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Showing 201 to 220 of 862 Records

• 2009 (3) TMI 911
  
  Issues involved:
  Refund claim arising out of provisional assessment finalized by lower authorities; Satisfaction of Doctrine of Unjust Enrichment; Applicability of law post 25-6-1999.
  
  Analysis:
  The appeal concerns a dispute over the classification of Ayurvedic medicaments manufactured by the respondents. The issue arose when the Original Authority held that the goods were not Ayurvedic medicaments, leading to a duty payment order. However, the Apex Court later reversed this decision, ruling that the products indeed qualified as Ayurvedic medicaments. Subsequently, the respondents filed a refund claim, which was initially rejected by the Adjudicating Authority but later allowed by the first appellate authority. The Revenue appealed this decision, arguing that the refund should not be granted due to the Doctrine of Unjust Enrichment. The Revenue contended that the respondents failed to prove that the duty incidence was not passed on to anyone, thereby disqualifying them from the refund.
  
  The Revenue relied on the concept of 'Unjust Enrichment' as elaborated by the Hon'ble Supreme Court in the Sahakari Khand Udyog Mandal case. The doctrine states that no person should inequitably benefit at the expense of another, and a right to recovery arises when unjust enrichment is evident. The Revenue argued that the respondents, by changing their stance on passing on the duty incidence only during the appeal process, failed to provide conclusive evidence to support their claim for a refund. The Revenue emphasized the importance of proving that the duty burden was not transferred to consumers to qualify for a refund.
  
  The respondent's advocate argued that the issue was covered by various Apex Court decisions and pertained to a refund claim from provisional assessments finalized by authorities before 25-6-1999. The Commissioner (Appeals) considered the case law and the nature of provisional assessments during the relevant period. The Commissioner noted that the assessments were provisional due to classification disputes and that the Doctrine of Unjust Enrichment did not need to be satisfied for refunds arising from such assessments. The Commissioner referenced the TVS Suzuki Ltd. case to support the decision that unjust enrichment did not apply to provisional assessments finalized before 25-6-1999.
  
  The Tribunal upheld the Commissioner's decision, stating that the Doctrine of Unjust Enrichment did not need to be met for refunds related to provisional assessments finalized before 25-6-1999. The Tribunal found no merit in the Revenue's appeal, affirming the correctness and legality of the lower authority's decision to grant the refund. Thus, the appeal by the Revenue was rejected, and the lower authority's decision was upheld.

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• 2009 (3) TMI 910
  

  conviction and the order of sentence for the offence, punishable under Section 135 of the Customs Act - appeal dismissed - Held that:- The concurrent findings, recorded by the Courts below, based on the correct appreciation of the cogent, convincing, reliable and trust­worthy evidence of Davinder Singh, Inspector Customs, (PW-1), who deposed with regard to the recovery of gold biscuits, aforesaid, from Swinder Singh, (since deceased), who was accompanied by Sucha singh, revision-petitioner, Kulmohan Singh, Superintendent Customs, (PW-2), who also made a similar statement, and Mange Ram, Inspector, (PW-3) of Border Security Force, coupled with the voluntary confessional statements made by the revision-petitioner, under Section 108 of the Act that the accused was guilty of the offence, punishable under Section 135 of the Act, do not suffer from any illegality or perversity.

  Thus the revision-petition, being devoid of merit, is dismissed. The judgment of conviction and the order of sentence dated 16-12-1999, rendered by the Court of the Chief Judicial Magistrate, Amritsar, and the judgment dated 30-9-2002, rendered by the Appellate Court, affirming the judgment of the trial Court, are upheld

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• 2009 (3) TMI 909
  

  Penalty imposed - promotion of respondent to the post of Chief Commissioner of Income Tax - Held that:- It is a case where in exercise of our extraordinary jurisdiction under Article 226 of the Constitution of India, we should not interfere with the direction given by the Tribunal in the impugned judgment. From the minutes of the DPC meeting held on 25.11.2005, it is clear that the DPC had found the respondent fit for promotion even after taking into consideration the penalty imposed upon the respondent herein. The note of the Cabinet Secretary, which was prepared for ACC, has to be read in this backdrop. The Tribunal is right that it is only because the period of penalty had not been over the recommendation was that the respondent should not be promoted at that stage. Matter would have been different if after taking into consideration the said penalty, the DPC would have held the respondent to be "unfit" for promotion inasmuch as it is within the jurisdiction of the DPC to check the overall record of the candidate. However, as mentioned above, penalty was taken into consideration.

  We may also take note of Para 12.2 of the Government Instructions dated 30.8.1990 as per which, when the employee is found fit for promotion, notwithstanding the penalty, such promotion is to be given after the currency of the penalty. Moreover, had the intention of ACC was to deny the promotion outright, even when DPC had recommended the case of the respondent for promotion finding him "fit", as per the procedure ACC would have sent the matter back to the DPC, which was not done. Appeal dismissed.

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• 2009 (3) TMI 908
  
  Issues involved:
  The issue involves the availability of Cenvat credit on duty paid for 'Fixed Facility Charges' related to storage tanks used in the manufacturing process of bulk drugs.
  
  Summary:
  
  Issue 1: Availability of Cenvat credit on 'Fixed Facility Charges'
  The appellants, manufacturers of Bulk Drugs, availed Cenvat credit on duty paid for liquid nitrogen used in manufacturing final products. They also paid 'Fixed Facility Charges' for special storage tanks and claimed Cenvat credit on the duty paid. The department contended that these charges do not have a nexus with the gas supplied and cannot be considered duty paid on inputs or capital goods. The adjudicating authority disallowed the credit, relying on a Supreme Court decision. The Commissioner (Appeals) set aside the order, stating that if duty liability is discharged by the supplier, the credit is valid. The Tribunal upheld this decision, emphasizing that the discharge of duty liability and issuance of invoices entitle the respondent to avail Cenvat credit.
  
  Decision:
  The Tribunal found no merit in the Revenue's appeal and rejected it, upholding the decision to allow Cenvat credit on the duty paid for 'Fixed Facility Charges' related to storage tanks used in the manufacturing process of bulk drugs.

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• 2009 (3) TMI 907
  
  Issues:
  - Dispute regarding whether the activity of producing tensile steel strappings amounts to manufacture.
  - Validity of duty demand and rejection of Modvat credit claimed by the appellants.
  
  Analysis:
  1. Manufacture of Tensile Steel Strappings:
  The appellants were clearing tensile steel strappings without payment of duty, arguing that no manufacture was involved. The Tribunal in Final Order No. 493/2005 held that the activity amounts to manufacture. The Commissioner confirmed the duty demand of Rs. 11,05,113/- and rejected the Modvat credit claimed by the appellants, citing lack of exact quantity documentation. The appellants had purchased duty paid cold rolled steel strips for manufacturing, with a small percentage used for steel seals. The Tribunal directed the adjudicating authority to calculate and recover the duty after granting Modvat credit based on proper evidence. The appellants argued that since they procured inputs under proper documents with payment of Central Excise duty, the entire duty paid should be available as input credit. The Tribunal agreed, noting that all inputs were covered by gate passes, allowing the appeal with consequential relief.
  
  2. Duty Demand and Modvat Credit:
  The Commissioner's order confirmed the duty demand and rejected the Modvat credit claimed by the appellants due to insufficient documentation on the exact quantity of input used in manufacturing the strappings. The appellants contended that as per Tribunal directions, only duty paying documents showing procurement of inputs were required as evidence. They argued that the utilization of credit could only be denied if the Revenue proved that the inputs were not used in manufacturing or were diverted. The Tribunal, after careful consideration, found that the appellants had procured inputs under proper documents with Central Excise duty payment, and that the entire duty paid was available for input credit. Consequently, the Tribunal allowed the appeal of the appellant with consequential relief.

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• 2009 (3) TMI 906
  
  Issues Involved:
  1. Whether the benefit of Notification No. 293/88-C.E., dated 9-12-1988, Notification No. 8/97-C.E., dated 1-3-1997, and Notification No. 23/2003-C.E., dated 31-3-2003 is admissible to the assessee.
  2. Whether the imported items used by the assessee in the manufacture of hydrogen peroxide are to be considered as raw materials or consumables.
  
  Summary:
  
  Issue 1: Admissibility of Notification Benefits
  The assessee, a 100% export-oriented unit (EOU) engaged in the manufacture of hydrogen peroxide, claimed benefits u/s 3 of the Central Excise Act, 1944, under Notification No. 293/88-C.E., dated 9-12-1988, Notification No. 8/97-C.E., dated 1-3-1997, and Notification No. 23/2003-C.E., dated 31-3-2003. The Collector of Central Excise, Hyderabad, in Order-in-Original No. 30/90 dated 30-8-1990, held that the imported items were consumables, not raw materials, and thus the assessee was eligible for the benefits. This order was not appealed against and attained finality. Subsequent show cause notices were issued for the period from April 1997 to September 1998, and March 1999 to May 2004, demanding differential duty. The Commissioner (Appeals) upheld the demands, but the Tribunal reversed these orders, leading to an appeal before the Supreme Court, which remanded the matter for fresh consideration.
  
  Issue 2: Classification of Imported Items
  The core issue was whether the imported items used in manufacturing hydrogen peroxide were raw materials or consumables. The Tribunal examined the process of manufacturing hydrogen peroxide, noting that the essential raw materials were hydrogen and oxygen, sourced indigenously. The imported items, such as high-density polyethylene, filter elements, and palladium catalyst, were used as consumables or catalysts, not as raw materials. The Tribunal referred to the Supreme Court's decision in CCE v. Ballarpur Industries and Vanasthali Textiles Ltd. v. CCE, which differentiated between raw materials and consumables. The Tribunal concluded that the imported items were consumables, not raw materials, and thus the benefit of the notifications could not be denied.
  
  Conclusion:
  The Tribunal held that the imported items were consumables and not raw materials, thereby allowing the assessee's appeals and dismissing the Revenue's appeals. The orders of the Commissioner (Appeals) dated 31-8-2000 and 4-9-2000 were upheld as legal and correct, and the demand of duty and penalties were not sustainable.

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• 2009 (3) TMI 905
  

  Sale by bid - Held that:- It is only upon the full amount being paid that a delivery order will be issued to the bidder to receive the goods. Clearly understanding these terms and conditions, the appellants responded to the letter of the respondents dated 26-9-08 with the observations that they are in receipt of the acceptance letter dated 26-9-08 regarding confirmation of the above-mentioned lot of Wheel Sets. This letter is followed by the letter of Sankar Chatterjee dated 3-10-08 and another letter dated 6-10-08 in which it is again reiterated that the appellants are successful bidder for the above lot. The sale has been confirmed. Thereafter, it is stated that the deliveries be made to the appellants after payment duly recording the pieces and the weight delivered. Having made such a request the appellants have sought to challenge the action of the respondents on the ground that there has been no confirmation of the auction. We are thus of the considered opinion that there is sufficient material on the record to justify the conclusion reached by the Learned Single Judge. Appeal dismissed.

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• 2009 (3) TMI 904
  
  Issues involved:
  The judgment involves the issues of Modvat credit availed on inputs, duty demand for exempted goods, applicability of Rule 57CC of Central Excise rules, reversal of credit, and liability for duty payment in bond transactions.
  
  Modvat credit and duty demand:
  The respondent, a Public Sector Undertaking, availed Modvat credit on inputs for manufacturing products including Naftha. Dispute arose regarding clearance of Naftha to IOCL without duty payment, subsequently cleared to another entity under exemption. Show cause notices were issued for demanding duty due to lack of separate accounts for exempted goods. Commissioner held demands unsustainable due to reversal of credit by respondent.
  
  Applicability of Rule 57CC:
  The Commissioner relied on circulars allowing pro rata reversal of credit for exempted goods based on input value. Later clarification mandated reversal of 8% of exempted goods' value if separate records not maintained. Tribunal considered previous decisions where reversal of credit was deemed compliant with Rule 57CC, dismissing revenue's appeal against Commissioner's order.
  
  Liability in bond transactions:
  The Tribunal found Rule 57CC not applicable to the respondent as they did not claim exemption for duty payment on goods cleared to IOCL. Clearances under bond to IOCL did not make the respondent liable for duty, as the ultimate responsibility lay with IOCL. Previous decisions supported the view that reversal of credit sufficed as non-availment of credit, aligning with the Apex Court's stance.
  
  Conclusion:
  The Tribunal dismissed all three appeals by the revenue, emphasizing that the reversal of credit by the respondent for inputs used in exempted goods was in compliance with the rules. The liability for duty payment in bond transactions rested with IOCL, absolving the respondent from Rule 57CC obligations. Previous decisions and legal principles supported the Tribunal's decision in favor of the respondent.

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• 2009 (3) TMI 903
  
  Issues Involved:
  1. Rejection of Books of Account under Section 145(3)
  2. Estimation of Income at 8% of Contract Receipts
  3. Method of Accounting and Recognition of Income
  4. Defects in Maintenance of Accounts
  5. Impact of Survey Conducted Under Section 133A
  6. Consistency with Past Assessments
  
  Issue-wise Detailed Analysis:
  
  1. Rejection of Books of Account under Section 145(3):
  The primary contention was whether the Assessing Officer (AO) was justified in rejecting the books of account of the assessee-firm and invoking Section 145(3). The AO raised concerns about the correctness and completeness of the accounts, citing various defects such as the lack of proper vouchers for expenses and the absence of quantitative details for material consumption. The Commissioner of Income-tax (Appeals) (CIT(A)) initially accepted the assessee's method of accounting and did not find sufficient grounds to reject the books of account. However, the Tribunal held that the AO was justified in rejecting the accounts due to significant defects and lack of verifiable details, thus allowing the Revenue's appeal.
  
  2. Estimation of Income at 8% of Contract Receipts:
  The AO estimated the income of the assessee-firm at 8% of the contract receipts, before allowing for interest and depreciation. The CIT(A) had directed the AO to accept the returned income, but the Tribunal found the AO's estimation to be reasonable. The Tribunal noted that the assessee's returned income was abysmally low compared to the turnover, and the estimation of 8% was justified given the defects in the accounts and the lack of supporting evidence for expenses.
  
  3. Method of Accounting and Recognition of Income:
  The assessee followed the percentage of project completion method for recognizing income, which was accepted by the CIT(A) as a valid method. The Tribunal acknowledged that while the method of accounting was acceptable, the primary condition was that the working results reflected in the books of account must be verifiable and beyond dispute. The Tribunal concluded that the lack of quantitative details and proper vouchers undermined the reliability of the accounts, justifying the AO's rejection of the books.
  
  4. Defects in Maintenance of Accounts:
  The AO identified several defects in the assessee's accounts, including the absence of quantitative details for materials consumed, lack of proper vouchers for significant expenses, and inadequate details for labor payments. The Tribunal found these defects to be material and fundamental, supporting the AO's decision to reject the accounts. The Tribunal emphasized that maintaining proper records and supporting evidence is crucial for the verifiability of the accounts.
  
  5. Impact of Survey Conducted Under Section 133A:
  A survey conducted under Section 133A for the subsequent assessment year revealed discrepancies in the assessee's income estimation, leading to the offer of additional income. The Tribunal noted that while the survey details were not compelling evidence, they provided the AO with sufficient reason to scrutinize the accounts more carefully. The Tribunal held that the AO was justified in conducting further inquiries and rejecting the books of account based on the survey findings.
  
  6. Consistency with Past Assessments:
  The assessee argued that the method of accounting had been consistently accepted in past assessments, and the AO should not deviate without valid reasons. The Tribunal acknowledged the principle of consistency but noted that the survey findings and significant defects in the accounts provided sufficient reason for the AO to break the chain of consistency. The Tribunal upheld the AO's decision to reject the accounts and estimate the income, given the specific circumstances of the case.
  
  Conclusion:
  The Tribunal allowed the Revenue's appeal, setting aside the order of the CIT(A) and restoring the AO's order. The Tribunal found that the AO was justified in rejecting the books of account and estimating the income at 8% of the contract receipts due to significant defects and lack of verifiable details in the assessee's accounts. The Tribunal emphasized the importance of maintaining proper records and supporting evidence for the verifiability of the accounts.

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• 2009 (3) TMI 902
  
  Issues involved: Appeals by Revenue and cross-objections by respondent-assessee regarding regular assessment and income escaping assessment u/s 143(3) and 143(3) read with 147 of the Income-tax Act, 1961.
  
  Regular Assessment Issue: Revenue challenges deletion of disallowance for damaged stock valuation based on Delhi High Court precedent.
  
  Income Escaping Assessment Issue: Dispute over valuation of damaged stock and disallowance by Assessing Officer, questioning treatment as capital loss.
  
  Valuation of Damaged Stock: Assessee, a furniture company, valued damaged stock at Rs. 1,04,511, later disputed by Assessing Officer at Rs. 10,45,116, leading to disallowance.
  
  Valuation Principles: Stock valued at realisable value; Assessee's computation accepted as Department lacked evidence against it.
  
  Treatment of Loss: Loss from damaged stock considered trading loss, deductible in computing taxable income.
  
  Allowance of Loss: Loss ascertained at year-end applicable for that assessment year; Historical treatment of stock in accounts supports deduction.
  
  Legal Precedent: Decision aligns with Delhi High Court ruling allowing loss even without change in valuation method.
  
  Conclusion: Commissioner's orders upheld as sustainable; Revenue's grounds dismissed; Cross-objections condoned for delay but dismissed as supporting Commissioner's orders.
  
  In summary, the judgment addressed the issues of valuation and treatment of damaged stock in the context of regular and income escaping assessments, emphasizing adherence to valuation principles, deduction of trading losses, and historical accounting practices. The decision supported the Commissioner's orders, citing legal precedents and dismissing Revenue's arguments.

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• 2009 (3) TMI 901
  

  Taxability of Interest received u/s.244A - Whether CIT(A) erred in deleting the addition that the order granting interest u/s 244A has not reached finality - return for AY 2001-02 was filed showing loss - assessment order passed u/s 143(3), determined loss - additions made by AO, representing interest on refund allowed by the Department u/s 244A - CIT(A) deleted this addition - ITAT in its order (supra), in the assessee’s own case for the AY 1984-85, decided the issue in favour of the assessee.

  HELD THAT:- We will proceed to discuss the decision of the ITAT, (SB) in the case of Avada Trading Co. P. Ltd. [2006 (1) TMI 465 - ITAT MUMBAI], held that the interest, granted by the Department to the assessee u/s 244A , along with the refund, fully satisfies the requirements of sections 4 and 5 and, therefore, it has to be taxed in the year of its receipt.

  The judgment of the Supreme Court in the case of E. D. Sassoon and Co. Ltd. v. CIT[1954 (5) TMI 2 - SUPREME COURT] squarely supports this view. The fact that the quantum of such interest might vary at a later date, because of one of the reasons mentioned in sub-section (3) of section 244A, does not affect this conclusion.

  Therefore, we respectfully follow the decision of the Tribunal (SB) in Avada Trading Co. P. Ltd [2006 (1) TMI 465 - ITAT MUMBAI] and reverse the orders of CIT(A) on this point and restore those of the both the years. The ground is accordingly, allowed.

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• 2009 (3) TMI 900
  
  Issues involved: Delay in filing appeal by Revenue, Addition of unexplained credits u/s 68, Exemption under section 10(23C).
  
  Delay in filing appeal: The Revenue filed an appeal with a delay of seven days, which was condoned by the Tribunal after being satisfied with the reasons provided by the Revenue. The appeal was admitted for hearing despite the delay.
  
  Addition of unexplained credits u/s 68: During assessment, the Assessing Officer found unexplained credits in the assessee's accounts, which were added under section 68 of the Income-tax Act as the assessee failed to provide satisfactory explanations for these amounts.
  
  Exemption under section 10(23C): The Commissioner of Income-tax (Appeals) deleted the addition made by the Assessing Officer under section 68 after considering confirmation letters and a judicial decision. The Commissioner held that the assessee's income, subject to exemption under section 10(23C), would also cover unexplained credits. The Tribunal agreed with the Commissioner's decision, emphasizing that income under section 68 is eligible for exemption under section 10(23C) based on the interpretation of the law and judicial pronouncements.
  
  The Tribunal noted that the contention of the learned chartered accountant regarding the interpretation of section 10(23C) was legally sustainable for the assessment year in question. Referring to a judicial decision, the Tribunal highlighted that the term "income" in section 10(23C) should not be narrowly construed and must be given its natural meaning, allowing the assessee to claim exemption for income deemed chargeable under section 68.
  
  Therefore, the Tribunal upheld the order of the Commissioner of Income-tax (Appeals) and dismissed the Revenue's appeal, concluding that the assessee was entitled to the benefit under section 10(23C) for the income covered under section 68.

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• 2009 (3) TMI 899
  
  Issues involved:
  The judgment deals with the dispute over the levy of interest u/s 220(2) of the Income-tax Act, 1961, for delay in payment of demand in the context of a block assessment.
  
  Summary:
  The appeal by the Revenue challenges the order of the Commissioner of Income-tax (Appeals) regarding the levy of interest under section 220(2) for delay in payment of demand in a block assessment case. The assessee had filed an application before the Settlement Commission, which was admitted, leading to a final order reducing the undisclosed income. The Assessing Officer charged interest from the date of assessment to the date of the Settlement Commission's order, which the assessee disputed. The Commissioner of Income-tax (Appeals) ruled in favor of the assessee, directing the withdrawal of the interest levy. The Revenue appealed this decision.
  
  The Tribunal rejected the technical objection raised by the Revenue regarding the maintainability of the appeal, emphasizing that the appeal challenges the very chargeability of interest under section 220(2). The Tribunal then delved into the legal provisions governing the charge of interest under section 220(2) and the Settlement Commission's jurisdiction under Chapter XIX-A of the Income-tax Act. It clarified that the Assessing Officer can levy interest under section 220(2) until the date of admission of the application by the Settlement Commission. The Tribunal referenced the Supreme Court's ruling in the Damani Brothers case to support this interpretation.
  
  The Tribunal concluded that interest under section 220(2) is legally leviable from the default date until the admission of the application by the Settlement Commission. It held that the interest should be revised if the demand is reduced as per the provisions. The Tribunal partially allowed the Revenue's appeal, rejecting the assessee's claim that no interest could be charged and also dismissing the Revenue's argument for interest up to the final order of the Settlement Commission.
  
  The Tribunal distinguished the judgment of the High Court of Delhi in a different case, emphasizing that it does not apply to the specific issue in this appeal, which was decided based on the Damani Brothers case. Ultimately, the appeal of the Revenue was partly allowed.
  
  The judgment was delivered by the Appellate Tribunal ITAT Mumbai, with the order pronounced on March 26, 2009.

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• 2009 (3) TMI 898
  
  The Appellate Tribunal CESTAT Bangalore ordered waiver of pre-deposit of Service Tax of Rs. 13,18,556/- along with interest for the period from July 2003 to 9th September 2004. The appellants, dealers for M/s. Maruti Udyog Ltd., were not required to pay the demanded amount as evidence showed that M/s. Maruti Udyog Ltd. had already paid Service Tax on the commission received. No coercive action by revenue was allowed till appeal disposal.

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• 2009 (3) TMI 897
  
  Issues:
  1. Requirement of pre-deposit of service tax liability, interest, and penalty.
  2. Applicability of service tax on construction activities.
  3. Interpretation of works contract prior to 1-6-2007.
  4. Circular by the Board regarding service tax on "Construction of Residential Complex."
  
  Analysis:
  1. The judgment dealt with the requirement of pre-deposit of service tax liability, interest, and penalty. The appellants were directed to pre-deposit a substantial amount. However, the appellants had already discharged a significant portion of the tax liability. The learned Advocate argued that for the material used in rendering services, if sales tax is paid, then no service tax would be leviable. Citing previous cases, the Advocate highlighted that the balance amount representing the value of goods and materials had been paid as per the Karnataka Value Added Tax Act, 2003. The Tribunal, considering the submissions, ordered a waiver of pre-deposit of the balance amount of service tax, interest, and penalty until the appeal's disposal. No recovery was to be made even after 180 days from the order date, given the substantial amount involved.
  
  2. The issue of the applicability of service tax on construction activities was raised in the judgment. The Advocate pointed out that the Board had issued a Circular stating that the appellant was not liable to pay service tax under the category of "Construction of Residential Complex." Additionally, the Advocate referenced previous Final Orders by the Tribunal where it was held that if sales tax is paid for the material used in services, no service tax would be leviable. The Tribunal acknowledged the strong case on merits presented by the appellants and ordered the waiver of pre-deposit for the balance amount of service tax, interest, and penalty.
  
  3. The judgment delved into the interpretation of works contracts before 1-6-2007. The Advocate argued that for activities falling under "works contract" prior to this date, no service tax is leviable. The Tribunal considered this argument along with the Circular issued by the Board and the previous decisions on similar issues. Based on the submissions and the legal provisions, the Tribunal ordered the waiver of pre-deposit for the balance amount of service tax, interest, and penalty until the appeal's disposal.
  
  4. The Circular issued by the Board regarding service tax on "Construction of Residential Complex" was a significant aspect of the judgment. The Advocate highlighted the Circular to support the argument that the appellant was not liable to pay service tax under this category. The Tribunal took note of this Circular, along with the other submissions, and decided to waive the pre-deposit of the balance amount of service tax, interest, and penalty until the appeal's final disposal.

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• 2009 (3) TMI 896
  
  Issues: Stay petitions against waiver of Service Tax, Interest, and Penalty.
  
  Analysis:
  1. Service Tax Confirmation Issue:
  The judgment pertains to two stay petitions filed against the waiver of amounts related to Service Tax, Interest, and Penalty. The Tribunal examined the records and found that the Service Tax confirmation arose due to the receipt of commission by the applicants from shipping lines for forwarding to exporters. The contention was that in some cases, exporters did not claim the amount, which was then retained by the applicants as commission or incentive. However, it was established that the amount was received for services rendered to exporters. The Tribunal concluded that the applicants failed to establish a prima facie case for complete waiver of the amounts. Consequently, the Tribunal directed the applicants to pre-deposit Rs. 50,000 within two months and report compliance by a specified date. Upon compliance, the pre-deposit of the remaining amount was waived, and recovery stayed until the appeal's disposal, in line with previous judgments allowing the stay order to continue beyond 180 days.
  
  This detailed analysis covers the issues involved in the judgment, focusing on the Service Tax confirmation issue and the Tribunal's decision regarding the waiver and pre-deposit requirements.

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• 2009 (3) TMI 895
  
  The Appellate Tribunal CESTAT BANGALORE, in the citation 2009 (3) TMI 895, heard a stay application for waiver Ul waiver of pre-deposit of a service tax amount, interest, and penalties. The applicant, a Consulting Engineer, provided services to Karnataka State for constructing National Highways. The defense was based on time bar and merits, citing a previous order in their favor. The Tribunal found the services may fall under "Consultant Engineering Services" and that the time bar issue required further examination. The confirmed service amount was reduced after the applicant's plea. A pre-deposit offer of Rs. 5,00,000 was accepted, with the applicant directed to comply within three months. Upon compliance, the balance amount was waived, and recovery stayed until appeal disposal. Non-compliance would result in appeal dismissal. The order was pronounced and dictated in open court by Shri T.K. Jayaraman and M.V. Ravindran, JJ, with Shri Rajesh Kumar representing the Appellant and Shri V.P.C. Rao representing the Respondent.

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• 2009 (3) TMI 894
  
  The Appellate Tribunal CESTAT Chennai heard a case regarding waiver of pre-deposit of service tax and penalty. The issue was about pro rata distribution of service tax credit by an input service distributor. The Tribunal found a prima facie case for waiver based on statutory provisions and past decisions. They waived the requirement of pre-deposit and stayed the recovery pending the appeal.

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• 2009 (3) TMI 893
  
  Issues:
  1. Waiver of pre-deposit of service tax and penalties for two appeals.
  2. Eligibility for exemption under Notification No. 14/2004-ST and Notification No. 6/2005-S.T.
  3. Use of brand name/trade name of another person.
  4. Plea of limitation and bona fide belief regarding liability to pay service tax.
  
  Analysis:
  1. The judgment pertains to applications for waiver of pre-deposit of service tax and penalties in two appeals. The first demand covers the period from 10-9-2004 to 31-3-2005, and the second demand is for the period 1-4-2005 to 31-3-2006. The Tribunal considered the submissions of both sides and made decisions based on the merits of each case.
  
  2. Regarding the first appeal (S/299/2008), the Tribunal found prima facie force in the argument that the applicant, an individual and proprietor of M/s. Ultra Service, is entitled to exemption under Notification No. 14/2004-ST dated 10-9-2004. As the lower appellate authority did not address this issue, the Tribunal waived pre-deposit of service tax and penalties, staying recovery pending the appeal.
  
  3. In contrast, for the second appeal (S/300/2008), the Tribunal noted that there was no strong prima facie case for total waiver based on eligibility for exemption under Notification No. 6/2005-S.T. The applicants had used the brand name of Eureka Forbes Ltd., which did not fulfill the conditions for exemption. Additionally, the plea of limitation and lack of a prima facie case regarding a bona fide belief of non-liability to pay service tax were not accepted.
  
  4. The Tribunal directed the pre-deposit of the amount of Rs. 35,642 for the second appeal within four weeks, failing which the stay would be vacated, and the appeal dismissed without further notice. Compliance was required to be reported by 1-5-2009, emphasizing the importance of adhering to the Tribunal's directions in a timely manner to maintain the stay on recovery of penalties.
  
  In conclusion, the judgment carefully considered the eligibility for exemptions, use of brand names, limitations on pleas, and the importance of compliance with directives to ensure fair proceedings in the appeals related to service tax and penalties.

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• 2009 (3) TMI 892
  
  The Appellate Tribunal CESTAT NEW DELHI heard a case where service tax and penalty were confirmed on the respondent. The Commissioner (Appeals) reduced the demand and set aside the penalty. The department's appeal was against the reduction in demand and the rejection of stay application. The appeal is to be heard in due course.

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