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Case Laws
Showing 141 to 160 of 587 Records
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2004 (4) TMI 524 - COMMISSIONER OF CUSTOMS AND CENTRAL EXCISE (APPEAL
Demand - End-use exemption - Appeal to Commissioner (Appeals) - New plea - Penalty - Imposition of
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2004 (4) TMI 522 - ITAT KOLKATA
Block assessment in search cases ... ... ... ... ..... the assessee was assessed to tax on income from dividends and N.S.S. and having paid advance tax and subjected to tax deducted at source in absence of regular books of account maintained in the course of the business, the assessee determined the income for which the return could not be filed within the due date. The Assessing Officer considered this as undisclosed income without bringing out any search material which was but on the basis of very documents available with the assessee prior to search were relied upon for filing the return. The same return was subjected to regular assessment without any addition or subtraction. Therefore, we are of the considered view that the assessee had this income not to be taxed as undisclosed income and the Assessing Officer had not recorded his findings on the basis of search material but as recorded in the material already being rendered to tax by the assessee hitherto. 7. In the result, the appeal filed by the revenue stands dismissed.
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2004 (4) TMI 521 - ITAT AHMEDABAD
Business expenditure, Business disallowance ... ... ... ... ..... rch, 2003 at page 637 wherein following the decision of the Mumbai Bench of the Tribunal in the case of Smruti Trading Co. 70 TTJ (Mum.) 114, it was held that salary paid to the partner who was partner in his representative capacity as karta of HUF cannot be considered to be payment to HUF but to karta as an individual. The karta of HUF is a working partner and, therefore, the remuneration paid to him is allowable. Respectfully following the aforesaid decisions, we are of the opinion that the revenue authorities were not justified in disallowing the claim of the assessee. The two partners though they were representatives of their respective HUFs were partners in their individual capacity and, therefore, the remuneration paid to them would be an allowable deduction. We direct accordingly. 7.1 Since there is no disparity on facts, respectfully following the above decision of the Tribunal, we reject this ground of appeal. 8. In the result, the appeal of the Revenue is dismissed.
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2004 (4) TMI 520 - ITAT KOLKATA
Business disallowance ... ... ... ... ..... use it is a fact that both the partners are there right from the beginning and their share allocation is stipulated and not changed from time to time. They have also made provision vide clause 13 of the deed of partnership regarding remuneration to be paid in accordance with the provisions of the Income-tax Law at the end of the accounting year. It is also a fact that they cannot go beyond the tax laws and they are to make payment within the permissible limit. The simple reason that for commercial expediency, according to the determination of profit at the end of the accounting year they stipulate the quantification portion within the permissible limit should not be a bar for them to do so, as it is within the parameter of law. Although the ld. Departmental Representative has taken stringent view of the matter, we are not inclined to agree with them and allow the appeal in favour of the assessee and against the revenue. 5. In the result, the appeal of the assessee is allowed.
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2004 (4) TMI 519 - ITAT KOLKATA
Cash credits ... ... ... ... ..... The copies of the balance sheets of the creditors show the balance in the name of the assessee-firm and the figures therein tally with those of the account books of the assessee. We find that the Assessing Officer was informed about the new address of the creditors vide communication of the assessee in writing. In these circumstances, we hold that the assessee has discharged its onus to prove the identity and the creditworthiness of the creditors and also that the loan transactions are genuine. In the absence of any material to disbelieve the evidence filed by the assessee, we hold that no case of addition for unexplained credit is made out by the Revenue and hence the addition of Rs. 1 lakh is deleted. As we have deleted the addition made on account of unexplained cash credit under section 68 of the Act, the disallowance of interest paid on the loans also stands deleted and, accordingly, grounds of appeal are allowed. 4. In the result, the appeal of the assessee is allowed.
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2004 (4) TMI 518 - ITAT MUMBAI
Capital gains ... ... ... ... ..... real owner and he became real owner only on 18-4-1993 when the Deed of Assignment by his brother was executed in favour of the assessee. We, therefore, hold that profit, if any, is rightly assessable in case of assessee in the assessment year 1994-95, on Project Completion basis as declared by the assessee in the return of income for the assessment year 1994-95. We, therefore, delete the addition of Rs. 16,73,710 made by the Assessing Officer for the assessment year 1993-94. 22. Regarding the additional grounds of appeal, we are of the view that these need no adjudication in view of our decision on various grounds originally raised by assessee in his appeal pertaining to assessment year 1993-94. The additional grounds raised, therefore, rendered infructuous and the same are dismissed. 23. In the result, for statistical purposes, the appeal by the revenue for assessment year 1992-93 is dismissed and of the assessee for the assessment year 1993-94 is treated as partly allowed.
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2004 (4) TMI 517 - CESTAT, CHENNAI
Cenvat - Used capital goods - Demand - Limitation ... ... ... ... ..... t they pay duty on the transaction value. They removed the remaining goods on payment of duty on transaction value when the relevant rules had changed requiring them to reverse the credit originally availed. In this context, the definition of the expression lsquo capital goods removed as such rsquo interpreted by the Bangalore Bench of the Tribunal is relevant. According to the Hon rsquo ble Tribunal, lsquo used capital goods rsquo are not covered by Rule 3(4) of Cenvat Credit Rules, 2001/2002. Therefore, the appellants rsquo argument that they are not required to pay even the duty they paid carries considerable force. Moreover, it is difficult to deny the assertion that the SCN was issued in this case much beyond the normal period with no grounds to justify invocation of larger period. Therefore, the proceedings initiated with the SCN dated 30-8-2004 are not sustainable. Accordingly, I set aside the impugned order and allow the appeal. (Dictated and pronounced in open Court)
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2004 (4) TMI 516 - ITAT MUMBAI
Revision - Of orders prejudicial to interests of revenue, Business expenditure ... ... ... ... ..... ee-company in agitating the matter before the various authorities right from the assessment onwards in a systematic and consistent manner. Therefore, that part of the conclusion of the revision order is not sustainable. We, therefore, set aside the specific directions given by the learned Commissioner of Income-tax to the Assessing Officer. Instead we endorse this order of setting aside on the issues involved herein and remit back the issues to the file of Assessing Officer for fresh consideration in accordance with law. 34. Therefore, the Assessing Officer has to consider the issues afresh after giving an opportunity of being heard to the assessee and take a decision in accordance with law. 35. In result, while revision order of the learned Commissioner of Income-tax is upheld, the appeal filed by the assessee is treated as partly allowed for statistical purposes as we have set aside the ultimate directions issued by the learned Commissioner of Income-tax. Order accordingly.
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2004 (4) TMI 515 - ITAT MUMBAI
Capital gains, Income from house property ... ... ... ... ..... ncome from house property are specified by the provisions of law. As provided in section 23, the only deduction available in the computation of annual value is the municipal taxes paid by the assessee. The other deductions are specified in section 24, viz (i)1/4th of the annual value towards repairs and collection of rent. (ii)insurance premium (iii)specified annual charge (iv)ground rent if any (v)specified interest (vi)land revenue (vii)unrealizable rent. Apart from the above specified items of deductions, there is no provision to allow any other deduction in computing the income from house property. Therefore, the contentions of the assessee cannot be accepted, as the expenditure claimed by the assessee does not come under the items specified by the statute. 38. In the result, the appeal filed by the assessee in the status of a Firm in ITA 5990/Mum/03 is treated as partly allowed and the appeal filed in the status of AOP in ITA 3948/Mum./02 is dismissed. Order accordingly.
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2004 (4) TMI 514 - CESTAT, KOLKATA
Stay - Additional evidence ... ... ... ... ..... ay petition is concerned. He, therefore, prays that these additional documents may kindly be taken on record. 2.We have heard Shri N.K. Mishra, ld. JDR for the Revenue who opposes the prayer of the ld. Consultant for taking on record the additional documents on the ground that for the stay no additional documents can be produced. 3.We have heard both sides. We find that there is no bar as far as production of additional documents is concerned under Rule 23 of the CEGAT Procedure Rules for the purposes of stay. We find that these documents are relevant as far as stay is concerned. Miscellaneous Applications for the additional documents are allowed. Dictated and pronounced in the open Court.
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2004 (4) TMI 513 - CESTAT, CHENNAI
SSI Exemption - Brand name - Precedent - Persuasive effect ... ... ... ... ..... nt, ld. Single Judge observed thus “The provisions contained in Paragraph 4 of the notification have been devised to avoid evasion of tax by unscrupulous and unjust manipulations or device and consequently it requires to be construed strictly, being a notification relating to exemption, and against the person claiming exemption. Otherwise, the very object of introducing such a provision would be completely defeated”. 17. Following the rule of strict construction laid down by the Hon’ble High Court and the Hon’ble Supreme Court, we hold that the respondents were not eligible for the benefit of exemption under Notification No. 1/93-C.E. (as amended) for any period from 1-4-94 in respect of the goods cleared by them under the brand names/trade marks belonging to Shri K.P.R. Sakthivel. In the result, the impugned orders are not sustainable. 18. The impugned orders are set aside and the appeals are allowed. (Pronounced in open Court on 26-4-2005)
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2004 (4) TMI 512 - CESTAT, NEW DELHI
Order - Ex parte order - Legality of ... ... ... ... ..... ds hence the duty was rightly demanded as the capital goods are imported without payment of duty. We have perused the copy of licence and the letter of permission produced by the applicant and there is no condition regarding value or quantity based export in a specific period. Therefore, letter of permission issued for 10 years is valid till 16th August, 2006. In these circumstances, we prima facie that the applicant had a strong case in their favour. Therefore, pre-deposit of duty and penalty is waived for hearing of the appeal. 4. emsp With the consent of both the sides, the appeal is being taken up for disposal. The impugned order is passed in ex parte and the Managing Director and other Directors were in jail in certain other proceedings. In these circumstances, we set aside the impugned order and remand the matter to the Commissioner of Customs to decide afresh after affording an opportunity of hearing to the appellant. (Dictated and pronounced in open Court on 6-4-2005)
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2004 (4) TMI 511 - CESTAT, NEW DELHI
Interest on refund of pre-deposit ... ... ... ... ..... und of amount of pre-deposit cannot be undertaken by the Department. These documents have not been furnished by the appellants immediately after the Tribunal has allowed their Appeal i.e. on 23-4-2002. These papers have been given possibly with the refund application on 5-6-2002 only. The Supreme Court decision as well as Board rsquo s Circular dated 8-12-2004 nowhere provides that the interest will be admissible to the claimant if the amount of pre-deposit is not refunded within three months of the Final Order passed by the Tribunal. The provisions relating to interest are contained in Section 11BB of the Central Excise Act only, according to which the interest is payable if the refund is not made within three months of the receipt of the application. As in this case the application for refund has been made on 5-6-2002, the appellants are eligible for the interest for the period from 5-9-2002 to 4-10-2002 only. The Appeal is disposed of accordingly. (Pronounced in the Court)
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2004 (4) TMI 510 - CESTAT, KOLKATA
Penalty - Mandatory penalty - Bona fide belief ... ... ... ... ..... tion raised by the parties. On consideration of the submission made by petitioner that it is not mandatory that in every case penalty equal to amount of duty should be imposed. The circumstances under which the act has been done are to be taken into consideration. In present case the material was supplied on the basis of certificate issued by Secretary, Department of Power, West Bengal and it was endorsed by Supdt. of Excise (Technical), Kolkata. The petitioner was under bona fide believe that they are entitled to the exemption under notification. When it was pointed out that the exemption was not available to them, then the credit was adjusted in RG 23A Part-II by the Appellant. 5. emsp In view of above penalty equal to the amount of the duty should not be imposed. Consequently, I partly allow the appeal and reduce the penalty. Demand is confirmed. I reduce the penalty from Rs. 32,091.00 to Rs. 10,000.00 (Ten Thousand only). Order accordingly. (Pronounced in the open Court.)
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2004 (4) TMI 509 - CESTAT, MUMBAI
Cenvat/Modvat - Demand and penalty ... ... ... ... ..... ade such applications. Therefore reversal of credit by the debit entry in this case cannot be impugned. In that view of the matter the order cannot be sustained. 4. emsp Viewed from another angle, inasmuch as if duty deposits under Section 35F are not permissible from Modvat account, then the original debit i.e. reversals effected were not correct permissible manner of keeping the account under Central Excise Rules. The Central Excise Rules and the principles and practice of Accounting require such incorrect impermissible entries of debit to be corrected only by a cross credit entry. It was always permissible for an assessee to maintaining the credit accounts, to correct an entry made in the books. Such reversal entry when effected by an assessee, cannot be impugned. 5. emsp In view of the finding, we find no merits in the present order impugned before us, and we cannot upheld the same. The said order is therefore to be set aside and this appeal allowed. (Pronounced in Court)
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2004 (4) TMI 508 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit ... ... ... ... ..... ase of Wimco Ltd. v. CCE, Calcutta-III 2002 (141) E.L.T. 661 (T) wherein the Tribunal held that the onus to prove marketability lies upon the Revenue. He also argued that plastisol is not marketable in the absence of any viscosity depressant and in the applicant rsquo s case no such viscosity depressant is added to the product. 2. emsp After hearing both sides, we observe that the burden of proof that a product is marketable is on the department. In the light of the fact that plastisol has a very limited shelf life, we observe that prima facie the applicants have a strong case in their favour. We observe that large stakes are involved in the case inasmuch as a total amount of Rs. 51,34,425/- is demanded by way of duty and an equal amount of penalty is also imposed. Since the applicants have made out a strong prima facie case in their favour, we dispense with the pre-deposit of duty and penalty and fix the hearing itself on 19th July, 2005. (Operative part pronounced in Court)
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2004 (4) TMI 507 - CESTAT, MUMBAI
Classification ... ... ... ... ..... clude cyclic hydrocarbons from Heading 2902. Only ldquo mixtures of acyclic hydrocarbon rdquo are excluded. Therefore, the present appeal is not right in relying on the fact that the item is not acyclic hydrocarbon, because that only goes in favour of classification under 2902. Thus, Note 1(b) supports the classification under 2902. The item is, admittedly, hydrocarbon since its composition is C16H18. Heading 2902 is specific to ldquo cyclic hydrocarbon rdquo . The Commissioner was therefore, right in treating the item as classifiable under Heading 2902, being ldquo cyclic hydrocarbon rdquo . The Commissioner has also noted in his order that the assessee had submitted that there was an earlier order-in-appeal No. 742/97-MCH, dated 30-12-1997 in support of classification under Heading 2902. The present appeal does not dispute this. 8. emsp In the above facts and circumstances, we find no error in the classification ordered by the Commissioner. The appeal fails and is rejected.
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2004 (4) TMI 506 - CESTAT, CHENNAI
Stay/Dispensation of pre-deposit - Cenvat/Modvat ... ... ... ... ..... n view of the decision of the Tribunal in the case of Balmer Lawrie and Co. Ltd. v. Commissioner of Central Excise, Kanpur 2000 (116) E.L.T. 364 (Tri.-LB) endorsed invoices after 1-4-1994 are not valid documents for claiming Modvat credit, as no verification of duty paid character of the goods in case of endorsed invoices is not possible. 4. emsp After considering the submissions made by both the sides, I find that in this case, the same consignment was diverted to another consignee as the first consignee rejected the goods and it was not possible to get the invoices issued. Therefore, the Range Superintendent was approached by the manufacturer and he endorsed the invoice to another consignee to whom the goods were diverted. In such circumstances, the invoice and the duty paid character of the goods can be easily verified. Therefore, the stay application is allowed and the appeal will be heard without pre-depositing the disputed amount. (Dictated and pronounced in open Court)
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2004 (4) TMI 505 - CESTAT, NEW DELHI
... ...
... ... ..... Commissioner (Appeals). No prayer for setting aside the order-in-appeal has been made by the appellants in their prayer clause in the memo of appeal. The relief mentioned in the Form EA.3 for setting aside the order-in-appeal stands contradicted by the ultimate prayer made by the appellants in the appeal itself. Since the order-in-original did not survive on account of its merger with the order-in-appeal, the prayer of the appellants for setting aside that order cannot be accepted. That being so, the appeal of the appellants is not maintainable and the same is rejected.
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2004 (4) TMI 504 - CESTAT, MUMBAI
Valuation (Central Excise) ... ... ... ... ..... E.L.T. 520 stipulating the actual freight could be deducted and not equalised is well founded. Yet that case can t have any application in the present matters, since, in this case vide Clause 24 of the Tender document it is apparent that Central Excise shall be only an Ex-works price and be reimbursed on actual the other charges would therefore not be reckoned. When such a price is available and is not assailed. The tendor document is not a simplicitor sales contract but appears to be a work contract for supplier to provide for and to include packing, furnishing, freight transit, insurance charges, Excise duty and sale Tax, etc. some of the activities not being that of a seller. (d) No material exists to alter the earlier views held in the CESTAT s decision relied upon by the CCE (Appeals). 3. In this view of the matter, the Revenue appeals do not induce us to upset the order of the Ld. CCE (Appeals) arrived at based on CESTAT s decision. The appeals are therefore dismissed.
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