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Showing 141 to 160 of 925 Records
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2012 (6) TMI 793
Whether Cold Rolled Strips are the result of a process of manufacture undertaken by the petitioners - Held that: - Apex Court in the decision in case of Union of India v. Guwahati Carbon Ltd. reported in [2012 (11) TMI 885 - SUPREME COURT OF INDIA ] wherein it was held that The Excise Law is a complete code in order to seek redress in excise matters and hence may not be appropriate for the writ court to entertain a petition under Article 226 of the Constitution. Therefore, the learned Single Judge was justified in observing that since the assessee has a remedy in the form of a right of appeal under the statute, that remedy must be exhausted first, the order passed by the learned Single Judge, in our opinion, ought not to have been interfered with by the Division Bench of the High Court in the appeal filed by the respondent/assessee - Petition dismissed.
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2012 (6) TMI 792
Issues involved:
The petition seeks quashing of Section 65(105)(zzd) and 65(39a) of the Finance Act, 1994 and a show cause notice issued by the Commissioner of Central Excise, Shillong.
Judgment Details:
Issue 1: Legislative Competence and Taxable Service Definition
The petitioner argued that the provisions of Section 65(105)(zzd) and Section 65(39a) are ultra vires as they pertain to services on erection, commissioning, and installation, falling under the domain of State Legislature. The petitioner contended that the work in question was not a taxable service as it was for security purposes, not commerce or industry. The petitioner also claimed that the demand was against circulars issued by the Respondent. The respondents argued that the impugned provisions cover only the service aspect in taxable service, not covered by State legislation. The petitioner's failure to respond to the show cause notice hindered the determination of service tax liability.
Issue 2: Legislative Competence and Tax Levy
The court examined the legislative competence of Parliament to levy service tax on erection, commissioning, and installation services. The petitioner cited precedents to support their argument that the levy was beyond legislative competence. The respondents countered that the notifications under Section 93 did not apply to turnover covered by taxable service. The court referenced previous cases to uphold the validity of the levy of service tax under Entry 97 of List II.
Separate Judgment:
The court emphasized that the coverage of erection, commissioning, and installation services under taxable service did not encroach on the subject matter of sale and purchase under Entry 54 of List II. The court deferred detailed consideration of the petitioner's submissions to the adjudicating authority, directing them to decide on the matter and provide a reasoned order. The petitioner was granted the option to pursue legal remedies if aggrieved.
Conclusion:
The writ petitions seeking the quashing of specific sections of the Finance Act and the show cause notice were disposed of by the court, with the matter deferred for adjudication by the relevant authority.
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2012 (6) TMI 791
The Bombay High Court admitted the case based on the substantial question of law regarding the Central Excise duty for 100% EOU clearances to DTA purchasers. The case is to be heard with Central Excise Appeal Nos. 5 of 2009 and 59 of 2012.
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2012 (6) TMI 790
Depreciation under section 32 on plant and machinery relating to toilet soap unit, which were not put to use during the year? - Held YES - Once the factory building is put to use it is not possible to restrict the depreciation on the said building by stating that only a portion thereof has been put to use. Similarly in relation to the block of assets, it is not possible to segregate items falling within the block for the purposes of granting depreciation or restricting the claim thereof. Once it is found that the assets are used for business, it is not necessary that all the items falling within plant & machinery have to be simultaneously used for being entitled to depreciation. Decided in favour of assessee
Whether the Appellate Tribunal is right in law and on facts in holding that if interest under section 234B is not levied specifically in the assessment order, the same cannot be charged in the demand notice? - Held that:- The issue is squarely covered by the decision in the case of Commissioner of Income Tax and others v. Ranchi Club Ltd.[2000 (8) TMI 79 - SUPREME Court] as held that in absence of any specific direction giving reference to the section charging interest in the assessment order, no interest can be levied through a notice of demand. Decided in favour of assessee
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2012 (6) TMI 789
Issues involved: Application for waiver of predeposit of service taxes and penalties u/s 75, 76 & 77 of the Finance Act, 1994.
Summary:
The applicants sought waiver of predeposit of service taxes totaling to significant amounts along with penalties imposed under relevant sections of the Finance Act, 1994. The dispute arose from issues including payment through Department of Telecommunication (DOT) and the acceptance of evidences by the ld. Commissioner. The applicants contended that certain documentary evidences were not considered by the Commissioner, especially in relation to village panchayat telephone and cenvat credit. They argued that the Department had miscalculated the service tax liability at varying rates. On the other hand, the Department argued that the appellants failed to justify the availed cenvat credit based on internal documents. The appellants, in response, claimed to have provided all necessary documents including invoices for cenvat credit. After hearing both parties, the Tribunal decided to remand the case to the Commissioner for a fresh examination without requiring any predeposit, allowing both sides to present additional documents and ensuring a fair hearing process. The appeals were allowed by way of remand, and stay petitions were disposed of.
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2012 (6) TMI 788
Issues involved: Appeal against deletion of penalty u/s.271(1)(c) of the I.T. Act.
Summary:
The appeal was filed by the Revenue challenging the deletion of a penalty of Rs. 29,25,280/- u/s.271(1)(c) of the I.T. Act by the Learned CIT(Appeals)-V, Baroda. The Revenue's grievance was related to the penalty deletion.
The facts revealed from the penalty order u/s.271(1)(c) dated 17.3.2008 and the assessment order u/s.153-C r.w.s.143(3) dated 19.12.2006 showed that a search u/s.132 was conducted on 4.3.2005, resulting in the seizure of documents from M/s.Om Shivam Corporation related to the assessee. The seized documents indicated that the assessee received Rs. 1,73,30,000/-, out of which Rs. 86,37,000/- was admitted and disclosed in the revised income return. However, the receipt of Rs. 29 lacs was denied. An addition of Rs. 30,93,000/- was made based on two seized cheques.
The Tribunal, in its decision, noted that the addition was made on presumption or suspicion without concrete evidence linking the undisclosed income to the assessee. It emphasized the requirement of legal proof for such additions and concluded that the authorities were unjustified in confirming the addition. Therefore, the Tribunal set aside the addition of Rs. 30,93,000/-.
As the addition was already deleted by the Tribunal, no penalty u/s.271(1)(c) would stand. Consequently, the appeal of the Revenue was dismissed, affirming the deletion of the penalty.
In conclusion, the appeal of the Revenue against the deletion of the penalty u/s.271(1)(c) of the I.T. Act was dismissed by the Appellate Tribunal ITAT AHMEDABAD.
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2012 (6) TMI 787
Issues involved:
1. Appeal against order of Ld. CIT (A) for assessment year 2008-09.
2. Issues regarding exemption u/s 10B and deduction u/s 80G.
Exemption u/s 10B:
The appellant, a 100% exporter, claimed exemption u/s 10B but mistakenly mentioned deduction u/s 80IB in the return. The Assessing Officer denied the claim as no revised return was filed. However, the Ld. CIT (A) allowed the claim stating it was a technical error and all conditions for claiming u/s 10B were satisfied. The ITAT upheld the decision, noting that the mistake did not warrant denial of the deduction.
Deduction u/s 80G:
The Assessing Officer disallowed deduction u/s 80G as it was not claimed in the return initially. The appellant argued that since the income was finally positive, the deduction should be allowed. The Ld. CIT (A) agreed, stating the claim was legitimate. The ITAT upheld this decision, emphasizing that no additional evidence was filed and the Assessing Officer did not prove the deduction was disallowed due to lack of proper records.
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2012 (6) TMI 786
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
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
Issues involved: Waiver of pre-deposit of service tax under the category of 'Manpower Recruitment and Supply Agency Services'.
Summary:
Issue 1: Waiver of pre-deposit of service tax
The appellant sought waiver of pre-deposit of service tax amounting to Rs. 1,73,09,192/- along with interest and penalties, confirmed under the category of 'Manpower Recruitment and Supply Agency Services'. The appellant argued that the activities undertaken were related to the development of software for Infosys, not just 'supply of manpower'. They highlighted that Infosys had the right to conduct acceptance tests and reject the software if not satisfactory, with ownership/intellectual property rights resting with Infosys. The appellant also referenced a previous case involving M/s. IDS Systems Pvt. Ltd. where waiver was granted for similar activities under the category of 'Information Technology Services'. The Commissioner (AR) acknowledged the similarity between the present case and the case of IDS Systems Pvt. Ltd.
Decision: The Tribunal granted waiver of pre-deposit of the balance of dues as per the impugned order and stayed the recovery thereof until the disposal of the appeal.
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2012 (6) TMI 783
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
Issues involved: Appeal by Revenue against Commissioner of Income Tax(Appeals) allowing deduction u/s 80P(a)(ii) of the Income Tax Act, 1961 for the assessee.
Summary:
The appeals were filed by the Revenue against the orders of the Commissioner of Income Tax(Appeals) dated 08.09.2011 for the impugned Assessment Years. The Revenue's grievance was that the Commissioner allowed the assessees' deduction u/s 80P(a)(ii) of the Income Tax Act, claiming the assessee was not engaged in a cottage industry or small-scale business. The matter was previously decided in favor of the assessee by the Tribunal in a similar case. The Tribunal held that the assessee qualified as a cottage industry under the Industrial Development and Regulation Act, receiving various concessions and approvals from both Central and State Governments. The Revenue's objections based on the size and extent of the operation of the assessee-society were deemed legally invalid. The Tribunal concluded that the assessee was entitled to the benefit of exemption u/s 80P(2)(a)(ii) of the Income Tax Act, 1961. Consequently, the appeals filed by the Revenue were dismissed based on the previous decision of the Co-ordinate Bench of the Tribunal. The order was pronounced on Tuesday, the 12th of June, 2012.
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2012 (6) TMI 781
The Madras High Court dismissed the Civil Miscellaneous Appeal for non-prosecution after multiple adjournments and lack of representation by the petitioner. No costs were awarded. (2012 (6) TMI 781)
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2012 (6) TMI 780
The High Court of Karnataka admitted the appeal to examine the questions of law mentioned in the memorandum of appeal. (Case citation: 2012 (6) TMI 780 - Karnataka High Court)
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2012 (6) TMI 779
The High Court of Bombay heard a case regarding transfer fees paid by outgoing members to a society. The question of law was whether the excess transfer fees are taxable in the hands of the society.
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2012 (6) TMI 778
Issues involved: Restoration of appeal, shortage of stock, duty demand, penalty imposition, appeal consideration.
Restoration of appeal: The applicant filed a Misc. application for restoration of their appeal which was dismissed earlier due to non-prosecution. The appeal was dismissed on 3-2-2012 as the assessee showed no interest in pursuing it, only seeking restoration. The Counsel requested an adjournment when restoration was discussed on 9-5-2012.
Shortage of stock: The assessee, a manufacturer of iron and steel bars, faced allegations of shortages in both finished products and raw materials during a Central Excise Department visit. The Revenue issued a show cause notice for recovery, leading to confirmation of duty on final products, reversal of Cenvat credit, and imposition of penalties.
Duty demand and penalty imposition: The duty demand and penalty on the assessee were upheld by the Commissioner (Appeals), while the penalty on the partner was dropped. Both the assessee and Revenue appealed this decision, leading to the current consideration of the appeals.
Appeal consideration: The appellant argued that the alleged stock shortages were due to approximate estimation, as no actual weighing was conducted. The Revenue claimed that the partner admitted to shortages during a statement. However, the lack of concrete evidence such as a mahajar showing ascertained material raised doubts about the reliability of the stock verification report and the partner's statement. The Tribunal concluded that the Revenue's case was not substantiated, setting aside lower authorities' orders and allowing the appeal filed by the appellant while dismissing the Revenue's appeal.
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2012 (6) TMI 777
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
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
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
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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