 (11) TMI 494 - CESTAT, CHENNAI
Production capacity based duty - Annual capacity of production ... ... ... ... ..... te on the basis of the view taken by this Tribunal in Didar Steel Complex (supra) as the Revenue has no case that this view has been set aside by the Supreme Court. We make it clear that, in such re-determination, any circular of CBEC contrary to the Tribunal rsquo s decision in Didar Steel Complex (supra) shall not be taken into account. emsp 4.In the instant case, admittedly, the furnace of 3 M.T. crucible capacity was not working during the period 1-9-1997 to 8-3-1998 and the furnace of 5 M.T. crucible capacity was not working during the period 23-1-1998 to 31-3-2000. During a brief spell, 23-1-1998 to 8-3-1998, none of the furnaces was in operation. Ld. Commissioner shall take these periods of non-operation of the furnaces into account while determining ACP of the factory afresh. It goes without saying that the party should be given a reasonable opportunity of being heard before any order is passed. The appeal stands allowed. (Order dictated and pronounced in open Court).
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2004 (11) TMI 493 - CESTAT, MUMBAI
Valuation - Discount - Quantum of - Cenvat/Modvat ... ... ... ... ..... that even if process did not amount to manufacture the value thereof had to be added to the value of eligible goods, if the process was carried out in the same factory on excisable goods. When value of the process is required to be added, denial of input credit on inputs going into such process and value addition, cannot be denied eligibility under Modvat rules. Credit on this account therefore cannot be denied. (d) Penalty and interest cannot be imposed following the Supreme Court decision in case of CCE, Coimbatore v. Elgi Equipments Ltd. 2001 (128) E.L.T. 52 (S.C.) Orders on interest and penalty cannot be sustained under the Sections as arrived at for the period before the enactment thereof. (e) As we propose to remit the matter back, to re-determine duty, if any, on issue of claim of deduction we do arrive at no finding as regards the time bar, which is kept open in the de novo proceedings. emsp 6.Appeal allowed as remand in above term. (Pronounced in Court on 5-11-2004).
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2004 (11) TMI 492 - CESTAT, MUMBAI
Valuation - Packing charges ... ... ... ... ..... rimary packing, whereas in the present case, there is no such evidence. We do not appreciate the above distinction made by the appellate authority. The appellants in their reply to the show cause notice have taken categorical stand that the product in question is packed in initial packing, the value of which is included in the assessable value. It is only in the case of sale to upcountry buyers, which requires special secondary packing as per their customer rsquo s instructions. The revenue has not controverted the above stand by any material to rebut the above contention of the appellants. It has also been disclosed in the memorandum of appeal that the Assistant Commissioner of Central Excise, in subsequent proceedings has accepted their stand and has dropped the demand raised against them. emsp 3.In view of the foregoing, we are of the view that the appeal is required to be allowed by setting aside the impugned order. Ordered accordingly. (Pronounced in Court on 5-11-2004).
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2004 (11) TMI 491 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit - Valuation ... ... ... ... ..... quantum discount will be deductible only when it is given to the customers. emsp 4.We have considered the submissions of both the sides. The Supreme Court in the case of M/s. Anant Raj Industries Ltd. was considering quantity discount and not the cash discount, which is involved in the present matter. This is also apparent from the judgment of the Supreme Court itself wherein it is mentioned that the case of quantity discount, which is dependent upon the purchaser buying a certain quantity of the goods, and a cash discount, which is available to all purchasers, is very different. emsp 5.In view of the Bombay High Court rsquo s decision, which has been followed by the Tribunal also in many decisions, the applicants have made out a strong prima facie case in their favour for waiver of pre-deposit of entire amount of duty and penalty. Accordingly, we stay the recovery of the entire amount of duty and penalty during the pendency of the appeal. (Pronounced in Court on 4-11-2004).
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2004 (11) TMI 490 - CESTAT, KOLKATA
Refund - Unjust enrichment ... ... ... ... ..... den, that the incidence of duty has not been passed on to the buyers. In the present case as mentioned in the written submission, the first two orders dated 14th July, 1983 and 27th July, 1983 were booked prior to adjudication order dated 6th August, 1983, but in the present case, the dispute for classification was already raised by the Department prior to finalisation of these orders. No doubt, the contract was made after landing of the goods under dispute i.e. after 9-5-83. All the purchase orders were finalized after the goods landed in India and the appellants were aware that the dispute regarding classification had been raised by the Customs Department. This fact was within the knowledge of the appellants, that the higher rate of duty might be charged from them by the Department. I do not find any reason to interfere with the order passed by the authorities below. Consequently, the appeal has no merits and deserves to be dismissed. 7.Accordingly, the appeal is dismissed.
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2004 (11) TMI 489 - CESTAT, NEW DELHI
Penalty - Imposition of - Interest - Clearance of goods without payment of duty ... ... ... ... ..... 0) E.L.T. 406 (All.) 2004 (93) ECC 633 (Allahabad) has held that imposition of penalty has nothing to do with the timing of show cause notice. Thus in the present matter penalty is imposable on the Appellant. However, taking into consideration the fact that the duty was paid immediately after detection, I reduce the amount of penalty to Rs. 15,000/-. There is no merit in the submissions made by the learned Advocate that interest under Section 11AB of the Central Excise Act is not chargeable. This Section provides for charging the interest where any duty of Excise has not been paid from the first date of the succeeding the month in which the duty ought to have been paid under the Central Excise Act till the date of payment of duty. As the Appellants had not paid the duty at the time of removal of the goods they are liable to pay interest as per the provisions contained in the Section 11AB of the Act. The appeal is disposed of in the above terms. (Pronounced in the Open Court.)
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2004 (11) TMI 488 - CESTAT, NEW DELHI
Penalty - Cenvat/Modvat - Inputs - Lubricants used in mines ... ... ... ... ..... al has disallowed the Modvat credit on the inputs used in mines, penalty imposed on the Appellants was set aside on the ground that the issue involved was of interpretation of Rules. On the other hand, Shri S. Bhatnagar, learned Departmental Representative reiterated the findings contained in the impugned order. 2. emsp I have considered the submissions of both the sides. Learned Advocate has rightly submitted that there were different views about allowing Modvat credit of duty paid on inputs used in the mines after amendment made in the definition of inputs. The controversy has been settled by the Supreme Court in the case of J.K. Udaipur Udyog Ltd. Even in Mangalam Cement case, where the credit was disallowed, the Tribunal has set aside the penalty on the ground that the issue involved was of interpretation of Rules. In view of these facts, penalty is not imposable. I therefore, set aside the penalty imposed on the Appellants and allow the Appeal. (Pronounced in the Court).
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2004 (11) TMI 487 - CESTAT, NEW DELHI
Cenvat/Modvat - Duty paying documents ... ... ... ... ..... loss by an assessee, is to be taken as a minor procedural lapse. He has lost sight of the mandatory provision of the relevant rules wherein the procedure also has been detailed under which the credit can be allowed to an assessee on the documents other than the specified documents. The failure of an assessee to prove the loss of duplicate invoice cannot be taken a procedural lapse so as to allow him Modvat credit on a triplicate copy. The ratio of law laid down in the above cited cases and relied upon by the Commissioner, in the given circumstances, is not attracted to the present case. Similarly, the Board circular referred by the Commissioner (Appeals) has no application to the case of the respondents. emsp 3.Therefore, the impugned order of the Commissioner (Appeals) cannot be sustained and is set aside. Consequently, the appeal of the Revenue is accepted and the order in original of the adjudicating authority is restored. (Order dictated and pronounced in the open Court)
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2004 (11) TMI 486 - CESTAT, BANGALORE
Redemption fine and penalty ... ... ... ... ..... ar the same on that count. He pointed out that the appellants had clearly denied for having ordered for those goods and they had sought for re-export and the re-export was granted. He relied on the judgment rendered by the Apex Court in the case of Northern Plastic Ltd. and on our examination, we find that the ratio of this judgment is applicable to the facts of the case. The fine and penalty cannot be imposed in the present case as there was no mis-declaration, and out of the quantity of 25,000 CD Roms, only and quantity of 500 nos. of Audio CD Roms and 500 nos. of Blank CD Roms were found wrongly shipped in the consignment and were ordered to be re-exported. The revenue has not proved mis-declaration in the matter and hence in terms of the Apex Court judgment rendered in the case of Northern Plastic Ltd. fine and penalty is not imposable and the same is set aside by allowing the appeals. (Operative portion of this Order was pronounced in open court on conclusion of hearing)
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