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Showing 141 to 160 of 918 Records
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2012 (6) TMI 786 - BOMBAY HIGH COURT
Consulting Engineer Service - tax liability - Whether the assessee is liable to Service tax under the definition ‘consulting engineer’ for the services rendered by them in the field of engineering to their clients and whether the amounts received by them for supply of technical know-how is liable to be treated as taxable services for recovery of the service tax? - Held that: - reliance was placed in the decision in the case of Commissioner of Central Excise v. Mahendra & Mahendra [2011 (2) TMI 872 - CESTAT, MUMBAI], where on similar issue it was held that the assessee is not liable to the service tax - appeal dismissed - decided against Revenue.
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2012 (6) TMI 785 - GUJARAT HIGH COURT
Excisability of the intermediate chemical - clandestine removal - D2 Aminobutanol Tartrate falling under Chapter S.H. 2942.00 of the Central Excise Tariff Act, 1985 - it is alleged that the product is illicitly manufactured and removed for captive consumption for manufacture of Ethambutol HCL of Chapter S.H. 2942.00 during the period from 23-7-1996 to 31-3-2001 - Held that: - for the Department to levy excise duty on the product in question, it would have to establish that the product itself is marketable. It is equally settled that while doing so, the chemical being stable would not be conclusive, but only one of the aspects. In case of Cadila Laboratories Pvt. Ltd. [2003 (2) TMI 65 - SUPREME COURT OF INDIA], the Supreme Court while accepting that this new product may be stable, refused to uphold the Department’s stand that it is marketable without any other evidence on record.
Insofar as the opinion of the chemical examiner that the product is stable, that by itself as held by the Apex Court in the case of Cadila Laboratories Pvt. Ltd., would not be conclusive. What is required to be ascertained was whether such product is marketable. In other words, the product was known in the market and that it was possible to be bought and sold in the market. Mere hypothetical possibility of some availability in the market by itself would not be sufficient. The Department’s stand, therefore, that merely because chemically the product is found to be stable, in our view, cannot be stated to be new or sufficient material to enable the Department to hold the view that such product is marketable.
Petition allowed - decided in favor of petitioner.
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2012 (6) TMI 784 - CESTAT BANGALORE
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... ... ..... d reject the software if the software is not to their satisfaction. After completion, the ownership/intellectual property rights relating to deliverables shall be with Infosys. These parameters would indicate that it is not a case of ‘manpower supply’. He also relies on the Stay Order Nos. 657 & 658/2012 in Stay Application Nos. 855/2010 & 361/2011 in Service Tax Appeal Nos. 1488/2010 & 573/2011 in respect of M/s. IDS Systems Pvt. Ltd. wherein waiver was granted treating similar activities as falling under the category of ‘Information Technology Services’ taxable w.e.f. 16.05.2008. 4. Learned Commissioner (AR) fairly submits that the facts of the present case and the facts in the case of IDS Systems Pvt. Ltd. are substantially the same. 5. In view of the above, there shall be waiver of pre-deposit of balance of dues as per the impugned order and stay of recovery thereof till disposal of the appeal. (Pronounced & dictated in open Court)
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2012 (6) TMI 783 - CESTAT CHENNAI
CENVAT credit - forged invoices - the goods covered under the invoices were allegedly not supplied but some other scrap was supplied - appellant argues that the alleged offence is covered u/r 26(2)(i) but the said provision was introduced in the law only on 1.3.2007 and was not in existence at the material period during March 2005 to November 2006 - Held that: - the appellants are directed to predeposit 10% of the penalty amounts in each case within four weeks from today and report compliance on 20.7.2012 - appeal disposed off - decided partly in favor of appellant.
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2012 (6) TMI 782 - ITAT CHENNAI
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... ... ..... and State Governments are promoting such societies to develop and expand the area of operation of cottage industries. When the assessee has grown itself into a big institution, it shows that the assessee is in fact, Since the society is performing well, it is able to expand and provide more and more employment to traditional handloom workers. 8. Therefore, in the facts and circumstances of the case, we do not find any reason to disturb the order passed by the Commissioner of Income-tax (Appeals) on this point. We agree with the Commissioner of Income-tax (Appeals) that the assessee-society is entitled for the benefit of exemption under sec.80P(2)(a)(ii) of the Income-tax Act, 1961.” 6. In view of the above decision of the Co-ordinate Bench of this Tribunal, we do not find any merit in these appeals filed by the Revenue. 7. In the result, appeals of the Revenue are dismissed. Order pronounced in the open court after conclusion of hearing on Tuesday, the 12th June, 2012.
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2012 (6) TMI 781 - MADRAS HIGH COURT
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... ... ..... ted under the caption “for dismissal”. Even today, there is no representation for the petitioner. Hence, the Civil Miscellaneous Appeal is dismissed for non-prosecution. No costs.
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2012 (6) TMI 780 - KARNATAKA HIGH COURT
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... ... ..... ORDER Appeal is admitted to examine the questions of law as indicated in the memorandum of appeal.
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2012 (6) TMI 779 - BOMBAY HIGH COURT
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... ... ..... he outgoing members to the assessee-society regarding transfer of shares being in SRP 1/2 excess of the amount stipulated by the notification of the Government of Maharashtra does not attract the principle of mutuality and is taxable in the hands of the society?”
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2012 (6) TMI 778 - CESTAT NEW DELHI
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... ... ..... ) 329.610 MTs Stock Found on physical verification 266.690 MTs Difference (-) 62.920 MTs The weighment was done on the weighbridge installed in the factory premises of the party having capacity of 1 MT.” 9. Such stock verification report and statement recorded immediately after recording such stock gives room for suspicion that the report is not a reliable piece of evidence and elements of arbitrariness and coercion is apparent on the face of the record. The statement extracted from Shri Tajinder Singh also cannot give support to such a piece of evidence. So I conclude that it is also a statement under duress. Therefore, I am of the view that the case made out by Revenue cannot be accepted notwithstanding the statement given by Shri Tajinder Singh. Consequently, I set aside the impugned orders of lower authorities and the appeal filed by the appellant is allowed. Consequently appeal filed by Revenue gets dismissed. (Order dictated and pronounced in the open Court)
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2012 (6) TMI 777 - GOVERNMENT OF INDIA
Denial of rebate claim - whether the rebate ”Duties” actually paid at the time of de-bonding of a 100% EOU Unit on the goods exported by applicant can be granted under Rule 18 of Central Excise Rules, 2002 read with Notification No. 19/04-C.E. (N.T.), dated 6-9-2004 - Held that:- When statutory provisions of Rule 18 of the Central Excise Rules, 2002 read with Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 are read in proper perspective along with instructions contained in Chapter 8 (Para 8.4) of C.B.E. & C.’s Excise Manual of Supplementary Instructions then it becomes clear that rebate of only that much amount of Central Excise Duty is admissible as indicated in the respective ARE-1s and is (actually) paid at the time of clearance of impugned export goods which are to be exported within six months of the date of such clearances unless specific extension/permission is granted by the jurisdictional Commissioner. All the rebate claims under reference are to be considered within the ambit and scope of above said provisions of law. In this case matter, Government is in conformity with the views of lower authority and Commissioner (Appeals) that because the duties paid at the time of de-bonding were duties of nature of Customs Duty including CVD, the applicant could have made a Drawback claim under Section 75 of the Customs Act, 1962 in terms of relevant Customs and Central Excise Duties Drawback Rules, 1995.
Plain reading of statutory provisions of Acts/Rules as clarified vide relevant Notification/C.B.E. & C. Circulars are strictly bindings on the authorities constituted and working under those statute, finds the impugned orders-in-appeal as perfectly legal and proper and same are therefore upheld. - Decided against Revenue.
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2012 (6) TMI 776 - GOVERNMENT OF INDIA
Denial of the benefit of concessional rate of duty - Notification No. 31/03-Cus. (N.T.), dated 1-3-2003 - Declaration of Gold Jewellery weighing to 8.3 kg - Denial of concessional rate of duty since jewellery studded with stones - Held that:- Passenger is an eligible passenger in terms of said notification who has fulfilled all the conditions of notification. There is no dispute on this aspect. The gold jewellery imported by applicant is claimed to be covered under Sr. No. 2 of table of notification on the grounds that the ornaments i.e. gold bangles are not studded by precious stones, diamonds or pearls but studded with Cubic Zirconia which is a synthetic stone. There is no definition of term “ornaments studded with stones or pearls” in the said notification. So, the definition as given in the exemption notification relating to manufacturing of jewellery by the units of free trade zone, namely Notification No. 3/88-Cus., dated 14-1-1988 Para (xiii)(d), and Notification No. 52/03-Cus., dated 31-3-2003 Para (XV)(c) became quite relevant.
Commissioner (Appeals) has not given any reasoning to counter the various grounds given by adjudicating authority for allowing benefit of Notification No. 31/03-Cus. The definition given in the other notification clearly indicates that the such jewellery studded with Cubic Zirconia (Synthetic Stone) having negligible value is to be treated as plain jewellery. Moreover this eligible passenger has made the declaration of the goods before the Customs Officers and paid duty on the Cubic Zirconia studded in gold bangles on weight basis as gold jewellery whereas its value in very negligible as compared to gold value. The reasoning given by adjudicating authority is logical and merits acceptance. - original adjudicating authority has rightly extended the benefit of concessional rate of duty in this case in terms of Notification No. 31/03-Cus., dated 1-3-2003. Accordingly, the other charges w.r.t. confiscation of goods and imposition of penalty do not sustain - Decided in favour of assessee.
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2012 (6) TMI 775 - GOVERNMENT OF INDIA
Denial of rebate claim - respondents had not filed Bill of Export with the claims - Held that:- in terms of Para (5) of Board’s Circular No. 29/2006-Cus., dated 27-12-2006, the supply from DTA to SEZ shall be eligible for claim of rebate under Rule 18 of Central Excise Rules, 2002 subject to fulfilment of conditions laid thereon - Rule 30 of SEZ Rules, 2006 prescribes for the procedure for procurements from the Domestic Tariff Area. As per sub-rule (1) of the said Rule 30 of SEZ Rules, 2006, DTA may supply the goods to SEZ, as in the case of exports, either under Bond or as duty paid goods under claim of rebate on the cover of ARE-1. - Customs Officer at SEZ has certified on the ARE-I that goods have been admitted in full in the SEZ. Therefore receipt of goods in SEZ is not disputed. The fundamental condition for granting rebate of duty paid on exported goods is that duty paid goods are exported. The said fact is not in dispute in this case. The substantial benefit of rebate claims cannot be denied for only lapse of not filing Bill of Export which is a procedural lapse of technical nature - Decision in the case of UOI v. Suksha International [1989 (1) TMI 316 - SUPREME COURT] - rebate claim is rightly held admissible in this case by Commissioner (Appeals). - Decided in favour of assessee.
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2012 (6) TMI 774 - GOVERNMENT OF INDIA
Denial of rebate claim - non-submission of some documents - failure to submit copies of relevant Bills of Export by the applicant - Commissioner (Appeals) allowed all the rebate claims on merit subject to factual verification by the original authority regarding genuineness of documents and endorsements on ARE-1 filed by party - Held that:- Commissioner (Appeals) has dealt with in details in respect of two Orders-in-Original and allowed the rebate to respondent. Government concurs with the findings of Commissioner (Appeals) and directs the original authority to allow the rebate claims after carrying out verification as mentioned in Order-in-Appeal in respect of said two rebate claims.
In terms of Para (5) of Board’s Circular No. 29/2006-Cus., dated 27-12-2006, the supply from DTA to SEZ shall be eligible for claim of rebate under Rule 18 of Central Excise Rules, 2002 subject to fulfilment of conditions laid thereon - In terms of sub-rule (5) of the Rule 30 of SEZ Rules, 2006, Bill of Export should be filed under the claim of drawback or DEPB, Though Bill of Export is required to be filed for making clearances to SEZ, yet the substantial benefit of rebate claim cannot be denied only for this lapse. Government further observes that Customs Officer of SEZ Unit has endorsed on ARE-1 that the goods have been duly received by them. As the duty paid nature of goods and supply the same to SEZ is not under dispute, the rebate on export of duty paid goods under Rule 18 of Central Excise Rules, 2008 is admissible, subject to verification from ARE-1 forms that goods were received in SEZ. Government also notes that, now, the applicant has now submitted copies of relevant BRCs which also proves that impugned goods were exported. - Decided against Revenue.
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2012 (6) TMI 773 - CESTAT MUMBAI
Revocation of CHA License - Lending of IEC code for undervaluation done by importers - Held that:- CHA licence has been issued by the Commissioner of Customs, Pune. However, in this case the CHA licence has been revoked by the Commissioner of Customs (General), Mumbai, who has no jurisdiction over the CHA - Commissioner who has issued the CHA licence is only having the jurisdiction to revoke the CHA license. In this case, we find that the CHA licence has been issued to the appellant by the Commissioner of Customs, Pune and their licence has been revoked by the Commissioner of Customs (General), Mumbai, who has no jurisdiction to revoke the CHA licence of the appellant. - Decision in the case of N.C. Singha v. Union of India [2010 (2) TMI 613 - CALCUTTA HIGH COURT] - Decided in favour of appellant.
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2012 (6) TMI 772 - ITAT BANGALORE
Revision u/s 263 - additions on account of write back of stale demand drafts to the Profit & Loss account which was done as per the direction of Reserve Bank of India - Held that:- In the instant case, as mentioned earlier, the Reserve Bank of India had categorically directed that the amounts are to be kept in general reserve account though routed through the profit and loss account. It is the direction of the RBI that the assessee bank is under an obligation to meet the future claims out of General Reserve so created. The RBI had also stipulated that the amounts so transferred shall not be used in the form of distribution of dividend. In this context of the matter, it cannot be said that it is the money of the assessee bank. The RBI instructions are issued as per section 35A of the Banking Regulation Act, 1949 and the same are binding on the assessee bank. Therefore, though it is routed through the profit and loss account, it does not have income character in the hands of the assessee bank and hence, it cannot be brought to tax. Accordingly, the CIT’s order invoking revisionary jurisdiction under section 263 of the Act directing the Assessing Officer to assess an amount of ₹ 52.77 crores is not justified and therefore, is quashed to that extent. It is ordered accordingly. - Decided in favour of assessee.
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2012 (6) TMI 771 - CESTAT MUMBAI
Denial of input service credit - outward transportation service - Inclusion of transportation charges into the assessable, value and claimed input service credit of outward transportation service - Held that:- Clearances have been made by the appellant from the depot and as per the Section 4A of the Central Excise Act, 1944, the depot is the place of removal as the clearances have been made by the appellant from their depot and the same is place of removal. Therefore, the appellants are entitled for input service credit on GTA service upto the depot. - With regard to the denial of CENVAT credit of ₹ 10,354/-, I find that as per the Board's Circular No. 97/8/2007 dated 23.08.2007 the appellant is satisfied all the conditions as the sales are upto the place of buyer and the transportation charges have formed a part of the assessable value, the transportation risk has been borne by the appellant. Therefore, the appellant is entitled for input service credit on GTA service upto the place of removal i.e. place of buyer's door. The view is supported by the decision in the case of Palco Metals Ltd. vs. CCE - [2011 (8) TMI 88 - CESTAT, AHMEDABAD]. Therefore, on the whole, the appellants are entitled for input service credit in the facts of the case. - Decided in favour of assessee.
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2012 (6) TMI 770 - MADRAS HIGH COURT
y for claim of exemption u/s 5(2) of the Central Sales Tax Act - Privity of contract between the Government of India and the foreign party for importation of any goods or not – Whether in the absence of any sale in the course of import, the finding of the Tribunal that the transaction continued to be in pursuance of the earlier contract made by the Government of India, Mint, Noida with the first respondent and, therefore, there existed a privity of contract, is liable to be interfered with or not - Held that:- The assessee has entered into contracts with the foreign seller for conversion of steel strips into coin blanks for valid consideration - under the CST Act, 1956, tax is leviable on the sale of goods and not because of the movement of the goods - The movement of the goods is only material for the purpose of deciding whether the sale took place in the course of inter-State trade or commerce or whether such sale was purely an intra-State transaction - the name given to a transaction by the parties concerned does not decide the nature of the transaction - in order to make a transaction taxable under the CST Act, 1956, the transaction must be a "sale" as defined in section 2(g) - To claim exemption u/s 5(2) of the Act, the sale or purchase of goods should be deemed to take place in the course of the import of the goods into the territory of India - as per the definition, "sale" means any transfer of property in goods by one person to another for cash or for deferred payment or for any other valuable consideration.
In K. Gopinathan Nair Versus State of Kerala (and other appeals) [1997 (3) TMI 513 - SUPREME COURT OF INDIA] the Supreme Court formulated the following three essential conditions to come to a conclusion whether the sale can be said to be in the course of import to claim exemption under section 5(2) of the CST Act or not – starting with, there must be a sale, goods must actually be imported and sale must occasion the import - the assessee has not established that there was any term or condition prohibiting the diversion of the goods after the import, i.e., the inextricable link between the transaction of the sale and the actual import making sale in the course of import - Moreover, in order to qualify for the exemption, the goods must move from the foreign country to India in pursuance of the conditions in the contract of sale between the foreign seller and the local purchaser, but, the goods were imported from the foreign country to India in pursuance of the contract entered into between the foreign seller and the first respondent, who was not the local purchaser – thus, the sale contemplated u/s 5(2) of the Central Sales Tax Act, 1956 is not applicable – the transaction took place between the parties had amply made it clear that the sale contemplated under section 5(2) had not taken place and, moreover, even assuming that there was an import of goods from Italy, such import was not occasioned as a result of sale by a dealer in Italy - The dealer was prevented from selling the goods to any person other than to whom the import licence had been granted, i.e., to be sold only to the Mint Government of India by the dealer – thus, the order of the Tribunal is set aside – Decided in favour of petitioners.
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2012 (6) TMI 769 - KERALA HIGH COURT
Reduction of period of exemption – assessee is a medium scale industrial unit - Held that:- Relying upon K. Premerajan Versus State of Kerala [2007 (12) TMI 424 - KERALA HIGH COURT] - in the matter of industries set up on or after April 1, 1989 and prior to April 1, 1993, the competent authority was conferred jurisdiction as per the notifications on a combined reading of SRO. No. 1729/1993 and SRO. No. 654/1989 - but the jurisdiction extended to grant of exemption only for a period of five years - The grant of exemption for seven years; to the extent of the additional two years, is definitely in excess of the jurisdiction and again cannot be considered as one of irregular assumption of jurisdiction or an error of law committed within the jurisdictional competence - To the extent of the exemption granted beyond the specific period of five years prescribed under the relevant notification, the same was definitely vitiated by lack of jurisdiction or want of jurisdiction - The authority clearly exceeded the jurisdictional mandate of SRO. No. 1729/1993 read with SRO. No. 654/1989 – the AO was perfectly right in confining the exemption to five years, since annexure A to the extent it granted exemption for the additional two years was a nullity – the assessing authority was justified in passing the assessment order under the Central Sales Tax Act rejecting the claim of exemption beyond five years and finding the assessee's claim for concessional rate under the Central Sales Tax Act to be governed under SRO. No. 1731/1993 – Decided against petitioner assessee.
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2012 (6) TMI 768 - UTTARAKHAND HIGH COURT
Loaders and dumpers - whether be treated as plant and machinery of stone crusher? - Held that:- Considering the situation of the law pronounced in Indian Copper Corporation Ltd. v. Commissioner of Commercial Taxes [1964 (10) TMI 41 - SUPREME COURT OF INDIA] and having regard to the undisputed facts as narrated above, in so far as the revisionist is concerned, loaders and dumpers should be treated as plant and machinery of stone crusher, as registered in the registration certificate of the revisionist.
The conclusion, therefore, would be that the judgments and orders of the Tribunal, the appellate authority and the assessing authority to the effect that loaders and dumpers are no part of plant and machinery of stone crusher, are not sustainable and, accordingly, they are quashed.
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2012 (6) TMI 767 - UTTARAKHAND HIGH COURT
Order of the assessment creating demand - Recovery proceedings - Held that:- As clearly mentioned in para 27 of the counteraffidavit that the impugned letter which was dispatched to the dealer from the Deputy Commissioner, Commercial Taxes (SIB) on June 16, 2011 was only for information. The letter was not an assessment order. And specifically, it is again mentioned in para 29 of the counter-affidavit that it is up to the will and discretion of the dealer either to deposit, lawfully, the tax and interest suggested in the light of facts mentioned in the letter or to deposit the tax after the assessing officer passes the assessment order and issues the demand letter. In the last para 31 it is further mentioned in the counter-affidavit that the assessing officer has to conduct proceedings only after giving a reasonable opportunity of hearing to the petitioner. Therefore, the impugned letter dated June 16, 2011 sent by the SIB Unit is not binding on the dealer or the concerned assessing officer.
Thus the direction given to the petitioner to deposit the amount is set aside and no recovery shall be made in pursuance of the impugned order. However, it is made clear that the assessing officer may make assessment in accordance with law.
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