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Case Laws
Showing 141 to 160 of 676 Records
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2007 (7) TMI 578 - ANDHRA PRADESH HIGH COURT
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... ... ..... to order an attachment. But section 29 operates altogether in a different field. It is after the assessment when recoveries can be made from third parties. Therefore, in our view, the order of attachment is bad and cannot be sustained. Now coming to the main order imposing penalty, the learned counsel for the petitioner submits that the objections filed by him had not been considered and the request made for personal hearing has also not been conceded to, nor any reference has been made to such a request although the communication sent by the petitioner seeking personal hearing in the first week of July has been referred to in the order. We feel, these matters can at best be considered by the appellate authority, as the remedy of appeal is available to the petitioner. For these reasons, the writ petition is allowed partly as mentioned hereinabove and the petitioner is at liberty to seek the remedy of appeal which is available to him in law against the order imposing penalty.
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2007 (7) TMI 577 - DELHI HIGH COURT
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... ... ..... s required to be answered in the negative, in favour of the revenue and against the assessee. We do so accordingly. 3 It is also brought to our notice that the Income-tax Appellate Tribunal had not gone into merits of the controversy before it since the notice was held to be barred by limitation. Since it has now been held that the notice under section 142(1) of the Act is not barred by limitation, the matter is required to be heard by the Tribunal on merits. 4. The parties will appear before the Tribunal on 6-8-2007 for directions so that the matter can be disposed of on merits by the Tribunal on a convenient date. 5. The reference is disposed of accordingly.
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2007 (7) TMI 576 - ITAT AMRITSAR
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... ... ..... e provisions of the taxation laws in general and those relating to penalty specifically require to be interpreted by applying the strict rule of interpretation. Nothing can be added to or subtracted from the plain provisions of the sections of the Act. Now in this case, the law does not prescribe the specific books of account which were required to be maintained. Therefore, no penalty under section 271A was leviable in this case. In the light of these facts and circumstances of the case, we are of the considered opinion that the learned Commissioner of Income-tax (Appeals) was not justified in sustaining the penalty of Rs. 25,000 imposed by the Assessing Officer under section 271A. Accordingly, we set aside the order of the Commissioner of Income-tax (Appeals) and cancel the impugned penalty. The grounds of appeal of the assessee are accordingly allowed. In the result, the appeal filed by the assessee is allowed. This decision was pronounced in the open court on July 6, 2007.
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2007 (7) TMI 575 - ALLAHABAD HIGH COURT
Circular dated 31.08.1998 issued by the Commissioner, Trade Tax, U.P., Lucknow challenged - Held that:- The impugned Circular dated 31.08.1998 issued by the Commissioner, Trade Tax U.P., Lucknow is in clear disregard to the law declared by Hon'ble the Supreme Court in the case of Telangana Steel Industries v. State of Andhra Pradesh (1994 (3) TMI 108 - SUPREME COURT OF INDIA). The impugned Circular is also against the provisions of Section 14(iv)(xv) of the Central Sales Tax Act and is legally not sustainable.
In the result, the writ petition succeeds and is hereby allowed. A writ in the nature of certiorari is issued quashing the impugned Circular dated 31.08.1998 issued by the Commissioner, Trade Tax, U.P. Lucknow, a copy of which is contained in Annexure-3 to the writ petition.
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2007 (7) TMI 574 - CESTAT KOLKATA
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... ... ..... eciding on the Stay Petition and without waiving the requirement of pre-deposit, he could not have proceeded to decide the appeal on merit. In view of the specific provision of Section 35F of the Central Excise Act, 1944, it was incumbent upon the lower Appellate Authority either to ensure that the demanded duty and penalty are deposited or he should have waived the whole or part of it before taking up the appeal for decision on merit. As that has not been done, we have no option but to set aside the impugned order and remand the matter to the lower Appellate Authority with the direction that he should first decide the Stay Petition pending with him before taking up the appeal for decision on merit. Both the appeals are thus allowed by way of remand. In view of the huge amount of revenue involved, the lower Appellate Authority is directed to decide the matter within a period of forty-five days from the date of receipt of this Order. (Dictated and pronounced in the open Court)
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2007 (7) TMI 573 - ALLAHABAD HIGH COURT
Reason to believe - treatment to petitioner of either as an importer or as a manufacturer - Opportunity of hearing - Reassessment - period of limitation for passing a fresh order by the Additional Commissioner after the same has been set aside by this Court under Article 226
Held that:- From a reading of the definition of the words manufacture and importer as it stood during the relevant period the petitioner cannot treated either as an importer or as a manufacturer because he has not ejected first sale of goods after their import or after its manufacture in the State of Uttar Pradesh. So far as the question that the petitioner is being treated as manufacturer is concerned, we may mention here that the definition of word 'manufacturer' as it stood during the relevant period, various processes mentioned therein should be done by the person concerned, i.e. the dealer either by itself or got done on its behalf. If the process is not being carried out by the dealer he would not be a manufacturer in respect thereof.
As the Additional Commissioner has not given any reasons for granting permission/sanction to proposal to reopen the assessment for the assessment year in question and to make the reassessment under the extended period of limitation, the order dated 1st June, 2001 cannot be sustained and is therefore set aside. Consequently all proceedings taken in pursuance of the said order also falls and are set aside.
Where proceeding has been set aside by this Court in exercise if powers under Article 226 of the Constitution the period of limitation shall not apply while initiating proceeding thereafter We are therefore of the considered opinion that the period of imitation provided under the first proviso to Sub-section 2 of Section 21 or Sub-sectioni4 of Section 21 would not be attracted in the present case both for passing a fresh order of sanction and reassessment. However, it would not mean that they could be passed at any time at the sweet will of the authorities. They are to be passed within a reasonable period and; what be the reasonable period would depend upon the facts of each case.
As already found that Additional Commissioner has not given any reason in his order for granting approval, the order dated 1st June 2001 cannot be sustained and is hereby set side and consequently the notice issued on 4th March, 2002 also cannot be sustained and is hereby set aside. The Additional Commissioner- Respondent No. 1 Is directed to passed fresh order in accordance with law after giving an opportunity of hearing to the petitioner and after recording reasons
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2007 (7) TMI 572 - SUPREME COURT
Purpose of deciding the period of limitation is the date of filing of complaint or initiation of proceedings and not of taking cognizance by a Magistrate or a Court.
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2007 (7) TMI 571 - CESTAT, AHMEDABAD
Cenvat/Modvat on inputs - Remission of duty ... ... ... ... ..... Rs. 1,31,978/- and Rs. 26,776/- along with interest vide the impugned OIOs dt. 27-7-2005 and 23-9-2005. 4. emsp It is seen that remission has been granted in respect of duty payable on the time expired medicaments, which are not marketable. The issue involved is whether the Cenvat credit relating to inputs which have gone into the medicaments destroyed should be recovered from the appellants as condition for granting such remission. CBEC vide circular dt. 7-8-2002 held that such disallowance of credit is not warranted and which instruction was modified by the Board rsquo s subsequent instruction dt. 1-10-2004. The Commissioner taking note of the fact that the demand relates to the period prior to 1-10-2004 while the CBEC rsquo s circular dt. 7-8-2002 was in force, allowed the appeals. No valid grounds have been adduced to upset the findings and reasonings adopted by the Commissioner (Appeals). 5. emsp Appeals by the Department are dismissed. (Dictated and Pronounced in Court)
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2007 (7) TMI 570 - CESTAT, AHMEDABAD
Appeal to Appellate Tribunal - Restoration of appeal ... ... ... ... ..... ked that the matter was not listed. On enquiry with the registry, several factors are being put forth for the said lapse. Firstly, this Bench was formed at that time and some cases were not received from the Zonal Bench at Mumbai and secondly as per the previous practice the total number of cases listed not exceeding 50, as such, this appeal might not have been listed. 4. emsp As it stands, the appeal was decided by this Bench on merits in absence of the appellant and their counsel. Though it was decided on merits, it shall be treated as an ex parte order. Further, we are convinced that the appellants have not received the notice for the date of hearing on 20-2-2007 on which date this appeal was heard and decided. Therefore, we are of the view that the appellants are to be provided an opportunity to present their case. As such, the appeal is restored to file by recalling the earlier order dated 20-2-2007. The application is allowed. (Dictated and pronounced in the open Court)
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2007 (7) TMI 569 - CESTAT, AHMEDABAD
Appeal - Restoration of - Ex parte order ... ... ... ... ..... ked that the matter was not listed. On enquiry with the registry, several factors are being put forth for the said lapse. Firstly, this Bench was formed at that time and some cases were not received from the Zonal Bench at Mumbai and secondly as per the previous practice the total number of cases listed not exceeding 50, as such, this appeal might not have been listed. 4. emsp As it stands, the appeal was decided by this Bench on merits in absence of the appellant and their counsel. Though it was decided on merits, it shall be treated as an ex parte order. Further, we are convinced that the appellants have not received the notice for the date of hearing on 20-2-2007 on which date this appeal was heard and decided. Therefore, we are of the view that the appellants are to be provided an opportunity to present their case. As such, the appeal is restored to file by recalling the earlier order dated 20-2-2007. The application is allowed. (Dictated and pronounced in the open Court)
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2007 (7) TMI 568 - CESTAT, AHMEDABAD
Demand - Limitation ... ... ... ... ..... d 27-1-1-96 stating that they will be availing benefit of Notification No. 1/93, dated 28-3-93. The department had the knowledge that appellant was a new manufacturing unit in place of M/s. Emerald Color Industries. The department should have inquired into whether the appellant is eligible for the benefit of notification No. 1/93, dated 27-3-93 or not. If not the SCN had to be given within the prescribed time of 6 months from the relevant date of filing classification list. rdquo 4. emsp The revenue has not disputed the above factual position in their memo of appeal. The respondent started availing the benefit of Notification after filing the classification list. As such, they cannot be held to be guilty of any suppression or mis-statement on their part with intent to evade payment of duty. The appellate authority has rightly held that demand should be barred by limitation. 5. emsp In view of the above, we reject the appeal filed by the revenue. (Pronounced in the open Court)
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2007 (7) TMI 566 - CESTAT, AHMEDABAD
Show cause notice - Res judicata - Show cause notice ... ... ... ... ..... ond the four corners of the appeal. 2. emsp We find that once a show cause notice stands issued and has been held to be violative of the provisions of Section 28 and as such invalid, the only consequence which would follow would setting aside of the impugned order and allowing of appeal. Directions to lower authorities to re-adjudicate the matter by issuance of a fresh show cause notice is hit by the principle of res judicata. The only issue before the Commissioner (Appeals), as appellate authority, was to decide upon the correctness or otherwise of the proceedings. Having held the proceedings to be bad in law, the only legal consequence is to set aside the same. As such, we agree with the Id. Advocate that the directions by the appellate authority to issue fresh show cause notice were not in accordance with the legal principles. We accordingly expunge the said portion of the impugned order and allow the appeal with consequential relief to the appellant. (Pronounced in Court)
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2007 (7) TMI 565 - CESTAT, AHMEDABAD
Stay/Dispensation of pre-deposit ... ... ... ... ..... ischarge (pertaining to the erstwhile owner of the property). Whether the proviso to Section 11 of the CEA has overriding effect on the covenant in the sale deed and terms and conditions is a debtable point. In these circumstances, it is felt expedient to safeguard the interest of both the parties, the appellants need to be put to certain terms. The appellants shall give a Bank Guarantee to the tune of Rs. 8.0 lakhs (rupees eight lakhs only) in favour of the Government within a period of eight weeks and also an undertaking under a separate bond to the effect that it will not create any third party encumbrance on the property in question pending disposal of the appeal. Subject to compliance of these terms, there shall not be recovery proceedings from the Department side and attachment of the property. Stay is granted accordingly. The stay application is disposed of on the above terms. Compliance to be reported on 21st September 2007. (Dictated and pronounced in the open Court)
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2007 (7) TMI 564 - CESTAT, AHMEDABAD
Penalty on Director - Clandestine removal - Rectification of mistake ... ... ... ... ..... emsp The contention of the ld. DR is that though the penalty was set aside on the main unit basing on the aforesaid decisions, penalty ought not to have been set aside on the Director and more so, no reasons have been assigned. This is a case of alleged clandestine removal. Therefore knowledge of the same is attributed to its Director and he was penalized of Rs. 10,000/-. 5. emsp I am of the view that when the penalty is not imposable on the main unit, whatever may be the grounds, the Director cannot be met with personal penalty. Even otherwise, the Director rsquo s knowledge cannot be attributed directly to such removals as there will be many other employees in the company who deal with clearances. Further, I find no active role of Director in clandestine removal of goods. Hence, this objection is set aside. 6. emsp In view of the first objection, the name of the Director be shown as 2nd appellant in the cause title. ROM is partly allowed. (Dictated and Pronounced in Court)
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2007 (7) TMI 562 - CESTAT, AHMEDABAD
Rectification of mistake - Error apparent on record ... ... ... ... ..... e following decisions in the cases of 1. M/s. Chaya Industries v. CCE, Cochin 2003 (156) E.L.T. 613 (Tri.-Bang.) 2. M/s. Apollo Tyres v. CCE, Pune 2001 (134) E.L.T. 679 (Tr.-Delhi) 3. M/s. Delphi Automotive Systems P. Ltd. v. CCE, Noida 2004 (172) E.L.T. 257 (Tri. Delhi) . 3. emsp The above decisions show that once penalty is not leviable, the interest amount is also not leviable during the relevant period when both the Sections were equal prior to 2001 and in such circumstances ROM applications can be allowed. Basing on the above said decisions, we are inclined to allow the ROM application finding that there is a mistake crept in the impugned order in not dealing with the interest amount, which was confirmed by the lower appellate authority. Accordingly, the interest amount payable on the confirmed demand is hereby deleted. The applicant is not liable to pay the interest amount as the penalty amount was already set aside. Order accordingly. (Dictated and Pronounced in Court)
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2007 (7) TMI 561 - CESTAT, AHMEDABAD
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... ... ..... cost. He relied on the decisions of the Tribunal in case of Amco Batteries Ltd. v. CCE, Bangalore in the case of 2007 (207) E.L.T. 612 (Tri.-Bang.) and Featherlite Products (P) Ltd. v. CCE, Bangalore - 2005 (191) E.L.T. 487 (Tri.-Bang.), laying down that the advertisement charges borne by the dealers cannot be included in the assessable value. 5. emsp The learned SDR reiterates the findings of Commissioner (Appeals). 6. emsp We have carefully considered the submissions by both sides. We find that the expenses incurred initially by the appellant stands recovered from the distributors. No evidence has been shown that the promotional activities were taken at the instance of and for the exclusive benefit of the appellant. We agree with the contention of the appellant that the advertisement sales promotion expenses incurred by dealers themselves cannot be a part of the assessable value. 7. emsp The appeal is allowed and the stay petition is also disposed off. (Pronounced in Court)
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2007 (7) TMI 560 - CESTAT, AHMEDABAD
Stay/Dispensation of pre-deposit - Valuation ... ... ... ... ..... esale packages. It is admitted position that no MRP has to be affixed on the said barrels. If affixation of MRP was mandatory under the concerned rules, action would have been taken against them by the authorities in terms of Standards of Weights and Measures Act. Section 4A is to the effect that the same will be applicable in respect of specified goods in relation to which it is required under the provisions of Standards of Weights and Measures Act or the rules made was under to declare on the packages thereof the retail sale price of such goods. Admittedly, no such declaration has been made on the goods in question and no such requirement is there, as clarified by the Controller of Legal Metrology. In view of this, we find that the appellant has a good prima facie case in his favour and we allow the stay petition unconditionally. We order accordingly. Inasmuch as, a short issue is involved, we fix the appeal for final disposal on 6-8-2007. (Dictated and pronounced in Court)
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2007 (7) TMI 559 - CESTAT, AHMEDABAD
Rectification of mistake - Error apparent on face of record ... ... ... ... ..... as there was no specific entry in Central Excise Tariff classifying it in heading 84.17. 3. emsp However, we find that the said plea relates to the merit of the case and cannot be said to be covered by the scope of the expression rectification of mistake appearing in Section 35C of the Act. It is well settled that only those mistakes which are apparent on the face of record can be rectified and any issue which requires long drawn process of argument by both the sides to arrive at a conclusion, can not be said to be result of any mistake. As such, we find no merit in the applications and reject the same. (Dictated and Pronounced in Court)
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2007 (7) TMI 558 - CESTAT, AHMEDABAD
Recovery of sums due to Government ... ... ... ... ..... Excise Act. We are convinced that the matter is still pending with High Power Committee for clearance of COD. Further, we observe that in the light of Hon rsquo ble Supreme Court rsquo s judgment dated 7-1-94 in the case of ONGC 1944 (70) E.L.T. 45 (S.C.) no coercive action shall be taken against the unit as proceedings are deemed to be under challenge or the order is suspended pending consideration of the clearance of COD by High Power Committee. In the light of these guidelines, which the department has knowledge, it is to be held that the recovery of confirmed demand is unwarranted. In the above circumstances, we hereby grant interim suspension of the order impugned. The Commissioner concerned is hereby directed not to initiate any action or take steps to recover the demand till the COD application is decided by the High Power Committee or until further orders in this regard passed by the Tribunal. The application is allowed accordingly. (Dictated and Pronounced in Court)
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2007 (7) TMI 557 - CESTAT, AHMEDABAD
Rectification of mistake ... ... ... ... ..... allenge before the Supreme Court and the leave has been granted. Learned Advocate for the appellants submits that mere pendency of the case in the Supreme Court is not a criteriron unless stay is granted or finally dispensed of. On the date of passing the impugned order, the proposition laid down by the High Court was understood in proper prospective or not. This alone to be seen in this application. 5. emsp After hearing both sides at length on this point, I am convinced that proposition laid down by the Punjab and Haryana High Court has been misconstrued and consequently, the appeal was dismissed. This has to be set right by deleting the last para and substituting as follows - ldquo In view of the above High Court Judgment, Rule 5 of ACP Rules is not applicable and the appellant is entitled to pay on the reduced capacity. rdquo Therefore, the impugned order is set aside and the appeal is allowed. Accordingly, ROM is allowed. rdquo (Dictated and pronounced in the open Court)
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