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Case Laws
Showing 141 to 160 of 551 Records
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2006 (4) TMI 446 - ITAT MUMBAI
Penalty - For concealment of income ... ... ... ... ..... furnish any evidence regarding rendering of services to the assessee-company and from the same, it cannot be said that the explanation furnished by the assessee is not bona fide and, hence, we are of the considered opinion that in the facts and circumstance of the case, levy of penalty under section 271(1)(c) is not justified because in the case of M/s. Panna International, partner could not provide the name and address of the party because of time gap and in the case of Shri J.A. Soares, it is stated by him that he has received a cheque from Shri Bipin B. Shah and repaid the cash to him but there is no proof of such repayment and there is nothing on record that the repayment in cash has reached to the assessee. Under these facts, we are of the considered opinion that the explanation submitted by the assessee although not accepted, was bona fide and hence, levy of penalty is not sustainable and the same is deleted. 6. In the result, this appeal of the assessee stands allowed.
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2006 (4) TMI 445 - SETTLEMENT COMMISSION, CUSTOMS AND CENTRAL EXCISE,
Settlement of case ... ... ... ... ..... rdingly, the application is allowed to be proceeded with under Section 127C(1) of the Customs Act, 1962 and, finally settled on the following terms and conditions under sub-section (7) of Section 127C ibid - (i) The duty liability is fixed at Rs. 34,77,572/-. Since the applicants have already paid the same, no further duty liability subsists. (ii) Immunity is granted to the applicant from interest, confiscation, penalty and prosecution under the Customs Act, 1962. (iii) Immunity is granted to Shri Gurpur Prasad, Proprietor of M/s. Intercontinental Trade Links, Chennai-600 002 from penalty and prosecution under the Customs Act, 1962. 10. emsp The aforesaid settlement shall be void if it is subsequently found by Settlement Commission that it has been obtained by fraud or mis-representation of facts. The immunities are granted under Section 127H(1) of the Customs Act, 1962. Attention is also drawn to the provisions of sub-sections (2) and (3) of Section 127H ibid in this regard.
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2006 (4) TMI 444 - COMMISSIONER OF CENTRAL EXCISE (APPEALS), CHENNAI
Draw back - Brand rate of Duty Drawback ... ... ... ... ..... FT have been submitted before me by the appellants. Therefore, the contention of the Ld. Lower authority that the original shipping bills have not been produced stands waived. 9. emsp In the above circumstances, inasmuch as it is not disputed that the appellants have paid proper duty of excise on the inputs which went into the manufacture of the final products and it also not being in dispute that such final products were actually exported and also inasmuch as the appellants have not availed Cenvat Credit on the inputs, the appellants are very much eligible for brand rate of duty drawback on the indigenous inputs. 10. emsp In the light of the discussions, findings and conclusions hereinabove, I hold that there is sufficient merit in the grounds of appeal of the appellant. The order of the Ld. Lower Authority is not supported by law. In consequence, the impugned Order No. 11/2005, dated 21-9-2005 requires to be set aside in totality, which I hereby do. 11. emsp Appeal allowed.
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2006 (4) TMI 443 - ITAT MUMBAI
Capital gains ... ... ... ... ..... on could be exercised at the time of splitting of the original bonds. The argument of the assessee that the bonds are in the nature of promissory note, capable of being transferred does not help the case of the assessee. The aim of investment in such bonds is for claiming exemption from long-term capital gains. As per the provisions of section 54EA of the Act mere investment in HUDCO Bonds is not covered by the scheme of the Act. In view of the above, we are of the considered view that the assessee is not entitled to the exemption claimed under section 54EA of the Act by way of purchasing HUDCO Bonds from his father and not investing in the said bonds by way of making an application for the purpose of claiming the exemption under section 54EA of the Act with HUDCO Ltd. We agree with the order of CIT(A) in denying the exemption claimed under section 54EA of the Act. The appeal filed by the assessee is dismissed. 12. In the result, the appeal filed by the assessee is dismissed.
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2006 (4) TMI 442 - ITAT AMRITSAR
Income escaping assessment ... ... ... ... ..... nder section 144 (sic) of the Act before the Addl. CIT, Range-I, Jalandhar who directed the Assessing Officer vide his order dated 24th Jan., 2001 to allow another opportunity to assessee (to) file returns of income. Thereafter the assessee filed returns in response to notices issued under section 142(1) and also appeared before the Assessing Officer. Thus, the Assessing Officer had complied with the directions of CIT(A) given in the first order for setting aside the assessments. We, therefore, do not find any merit in the grounds of assessee taken in the cross-objections. Accordingly, the orders of the CIT(A) are upheld and the grounds taken in the cross-objections filed by the assessee for the assessment year 1986-87 and 1987-88 are dismissed. 11. As a result, ITA Nos. 472 and 473/Asr/1998 filed by the assessee are dismissed as withdrawn. ITA Nos. 108 and 109/Asr/2004 filed by the Revenue are dismissed and CO Nos. 12 and 13/Asr/2004 filed by the assessee are also dismissed.
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2006 (4) TMI 441 - ITAT HYDERABAD
Capital gains ... ... ... ... ..... irm would give rise to capital gains in view of insertion of sub-section (4) to section 45 with effect from 1-4-1988. It was held that the expression lsquo otherwise rsquo used in sub-section (4) to section 45 is not to be read ejusdem generis to dissolution of firm or body of AOP , the expression lsquo otherwise rsquo has to be read with the words lsquo transfer of capital asset rsquo by way of distribution of capital asset. It was held that the word lsquo otherwise rsquo takes within it rsquo s sweep not only cases of dissolution but also cases of subsisting partners of a partnership transferring assets to a retiring partner. Considering above factual and legal position, we are of the considered opinion that assumption of jurisdiction under section 263 by the ld. CIT cannot be assailed. Also, direction issued by the ld. CIT to the Assessing Officer to bring to tax capital gain on account of such transfer is also upheld. 7. In the result, appeal of the assessee is dismissed.
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2006 (4) TMI 440 - ITAT MUMBAI
Capital gains ... ... ... ... ..... ealing. The above decision acknowledge the principle that a share broker or a dealer in shares may also have a separate character as an investor in shares. So far as the assessee-company is concerned, it has all along displayed all the characteristics of any investor only as already discussed above elabo-rately. It is not justified on the part of the Department to deviate from earlier to settled portions. There is nothing on record to suggest that the assessee-company had ever indulged in bulk trading in shares or in any speculative activities in share line. As we have discussed earlier that the assessee has been using its own funds only depicts the transaction in shares under Investment Portfolio. Taking all facts and circumstances into consideration, we hold that the assessee-company was an investor and gain made by it on disposal of the shares under consideration should be assessed as capital gain. We hold accordingly. 4. As a result, the appeal of the assessee is allowed.
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2006 (4) TMI 439 - ITAT COCHIN
Income escaping assessment ... ... ... ... ..... onclude that the voluntary return filed by the assessee had not been acted upon by the department and in the mean time notice under section 148 was issued to the assessee. In such facts and circumstances, and in view of the decisions of the Apex Court in the cases of Ranchhoddas Karsondas (supra), M.K.K.R. Muthukaruppan rsquo s (supra) and Trustees of H.E.H The Nizam rsquo s Supplemental Family Trust (supra ), we have to hold that the initiation of proceedings under section 147 by issue of notice under section 148 are invalid and void ab initio. Thus, we are allowing the additional grounds of the assessee and allow the appeal on the legal ground itself. 11. Though the assessee has taken the grounds on merits and elaborate submissions were made by both the parties on the merits of the case, we do not find any necessity to go into those aspects since we have allowed the assessee rsquo s appeal on the legal ground itself. 12. In the result, the appeal of the assessee is allowed.
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2006 (4) TMI 438 - ITAT MUMBAI
Unexplained investments ... ... ... ... ..... e exercised on the basis of facts and material on record and after having applied mind on such facts and materials. Revenue rsquo s stand that in one of the cases the alleged owner has stated that he has had no transactions with the assessee-company does not also help much inasmuch as the assessee never had any opportunity to cross-examine the same and there is enough contemporaneous evidence to the contrary. In view of the reasons set out above, we are of the considered view that the CIT(A) was not justified in sustaining the impugned addition. We direct the Assessing Officer to delete the same. The assessee gets relief accordingly. 6. The appeal is allowed in the terms indicated above. 7. As regards the appeal filed by the revenue, it is only directed against the part relief allowed by the CIT(A) but now that we have held that the CIT(A) should have deleted the addition in entirety, this appeal has to be dismissed. The appeal filed by the revenue is, accordingly, dismissed.
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2006 (4) TMI 437 - CESTAT, MUMBAI
Cenvat/Modvat ... ... ... ... ..... p The ld. Counsel has also relied on Kamlakshi Finance v. UOI - 1991 (55) E.L.T. 433 (S.C.). In this regard he also referred to sub Rule 2 to Rule 4 of the Cenvat Credit Rules, 2002 which is reproduced as under - ldquo 2(a) emsp The CENVAT credit in respect of capital goods received in a factory at any point of time in a given financial year shall be taken only for an amount not exceeding fifty per cent of the duty paid on such capital goods in the same financial year. Provided that the CENVAT credit in respect of capital goods shall be allowed for the whole amount of the duty paid on such capital goods in the financial year if the said capital goods are cleared as such in the same financial year. rdquo 5. emsp Thus, after hearing, perusal of the records and provisions of sub Rule of Rule 2 as above along with proviso thereto, I find that the Revenue rsquo s case is devoid of merits. I, therefore, dismiss the appeal filed by the Revenue. (Pronounced in open Court on 3-4-2006)
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2006 (4) TMI 436 - CESTAT, NEW DELHI
Confiscation of goods - Excess stock of raw material ... ... ... ... ..... e statutory time limit. 4. emsp The submission of the ld. DR is that failure to keep accounts correctly is clear and therefore, confiscation and penalty were justified. 5. emsp There is merit in the appellant rsquo s case. There is no duty liability in regard to raw materials in stock. There is also no case made out that the appellant had taken any excess Modvat credit. The appellant has also a probable explanation about the difference noticed. That a part there is no specific offence in regard to excess stock of raw materials. The order also does not bring out which specific sub-rule of Rule 173Q is violated. The fact that finished product rsquo s stock tallied with the statutory account also shows that the appellant is not carrying out any clandestine activity with intent to evade duty. In the circumstances, the confiscation of the raw material and imposition of penalty is not sustainable. Impugned order is set aside and appeal is allowed. (Order dictated in the open Court)
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2006 (4) TMI 435 - CESTAT, MUMBAI
Appeal to Commissioner (Appeals) - Limitation - Delay in filing - Condonation of ... ... ... ... ..... ayer to Commissioner (Appeals) for condoning the same, and a prayer made in the appeal memo. 4. emsp In view of the above facts we find that admittedly the appeal was first filed on 30-9-2005 and it was only for the purposes of removal of the defects, that the same was returned back to the appellant. Such defect could have been removed even by retaining the appeal in the office of the Commissioner (Appeals). Instead of returning the appeal papers to the appellant. It has been explained to us that the appeal papers were not signed by the appellant inadvertently. Such defect, in our views, cannot fettle the appeal right of the assessee. As such, we direct the Commissioner (Appeals) to take 30-9-2005 as the date of filing of appeal and to consider their prayer for condoning the delay of about 15 days in filing the said appeal. Thereafter the matter be decided on merits. 5. emsp The appeal is thus allowed by way of remand. Stay Petition also gets disposed off. (Dictated in court)
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2006 (4) TMI 434 - CESTAT, BANGALORE
Refund - In-bond movement of goods ... ... ... ... ..... f the case carefully. When the petroleum products were sent by the appellants to IOC, Irigur, they were not required to pay the duty because it was supposed to be an inbond movement. Inadvertently, they paid the duty. M/s. IOC, Irigur, in their bonded warehouse received the goods and accounted them as non-duty paid. They had also discharged the duty liability on clearance of the goods. Therefore, the double payment of duty is clearly established and it is not disputed by the department. In these circumstances, rejecting the refund claim on technical grounds is not justified. Since the IOC accounted the goods as non-duty paid goods, the payment of duty by them is in order. Therefore, there is nothing wrong in the appellant claiming the refund for the sum, which they were not required to pay. Therefore, we allow the appeal with consequential relief, if any, by setting aside the impugned OIA. (Operative portion of this Order was pronounced in open court on conclusion of hearing)
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2006 (4) TMI 433 - CESTAT, NEW DELHI
Yarn - Spun yarn - Classification of ... ... ... ... ..... o interfere with the impugned order which is based mainly on facts except to the extent that it is not a case for levy of penalty as the classification list filed by the assessee-appellant had already been approved as lsquo Cellulosic Spun Yarn rsquo containing lsquo Non-cellulosic waste rsquo by the Department. Accordingly, we dismiss the appeal but, in the circumstances of this case, penalty imposed by the Collector, Central Excise and confirmed by the Tribunal, is waived. No costs. 7. emsp As we are unable to agree with the three member Bench rsquo s decision in the case of Vardhan Syntex, we deem it necessary to refer this matter to Hon rsquo ble President, to constitute a three members rsquo Bench to review the decision of Vardhan Syntex, and decide as to whether the said decision requires re-consideration by a further Larger Bench. 8. emsp We direct the Registry to place this file before the Hon rsquo ble President for necessary direction. (Order pronounced on 9-6-2006)
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2006 (4) TMI 432 - CESTAT, MUMBAI
Production capacity based duty - Annual capacity of production ... ... ... ... ..... igh Court observed that though the correctness of the final order fixing the APC was not challenged by the assessee, the proceedings and show cause notice for short levy were independent and substantive proceedings, which were challenged by the assessee and should have been decided by applying the decision laid down by the Hon rsquo ble Supreme Court in the case of SPBL. By observing so, the matter has been remanded to the Tribunal in fresh consideration. 6. emsp In view of our observation made above as regards the fact of one show cause notice having been issued prior to the final order dated 14-7-1999 and the second show cause notice having been effectively challenged by the appellants and in view of the law declared by the Bombay High Court in the above decision of M/s. Om Textile Pvt Ltd., we set aside the impugned order and remand the matter to the original adjudicating authority for fresh decision in the light of the observations made by us as above. (Dictated in Court)
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2006 (4) TMI 431 - CESTAT, CHENNAI
Sugar - Additional duty of excise - Export quota ... ... ... ... ..... quantity), there shall be levied and collected on so much of the sugar despatched from the factory for consumption in India as is equal to the said quantity a duty of excise at the rate of seventeen rupees per maund. rdquo Going by the above provision, we can safely say that it was not open to the department to raise a demand of additional excise duty on any quantity of sugar unless it was shown that such quantity represented a shortage vis-a-vis the export quantity fixed for the manufacturer. In the instant case, even according to the department, sugar was exported by the manufacturer, through the export agency, in a quantity higher than the export quota. In the circumstances, the levy proposed under Section 7(1) of the Sugar Export Promotion Act, 1958 in respect of M/s. Siruguppa Sugars and Chemicals Ltd. cannot be sustained. In the result, the order of the Commissioner is sustained and the Revenue rsquo s appeal gets dismissed. (Order dictated and pronounced in open Court)
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2006 (4) TMI 430 - CESTAT, NEW DELHI
... ...
... ... ..... t be binding and will result in reversing or nullifying the decision made in exercise of the judicial power. The legislature does not possess such power. The court rsquo s decision must always bind parties unless the condition on which it is passed are so fundamentally altered that the decision could not have been given in the altered circumstances. rdquo It can be seen that Apex Court has laid down the law so very clearly that any direction of the Courts should not be negated under the garb of the unjust enrichment. 4. emsp As, in this case the refund of the duty has arisen due to mandamus of the Hon rsquo ble High Court in the appellant rsquo s writ petition, the judgment in the case of the Bussa Overseas 2003 (158) E.L.T. 135 (Bom.) may not be applicable as the facts in that case were totally different than in the present case. 5. emsp Accordingly, the order-in-appeal dated 31-1-05 is set aside and appeal allowed with consequential relief, if any. (Pronounced on 26-4-2006)
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2006 (4) TMI 429 - CESTAT, BANGALORE
Refund - Unjust enrichment ... ... ... ... ..... bligation to show that the burden of duty has not been passed on to the ultimate purchasers. If at all the Respondents are to enjoy the benefits of refund, they should be in a position to show evidence to the Revenue that they had not passed on the burden to the purchasers. While accepting the Respondent rsquo s contention that the turnover tax is deductable from sale price to arrive at the assessable value, we hold that the benefit of refund cannot be given without examining the unjust enrichment aspects. In view of the above reasons, we allow the Revenue rsquo s appeals by remanding the matter to the Commissioner (Appeals) to take a decision after examining the unjust enrichment aspects. In our earlier order, the additional grounds of unjust enrichment was not before the Tribunal. Hence, the decision in the Final Order relied on by the Respondents is at variance with the present decision. The appeals are disposed of in the above terms. (Pronounced in the court on 16-4-2006)
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2006 (4) TMI 428 - CESTAT, BANGALORE
... ...
... ... ..... g in passing of an adjudication order and the officer had become functus officio. In this case also there was no allegation in the first show cause notice dated 1-11-1990 bringing out the ingredients necessary for imposition of penalty. The Collector of Central Excise who issued show cause notice dated 1-11-1990 did not propose to invoke penal provision and to impose penalty. The proposal was only for levy of short duty as there was an irregular removal of content paper of a weight equivalent to the weight of relevant wrapper (as per calculation shown in the annexure). Therefore, the Department waking up after a lapse of 8 years and proceedings to allege penal provisions is unsustainable in law. The appellants prayer for setting aside the order is justified on the grounds raised by them. The impugned order is not legal and proper and the same is set aside with consequential relief, if any. (Operative portion of this Order was pronounced in open Court on conclusion of hearing)
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2006 (4) TMI 427 - CESTAT, NEW DELHI
Refund - Unjust enrichment ... ... ... ... ..... ion with Section 11B(2) provision (c). The provision regarding non-payment of refund of credit has to be read down and confined to normal cases where availment of credit for utilisation for the payment of duty is possible and not in cases where such availment is rendered impossible of fulfilment by the action of the Department where the remedy under Section 11B(2) provisio (c) will provide the relief to the manufacturer. rdquo 6. emsp From the interpretation given by the Division Bench of the Tribunal, I find that the ratio squarely covers the issue in this case, as the appellants were first directed to reverse the amount based on board rsquo s circular which was struck down. 7. emsp In view of the fact and circumstances mentioned above, following the Division Bench decision in the case of Orient Paper, I set aside the Order-in-Appeal and allow the appeal of the appellant with consequential relief, if any, to the appellant. (Dictated and pronounced in open Court on 25-4-2006)
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