|
Advanced Search Options
Case Laws
Showing 161 to 180 of 740 Records
-
2008 (4) TMI 676
Clearance certificate regarding recovery of arrears of sales tax in case of liquor dealers - Held tht:- Direction to the petitioners to produce the clearance certificate are only notices issued to the petitioners to furnish the clearance certificate. The petitioners, instead of filing reply to the impugned communications-cum-notices vide annexures D and E issued by the first respondent, have rushed to this court and presented the instant writ petition. Therefore, the writ petitions filed by these petitioners are liable to be dismissed as misconceived and the prayer sought for by the petitioners is a premature one.
Writ petition filed by the petitioners is liable to be dismissed in view of the suppression of material facts and the prayer sought for by the petitioners is liable to be rejected as misconceived in nature.
-
2008 (4) TMI 675
Whether appropriate writ, order or direction, incorporation of Sec. 54(ka) and Sub-Sections (4) to (9) in Section 69 of the Excise Act may be declared ultra-vires and be struck down?
Held that:- The amendments introduced, are regulatory in nature and cannot be regarded as violative of freedom guaranteed under Article 301 of the Constitution. Article 300-A is not attracted and deprivation is in exercise of police power and said article enjoins that such deprivation should not be without sanction of law.
There are similar provisions in the Excise Acts of other States, for example the Tamil Nadu Excise Act, 1971, Karnataka Excise Act, 1965, Uttar Pradesh Excise Act, 1910 and the Andhra Pradesh Excise Act, 1968. The provisions are in Sections 4 and 14A of the Tamil Nadu Act, Sections 43A and 43B of the Karnataka Act, Section 72 of the Uttar Pradesh Act and Sections 46 and 46A of the Andhra Pradesh Excise Act. Thus the inevitable conclusion is that the appeals are without merit, deserve dismissal.
-
2008 (4) TMI 674
Employment of a probationer can be proposed to be terminated whether during or at the end of the period of probation
Held that:- The Executive Committee of the Bank had fixed the number of chances to be given to an employee in the confirmation test. If it is enforced against the writ petitioner having regard to her physical position, to appear in the second examination, the provisions thereof, keeping in mind the principle underlying the statutory provisions of Maternity Benefit Act, may not be held to be applicable. She was, thus, entitled to another opportunity to appear at the examination. The Executive Committee or for that matter the appellate authority cannot exercise the power of relaxation in a discriminatory manner. It was expected to act judiciously, assuming that the employer had a discretion in this behalf. Discretion cannot be equated with whims and caprices.
We, for the reasons abovementioned, are not in a position to accept the submission of Mr. Mehta that it was for the employer to decide as to how many chances have to be given to each employee and the Bank cannot be deprived of such discretionary jurisdiction, thus need not deal with the question as to whether the insistence of confirmation test is not in accordance with the Regulations.
Appeal filed by the Bank is dismissed and that of the writ petitioner is allowed. The writ petitioner shall be reinstated in service forthwith. She, however, may be paid only 50 % of the back wages. This order we are passing keeping in view that her services had been terminated on 9th November, 1990. The writ petitioner is also entitled to costs. Counsel's fee assessed at Rs.50,000/-.
-
2008 (4) TMI 673
Tax arrears - Held that:- It was the duty of the Designated Authority while considering the declaration filed by the assessee to determine the tax arrears even with reference to any other amounts due from the assessee and which are not reflected in the declaration. It was then for the assessee to make payment or to desist from making payment on such determination. The revenue having failed to do so in the present case and having issued a Certificate of the tax arrears for the assessment year, notwithstanding the apparent discrepancy, insofar as the tax arrears in relation to the dispute sought to be raised by the revenue in its appeals, was not part of the said declaration is attributable to the revenue’s own lapse and hence, there is no substance in the contentions put forth by the revenue. Appeal allowed.
-
2008 (4) TMI 672
Issues Involved:
Failure to discharge duty liability by due date under Rule 8(4) of Central Excise Rules, 2001; Forfeiture of facility of payment of duty on monthly basis under Rule 8(1) of the said Rules; Applicability of previous tribunal decisions; Reduction of forfeiture period by Commissioner (Appeals).
Analysis:
The judgment concerns multiple appeals with a common issue of the Respondents failing to meet duty liability deadlines under Rule 8(4) of the Central Excise Rules, 2001. The Adjudicating Authority initially ordered a two-month forfeiture of the facility to pay duty monthly, starting from the order communication date. The Commissioner (Appeals) later modified this to one and a half months based on the circumstances of the case.
The learned DR argued that the Commissioner (Appeals) based the modification on a Tribunal decision in the case of Calcom Vision Ltd. v. CCE Meerut-I, which in turn referenced the case of Escorts JCB Ltd. v. CCE, New Delhi. However, it was contended that the latter case pertained to Section 11AC of the Central Excise Act, not directly relevant here.
Upon review and considering precedents, the Tribunal found that the forfeiture period of two months is not obligatory, as established in the Calcom Vision Ltd. case. The Commissioner (Appeals) had already reduced the forfeiture to one and a half months, taking into account the substantial duty payment made by the Respondents before the due date, leaving only a minor outstanding amount paid with interest beyond the deadline.
Given the circumstances and the substantial payment made on time, the Tribunal upheld the Commissioner (Appeals) decision to reduce the forfeiture period. Consequently, all appeals filed by the Revenue were rejected, affirming the Commissioner's ruling.
In conclusion, the judgment showcases a nuanced analysis of duty liability timelines, forfeiture of payment facilities, and the application of previous tribunal decisions to determine the appropriate penalty period in light of the Respondents' compliance efforts.
-
2008 (4) TMI 671
Issues Involved:
1. Addition of Rs. 11,78,918 by invoking provisions of section 92 of the Income-tax Act, 1961.
2. Allegation of contracting at lower rates with related concerns.
3. Validity of the gross profit and net profit ratios.
4. Jurisdiction and legality of the Commissioner of Income-tax (Appeals) order.
Summary:
1. Addition of Rs. 11,78,918 by invoking provisions of section 92 of the Income-tax Act, 1961:
The assessee contested the addition of Rs. 11,78,918 made by the Assessing Officer (AO) u/s 92 of the Income-tax Act, 1961. The AO noted that the gross profit ratio was only 4.2% and net gross profit ratio was 2.93%, leading to an overall net profit ratio of (-) 0.45%. The AO invoked section 92, alleging that the assessee made sales to related concerns at lower rates. The Commissioner of Income-tax (Appeals) upheld this addition, but the Tribunal found no merit in the addition, directing the AO to delete it.
2. Allegation of contracting at lower rates with related concerns:
The AO alleged that the assessee contracted at lower rates with related concerns to show less than normal profits. The assessee argued that the purchases and sales were backed by proper vouchers and maintained as per Customs Act requirements. The Tribunal found that the AO failed to provide specific instances of sales/purchases at less than market price and directed the deletion of the addition.
3. Validity of the gross profit and net profit ratios:
The assessee maintained that the gross profit ratio of 4.2% was reasonable for the first year of operation. The Tribunal noted that the trading results for the succeeding year were accepted by the AO without any addition. The Tribunal found no basis for estimating the gross profit ratio higher and directed the AO to accept the gross profit rate shown by the assessee.
4. Jurisdiction and legality of the Commissioner of Income-tax (Appeals) order:
The assessee argued that the Commissioner of Income-tax (Appeals) confirmed the addition without jurisdiction. The Tribunal observed that the provisions of section 92 were applicable for the year under consideration but found no basis for invoking these provisions in this case. The Tribunal directed the deletion of the addition and allowed the appeal filed by the assessee.
Conclusion:
The Tribunal allowed the appeal filed by the assessee, directing the deletion of the addition of Rs. 11,78,918 made by invoking the provisions of section 92 of the Income-tax Act, 1961. The Tribunal found no merit in the allegations of contracting at lower rates with related concerns and upheld the gross profit rate shown by the assessee. The order was pronounced on April 23, 2008.
-
2008 (4) TMI 670
100% EOU – DTA clearance – who is liable to pay duty – held that:- It is also significant to note that under para 9.26 of the Handbook of Procedures, all duties and taxes on clearances by EOU into DTA under para 9.10 of the Exim Policy were to be borne by the purchaser in DTA. The expression used is “all duties and taxes” and not merely “all taxes”. The specific use of the word “duties” is quite clearly intended to inter alia cover central excise duty. If the stand of the Revenue is accepted, it would man that Central excise duty could be charged from the EOU under rule 7 of the Central Excise Rules, 1944 and also from the DTA purchaser under para 9.26 of the Handbook of Procedures. Tax cannot be collected on the same taxing event from two persons.
Duty on clearances by the appellants, a 100% EOU, into DTA after obtaining requisite permission from the Development Commissioner is to be recovered from the DTA buyer on the basis of paragraph 9.26 of the Handbook of Procedures, 1997-2002 and Tribunal’s judgement in Interdrill Asia vs. CCE, Belapur [2005 (7) TMI 245 - CESTAT, MUMBAI]
Regarding refund – unjust enrichment – held that:- The submission that selling price shown in the invoice of Rs.42.89 is equivalent to the contract price of US $0.80 and duty payable is separately shown on the invoice and, therefore, the appellants could not be held to have recovered any duty from the customers, is not sufficient to discharge the burden of proving that the incidence of duty had not been passed on by the appellants to their customers.
-
2008 (4) TMI 669
Issues involved: Determination of whether the amount received by the assessee should be treated as income from house property or income from business for the assessment year 2001-02.
Summary:
The High Court of Delhi heard an appeal by the revenue against an order passed by the Income-tax Appellate Tribunal regarding the assessment year 2001-02. The assessee, engaged in real estate development, rented out premises to a company and received a commission on sales made by the company using the premises. The Assessing Officer initially considered the amount as income from house property, but the Commissioner of Income-tax (Appeals) disagreed. The CIT(A) viewed the agreement as a joint venture or business agreement, involving the assessee in the day-to-day functioning of the store, upkeep of the building, and management activities. The Tribunal upheld this view, noting the genuine nature of the business agreement and the active involvement of the assessee in managing the store due to market conditions. Both the CIT(A) and the Tribunal found that the arrangement was not a sham and required the assessee's participation in store management, leading to the conclusion that the amount received should be treated as business income rather than income from house property. The High Court concurred with this finding, stating that no substantial question of law arose for consideration, and subsequently dismissed the appeal.
-
2008 (4) TMI 668
Whether the defendant proves that the present suit is barred by the limitation under Section 34(3) of the Arbitration and Conciliation Act, 1996?
Whether the provisions of Sections 12 and 14 of the Limitation Act, 1963 are applicable to an application filed under Section 34 of the Act was pending for consideration in other matters also?
Held that:- Judgment rendered by the Division Bench of the High Court of Karnataka dismissing the application filed by the appellant under Section 34 of the Arbitration and Conciliation Act, 1996 for setting aside the award of the arbitrator, is set aside, and civil appeal arising from SLP(C) is allowed.
The Division Bench of the High Court of Karnataka was not justified in concluding that the appellant had not prosecuted the matter in other courts with due diligence and in good faith. The said finding being against the weight of evidence on record, is liable to be set aside and is hereby set aside. We, therefore, hold that the appellant had prosecuted the matter in other courts with due diligence and in good faith and, therefore, is entitled to claim exclusion of time in prosecuting the matter in wrong courts
-
2008 (4) TMI 667
Issues involved: Imposition of personal penalty under Section 112(a) of the Customs Act, 1962 on the Director of M/s. Cymex Time Ltd.
Summary:
The Appellate Tribunal CESTAT AHMEDABAD addressed the challenge in the present appeal regarding the imposition of a personal penalty of Rs. 10 lakhs on the appellant, who is the Director of M/s. Cymex Time Ltd., under Section 112(a) of the Customs Act, 1962. The Tribunal dismissed the appeal filed by M/s. Cymex Time Ltd. against the confirmation of demand due to non-compliance with the stay order.
Upon hearing both sides and reviewing the impugned order, the Tribunal referred to a previous case law where it was established that the imposition of a penalty on a company for mens rea under Section 114A does not automatically lead to the penalization of its Managing Director under Section 112(a) of the Customs Act. It was emphasized that unless there is evidence of personal involvement of the Managing Director in the actions leading to the penalty, they cannot be penalized. In the present case, the Tribunal found no role attributable to the appellant that would indicate personal knowledge or involvement.
Therefore, the Tribunal set aside the penalty imposed on the appellant and allowed the appeal with consequential relief to him.
(Dictated and pronounced in Court)
-
2008 (4) TMI 666
Issues:
Jurisdiction of Assistant Commissioner to demand duty on contracted product at customer's premises.
Pecuniary jurisdiction of Assistant Commissioner in cases involving duty exceeding Rs. 2.00 lakhs.
Analysis:
1. The appeal challenges an order confirming duty demand on bought-out items and differential duty on items supplied under a contract. The appellate authority allowed MODVAT credit but upheld the demands partially. The contract involved supply of equipments and materials for copra handling system and oil mill modification. The show-cause notice demanded differential duty on the contracted product value related to bought-out items and interest not included in assessable value. It also alleged duty evasion on machinery cleared in knocked-down condition.
2. The main objection raised in the appeal questions the Assistant Commissioner's jurisdiction to demand duty on the product at the customer's premises. The appellant argues that the orders are unsustainable due to lack of jurisdiction. Additionally, it is contended that the Assistant Commissioner lacked pecuniary jurisdiction to handle cases exceeding Rs. 2.00 lakhs. The Tribunal heard arguments from both parties, considering the jurisdictional issues raised.
3. The demand of duty pertains to the contracted product, with various grounds for the demand including assessable value discrepancies, interest considerations, and the CKD concept. The entire duty demand is based on the product contracted between the assessee and the customer. As the product emerged at the customer's premises, the Superintendent and Assistant Commissioner lacked jurisdiction to raise or adjudicate on the duty demand. Consequently, the lower appellate authority also had no jurisdiction over the dispute. Therefore, the Tribunal set aside the orders of the Assistant Commissioner and the Commissioner (Appeals) due to lack of jurisdiction, allowing the appeal.
This detailed analysis of the judgment highlights the issues of jurisdiction concerning duty demands on contracted products and the pecuniary limits of the Assistant Commissioner, ultimately leading to the appeal's success based on jurisdictional grounds.
-
2008 (4) TMI 665
Dispensation of pre-deposit - Held that:- The question now to be debated before the Tribunal is in respect of the demand of ₹ 62,64,550/- by way of additional customs duty. 25% thereof would roughly come to about ₹ 15,66,137/- which may, for the sake of convenience, be rounded off to ₹ 15,60,000/-. The petitioner has already given bank guarantee of ₹ 7.60 lacs and therefore, we are of the view that the petitioner should now deposit a further sum of ₹ 8 lacs in cash within two months from today. We are also of the view that bank guarantee of ₹ 7.60 lacs lying with the department should be permitted to be encashed.
-
2008 (4) TMI 663
Cancelling letter of allotment/letter of permission - declining to extend the validity of LOA/LOP - Held that:- In the present case, as we have already noticed, after expiry of last extended period of 2006, i.e., 7-4-2006, the respondents have not been able to show that any notice or opportunity was given to the petitioner before passing the impugned orders.In the result, we have no hesitation in holding that the impugned orders are in violation of principles of natural justice and, therefore, liable to be set aside. The writ petition, therefore, succeeds and is allowed.
-
2008 (4) TMI 662
Issues:
1. Demand of duty and penalty against the appellant.
2. Penalty against the Managing Director of the company.
3. Non-fulfilment of actual user condition for import of a Mercedes Benz Car under EPCG license.
4. Grounds of non-registration of the vehicle as a tourist taxi.
5. Challenge regarding the imposition of the condition by the licensing authority.
6. Clearance of the vehicle against the production of a bank guarantee.
7. Payment of duty under Customs Notification No. 97/2004.
8. Waiver of predeposit and stay of recovery for penalties and balance duty amount.
Analysis:
The appeal before the Appellate Tribunal CESTAT, CHENNAI revolves around the demand of duty amounting to over Rs. 28.00 lakhs and a penalty of Rs. 2.00 lakhs against the appellant, in addition to a penalty of Rs. 1.00 lakh against the Managing Director of the company. The case pertains to the import of a Mercedes Benz Car by the assessee under an EPCG license dated 23-12-2005, cleared for home consumption under Customs Notification No. 97/2004 dated 17-9-2004. The issue of non-fulfilment of the actual user condition and non-registration of the vehicle as a tourist taxi are central to the dispute.
Upon examining the records and hearing arguments from both sides, the Tribunal notes the grounds on which duty was demanded, including the alleged non-fulfilment of the actual user condition and non-registration as a tourist taxi. The appellants contend that the registration of the motor vehicle as a tourist taxi was not a requirement under the relevant Foreign Trade Policy and was unlawfully imposed by the licensing authority. This contention forms a significant part of the challenge presented in the case.
The Tribunal observes that the so-called 'illegal condition' imposed by the licensing authority was not contested by the party before the competent authority under the Foreign Trade (Development and Regulations) Act, 1992. However, it is noted that the clearance of the vehicle was permitted upon the production of a bank guarantee amounting to Rs. 40.00 lakhs, with an additional duty payment of Rs. 2.00 lakhs under Customs Notification No. 97/2004 dated 17-9-2004. Considering the adjudged dues to be less than the bank guarantee amount, the Tribunal decides on the waiver of predeposit and a stay of recovery concerning the penalties and the remaining duty amount.
In conclusion, the Tribunal's decision provides relief to the appellants by waiving the predeposit requirement and staying the recovery process for penalties and the balance duty amount, based on the circumstances and findings of the case.
-
2008 (4) TMI 661
Issues:
1. Eligibility for exemption under Notification No. 208/83-C.E.
2. Interpretation of chapter heading Nos. 72.15 and 73.09 in the context of duty exemption.
3. Application of relevant legal precedents in the case.
4. Lack of representation from the respondents.
Eligibility for Exemption under Notification No. 208/83-C.E.:
The appeal was filed by the revenue against the order of the Commissioner (Appeals) where it was held that the respondent was eligible for exemption under Notification No. 208/83-C.E. The Appellate authority noted that the adjudicating authority confirmed the demand based on the procurement of raw materials falling under specific chapter headings not specified in the exemption notification at that time. It was observed that the manufacturers of scrap had paid central excise duty under protest, and the inputs purchased were deemed to be duty paid as per the notification. The Appellate Tribunal found that the exemption did not apply during the relevant period and set aside the Commissioner's order, restoring the adjudicating authority's decision.
Interpretation of Chapter Heading Nos. 72.15 and 73.09:
During the relevant period, chapter headings 72.15 and 73.09 were not specified in the exemption notification. The rate of duty on scrap under these headings was prescribed later. The learned DR pointed out this discrepancy and relied on a judgment of the Larger Bench in a related case. The Tribunal found that the Larger Bench decision applied to the present case, emphasizing that the chapter headings in question were not covered by the exemption notification during the relevant period. The Tribunal highlighted the oversight by the Commissioner (Appeals) regarding the specific chapter headings and the duty implications on the scrap obtained.
Application of Relevant Legal Precedents:
The Tribunal noted that the judgments cited by the Commissioner (Appeals) were not comparable to the present case. It was emphasized that the facts of those cases did not align with the circumstances at hand. The Tribunal also considered the respondent's submission waiving personal hearing and relying on CESTAT decisions. The original adjudicating authority had provided a clear finding on those cases, supporting the decision to set aside the Commissioner's order and uphold the adjudicating authority's decision based on the legal framework and precedents applicable.
Lack of Representation from the Respondents:
No representation was made by the respondents, and they did not file any cross-objection in the case. Despite the absence of the respondents, the Tribunal thoroughly examined the arguments presented by the revenue and the legal aspects surrounding the eligibility for exemption under the relevant notification. The lack of response from the respondents did not hinder the Tribunal from conducting a detailed analysis and delivering a reasoned judgment based on the legal provisions and precedents cited in the case.
This comprehensive analysis of the judgment highlights the key issues addressed by the Appellate Tribunal CESTAT, Ahmedabad, regarding the eligibility for exemption under Notification No. 208/83-C.E., the interpretation of specific chapter headings, the application of legal precedents, and the absence of representation from the respondents.
-
2008 (4) TMI 660
Issues:
1. Duty liability under Rule 96ZP(3) for non-payment of duty.
2. Claim of abatement during factory closure periods.
3. Duty liability when factory permanently closed.
Analysis:
1. The appellant was manufacturing MS Plate under Chapter Heading 7216.90 and working under Rule 96ZP(3) of the Central Excise Tariff Act, 1985. The rule allowed payment of duty at a specified rate with conditions. Non-payment led to show cause notices for duty recovery. The Commissioner held that opting for lower duty rate under the rule barred the appellant from claiming abatement during closure periods.
2. The appellant acknowledged the legal position regarding abatement and did not contest the closure periods from 1-5-98 to 14-5-1998 and 26-9-1998 to 18-6-1998. However, they argued that from 9-7-1998 onwards, due to permanent factory closure caused by power disconnection and subsequent sale, no duty liability should exist. The Revenue contended that opting for Rule 96ZP(3) duty payment bound the appellant, regardless of factory status.
3. The Tribunal analyzed the rules and observed that Rule 96ZP(3) did not address permanent factory closure scenarios. They concluded that when a factory ceases operations permanently, no duty liability should apply. The Tribunal referenced a similar case where duty liability was negated upon unit closure. Despite the factual difference of registration surrender, the permanent closure fact remained crucial. Consequently, the Tribunal set aside the Commissioner's order and remanded the matter for reassessment based on the findings.
This judgment clarifies the duty liability under Rule 96ZP(3), the limitations on abatement claims during closure periods, and the absence of duty liability upon permanent factory closure. The decision emphasizes the impact of factory status on duty obligations and provides a legal precedent for similar cases.
-
2008 (4) TMI 659
Issues involved:
Appeals by revenue u/s 260-A of Income-Tax Act against common order of ITAT for assessment years 2001-2002 and 2000-2001. Dispute over allowing deduction of PF, ESI u/s 43B proviso.
Judgment Details:
Issue 1: Deduction of PF, ESI u/s 43B proviso
- Revenue appealed against ITAT order allowing deduction of PF, ESI post accounting period but pre-return filing.
- Proviso inserted by Finance Act, 1987 effective from 1.4.1988.
- Court referred to CIT v. Sabri Enterprises [2008] 298 ITR 141 (Kar.) where similar issue was decided in favor of assessee.
- Court upheld ITAT decision, directing revenue to accept ESI, PF payments and allow deductions as claimed by assessee in return.
- Given precedent, Court dismissed revenue's appeals without further discussion.
This judgment clarifies the application of the proviso to section 43B of the Income-Tax Act, emphasizing the importance of adhering to legal provisions and past judicial decisions in determining deductions for PF and ESI payments.
-
2008 (4) TMI 657
Issues involved: Whether refund of Cenvat credit of AED paid on inputs under Additional Duties of Excise (Textiles and Textile Articles) Act, used in the manufacture of final product exported under rebate claim under Rule 18 of Central Excise Rules on payment of duty, is available under Rule 5 of Cenvat Credit Rules, 2002.
Comprehensive Details:
1. The issue in this appeal revolves around the availability of refund of Cenvat credit of AED paid on inputs under the Additional Duties of Excise (Textiles and Textile Articles) Act for the manufacture of final products exported under a rebate claim under Rule 18 of the Central Excise Rules on payment of duty. The Tribunal referred to a previous decision in the case of CCE v. Indo Dane Textile Industries, where it was clarified that the rebate claim under Rule 18 is specific to duty paid on excisable goods, not additional excise duty on inputs. Therefore, the application for refund of additional excise duty through Cenvat credit under Rule 5 was deemed appropriate in this scenario.
2. The Tribunal further elaborated that the exporters in question had not exported goods without payment of excise duty, making Rule 19 inapplicable. Since no additional excise duty was payable on the final products, the rebate claim was rightly made only for the specific excise duty under Rule 18. As such, the application for refund of additional excise duty paid on inputs, through Cenvat credit under Rule 5, was found to be valid as they had not claimed rebate under Rule 18 for such additional duty.
3. The Revenue subsequently filed an appeal, which was dismissed by the Hon'ble Punjab and Haryana High Court based on the aforementioned decision. Given the clarity provided by the previous ruling and the alignment of the case at hand with the legal provisions, the appeal by the Revenue was deemed to lack merit and was consequently dismissed.
4. In conclusion, the Tribunal upheld the decision of the Hon'ble Punjab and Haryana High Court, affirming the availability of refund for additional excise duty paid on inputs through Cenvat credit under Rule 5, in cases where rebate claims under Rule 18 were specific to basic excise duty on final products exported.
-
2008 (4) TMI 656
Issues:
1. Applicability of limitation provisions under Section 11A of the Central Excise Act to recovery of duty in arrears under a Compounded Levy Scheme.
2. Rejection of plea of time-bar.
3. Jurisdictional Assistant Commissioner's decision on opting out of the scheme.
4. Requirement of payment of interest on duty.
Analysis:
Issue 1: Applicability of limitation provisions under Section 11A
The appellants contested that a major part of the demanded duty was time-barred under Section 11A of the Central Excise Act. However, the Tribunal cited the case of Mohinder Steels Ltd. v. CCE, Chandigarh, where it was ruled that the limitation provisions of Section 11A do not apply to recovery of duty under a Compounded Levy Scheme. As the appellants were operating under such a scheme for Aluminium Circles, which had specific provisions for duty determination and recovery without any time-bar, the Tribunal found the plea of limitation untenable.
Issue 2: Rejection of plea of time-bar
The appellants' appeal primarily challenged the time-bar aspect of the differential duty demanded by lower authorities. The Tribunal upheld the decision of the appellate Commissioner, emphasizing the inapplicability of Section 11A limitations to duty recovery under the Compounded Levy Scheme for Aluminium Circles. Consequently, the plea of time-bar was dismissed, and the Tribunal found the decision of the appellate authority justified.
Issue 3: Jurisdictional Assistant Commissioner's decision on opting out of the scheme
The appellants had previously approached the Assistant Commissioner with a proposal to opt out of the Compounded Levy Scheme, which was rejected by the department. Although this proposal was not a ground of appeal, the appellants' counsel mentioned it during the hearing. The Tribunal referenced judgments in Commissioner v. Venus Castings (P) Ltd. and Union of India v. Supreme Steels and General Mills, supporting the Assistant Commissioner's decision to disallow switching from the Compounded Levy Scheme midway through a financial year. This decision was upheld based on established case law.
Issue 4: Requirement of payment of interest on duty
The appellants' counsel mentioned the requirement of interest payment on duty, but no records indicated any demand for interest by the authorities. Additionally, this aspect was not included in the grounds of appeal. Therefore, the Tribunal did not delve into the interest payment issue, as it was not substantiated in the records or raised as a formal challenge in the appeal. Ultimately, the impugned order was upheld, and the appeal was dismissed by the Tribunal.
-
2008 (4) TMI 655
Issues:
1. Challenge to rate of duty on fuel/oil of engine room tanks
2. Challenge to duty on foodstuff on board the ship
3. Challenge to duty of 1% landing charge on CIF value of the ship imported for breaking
Analysis:
1. The first issue pertains to the classification of fuel oil in the engine room for customs duty. The Tribunal has previously decided in cases such as Shiv Marine Industries P. Ld. v. C.C.E., Bhavnagar and Bhikkamal Chotelal v. C.C. & C.Ex., Ahmedabad that fuel oil must be classified under its appropriate heading. Therefore, the appellants' challenge to the rate of duty on fuel/oil of engine room tanks is not upheld.
2. The second issue involves the levy of duty on foodstuff/stores on board the ship. The Tribunal has already settled this issue in the case of Ghazibad Ship Breakers, stating that foodstuff/stores must be classified under their own heading for duty purposes. Hence, the challenge to the duty on foodstuff on board the ship is not accepted.
3. The final issue concerns the duty of 1% landing charge on the CIF value of the ship imported for breaking. The appellants argued that since duty was collected before the goods came on land, landing charges should not be applicable. However, the Tribunal noted that landing charges are assessed on a percentage basis to facilitate quick clearance, and the appellants did not provide evidence of actual expenses incurred. The Commissioner (Appeals) highlighted the potential absurdity of excluding landing charges in such cases. Ultimately, the Tribunal found in favor of the revenue, rejecting the appeal on the basis that all disputed issues should be decided in favor of the revenue.
In conclusion, the Tribunal upheld the classification of fuel oil and foodstuff/stores for duty purposes and ruled that landing charges are applicable even if duty is paid before the goods arrive on land. The appeal was dismissed, and the decision was pronounced on 21-4-2008.
............
|
9911796707
