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Showing 21 to 40 of 497 Records
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2005 (6) TMI 556 - BOMBAY HIGH COURT
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... ... ..... all the aforesaid facts and circumstances as the Petitioners were not afforded a fair and reasonable opportunity of personal hearing by the CESTAT , especially on merits with regard to enhancement of penalty of ₹ 5 lacs to ₹ 1 crore in the larger interest of justice we quash and set aside the said order dated 10th January 2002, which was on 5th August 2002. We also quash and set aside the order dated 11th March 2005 whereby the Tribunal had declined to entertain the Miscellaneous Application for restoration of the aforesaid appeal. We do hereby restore all the above four appeals viz. C 330 /97. Bom & C/ 9, 10, 11/98 Bom., subject to the precondition that the Petitioners shall deposit ₹ 10,000/as costs, condition precedent with the Respondents within a period of two weeks. Upon such deposit being made CESTAT shall hear the aforesaid appeals strictly on its own merits, in accordance with law. o p /o p Writ petition stands disposed of accordingly. o p /o p
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2005 (6) TMI 555 - CESTAT BANGALORE
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... ... ..... saction Value, as held in the above appeals, is required to be accepted in this case also as there was no evidence of contemporaneous import. The Internet price cannot be accepted as contemporaneous evidence as held in several rulings of the Tribunal and as held in the Apex Court judgment noted supra. We have also seen the judgment of Tribunal in the case of Nova Office System v. CC, Visakhapatnam in Final Order No. 608/2004 -NB -A dated 24.11.2004, by which the Tribunal has upheld the order of confiscation for not obtaining licence on import of Main Frame of Photocopiers. The fine and penalty has to be on the basis of Transaction Value. We fix fine at 10 of Transaction Value and penalty of 10 in Appeal C/321/2004 and in appeal No. C/401/2004 while in appeal C/320/2004, the fine is 10 of the Transaction Value and Penalty is 9 as already held by the Commissioner and should be on the Transaction Value only. The impugned orders are modified and disposed of accordingly. o p /o p
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2005 (6) TMI 554 - CESTAT MUMBAI
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... ... ..... 9A on the directors of SSIL and the various traders, we find force in the plea put forth by the learned counsel for M/s. Vikas Metal Works (who are alleged to have supplied two invoices, viz. invoice Nos. 11 and 20 to SSIL to facilitate M/s. SSIL to take credit wrongly) and A.V. Shah, partner of M/s. Vikas Metal Works, that the provisions of Rule 209A are not attracted against them for the reason that no goods have been held to be liable to confiscation and unless there is a finding regarding liability of goods to confiscation, penalty cannot be imposed under the provisions of Rule 209A, in the light of the Tribunal's order in Shaper Chemicals Ltd. vs. CCE, Mumbai-VII 2004 (173) ELT 327. Therefore, we set aside the penalties imposed under this Rule on S.H. Agarwal, director of M/s. SSIL and the other traders who are in appeal before us. 3. In the result, appeal E/1530/97 filed by M/s, SSIL is partly allowed. The remaining appeals filed by the traders are allowed in toto.
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2005 (6) TMI 553 - ITAT CHANDIGARH
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... ... ..... enditure and the existing business of the assessee was in fact not the main dispute but only the nature of the expenditure was required to be determined in those cases, whereas, in the instant case of the assessee, we have already held that the assessee has failed in establishing any link between the impugned expenditure and its existing business i.e., how the existing business unit of the assessee would have benefited from the uninterrupted power supply when admittedly the assessee has incurred this expenditure for uninterrupted power supply for setting up the new project. 12. For the reasons stated above, in our opinion, the CIT(A) has wrongly allowed the impugned expenditure as revenue expenditure to the assessee and, therefore, the order of the CIT(A) in this regard is set aside and that of the Assessing Officer in disallowing the same is restored. Ground No. 2 of the revenue’s appeal is allowed. 13. In the result, the appeal filed by the revenue is partly allowed.
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2005 (6) TMI 552 - CESTAT BANGALORE
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... ... ..... coming into force of the Service Tax during 1991. Hence, the Service Tax is not leviable. He also relies on the judgment rendered in the case of Navinon Ltd. v. CCE 2004 (116) ECR 384 (Trib.-Mum.). The learned Counsel submits that similar case is listed for hearing on 26-7-2005. 2. Heard learned JDR. 3. On a careful consideration, we find merit in the submission made by the Counsel. The issue is covered in their favour. Hence, the stay application is allowed granting waiver of pre-deposit and staying its recovery till the disposal of the appeal. Matter to come up for final hearing on 26th July, 2005.
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2005 (6) TMI 551 - ITAT DELHI
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... ... ..... al in the case of Anand International (supra) was applicable as it was an assessee of Panipat. Moreover, when there are conflicting judgments of different High Courts and no decision of the jurisdictional High Court is available on the issue, then it is an accepted proposition that the decision favouring the assessee should be followed. For this reliance was placed on the decision of the apex court in CIT v. Vegetable Products Ltd. 1973 88 ITR 192 . In our considered opinion, therefore, the issue stands decided by the decision of Delhi Bench of the Tribunal in the case of Anand International, Panipat (supra) wherein similar facts of the case it was held that deduction under section 80-IB was allowable on duty drawback as it has a direct link with the business activity of Industrial undertaking. Respectfully following the same we decide the issue in favour of the assessee and reject the ground of appeal of the revenue. 6. In the result, the appeal of the revenue is dismissed.
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2005 (6) TMI 550 - ITAT MUMBAI
Liability to deduct tax u/s 195 - Reimbursement of expenses, underwriting fees and selling commission - Charging Interest u/s 201(1A) - Assessee in default - limitation as the order was passed beyond 4 years time - Validity of order passed by the Assessing Officer - HELD THAT:- Undisputedly the tax was to be deposited before 31st March 1994. However, the proceedings u/s 201(1) and 201(1A) were initiated by the Assessing Officer in 2000. As the order was passed on 24.01.2000, it is beyond the period of limitation of 4 years, which has been held as reasonable period for deciding such issues. Therefore, following the decision of the Tribunal, we hold that the orders of the Assessing Officer are barred by limitation.
As the facts are identical in the present case. Therefore, we are not in hesitation in following the decision of the Tribunal in the case of Raymond Ltd. [2002 (4) TMI 891 - ITAT MUMBAI]. No contrary decision was brought to our knowledge that on similar circumstances the provisions of DTA are not applicable. Therefore, respectfully following the finding of the Tribunal, we hold that in the present case also the provisions of DTA are applicable. Therefore, the reimbursement of expenses, underwriting fees and selling commission cannot be considered as taxable in India even u/s 9(1)(vii).
As we have held that DTA agreement with UK is applicable and payments made do not fall within the definition of fees for technical services" under Article 13.4 (c) of the agreement. Hence these were not taxable in India. Therefore, the assessee company was not liable to deduct tax from them it cannot therefore be treated as assessee in default u/s 201 (1). Consequently, no interest u/s 201 (1A) can be charged. Therefore, we delete the additions made, by holding the assessee was not in default in terms of section 201(1) and consequently charging interest in terms of section 201 (1A).
In the result appeal of the assessee is allowed.
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2005 (6) TMI 549 - ITAT DELHI
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... ... ..... cover leakage of income a sum of ₹ 10,000 is disallowed. Before CIT(A), the assessee contended that the expenditure under this head is fully vouched and, therefore, no ad hoc disallowance could be made without pointing out defects in the vouchers or pointing out other circumstances warranting disallowance. The CIT(A) upheld the order of the Assessing Officer by making an observation that the assessee did not produce vouchers before CIT(A). Hence, the present ground of appeal before us. We have heard the rival submissions. The Assessing Officer is not empowered to make any ad hoc disallowance without pointing out defects in the vouchers produced by the assessee. The Assessing Officer cannot disallow any expenditure on suspicion and surmises. The ad hoc disallowance is, therefore, directed to be deleted. The third ground of appeal of the assessee is also allowed. 20. In the result, ITA Nos. 3972 to 3974/Del/2004 are allowed while ITA No. 2155/Del/2002 is partly allowed.
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2005 (6) TMI 548 - CESTAT BANGALORE
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... ... ..... ds cancelled or, it utilised, has to be paid for. The Commissioner has applied the analogy of the Apex Court to hold that there was no irregular availment and that there is no provision in law to direct the reversal of credit on Capital Goods under similar circumstances. 2. We have heard both sides in the matter and find that the issue decided by the Commissioner in the light of the Apex Court is a correct view. Furthermore, this matter was referred to Larger bench of 5 Members of the Tribunal in the case of CCE, Rajkot Vs. Ashok Iron & Steel Fabricators - 2002 (140) ELT 277 (Tri.-LB). The Larger Bench presided by the President has clearly held that Modvat credit availed and utilized during the period when final products were duty bound is not required to be reversed when subsequently final product is exempted from duty. The Larger bench has followed the cited Apex Court judgment and several High Court judgments. There is no merit in this appeal and the same is rejected.
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2005 (6) TMI 547 - ITAT MUMBAI
Disallowance of depreciation on assets purchased and leased back transactions - sham transactions - search action u/s 132 - State Government undertaking - deduction u/s 80-IA - Cost of presentation articles
HELD THAT:- In the present case, the Revenue has not even established that the underlying motive of the assessee-company in claiming depreciation at the rate of 100 per cent has resulted in some economic detriment or prejudice to the Revenue. Even though the assessee-company is claiming depreciation at the rate of 100 per cent, the assessee-company is disclosing lease rentals as its taxable income for a period of more than 5 years, on a regular basis. The depreciation is claimed only by the assessee-company. The lessees are not claiming depreciation. Therefore, if at all any detriment is alleged in this case, that is only relative/presumptive and not absolute.
Revenue has not established that the transactions were sham transactions. The lease agreements executed by the assessee-company had the transactions entered into thereupon are not prohibited by law. They are within the four corners of law. Therefore, in obedience of the decision of the Orissa High Court in the case of Industrial Development Corporation of Orissa Ltd. vs. CIT & Ors. [2004 (3) TMI 43 - ORISSA HIGH COURT], we have to hold that the assessee is entitled to claim depreciation at the rate of 100 per cent on the assets leased out by it to the four parties mentioned
The Calcutta High Court has held in Competent Authority vs. Smt. Bani Roy Chowdhari [1981 (3) TMI 70 - CALCUTTA HIGH COURT] that where the transferor or transferee is Government or statutory bodies, there cannot be any scope for collusion between parties. The Court further held that when Government or statutory body is party to a transaction, question of evasion of tax does not arise. In the present case three out of four lessees are State Government undertakings.
Thus, we find that there is no evidence to hold that the transactions were sham and therefore, the claim of the assessee for depreciation at the rate of 100 per cent need to be accepted as genuine. Therefore, we direct the assessing authority to grant the depreciation allowance as claimed by the assessee. This issue is decided in favour of the assessee.
Deduction u/s 80-IA- The exemption provided in s. 80-IA is available to an assessee, among others, who has set up a plant for generation of power. It does not speak anything about consumption of the power generated by the assessee. There is no fetter against the assessee using the power for self-consumption. The only condition to be satisfied is that the assessee should generate power. In such provisions of law relating to exemption, there is no scope for any intendment to bring out hypothetical fetters and restrictions. The law should be read and understood in its literal sense. Therefore, we are of the considered view that the assessee has generated power from the two DG sets implanted by it, and therefore, the assessee-company is entitled for the deduction under s. 80-IA on the income imputable from the generation of power.
The exemption itself was introduced as an incentive to increase the power generation in the country. The said objective is made clear in the memorandum explaining the provisions of the Finance Bill, 1993 introduced in the Parliament. The object has further been clarified in its Circular No. 657 issued by CBDT on 20th Aug., 1993.
Therefore, we direct the assessing authority to grant the deduction u/s 80-IA to the assessee on the profits imputable to power generation made out of two DG sets.
Having held that the assessee is entitled for the deduction available u/s. 80-IA, the next question is what should be the price attributable to the power generated and consumed by the assessee.
We direct the assessing authority to work out the profits on the basis of the price of the power generated by the assessee at the average of the annual landed cost of electricity purchased by the assessee from Karnataka State Electricity Board during the impugned previous year. It may be determined on the basis of payment details available from the bills issued by the Karnataka State Electricity Board, during the year under consideration.
This issue is therefore, decided in favour of the assessee.
Cost of presentation articles - The turnover of the assessee had increased as a result of payment of such commission. It was also proved that it was a trade practice. It was in such special circumstances that the Tribunal has come to a conclusion that such a secret commission could be allowed as a deduction in computing the taxable income. But in the present case, the assessee has not established any such nexus between the presentation of articles and the turnover of the business. Therefore, the ratio of the decision as such cannot be applied here. In the present case, it is the case of the Revenue that the details were not furnished. We are not inclined to take a different view from the CIT(A) on this point. This ground is rejected and the disallowance is confirmed.
The assessee is partly successful in its appeal for asst. yr. 1997-98. In result, these two appeals filed by the assessee are partly allowed.
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2005 (6) TMI 546 - SETTLEMENT COMMISSION, CUSTOMS AND CENTRAL EXCISE, MUMBAI
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... ... ..... SSI units, but had not even filed declarations during the material period, would be eligible for admission. Answer No. Unless the SSI units, which did not have to file returns, had filed prescribed declaration before the intervention of Revenue authorities, they would not be eligible to apply for settlement. (f) The practice of filing declaration upon commencement of manufacturing operations in every financial year (by 15th April) was dispensed by Notification No. 52 of 98-C.E. (N.T.), dated 2-6-1998, whereby a declaration filed at the time of commencement would suffice. Whether such non-filing of declaration renders the applicant ineligible for filing application for settlement? Answer No. If declaration had been filed at the appropriate time as required under the above Notification, an application can be made for settlement. 12. The Additional Bench, Mumbai, is, accordingly, directed to dispose off the application of M/s. Emerson Electric Company (India) Private Ltd.
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2005 (6) TMI 545 - CESTAT MUMBAI
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... ... ..... The view taken by Commissioner in this case in notary contrary to the S.C. decision but also the view in the decisions of CCE(A), Bangalore & Mumbai in appellants plants situated there. We find no merits to uphold the Commission Order in Appeal No. E/2827/2003 & order that the same to be set aside & appeal allowed. 2.2 Appeal No. 3694/2004 is by Commissioner Aurangabad against the order of CCE(A), Aurangabad setting aside the demands confirmed in 11 notices on same ground of sales effected to Ador by the same assessee as in Appeal No. E/2827/2003 on arriving at same findings as they being not related & brand name not of Ador. The CCE (A) also relied upon Philips India Ltd. 1997 (91) E.L.T. 540 (S.C.) . In view of our findings, in E/3694/2004 herein above, we find no merits in this appeal filed by Commissioner. The same is dismissed upholding the order of CCE(A) 3.1 In view of the findings the appeals on disposed in above terms. (Pronounced in Court)
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2005 (6) TMI 544 - CESTAT MUMBAI
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... ... ..... C). The bills of entry for the import of all the three cars in question clearly describe them as Audi 80 NE cars and therefore no doubt remains that the engine capacity of all the three cars was 1800 CC. The cars are thus liable to confiscation under Section 111(m) and (d). The provisions of Section 112 are clearly attracted against Shri Futehally - duty evasion has taken place by misdeclaration of the cubic capacity of the imported cars and this has been achieved by the concerted action on the part of Shri Futehally and M/s. Volkswagen, Germany. The adjudicating authorities have rightly held that Shri Futehally had a key role to play in bringing about evasion of duty. We, therefore, uphold the penalties imposed upon him and dismiss his appeals following the ratio of the Tribunal’s Order No. 678-735/2004-NB(A) dated 2-7-2004 in which penal action against Shri Futehally in similar circumstances was upheld. 8. In the result, all the above four appeals are dismissed.
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2005 (6) TMI 543 - CESTAT NEW DELHI
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... ... ..... icative of their bona fide belief that the realisation from these heads were not relatable to providing telecommunication service. The Hon’ble Kerala High Court upheld the service tax on a finding that there was an aspect of service involved in the sale of SIM card, while the High Court of Uttar Pradesh had taken a view that installation charges for telephone connection are not sale of goods. While the judgment of the Kerala High Court is before the Constitution Bench, the decision of the Uttar Pradesh High Court remains reversed by the Supreme Court 2004 (170) E.L.T. 385 Sales Tax Cases (Volume 130) 2003 . It is clear from these circumstances that the issue was not free from doubt and the finding of suppression of value by the appellants so as to evade service tax is not warranted. In this view of the matter, we set aside the penalties imposed and allow the appeals to that extent. The impugned order is modified to this extent. (Dictated & pronounced in open Court)
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2005 (6) TMI 542 - GUJARAT HIGH COURT
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... ... ..... lays down that the tax chargeable under Section 113 of the Act shall be increased by a surcharge levied by any Central Act and applicable in the assessment year relevant to the previous year in which search is initiated under Section 132 of the Act or a requisition is made under Section 132A of the Act. 3. The Tribunal has, for the reasons stated in paragraph 9.3 of the impugned order dated 12th November 2003, come to the conclusion that the proviso was not available in the year relevant to assessment year under consideration, namely block period assessment year 1990-91 to 1999-2000. Thus, the Tribunal has applied the provisions to the facts on record and it is not disputed on behalf of the appellant revenue that the block period mentioned by the Tribunal is incorrect in any manner whatsoever. 4. In the circumstances, there being no infirmity in the impugned order of Tribunal, no substantial question of law can be said to arise and hence, the appeal is accordingly dismissed.
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2005 (6) TMI 541 - KERALA HIGH COURT
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... ... ..... of arrack at the first sale point is ordered to be deducted so that the total tax received would become 20 per cent of the rental amount. When we interpret the above quoted provision it is evident that the rate of tax applicable to an unregistered dealer is 62.5 per cent. Assessee 39 s case is that he had paid tax at that rate. If that be so, in our view, the claim raised by the assessee is justifiable. We have however, to test whether they had in fact paid the amount and before paying the said amount they had followed all the formalities including rule 30. Burden is on the assessee to show that he had followed the formalities, in the event of which, we are of the view, they are entitled to get refund. Assessees may produce all relevant documents before the authorities concerned within a period of one month from today, in the event of which, those documents would be considered and disposed of in accordance with this judgment. Writ appeals and TRC are disposed of accordingly.
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2005 (6) TMI 540 - KERALA HIGH COURT
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... ... ..... ine-Judge Bench in Sea Customs Act case AIR 1963 SC 1760 was followed by another nine Judges Bench in New Delhi Municipal Committee v. State of Punjab 1997 7 SCC 339. Apex court therefore held that the Tribunal was right in taking the view that the Collector of Customs was a dealer within the meaning of the definition of the word in the Bengal Finance (Sales Tax) Act, 1941 when he sold goods confiscated under the provisions of the Customs Act, 1962 because of non-payment of customs duty thereon. We are of the view, same is the position so far as the Kerala General Sales Tax Act is concerned. Therefore, We are in full agreement with the decision of the learned single Judge of this court in Collector of Customs v. State of Kerala 1993 91 STC 596 1993 1 KLT 850, and hold that Collector of Customs is liable to pay sales tax on the sale of confiscated goods or unclaimed goods. The appeal therefore lacks merits and would stand dismissed. Order on C.M.P. No. 1444 of 1997 dismissed.
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2005 (6) TMI 539 - KARNATAKA HIGH COURT
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... ... ..... ion. This would satisfy the requirement of notice and fair hearing. In view of this, in our view, the contention canvassed by the learned counsel for the petitioner that fair opportunity of hearing was not afforded to the petitioner before levying penalty cannot be accepted. In view of the above, the following ORDER I. Revision petition is allowed in part. II. The impugned order passed by the check-post officer under section 28AA(4) of the Act dated July 22, 2003 in No. KST/TP-94/02-03/NHN is set aside. This aspect of the matter is remanded back to the check-post officer to redo the matter in accordance with law and in the light of the observations made by us in the course of the order, after affording a fair opportunity of hearing to the petitioner. III. The other legal issues raised and canvassed are held against the petitioner and in favour of the department. IV. In the facts and circumstances of the case, parties are directed to bear their own costs. Ordered accordingly.
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2005 (6) TMI 538 - KARNATAKA HIGH COURT
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... ... ..... ined or laid down in the context of issues involved in the case and as determined by the court, alone can be called as the ratio of the decision in which event it is a precedent. The order appears more by way of consent rather than by way of any contest or examination of the question of law involved. While the order brought to the notice of this court cannot be regarded as an authority laying down any proposition of law, I do not find any justification to accede to the request of the learned counsel for the petitioner that in the present case also the Tribunal may be directed to consider the appeal on merits by imposing costs, ignoring the prescription of limitation by the very statute which provides for the appellate remedy. The question is not one of levying any cost, but the question is whether this court can issue a writ in the nature of mandamus as sought for. As indicated earlier, mandamus sought for cannot be issued in law and therefore the writ petition is dismissed.
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2005 (6) TMI 537 - KARNATAKA HIGH COURT
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... ... ..... appeal provisions are to be strictly construed. It is not necessary for this court to examine this aspect any further, as I find there was scope for filing a further appeal to the second appellate authority even under the statute itself, which it is open to the petitioner to avail of. I cannot accept the submission of Sri Aravind Kamath, learned counsel for the petitioner, that as the Tribunal is not enabled to condone the delay there is no purpose in filing the appeal to the Tribunal. Neither the Tribunal nor this court is enabled to issue directions to entertain the appeal by condoning the delay when the statute prescribes a bar for entertaining an appeal in terms of section 20 of the Act. However, the petitioner can definitely draw sustenance from further appellate provision, i.e., under section 22 of the Act and urge all such contentions which are open to him before the second appellate authority. No occasion to interfere in writ jurisdiction. Writ petition is dismissed.
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