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Case Laws
Showing 141 to 160 of 681 Records
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2009 (6) TMI 886 - COMMISSIONER OF CENTRAL EXCISE (APPEALS), PUNE-II
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... ... ..... d of one year as envisaged in Section 11A of the Central Excise Act, 1944. Accordingly, the demand dated 6-7-2007 covering the period from 10-9-2004 to 31-7-2006 is not sustainable on account of time-bar. However, other four SCNs which were issued in time survive. Therefore, the demand of Rs. 13,59,792/- is upheld with interest and equal penalty. 6. With regard to other contention of the appellant during P.H. that if the appellant is liable to pay service tax under BAS, he will be put into undue hardship, since he has to bear the burden of service tax without getting the credit on inputs, it may be stated that it is a matter of common knowledge that the service tax is an indirect tax payable by his customer. Besides, when the service tax was not collected from his customers, again the principle of ldquo cum-duty value rdquo would step in. Thus there will be no difficulty in paying service tax by the appellant. 7. With the above modification, both the appeals are disposed off.
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2009 (6) TMI 885 - COMMISSIONER OF CENTRAL EXCISE (APPEALS), PUNE-II
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... ... ..... abatement which fact is also not under dispute. 4.3 Coming to the legal aspect that whether the availment of Cenvat credit in respect of one service can have the impact on the other service, the appellant is loaded with a few decisions mentioned supra. On this count also, the appellant is eligible to avail abatement in respect of lsquo construction of residential complex service rsquo . As pointed out by the appellant, the decisions quoted by him are brushed aside by concluding that those decisions relate to Central Excise matters. This kind of approach on the part of the Assistant Commissioner is also wrong in view of the fact that the ratio of the decisions have to be applied. 4.4 In view of the facts and discussions, the appellant is not liable to pay any service tax and consequently, there arises no question of payment of interest and penalty. 5. Accordingly, I allow the appeal by setting aside the impugned OIO passed by the Assistant Commissioner, Central Excise, Satara.
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2009 (6) TMI 884 - CESTAT CHENNAI
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... ... ..... ruction service and service tax was required to be paid on the advances received by them for rendering such service. 2. We find that there is no dispute that the advances were for purchase of materials, as evidenced from the agreement entered into between the applicants and their clients, and therefore prima facie they are not liable to service tax even if it is held that they were rendering commercial and industrial construction service, for the reason that prima facie the definition of the above service would cover a situation where advances were taken not for purchase of material but towards rendering any service. We, therefore, waive predeposit of the tax and penalties and stay recovery thereof pending the appeal without recording any prima facie finding on the submission made by the learned counsel for the applicants that the nature of the contract in the present case is a works contract which was not leviable to tax pre- 1-6-2007. (Dictated and pronounced in open Court)
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2009 (6) TMI 883 - CESTAT CHENNAI
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... ... ..... ment offices etc. in connection with the business of the appellants. The learned consultant appearing for the appellants relies on a decision of the Tribunal in Commissioner of Central Excise v. Cable Corporation Ltd. reported in 2008 (12) S.T.R. 598. It was held by the Tribunal that the respondents therein had paid service tax under the category lsquo rent-a-cab rsquo service for bringing employees working in the factory for manufacture of goods and the services availed by it as being used indirectly in relation to the manufacture or as part of business activity any facility provided to the employees resulted in greater efficiency and promotion of business. I find that the appellants have made out a prima facie case against the impugned demand and penalty on the strength of the case law cited. Accordingly, it is ordered that there shall be complete waiver of the adjudged dues and stay of recovery thereof pending decision in the appeal. (Dictated and pronounced in open Court)
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2009 (6) TMI 882 - CESTAT CHENNAI
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... ... ..... amount of Rs. 4,71,487/- along with applicable interest and imposed equal amount of penalty on the appellants under Rule 15 of the Cenvat Credit Rules (CCR). The period of dispute is from 1-1-2005 to 31-12-2006. 2. After perusing the records of the case and hearing both sides, I find that the impugned demand is towards, prima facie, the credit admissible to the appellants and availed by it. The denial of the credit taken, interest and penalty are on account of the appellants availing the credit without proper prescribed documents. In the instant case, the appellants paid service tax as recipients of services. There is no dispute or doubt as regards the details of the service tax paid. Other requisite particulars are available in the respective transport document relating to each amount of credit. In the circumstances, prayer for waiver of the adjudged dues is allowed and the recovery thereof stayed pending decision in the appeal. (Order dictated and pronounced in open Court)
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2009 (6) TMI 881 - CESTAT MUMBAI
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... ... ..... 26th February, 2009, it clearly describes the activity of the applicants to be in the nature of job work. As regards the order passed by the Commissioner, Aurangabad, on 16th December, 2008, the same, apart from reproducing the reply filed by the appellants to the show cause notice and by merely referring to the Circular, states that, the demand is not sustainable. There is neither any discussion nor analysis of the nature of the activity of the appellants and how the Circular is attracted to the same. 8. In the facts and circumstances of the case, the applications for stay partly succeed. The same are allowed to the extent of demand regarding the penalty amount and the order shall remain stayed till the disposal of the appeal. The amount of Service Tax and interest payable thereon, as demanded under the impugned order, shall be deposited within the period of twelve weeks from today. To come up for reporting compliance on 11-9-2009. Applications stand disposed of accordingly.
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2009 (6) TMI 880 - CESTAT AHMEDABAD
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... ... ..... view of the Larger Bench decision of the Tribunal 2009 (15) S.T.R. 23 (Tri.-LB) 2009-TIOL-830-CESTAT-BANG-LB , the credit on service tax paid on outward transportation has been held to be admissible even when the place of removal is the factory gate. In any case, in several other decisions Tribunal held that in case of exports on FOB basis, the port is the place of removal. Therefore, I find no merits in the appeal filed by the Revenue and accordingly, reject the same. (Pronounced in the Court)
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2009 (6) TMI 879 - CESTAT KOLKATA
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... ... ..... relied upon the decision in the case of Commissioner of Central Excise and Customs, Bhubaneswar-II v. B.K. Thakkar - 2008 (9) S.T.R. 542 (Tri.-Kolkata). 3. The contention of the Revenue is that different rates are provided for extraction, loading in the contract therefore the Applicants are liable to pay Service Tax as provider of cargo handling service. 4. We find that in this case the contract is for extraction and transfer of coal and loading is incidental to the job undertaken by the Applicants. Further we find that the Tribunal in the case of B.K. Thakkar (supra) in a similar situation held that the assessee is not providing cargo handling service. In these circumstances prima facie we find the Applicant had made out a case for waiver of pre-deposit of amount of Service tax and penalty. Therefore pre-deposit of Service tax and penalty is waived and its recovery stayed during the pendency of the Appeal. Stay Petition is allowed. (Pronounced and dictated in the open court)
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2009 (6) TMI 878 - CESTAT KOLKATA
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... ... ..... na Reddy v. Commissioner of Central Excise and Customs, Tirupati - 2009 (13) S.T.R. 661 (Tribunal) 2009 (18) S.T.T. 465 (Bang.-CESTAT). 4. Revenue relied upon the findings of the lower Authority as stated in para 9 of the impugned order. The contention is that applicants are also undertaking site formation hence liable for Service tax. 5. We find that the contract is for mining of iron ore. The mining service comes under the scope of Service tax from 1-6-2007 and applicants are paying Service tax as provider of mining service and Revenue is accepting the same. As the contract is composite contract for mining and the Tribunal in the case of Ramakrishna Reddy (supra) held that prior to 1-6-2007 mining service is not liable for any Service tax, in these circumstances prima facie applicant had a strong case therefore pre-deposit of amount of Service tax is waived and its recovery stayed during the pending appeal. Stay Petition allowed. (Pronounced and dictated in the open court)
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2009 (6) TMI 877 - CESTAT MUMBAI
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... ... ..... ar rdquo which is approved by the State Excise Authority. The applicant had entered into selling agency agreement with M/s. Talreja Trade (HUF) with intention to obtain higher returns on their investments in their country liquor plant by increasing the sale of country liquor of their brand ldquo Pahili Dhar rdquo . 3. Heard both sides and perused the records. 4. The contention of the Revenue is that the applicants have allowed M/s. Talreja Trade (HUF) to use their brand name ldquo Pahili Dhar rdquo in selling the products. 5. After considering the arguments made by both the parties and perusal of the records, we find that nowhere the Department has made out that M/s. Talreja Trade is using the brand name of the applicants for their products. We also find that the applicants are having a good prima facie case in their favour. In view of the above we grant complete waiver of pre-deposit of entire service tax and penalties till final disposal of the appeal. (Pronounced in Court)
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2009 (6) TMI 876 - CESTAT CHENNAI
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... ... ..... The submission of the applicants is that individuals providing transport service were only truck owners and not goods transport agencies and that such individuals were not liable to pay service tax and, therefore, were not registered with the department and, therefore, question of applicants furnishing copies of any declaration by truck owners who are not GTA does not arise. Prima facie, we find force in this submission as there is no finding by the authorities below that the individuals who provided transport service to the applicants were registered with the service tax department as they were liable to pay service tax and, further, there is nothing to evidence that any action has been taken against such individuals for non-registration and non-payment of service tax. We, therefore, waive pre-deposit of tax together with interest and penalties as imposed on the applicants and stay recovery thereof during the pendency of these appeals. (Dictated and pronounced in open court)
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2009 (6) TMI 875 - CESTAT NEW DELHI
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... ... ..... of service tax involved in this appeal is Rs. 50/- (Rupees Fifty). 2. Learned DR agrees that the person concerned appearing in person may be excused and the restoration application may be dismissed as withdrawn. 3. Heard both sides and perused the records. 3.1 We do not appreciate behaviour of the litigant before us. However, for the unconditional apology tendered by him is taken into record and he is excused. Also we direct that the restoration application is dismissed as withdrawn. (Dictated and pronounced in open court)
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2009 (6) TMI 874 - CESTAT MUMBAI
CENVAT credit - scope of input services - various input services - Rule 2 of the Cenvat Credit Rules, 2004 -
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2009 (6) TMI 873 - CESTAT NEW DELHI
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... ... ..... mposed penalty of equal amount under Section 11AC of the Central Excise Act, 1944 along with interest. The Commissioner (Appeals) upheld the adjudication order. 2. After hearing both sides and on perusal of the records, it is seen from the impugned order that the appellants lodged a complain with the police regarding theft of CPT from their factory. On the basis of the said complaint the Central Excise officers visited the factory and detected shortage. The appellants also deposited the duty immediately. There is no material available to show that the goods were clandestinely removed. The Commissioner (Appeals) observed that the police investigation did not yield any positive results. Thus, there is no reason to for imposition of penalty under Section 11AC of the Central Excise Act, 1944. 3. In view of the above discussion, imposition of penalty under Section 11AC of the Act is set aside. Appeal is allowed with consequential relief. (Dictated and pronounced in the Open Court)
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2009 (6) TMI 872 - CESTAT CHENNAI
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... ... ..... ugned goods made by them in the ERl returns filed by them. Therefore, the plea of limitation was not justified. As regards the reliance on Fertilizer Control Order he submits that the test result was on the basis of the Fertilizer Control Order. 5. We have carefully considered the rival submissions. We find that prima facie the impugned demand is not sustainable as the same follows a classification based on Fertilizer Control Order and that the decision on classification was made without putting the appellant on notice of the fact that the Fertilizer Control Order was relied upon. We also find considerable force in the plea of limitation and that most of the demand is barred by limitation. In the circumstances, we find that the appellants have made out prima facie case against the impugned demand and penalty. Accordingly we grant complete waiver of pre-deposit of the adjudged dues and stay recovery thereof pending the appeal. (Order pronounced and dictated in the open Court)
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2009 (6) TMI 871 - CESTAT NEW DELHI
DEPB scheme - valuation - gross over-invoicing of exports - confiscation - redemption fine - penalty -
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2009 (6) TMI 870 - COMMISSIONER OF CENTRAL EXCISE (APPEALS), PUNE
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... ... ..... inancial years involved in the instant case. Under the above circumstances, the conclusion of the lower authority that the Cenvat credit is deniable on the ground that the appellant has failed to bring the finished goods to his factory is not sustainable in the eyes of the law. On this ground also, the impugned OIO is not sustainable. 5. From the above discussions, the appellant has succeeded on merits both on the basis of rules position as well as on the basis of the decisions of various appellate forums. Under the above circumstances, the question of payment of penalty and interest by the appellant do not arise. Even otherwise, as discussed above, all the activities of the appellant are transparent and nothing was hidden by him and therefore, the question of suppression as alleged by the lower authority is not sustainable. 6. Accordingly, I allow the appeal with consequential relief by setting aside the impugned OIO passed by the Joint Commissioner, Central Excise, Pune-II.
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2009 (6) TMI 869 - CESTAT BANGALORE
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... ... ..... t is also undisputed that the said inputs were issued to the shop floor and they were to be put into the process of manufacture. I find that the learned counsel rsquo s submission that the issue is covered by the decision of the Tribunal in the case of Commr. v. Indichem Electronics (supra) is correct. I also find that this issue was taken in Special Leave Petition by the Revenue to the Apex Court and the Apex Court dismissed the SLP. Further I find that the reliance placed by the learned JCDR on Tambraparani Coatings (supra) may not carry the Revenue rsquo s case any further as this decision is of the Single Member decision and the decision in the case of Indichem Electronics is binding on me, as it is decided by a division Bench. Accordingly I find that the impugned order which rejects the remission application is liable to be set aside and I do so. The impugned order is set aside and appeal allowed with consequential relief, if any. (Pronounced and dictated in open Court)
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2009 (6) TMI 867 - CESTAT NEW DELHI
Stay/Dispensation of pre-deposit - Clandestine manufacture and removal - Demand of over Rs. 19 crores
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2009 (6) TMI 866 - CESTAT AHMEDABAD
Port is the place of removal in case of exports on FOB basis - Allowed credit of service tax paid on outward transportation even from factory gate
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