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Showing 121 to 140 of 681 Records
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2009 (6) TMI 906 - CESTAT NEW DELHI
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... ... ..... after being pointed out by the Department they reversed the credit. He submits that the appellants had not utilised the credit and, therefore, the payment of interest is not sustainable. 4. In this context, ld. DR submits that the Rule prescribed the payment of interest on taking of the credit. I find that the Tribunal in the case of Lafarge India Pvt. Ltd. reported in 2009 (245) E.L.T. 533 (Tri.) 2008 (85) RLT 832 (CESTAT-Delhi) held that interest is not leviable when wrongly taken credit has not been utilised under Rule 12 of Cenvat Credit Rules 2001/2002. 5. In view the above discussions, I find that the demand of interest is not justified as the appellant had not utilised the Cenvat Credit. Further, the appellant voluntarily reversed the credit and, therefore, imposition of penalty is also not warranted. Accordingly, the demand of interest and penalty are set aside. The appeal is allowed with consequential relief. (Order dictated and pronounced in open court on 5-6-2009)
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2009 (6) TMI 905 - CESTAT NEW DELHI
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... ... ..... uty is leviable. He submits that the Commissioner (Appeals) rightly reduced the penalty to Rs. 40,000/-, which is 25 of duty. 5. I find that the goods were cleared without payment of duty. It is a case of clandestine removal of the goods and penalty under Section 11 AC of the Act is imposable. 1st Proviso to Section 11 AC of the Central Excise Act, 1944 provides that if the assessee deposited the duty within 30 days from the date of receipt of the Adjudication Order, penalty would be reduced to 25 of duty. In the present case, I find that the Original Authority imposed penalty of equal amount of duty even the assessee deposited the duty before issue of show cause notice. Hence, the Commissioner (Appeals) rightly reduced the penalty to 25 of duty. 6. In view of the above discussions, I do not find any reason to interfere the order of the Commissioner (Appeals). Accordingly, the appeal filed by the Revenue is rejected. (Order dictated and pronounced in open court on 12-6-2009)
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2009 (6) TMI 904 - CESTAT BANGALORE
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... ... ..... cate has been produced. 5.2 We direct that the Original Authority should grant the benefit to the appellant based on the above statements and certificate. Only in respect of quantity not covered by the above statements of M/s. Hindustan Textiles and M/s. Zanav Home Collection, duty can be demanded. It is up to the revenue to show that the statements produced by them are incorrect. In fine, in the absence of contrary evidence benefit should be given to the appellant. Therefore, we dispose of the appeal by remanding the matter to the Original Authority to grant the benefit on account of export based on the statements/certificates produced by the appellant. In respect of the quantity not covered by evidence of export, duty should be paid by the appellant. However, this exercise has to be done by the Original Authority within a period of four months from the date of receipt of this order. Thus, the appeal is disposed of in the above manner. (Pronounced in open Court on 23-6-2009)
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2009 (6) TMI 903 - ITAT BANGALORE
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... ... ..... made to a party at one time and not to the aggregate of payments made to a party in the course of a single day as recorded in the cash book. According to the judicial opinion the words used are in a sum i.e., single sum. Irrespective of any number of transactions where the amount, does not exceed Rs. 20,000 in each transaction, the rigours of section 40A(3) will not apply. In overall consideration of the facts and circumstances of the issue and various judicial pronouncements, in particular, the finding of the hon ble High Court of Orissa referred to supra, considering the very fact that the special leave petition moved by the Revenue has since been dismissed by the hon ble Supreme Court ( 1983 143 ITR (St.) 67), we are of the considered view that there was no justification on the part of the learned Commissioner of Income-tax (Appeals) to uphold the action of the Assessing Officer on this count. It is ordered accordingly. In the result, the assessee firm s appeal is allowed.
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2009 (6) TMI 902 - ITAT VISHAKHAPATNAM
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... ... ..... hon ble Tribunal has held that the instalments of chit fund contributed by the subscribers being non-refundable in nature could not be equated with the deposits and hence the dividend or discount credited to the account of the subscriber would not constitute interest and consequently the demand raised under section 201(1) and 201(1A) was not justified. The learned Commissioner of Income-tax (Appeals) has also cited a plethora of decisions to suggest that circulars issued by the Central Board of Direct Taxes cannot bind quasi judicial authorities. As stated earlier, the circular issued by the Central Board of Direct Taxes is in the context of treatment of surplus/deficit in the hands of recipients and the same cannot be applied in the hands of the foreman in these cases. In view of the foregoing, we uphold the order of the learned Commissioner of Income-tax (Appeals). In the result, the appeals filed by the Revenue are dismissed. Pronounced in the open court on July 20, 2009.
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2009 (6) TMI 901 - ITAT MUMBAI
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... ... ..... other method of computation of gains on transfer of long-term capital asset. Both workings are for the purpose of determining the income from transfer of long-term capital asset and the same falls under the same head of income and such set off of loss arising from one source against the gains arising from another source under the same head is allowable to the assessee in accordance with the provisions of section 70(3) of the Act. Accordingly, we direct the Assessing Officer to set off the capital loss worked out by the assessee with indexation against the long-term capital gains without indexation worked out by the assessee in the original computation of income, but after determining the tax on gains on the transfer of long-term capital asset is worked out after following the formula provided in the proviso to section 112 of the Act. The grounds of appeal are thus allowed. In the result, the appeal of the assessee is allowed. The order pronounced on the 3rd day of June, 2009.
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2009 (6) TMI 900 - ITAT MUMBAI
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... ... ..... le jurisdictional High Court in the case of Harinagar Sugar Mills Ltd. v. CIT 1994 207 ITR 901 (Bom) is misconceived inasmuch as in that case there was nothing to show the bifurcation of the closing stock of sugar into levy sugar and free sugar and hence the assessee was obliged to value the entire stock at one value. On the contrary the hon ble jurisdictional High Court in the case of Melmould Corporation v. CIT 1993 202 ITR 789 (Bom) has approved the change in the method of valuation of closing stock where it is consistently followed. In this case it has been held that where the change in the method of valuing closing stock is bona fide then such change should be accepted and further the opening stock need not be revalued correspondingly. In our considered opinion, the learned Commissioner of Income-tax (Appeals) was justified in deleting the addition. We, therefore, approve the view taken by him. In the result the appeal is dismissed.The order pronounced on June 10, 2009.
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2009 (6) TMI 899 - CESTAT CHENNAI
100% EOU - DTA Clearance of Shrimp feed - concessional effective rate in terms of N/N. 2/95-C.E., dated 4-1-95 - denial of benefit of Notification on the ground that the DTA clearances made by it during the material period were in excess of 50% of the FOB value of the physical exports - Held that:- Under Notification 2/95-C.E. ibid an EOU was liable to pay on DTA clearances only 50% of the duty of excise equivalent to the duty of customs leviable on like goods (if imported in India) u/s 12 of the Customs Act read with relevant exemption Notification.
In the instant case, the Secretariat of Industrial Assistance, Ministry of Industry, specifically permitted the appellant EOU to sell the entire production of shrimp feed within the country and the unit was not allowed to export the same. The Development Commissioner considered the DTA sales for the purpose of discharging export obligation without the EOU making physical exports - the EOU cannot be denied the benefit of Not. No. 2/95-C.E. as the appellant was allowed to sell the entire production of shrimp feed within the country, as the DGFT authorities have considered the DTA clearances as export clearances and issued EODC to appellant. A legitimate benefit extended under a Notification cannot be denied to the EOU for no fault of theirs.
The sale of shrimp feed by the EOU in DTA should be treated as deemed exports and the impugned clearances entitled to the benefit of the N/N. 2/95-C.E. allowed to it. - appeal allowed - decided in favor of appellant.
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2009 (6) TMI 898 - ITAT DELHI
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... ... ..... ase of Koatex Infrastructure Ltd. 2006 286 ITR (AT) 40 (Mumbai) 2006 100 ITD 510 it was held that authorities below have to apply mind before levy of penalty as they have discretion either to levy or not to levy the penalty. In that case, voluminous seized material was there because of which there was a difference between computation of undisclosed income made by the assessee and the Assessing Officer. The computation of the Assessing Officer was accepted by the assessee. The instant case is not of sifting large amount of seized material. It relates merely to the cash and stock found from the assessee. His explanation was examined and was not found to be bona fide right up to the stage of the Tribunal in quantum proceedings. In these circumstances, we agree with the learned Commissioner of Income-tax (Appeals) that it was a fit case for levy of penalty under section 158BFA(2). In the result, the appeal is dismissed. This order was pronounced in the open court on June 5, 2009.
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2009 (6) TMI 897 - ITAT MUMBAI
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... ... ..... ge, there was no requirement for it to offer any income for taxation in that year. Apart from this contract, the assessee had not earned any income which is taxable in India. It is further not a case of loss return for the preceding year which would have merited filing as per the due date prescribed under section 139(1) as a pre-condition for allowing its carry forward of loss. The assessee is not claiming any carry forward of loss but only claiming the opening work-in-progress in respect of the contract underway in this year. In our view the Assessing Officer was not justified in attributing non-filing of the return for the earlier year as a reason for not allowing the opening work-in-progress by characterising it as "prior period expenditure" In our considered opinion, the learned Commissioner of Income-tax (Appeals) was justified in allowing the assessee's claim on this issue. In the result, the appeal is dismissed. The order pronounced on this June 16, 2009
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2009 (6) TMI 896 - CESTAT BANGALORE
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... ... ..... ant/appellant is disputing the said amount of liability of Service tax on the ground that these are reimbursement expenses paid towards postage, communication, freight etc. The issue needs to be gone in detail, which can be done only at the time of final disposal of the appeal. It is noticed from the records that out of Service tax liability of an amount of Rs. 98,801/- (Rupees Ninety eight thousand eight hundred and one only), the applicant has discharged an amount of Rs. 51,431/- (Rupees Fifty one thousand four hundred and thirty one only) along with an interest amount of Rs. 16,979/- (Rupees Sixteen thousand nine hundred and seventy nine only). Since more than 50 of the tax liability stands deposited, we consider this amount as enough deposit to hear and dispose the appeal. 4. Accordingly, application for waiver of the pre-deposit of the balance amounts involved is allowed and recovery thereof stayed, till the disposal of the appeal. (Pronounced and dictated in open Court)
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2009 (6) TMI 895 - CESTAT BANGALORE
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... ... ..... sustainable, on this point. 6.2 As regards the demand of duty on the services rendered by the applicant prior to 10-9-2004, we find that the entire issue needs to be reviewed with reference to the contracts entered by the applicant and other legal submissions made by them. 6.3 As regards the limitation also, we find that the issue needs to be gone into detail, which can be done only at the time of final hearing. 6.4 Accordingly, we find that the applicant has not made out prima facie case for waiver of the dues in respect of the services rendered before 10-9-2004, hence, needs to be put to some conditions. In view of this, the applicant is directed to pre-deposit an amount of Rs. 3,00,000/- (Rupees Three Lakh Only) within a period of 8 weeks from today and report compliance on 20th August, 2009. Subject to such compliance being reported, the balance amount involved is waived and recovery, thereof, stayed till the disposal of the appeal. (Pronounced and dictated in open Court)
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2009 (6) TMI 894 - CESTAT NEW DELHI
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... ... ..... y imposed penalty under Sections 76, 77 and 78. The Commissioner (Appeals) dropped the penalty under Section 76 against which Revenue filed the appeal which is listed for hearing on 24-7-2009. 3. After hearing both sides, it is seen from the order of the Commissioner that the department detected non-payment of tax during investigation and therefore, penalty under Section 78 of the Act is imposable. Prima facie submission of the learned C.A. that they could not deposit tax due to ignorance of law cannot be accepted. However, considering the facts and circumstances of the case the applicants are directed to deposit a sum of Rs. 1 lakh within 6 weeks from today. On deposit of the above amount, pre-deposit of balance amount of penalty will be waived and recovery thereof stayed till disposal of the appeal. Compliance to be reported on 18th August, 2009. 4. Registry is directed to tag this appeal with Revenue rsquo s appeal No. ST/193/09. (Dictated and pronounced in the Open Court)
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2009 (6) TMI 893 - CESTAT BANGALORE
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... ... ..... is subject to the conditions that, - (a) the credit distributed against an eligible document shall not exceed the amount of service tax paid thereon, and (b) credit of service tax attributable to services used in a unit either exclusively manufacturing exempted goods or exclusively providing exempted services shall not be distributed. An input service distributor is required (under Section 69 of the Act, read with Notification No. 26/2005-S.T.) to take a separate registration. 5.1 It can be seen from the above reproduced portion of the circular that only two conditions are to be met and in this case those conditions do not apply. In view of this, we find that the applicant had made out a prima facie case for the waiver of the pre-deposit of the amounts involved in the impugned order. Accordingly, application for the waiver of the pre-deposit of the amounts involved is allowed and recovery thereof stayed, till the appeal is disposed of. (Pronounced and dictated in open Court)
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2009 (6) TMI 892 - CESTAT KOLKATA
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... ... ..... t is considered as provider of Cargo Handling Services instead of GTA service, the amount already deposited is to be adjusted to the present demand. 2. We find that an amount of Rs. 1,07,05,972/- has already been paid by the applicant as provider of GTA Service. This fact is not in dispute. The present issue is as to whether the applicant is providing Cargo Handling Services or GTA Services. Therefore, predeposit of the remaining amount of Service Tax and penalty are waived for hearing of the appeal and recovery of the same is stayed during pendency of the appeal. Stay petition is allowed. (Dictated and pronounced in the open Court)
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2009 (6) TMI 891 - CESTAT BANGALORE
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... ... ..... e order, we are now filing the appeal before this Hon rsquo ble Tribunal. In this regard, I would like to humbly submit that I could not follow up the issue of filing of appeal against the order due to circumstances beyond my control. rdquo We are satisfied with the explanation given by the applicant. Consequently, we allow the COD application. The delay in filing the appeal is condoned. 2. The learned Consultant stated that on the very same issue, this Bench of the Tribunal has passed the Final Order Nos. 1254 and 1255/2008 dated 24-10-2008 2009 (13) S.T.R. 661 (Tribunal) wherein it was held that the removal of overburden during the relevant period would not come under the ambit of ldquo site formation rdquo . He stated that the issue involved in this case is identical. As the issue is squarely covered by our earlier order cited supra, we order full waiver of the dues demanded in the impugned order. The stay application is allowed. (Pronounced and dictated in the open court)
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2009 (6) TMI 890 - CESTAT BANGALORE
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... ... ..... records. As regards the service tax liability on the passenger baggage and terminal charges, we find that the Board rsquo s Circular dated 1-8-02 at paragraph 7 clearly indicates that passenger baggage has been excluded from levy of service tax. Whether the passenger baggage is accompanied or unaccompanied does not matter. As regards the export consignment it is very clear that the tax liability is not there. As regards the amount received from Air India, we find that the applicant has not made out a prima facie case for the waiver of the said amount, as the amount is received as compensation for hiring out space to Air India. Accordingly we direct the applicant to deposit Rs. 90,575/- within a period of four weeks from today and report compliance on 23rd July 2009. Subject of such compliance being reported, the condition of pre-deposit of the balance amount involved is waived and recovery thereof stayed till the disposal of the appeal. (Pronounced and dictated in open Court)
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2009 (6) TMI 889 - CESTAT BANGALORE
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... ... ..... There was never an intention to evade payment of service tax. Moreover he brought to our notice that the same Adjudicating authority, after May, 2008, did not impose any penalty under Section 78. A very strong case was made for non-imposition of penalty under Section 78. 3. The learned Jt. CDR stated that the appellant in all the cases had collected the money from the service receivers but did not discharge the liability in time. Therefore she requested the Bench to put the appellants into terms. 4. On a very careful consideration of the issue, we find that the appellants had made out a strong case for waiver of pre-deposit of the penalties imposed in the circumstances. Consequently, taking into account the fact that the entire service tax has been discharged along with interest, we order total waiver of pre-deposit of the penalties imposed in the impugned orders till the disposal of the appeals. The stay applications are allowed. (Pronounced and dictated in the open court)
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2009 (6) TMI 888 - CESTAT KOLKATA
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... ... ..... ent notes. The contention of the Applicants is that a separate declaration was filed to the effect that Service Provider has neither availed any credit in respect of the capital goods or input or capital goods credit nor availed any benefit of the Notification No. 12/2003-ST dated 20-6-2003. 3. In these circumstances, as the declaration was filed though separately, therefore, the amount already deposited is sufficient for hearing of the Appeal. Predeposit of the remaining amount of the Service Tax and Penalty is waived and recovery of the same is stayed during pendency of the Appeal. Stay Petition is allowed. (Pronounced and dictated in the open court)
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2009 (6) TMI 887 - CESTAT AHMEDABAD
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... ... ..... 994 is concerned. On the other hand learned SDR submits that this is not a fit case for waiver of penalties under various sections of Finance Act, 1994, in view of the fact that appellants had provided services valued at Rs. 80 Lakhs and he paid service tax only when it was detected by the department. 2. Taking note of the fact that appellant has deposited full amount of service tax demanded and treating the same as sufficient for the purpose of Section 35F, the stay petition is allowed. (Pronounced in the Court)
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