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Showing 121 to 140 of 582 Records
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2005 (4) TMI 528 - CESTAT, NEW DELHI
Cenvat/Modvat - Duty paying documents ... ... ... ... ..... respondents ever made any attempt to get this so called technical mistake corrected from the manufacturer. The ratio of law laid down in the case of Natraja Industries v. CCE reported in 2004 (166) E.L.T. 143 referred by ld. Counsel is also not attracted to the present case. That was a case of disallowance of deemed Modvat credit and the assessee being a Govt. Undertaking, could not place order directly on the manufacturer of the goods and for these reasons, it was observed that for using the name of the agent for placing order with the manufacturer, the assessee could not be penalised by disallowing the Modvat credit. Similarly the law laid down by Malwa Cotton Spg. Mills Ltd. (supra) is not attracted to the present case. 5. emsp In the light of the discussions made above, the impugned order to the extent to which it has been challenged in this appeal, is set aside. The appeal of the revenue is allowed with consequntial relief as per law. (Order dictated in the open Court.)
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2005 (4) TMI 527 - CESTAT, NEW DELHI
Appeal - Limitation - Delay in filing appeal ... ... ... ... ..... imself came back from the village on 5-11-04 as deposed by him in the affidavit and thereafter he informed the Director about the receipt of the copy of the Order-in-Appeal. His affidavit stands falsified from these facts. 2. emsp The appellants have no doubt also alleged that their factory was closed four years back but there is nothing on the record to suggest if any change in address was communicated by Shri Ramji Lal, Director, to the Department for communication. It has not been disputed before me that the copy of the Order-in-Original was received by Shri Ramji Lal, Director at factory premises. The Deptt. therefore, rightly sent the copy of the Order-in-Original at the factory premises. 4. emsp In the light of the discussions made above, I do not find any sufficient ground to condone the delay of 73 days in filing of the appeal. Therefore, the COD application of the appellants is dismissed. The appeal is also dismissed as time-barred. (Order dictated in the open Court)
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2005 (4) TMI 526 - CESTAT, NEW DELHI
Demand - Penalty - Calculation mistake yielding short payment ... ... ... ... ..... uring the period in dispute. These records were produced by the appellant before the Adjudicating Authority. In spite of this, the Adjudicating authority had taken into consideration the average weight of the containers to arrive at the weight of tin sheet consumed in the manufacture of tin containers during the period in dispute. The actual receipt of the tin plates from the supplier is not disputed nor the balance shown in the records is also disputed by the Revenue. In these circumstances, the demand on the basis of average weight of tin containers is not sustainable and is set aside. 7. emsp The appellant paid duty after taking into consideration the consumption of tin sheet actually used and there was calculation mistake, the differential duty in respect of that calculation mistake was immediately paid when the Revenue pointed out that mistake. In these circumstances, the penalty imposed is also set aside and the appeal is allowed. (Dictated and pronounced in open Court)
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2005 (4) TMI 525 - CESTAT, MUMBAI
Penalty - Separate penalty on proprietary firm and its proprietor - Natural justice - Cross-examination, refusal of - Confiscation - Misdeclaration of value
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2005 (4) TMI 524 - CESTAT, NEW DELHI
Waste of glass wool - Excisability - Order, finality of - Estoppel ... ... ... ... ..... he appellants are not legally stopped from again asserting that the waste of the glass wool cleared by them from very factory premises, is not excisable. Therefore, the authorities below have rightly followed that judgment of the Tribunal, which is in appellants own case, and were not required to go any further into details, as they could not record any finding contrary to the findings already recorded by the Tribunal. 5. emsp The contention of the Counsel that the statement of the employer of the appellants could not be made the basis for holding the waste to be excisable, cannot be accepted in the present proceedings, as in the earlier case, in which the statement was relied upon and concluded that the waste is excisable, by the Tribunal, has already attained the finality, as they did challenge the same before the higher forum. 6. emsp In view of the above, we do not find any illegality in the impugned order and the same is upheld. The appeal of the appellants is dismissed.
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2005 (4) TMI 523 - CESTAT, MUMBAI
Demand of duty - Clandestine removal of the goods - manufacture of fireworks - Penalty on partners - HELD THAT:- We find that the conduct of the appellants has been fraudulent in as much as in respect of shortages in the finished stock and the duty paid godown the matter has not been contested. There is a clear cut case of removal without payment of duty detected by the officers when a full truck load of fireworks were intercepted without any duty paying documents and the appellants have failed to produce any duty paying documents relating to them till today.
We, therefore, hold that the findings given by the Commissioner are fully supported by the statement of the partner and their fraudulent conduct. The packing slips were duly signed by the partner and contain all details including vehicle number and therefore they were more in the nature of delivery slip rather than the packing slips. Similarly lorry receipt bear signature in most cases of the consignee in token of having receive the goods and also admitted by the partner in his statement. The demand of duty and confiscation of goods is therefore upheld and so is the redemption fine imposed.
As regards the mandatory penalty u/s 11AC, we hold that the penalty is the maximum penalty provided and not equivalent penalty and we are inclined to reduce this penalty to Rs. 5 Lakhs only.
As regards the second appeal regarding penalty on the partner since the partner was actively involved in the removal of the goods, we find no justification to interfere with the penalty imposed on him which in our view is reasonable.
Both the appeals are disposed of in above terms.
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2005 (4) TMI 522 - CESTAT, NEW DELHI
... ... ... ... ..... riff Act imported for use in, or supply to, a unit for manufacture of paperboard, shall not required to be paid in respect of the waste paper on which the duties of Customs were not levied in excess of the rate as prescribed under Notification Nos. 16/2000-Cus., dated 1-3-2000 and 17/2001-Cus., dated 1-3-2001 when such goods were imported for use in, or supply to a unit for manufacture of paper board, during the period 1-3-2000 to 22-10-2001. Once the duty in excess than prescribed under Notification No. 17/2001 for waste paper used in the manufacture of paper, is not required to be collected then the question of charging SAD on duty different from what remains payable under notification 17/ 2001-Cus. read with notification 56/2002-Customs, dated 26-8-2002, does not arise. We, therefore, see no merits in the appeal of the Revenue and the same is rejected. The Cross-Objections filed by the respondents also stand disposed of accordingly. (Pronounced and dictated in open Court).
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2005 (4) TMI 521 - ITAT MUMBAI
Film producer - Submission of statement by ... ... ... ... ..... n in the case of Hindustan Steel Ltd. (supra) also cannot be applied. 12. In view of above legal and factual discussion, we hold that it is a fit case where levy of penalty can be held justified. However, we find that assessee had submitted all the required information to the Assessing Officer during the course of assessment proceedings on 12-3-1999. This fact has not been denied or controverted by the revenue. We therefore, feel that the period of default for which levy of penalty can be held justified should be restricted to 12-3-1999. Thereafter, the default of non-submission of Form 52A can be said to be a technical default for which no penalty should have been imposed. Therefore, we direct the Assessing Officer to compute the delay in submission of Form No. 52A only up to 12-3-1999 on which date the requisite information was submitted by the assessee and levy penalty accordingly. We direct accordingly. 13. In the result the appeal filed by the assessee is partly allowed.
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2005 (4) TMI 520 - ITAT MUMBAI
Deductions - Profits and gains from industrial undertakings, etc., after certain dates/infrastructure under-takings
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2005 (4) TMI 519 - ITAT MUMBAI
Capital gains - Transactions not regarded as transfer ... ... ... ... ..... the company is actual owner of the company. The beneficial ownership has not even been doubted by the revenue at any stage. The words lsquo whole of share capital rsquo have been interpreted in such a literal sense that entire object of the provisions is defeated, that the provision has been made entirely unworkable, and that Justice Hand rsquo s observations to the effect that lsquo it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning rsquo have been totally ignored. In this view of the matter, in our considered opinion, the CIT(A) was quite justified in reversing the action of the Assessing Officer. We approve the order of the CIT(A) and decline to interfere in the matter. The revenue rsquo s appeal must fail. 11. In the result, the appeal is dismissed.
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2005 (4) TMI 518 - ITAT MUMBAI
Deduction u/s 54 - Capital gains - Profit on sale of property used for residential house - HELD THAT:- The condition laid down in the case of purchase of the residential house is that the house must have been purchased one year prior to the sale of the capital asset or two years subsequent thereto. In the case of a residential house the condition laid down is that the residential house must have been constructed within three years after the sale of the capital asset. Therefore, for proper application of this section it has to be seen whether it is a purchase or a construction in the above case. Vide Board’s Circular No. 471, dated 15-10-1986 it has been explained that to qualify investment for construction u/s 54F the crucial date is the date of allotment of flat by DDA and payment of instalment was only a follow-up action and taking possession of the flat is only a formality, of course, instalments have to be paid by the allottee as per the schedule fixed by the DDA.
Since the flat has been allotted to the assessee by the builder who would fall in the category of other institutions mentioned in the circulars, it has to be taken as a case of construction of the residential flat and not as a purchase of a residential flat. Having come to this conclusion that it is case of construction it is now to be seen if the assessee fulfils the conditions laid down u/s 54(1) of the Act. The assessee was allotted flat No. B-62 and it was changed to C-32 vide letter dated 19-11-1999 and by letter dated 4-1-2000 the possession of the flat was already given to the assessee. Therefore, the assessee is in total enjoyment of the property by 4-1-2000, i.e., within 3 years of the sale of her flat in Mumbai on 13-1-1997. Therefore, the assessee has fulfilled the conditions prescribed in the section for claiming exemption.
We, therefore, find sufficient strength in the arguments advanced by the ld. counsel for the assessee and we are of the opinion that the order of the CIT(A) is in consonance with the provisions of the Act and it deserves to be upheld.
In the result, appeal of the revenue stands dismissed.
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2005 (4) TMI 517 - ITAT MUMBAI
Depreciation - Appellate Tribunal - Whether or not the assessee has an option to claim depreciation allowance while computing deduction u/s 80-IA - Effect of Binding Precedents - Rule of per incuriam - HELD THAT:- The effect of binding precedents in India is that the decisions of the Supreme Court are binding on all the courts. Indeed, article 141 of the Constitution embodies the rule of precedent. All the subordinate courts are bound by the judgments of the High Court. A single Judge of a High Court is bound by the judgment of another single Judge and a fortiori judgments of Benches consisting of more judges than one. So also, a Division Bench of a High Court is bound by judgments of another Division Bench and Full. A single judge or Benches of High Courts cannot differ from the earlier judgments of co-ordinate jurisdiction merely because they hold a different view on the question of law for the reason that certainty and uniformity in the administration of justice are of paramount importance. But, if the earlier judgment is erroneous or adherence to the rule of precedents results in manifest injustice, differing from the earlier judgment will be permissible.
It is thus beyond dispute that a decision which is per incuriam is not a binding judicial precedent. It is also well-settled that when it is not open to a High Court Bench to differ from the decision of a Bench of equal strength, it cannot also be open to a Bench of this Tribunal to differ from the view taken by a co-ordinate Bench of equal strength. The only option in case one doubts the correctness of such a decision is to refer the matter for constitution of a larger Bench. A decision ignoring this rule of precedent, which is duly approved by the Hon’ble Courts from time to time, cannot but be viewed as per incuriam. Therefore, following the Hon’ble AP Court Full Bench decision in the case of B.R. Constructions [1992 (6) TMI 13 - ANDHRA PRADESH HIGH COURT], such a decision of the co-ordinate Bench was no precedence value.
Accordingly, following Hon’ble AP Full Bench judgment in the case of B.R. Constructions (supra), we decline to be guided by the same. In any case, larger Bench request has already been turned down, and, accordingly, the only option open to us is to follow the co-ordinate Bench decision in the case of Plastiblends India Ltd. [2004 (2) TMI 691 - ITAT MUMBAI]. We do so. Accordingly, we hold that it is not open to the Assessing Officer to thrust depreciation allowance while computing deduction u/s 80-IA of the Income-tax Act, 1961, in a case where the assessee has not claimed the depreciation in the books of account. The assessee gets relief accordingly.
In the result, the appeal is allowed.
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2005 (4) TMI 516 - ITAT MUMBAI
Survey, Unexplained investments, ... ... ... ... ..... without examining the nature of system and components involved in such system. The case of assessee is that the system comes into existence only when it is assembled at customer rsquo s premises and, therefore, it cannot be valued separately. It has to be valued only in the form of component. This explanation of the assessee appears to be reasonable but cannot be accepted unless it is shown that all the components of this system were already included in the stock inventory prepared by the survey party. Mere submission that it is included in the inventory is not sufficient. The onus is on the assessee to prove that such system is included in the stock inventory in the form of component. In the interest of justice, we set aside the order of the learned CIT (Appeals) on this aspect of the matter and restore the same to the file of the Assessing Officer for fresh adjudication after giving reasonable opportunity to the assessee. 10. In the result, the appeal is allowed pro-tanto.
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2005 (4) TMI 515 - ITAT MUMBAI
Appellate Tribunal, Depreciation ... ... ... ... ..... aforesaid, we are of the considered view that, what appear to be per incuriam decisions, orders passed by the co-ordinate benches in the case of Prince SWR Systems (P.) Ltd. (supra) and to Tribunal rsquo s decision in the case of Venus Jewels (supra) do not constitute binding judicial precedents. Accordingly, following Hon rsquo ble AP Full Bench judgment in the case of B.R. Constructions (supra), we decline to be guided by the same. In any case, larger Bench request has already been turned down, and, accordingly, the only option open to us is to follow the co-ordinate bench decision in the case of Plastiblends India Ltd. (supra), we do so. Accordingly, we hold that it is not open to the Assessing Officer to thrust depreciation allowance while computing deduction under section 80-IA of the Income-tax Act, 1961, in a case where the assessee has not claimed the depreciation in the books of account. The assessee gets relief accordingly. 11. In the result, the appeal is allowed.
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2005 (4) TMI 514 - ITAT MUMBAI
Depreciation, Building, etc., partly used for business, Expenditure incurred in relation to income not included in total income, Actual Cost
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2005 (4) TMI 513 - ITAT MUMBAI
Terminal benefits paid to the employees - set off of brought forward loss - expenses debited to the profit and loss account - Whether or not it was a case of cessation of business - HELD THAT:- In our considered view, there is no material to suggest that the cement manufacturing operations of the assessee company were in a stage more than that of suspension. Applying the test laid down by Hon’ble Madras High Court in L. Ve Vairavan Chettiar’s case [1965 (4) TMI 6 - MADRAS HIGH COURT], and in the light of the above factual position, the claim for deduction of expenses could not have been declined on the ground that the business of the assessee was not continuing in the relevant previous year. As evident from the nature of expenses debited in the profit and loss account, a copy of which was placed before us at the compilation of papers, unambiguously shows that even the business activities were carried out in the relevant previous year. Keeping all these factors in mind, as also entirety of the case, we are of the considered opinion that the CIT(A) was indeed not justified in holding that there was a cessation of business.
The assessee’s above grievance is, therefore, quite justified, and we uphold the same.
Claim for admissibility of certain deductions and the set off - There is no discussion about deduction in respect of expenses debited to the profit and loss account, the terminal benefits paid to the employees and the amount paid to the workers under settlement.
The Assessing Officer shall adjudicate upon the question of deductibility of these deductions and admissibility of set off of brought forward loss from the assessment year 2000-01, in accordance with the law, by way of a speaking order, and after giving due and fair opportunity of hearing to the assessee. While doing so, the Assessing Officer shall also bear in mind our observations regarding the lack of material to come to the conclusion that there was a cessation of business.
The matter thus stands restored to the file of the Assessing Officer, with our directions as above. The appeal is allowed for statistical purposes.
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2005 (4) TMI 512 - ITAT MUMBAI
Income from house property ... ... ... ... ..... . It is also not clear whether the provisions of Rent Control Legislation are applicable to the properties in dispute. The Learned Counsel for the assessee has no objection if the matter is restored for determination of the ALV in accordance with the above legal position. In view of the same, we set aside the order of the Learned CIT (Appeals) and restore the matter to the file of Assessing Officer for fresh determination of the ALV in accordance with the guidelines mentioned above. At this stage, it may be clarified that if the property is not the subject-matter of Rent Control Legislation, then the ALV shall be determined on the basis of comparable cases. If the property is found to be governed by Rent Control Legislation, then ALV shall be determined in accordance with the guidelines mentioned above. 6. to 8 These paras are not reproduced here as they involved minor issues. 9. In the result, the appeal filed by the revenue is hereby partly allowed for statistical purposes.
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2005 (4) TMI 511 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit - Cenvat/Modvat - Capital goods ... ... ... ... ..... ssible. 2. emsp We find that the rule position is clear on the subject. The evidence indicates that when the balance credit of 50 was taken, the machine was not installed. The ld. Advocate rsquo s contention that the applicants have installed a part of the machinery (upto a value of Rs. 20 lakhs) and therefore are entitled to the credit to that extent has to be gone into when the appeal is taken up. However, we take this submission into consideration while ordering pre-deposit of duty 3. emsp The applicants have failed to make out a strong prima facie case in their favour for waiver of pre-deposit of duty fully. Therefore, we direct the company to pre-deposit of Rs. 5 lakhs towards credit disallowed within 8 weeks from the date of receipt of this order. Upon such deposit further deposit of duty and penalty is waived and recovery stayed. Failure to do so will result in the dismissal of the appeal of the appellant-company. 4. emsp Compliance on 1-7-2005. (Dictated in the Court)
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2005 (4) TMI 510 - CESTAT, CHENNAI
... ... ... ... ..... , he did not intimate the same to the Customs authorities. According to ld. Commissioner, the omission of the appellant showed that he was involved in smuggling of sandalwood, attracting penalty under Section 114 of the Customs Act. Now, one has got to examine the provisions of Section 114, which renders a person liable for penalty if any omission of his has rendered any goods liable for confiscation under Section 113. The omission found against the appellant is non-disclosure, to the Department, of attempted export of sandalwood by others. Such an omission, however, has not been shown to have rendered the goods liable for confiscation under Section 113. It would follow that the essential requirement for a penalty under Section 114 of the Customs Act was not fulfilled in the case of the appellant. 10. emsp For the reasons already noted, the penalty on the appellant is set aside and this appeal is allowed. (Operative part of the order was pronounced in open Court on 19-4-2005)
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2005 (4) TMI 509 - CESTAT, NEW DELHI
Refund where goods returned to factory ... ... ... ... ..... goods brought back in the factory for reprocessing, re-manufacture, etc. This is, no doubt, a facility extended for the benefit of the trade. rdquo Earlier vide Circular F. No. 261/23A/2178-CX, dated 21-2-80, the Board has clarified that the provisions of Rule 173L would not bar refund in cases if the goods of the same class are manufactured. Similar views have been expressed by the Tribunal in CCE v. Insulated Conductors (P) Ltd., 1990 (50) E.L.T. 545 (T) by holding that if the goods received and goods manufactured and cleared fall in the same Tariff Item, they should be considered as goods of the same class and eligible under Rule 173L. There is nothing brought on record to show that the goods cleared by the Appellants after reprocessing were not of the same class. Accordingly the refund of duty is admissible to the Appellants. All the 4 appeals are thus disposed of as under - A - Appeal Nos. E/1004, 1006 and 1007/03-NB are allowed. B - Appeal No. E/1005/03-NB is rejected.
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