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Case Laws
Showing 201 to 220 of 692 Records
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2010 (5) TMI 764
Whether the transfer of motor car by the firm to its partners constitutes a 'sale' under section 2(28) of the Bombay Sales Tax Act, 1959 and therefore, liable to tax?
Held that:- It is not possible to hold that the transfer of motor car by the firm to its partner constitutes a sale under section 2(28) of the BST Act, 1959 and therefore, liable to tax. Therefore, the question referred hereinabove is answered in favour of the applicant/assessee and against the respondent/Revenue.
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2010 (5) TMI 763
Whether the chemicals and enzyme chemicals used in softening the ready-made garments fall under the ambit of entry 49 of the notification dated June 5, 1992 issued under section 18 of the Haryana General Sales Tax Act?
Held that:- It is held that as per existing provision, all types of dyes and chemicals as contemplated under entry 49 are excisable/leviable to tax at the first stage of sale for all purposes irrespective of their use in any manner. Thus, the question raised in the present reference petition is accordingly answered against the assessee and in favour of the Revenue.
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2010 (5) TMI 762
Whether raw mustard oil and the mustard oil obtained therefrom were both entitled to exemption from payment of sales tax?
Held that:- While every manufacture can be characterized as production, every production need not amount to manufacture. The word 'production' or 'produce', when used in juxtaposition with the word 'manufacture' takes in bringing into existence new goods by a process which may or may not amount to manufacture. It also takes in all the byproducts, intermediate products and residual products which emerge in the course of manufacture of goods.". Filtration of raw mustard oil into mustard oil undertaken by the petitioner, therefore, cannot be understood to amount to production of goods in view of the above. Appeal has to be dismissed
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2010 (5) TMI 761
Whether upon a true and correct interpretation of section 55 of the Bombay Sales Tax Act, 1959, the Tribunal was justified in upholding the order of the first appellate authority in disallowing the claim of branch transfers of ₹ 60,45,032 which was already allowed under section 6A of the Central Sales Tax Act, 1956 when there was no appeal pending under the Central Sales Tax Act, 1956?
Held that:- The legal question referred to this court is answered in the negative and against the Revenue.
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2010 (5) TMI 760
Whether Stainless steel wire is one of the species of iron and steel under section 14(iv) of the Central Sales Tax Act and, therefore, cannot be subjected to tax in excess of four per cent in view of section 15 of the Central Sales Tax Act?
Held that:- Stainless steel wire is not covered under the entry of "alloys and special steel" on sub-item (ix) and, therefore, does not fall under "iron and steel" as defined under section 14(iv) of the Central Act. It cannot be treated as a declared commodity under section14 of the Central Act and, therefore, the provision of section 15 of the Central Act does not apply. Appeal dismissed.
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2010 (5) TMI 759
Whether in terms of the clauses of the contracts, the transactions are evidently not of sale as envisaged under the Act or within the meaning of clause (29A)(d) of article 366 of the Constitution of India and, therefore, no tax is payable by them?
Held that:- The enjoinments proclaimed by the various clauses of the contract agreements albeit are to secure the maximum utilization of the manned cranes and the quality services to be rendered thereby, (i) all permeable supervision of the contractors over the works to be executed on the instructions of the representatives of the corporation, (ii) their singular responsibilities and liabilities to guarantee the availability of the manned cranes while ensuring the perfect working condition thereof, (iii) the insulatory stance of the corporation from all liabilities, risks, hazards, claims, etc., that may arise from the operations and (iv) recognition of the independence of the contractors and their employees considered cumulatively, in the opinion of this court are extinctive of any supervening dominion of the corporation over the possession, custody and control of the cranes so as to signify transfer of right of use thereof to it by the contractors. No patent or latent comprehension of the contracting parties is perceptible from the contract agreements to deduce any transfer of right to use the cranes so as to render the transactions exigible to tax under the Act.
On a totality of the considerations as hereinabove and in the wake of the determinations made, this court is of the view that the petitioners' assailment ought to succeed. The proposed action of the respondents to deduct tax under the Act at source qua the transactions is thus adjudged to be illegal and without jurisdiction. Petition allowed.
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2010 (5) TMI 758
Whether direction given by Sub Judge, Palakkad (hereinafter described as `the trial Court') to the appellant to pay court fee on the market value of the plaint schedule property is correct?
Held that:- Appeal allowed. Impugned order of the learned Single Judge of Kerala High Court as also the order passed by the trial Court directing the appellant to pay court fee on the market value of the property, in respect of which the sale deed was executed by respondent No.1 in favour of respondent No.2, are set aside.
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2010 (5) TMI 757
Issues: Challenge to notice under section 21 for assessment year 1997-98 based on change of opinion regarding exemption on imported high speed diesel sales under a specific notification.
Analysis:
1. Challenge to Notice under Section 21: The petitioner challenged the notice issued under section 21 for the assessment year 1997-98, which aimed to levy tax on the sales of imported high speed diesel. The petitioner had imported high speed diesel worth Rs. 20,99,004, made sales amounting to Rs. 21,31,610, and claimed exemption under a specific notification by furnishing the required declaration.
2. Basis of Challenge - Change of Opinion: The petitioner contended that the notice under section 21 was issued solely due to a change of opinion. The assessing authority had initially granted the exemption on the sales of imported high speed diesel after examining the necessary certificate filed by the petitioner as per the notification. The petitioner argued that there was no evidence to suggest that the certificate was incorrect or false, and thus, the initiation of proceedings was unwarranted.
3. Absence of Material Supporting Tax Levy: The learned standing counsel representing the department failed to provide any material supporting the inference that the exemption had been wrongly allowed. There was a lack of evidence on record indicating that the declaration submitted by the petitioner was inaccurate or invalid, thereby weakening the department's position in justifying the tax levy on the sales of imported high speed diesel.
4. Initiation of Proceedings Without Substantive Basis: The court observed that the proceedings under section 21 seemed to have been initiated merely due to a change of opinion without any substantial material to indicate that the exemption on the sales of imported high speed diesel was wrongly permitted or that there was any escaped assessment. Consequently, the court allowed the writ petition and quashed the notice under section 21 dated March 8, 2002, pertaining to the assessment year 1997-98.
5. Final Decision: The court, in its final decision, ruled in favor of the petitioner, thereby setting aside the notice under section 21 for the specified assessment year. The judgment concluded without imposing any costs on either party involved in the legal dispute.
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2010 (5) TMI 756
Whether the CESTAT is legal and correct in setting aside the impugned O.I.O. No. 18 of 2006 dated February 28, 2006 on the ground that the activities of the respondent did not fall under the taxable category of clearing and forwarding agent services?
Whether the activities undertaken by the respondent would fall within the ambit of C and F agent services, within the definition of section 65(25) of the Finance Act, 1994?
Held that:- If the main activity of the assessee is in the nature of "C and F agent" and procuring orders would have been bought into the said definition. On the other hand, we find that the main activity of the respondent-assessee is not that of a "C and F agent". Therefore, the contention of the counsel for the appellant cannot be accepted. Hence, the substantial questions raised in this appeal have to be answered against the appellant-Revenue and consequently, the appeal is dismissed as being devoid of merit.
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2010 (5) TMI 755
Whether the petitioner had been supplied with the documents in the nature of report of the Assistant Commissioner, letter of the Assistant Commissioner as well as report of the investigation team on which the revising authority had placed reliance while passing the orders impugned before it?
Held that:- When the petitioner is giving up its right to be supplied with the copies of the report of the Assistant Commissioner, letter written by the Assistant Commissioner as well as reports of the investigation teams which had visited different States of the country on which reliance had been placed by the revising authority, as well as the opportunity to deal with the same, no prejudice would be caused to the respondents if the prayer made in the petition is accepted.
The petitions succeed and are accordingly allowed. The impugned order dated July 21, 2009 made by the Tribunal is hereby quashed and set aside only because of the petitioner waiving its right as recorded hereinbefore. It is made clear that as it is the impugned order of the Tribunal does not suffer from any legal infirmity. Revision Application Nos. 95, 96 and 97 of 2007 are restored to the file of the Tribunal. The Tribunal shall decide the matters afresh in accordance with law, after giving an opportunity of hearing to the petitioner.
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2010 (5) TMI 754
Whether under the facts and circumstances the assessee is entitle to set-off under section 4BB of the Act from the gross turnover of the purchase value of the raw material which the assessee has purchased from the dealer who is exempt from payment of tax under section 4A of the Act?
Held that:- The dealer, M/s. Mahaveer Iron Industry Pvt. Ltd., who has been given full exemption under section 4A of the Act was assessed to tax on the material sold to the assessee/revisionist and the tax so assessed on the sale of the said goods was deducted from his eligibility amount. Accordingly, it amounts to the payment of tax by way of adjustment. Section 4BB has not prescribed the manner of payment of tax and manner of payment cannot be confined to payment by actual tender but it would include payment of tax by adjustment also. In favour of assessee.
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2010 (5) TMI 753
Disallowance of reimbursement of medical expenses – Held that:- The assessee being a company, the expenditure could not be held as personal expenses of the company as directors were appointed for the business purposes of the company – relying upon Sayaji Iron & Engg. Co. Vs. CIT [2001 (7) TMI 70 - GUJARAT High Court]- no material was brought on record to show that such payment was not in accordance with the terms of employment of Directors and was not authorised by the Board specially keeping in view that similar reimbursement was allowed in the immediately preceding year - no disallowance in the hands of the assessee company can be made on the ground that any amount of perquisite which was taxable in the hands of Director employee was not shown by such employee Director in his return of income - the action of the department should be against the said employee Director and not in the hands of assessee company- thus there is no reason to interfere with the order of the CIT(A) – Decided against revenue.
Proportionate disallowance of interest – Interest free advances – Held that:- Revenue could not point out how the advances given to different persons were not business advances of the assessee. In absence of any material brought on record, tribunal confirmed CIT order that the above advances were for the business purpose of the assessee and no disallowance of interest in respect of such interest free business advances can legally be made - interest free funds available with the assessee company was much more than interest free advance given to Karnataka Jewels Ltd. and no material on record to show that there was a nexus between interest bearing funds and interest free advance to the said Karnataka jewels Ltd.- the order of CIT(A) upheld - Decided against revenue.
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2010 (5) TMI 752
The High Court of Allahabad dismissed an appeal under Section 260 A of the Income Tax Act, stating that the U.P. Forest Corporation is eligible for a certificate under Section 12-A based on a previous Supreme Court ruling (2008) 297 ITR 1. The appeal was dismissed in limine as no substantial question of law was found to entertain the appeal.
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2010 (5) TMI 751
Whether the scheme is not valid as a grant under Article 282 of the Constitution of India? Whether Article 275 is the only source for a regular and permanent scheme and whether Article 282 is intended to apply only in regard to special, temporary or adhoc schemes?
Whether having regard to Article 266(3) of the Constitution, apart from an appropriation by an Appropriation Act, an independent substantive enactment is required for the MPLAD Scheme instead of mere executive guidelines?
Whether the MPLAD Scheme falls under clauses (b), (bb) and (c) of Article 280 (3) of the Constitution, and exercise of such powers of the Finance Commission by Planning Commission make the Scheme unconstitutional?
Whether the Scheme obliterates the demarcation between the legislature and the executive by making MPs virtual members of the executive without any accountability?
Whether the MPLAD scheme is inconsistent with Part IX and Part IX-A of the Constitution by encroaching upon the powers and functions of elected bodies?
Whether the MPLAD Scheme, even if it is otherwise constitutional is liable to be quashed for want of adequate safeguards, checks and balances?
Whether the MPLAD Scheme gives an unfair advantage to the MPs in contesting elections by violating the provisions of the Constitution?
Held that:- Appeal dismissed. “Laws” mentioned in Article 282 would also include Appropriation Acts. A specific or special law need not be enacted by the Parliament to resort to the provision. Thus, the MPLAD Scheme is valid as Appropriation Acts have been duly passed year after year.
The impugned MPLAD Scheme is valid and intra vires of the Constitution and all the writ petitions as well as the transferred cases are liable to be dismissed as devoid of any merit, consequently, the same are dismissed . “Laws” mentioned in Article 282 would also include Appropriation Acts. A specific or special law need not be enacted by the Parliament to resort to the provision. Thus, the MPLAD Scheme is valid as Appropriation Acts have been duly passed year after year.
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2010 (5) TMI 750
Issues:
1. Eligibility of Parallel Flange Beams for Cenvat credit as capital goods or inputs.
Detailed Analysis:
The case involves the Department appealing against the Commissioner (Appeals) decision regarding the eligibility of Parallel Flange Beams for Cenvat credit. The respondent, a chemical manufacturer, availed Cenvat credit on these beams, which the Department disputed. The Department argued that the beams were used as part of the foundation and not eligible for credit. The Assistant Commissioner upheld the Department's view, leading to the respondent filing an appeal with the Commissioner (Appeals).
The Commissioner (Appeals) allowed the appeal, stating that the beams were crucial for the functioning of new machines in manufacturing excisable goods without vibration. This led to the Department filing the present appeal against the Commissioner (Appeals) decision. During the hearing, the respondent did not appear, and the Department reiterated its stance that the beams were ineligible for Cenvat credit based on a recent decision by the Larger Bench in the case of Vandana Global Ltd. The Tribunal analyzed the submissions and records, focusing on whether the beams qualified as capital goods or inputs for Cenvat credit.
The Tribunal concluded that the Parallel Flange Beams did not meet the criteria for capital goods or inputs under the Central Excise Tariff definition. They were used as part of the foundation to prevent machinery vibration, which did not align with the definition of capital goods. Referring to the Larger Bench decision in the Vandana Global Ltd. case, the Tribunal held that the beams were not eligible for Cenvat credit. Consequently, the Tribunal set aside the Commissioner (Appeals) order, reinstating the Assistant Commissioner's order. Additionally, the respondent's cross-objection was dismissed.
In summary, the Tribunal's decision clarified the ineligibility of Parallel Flange Beams for Cenvat credit as capital goods or inputs, based on their usage and the established legal position, as highlighted in the Vandana Global Ltd. case.
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2010 (5) TMI 749
Valuation - erection and commissioning charges - includibility - whether the erection and commissioning charges collected by the assessee from their buyers in respect of the goods (electro chlorinator) supplied to the latter from 1-7-2000 to 31-12-2001 are liable to be included in the assessable value of the goods? - Held that: - the erection/commissioning charges were collected by the appellant independently of the sale of the goods inasmuch as the Revenue has not placed anything on record to show that such charges were collected by reason of, or in connection with, the sale - the decision of the lower authorities to include the said charges in the assessable value of the goods cannot be sustained - appeal allowed - decided in favor of assessee.
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2010 (5) TMI 748
MODVAT/CENVAT Credit - denial on the ground that the same has been taken after a period of one year from the date of issue of permissible modvatable document - Held that:- In the case of M/s. Pierlite India Pvt. Ltd. v. C.C.E. Ahmedabad [2009 (9) TMI 115 - CESTAT, AHMEDABAD], the credit of tax availed after one year was held to be admissible.
Also, the provisions of Rule 4(1) which are to the effect that “Cenvat credit in respect of inputs may be taken immediately on receipt of the inputs in the factors’ of manufacturer.” The use of expression “may be is” in fact, is relaxation given to the manufacturer to avail the credit immediately. This can never be interpreted in the manner that the credit not taken immediately would not be available to the manufacturer.
There is no justification for denial of credit or for imposition of penalty - appeal allowed - decided in favor of appellant.
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2010 (5) TMI 747
Issues involved: Application for rectification of mistake in stay order u/s 35F of the Central Excise Act, 1944.
Summary:
The revenue filed a miscellaneous application seeking rectification of a mistake in a stay order. The revenue contended that the Tribunal had relied on incorrect facts presented by the appellants in the main appeal regarding the issuance of show cause notices. Two show cause notices were issued, one for demanding Cenvat credit on inputs/raw materials and another for duty on clearances. The revenue argued that the show cause notices were issued within the statutory period of 5 years. The revenue requested the Tribunal to rectify the apparent error in its order. However, upon hearing the arguments, it was observed that the application was made under Section 35C(2) of the Central Excise Act, which applies when an order is passed under Section 35C(1). As the stay order was passed under Section 35F, the application for rectification was deemed not maintainable and was dismissed.
In conclusion, the Tribunal dismissed the revenue's application for rectification of the mistake in the stay order, citing that the application was not maintainable under Section 35F of the Central Excise Act, 1944.
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2010 (5) TMI 746
CENVAT credit - inputs used for Research and Development activities - Held that: - the manufacturing activity of the appellant is as such that the input procured by the appellant is first to be tested and then they have to be taken into the manufacturing process. Moreover, if some variations found with regard to the quality of input, it is to be retested as per required composition - the appellants are entitled for CENVAT credit availed on such inputs which went for testing and analysis to manufacture the final product. The CENVAT credit on capital goods used in R & D section is also entitled as the same has been used in or in relation to the manufacture of the final product - appeal allowed - decided in favor of appellant.
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2010 (5) TMI 745
Issues:
- Appeal against the order of the Commissioner (Appeals) upholding the original authority's decision in favor of the assessee regarding Cenvat credit on certain items.
- Whether the items in question qualify as capital goods for availing Cenvat credit.
- Interpretation of the nature of use of MS plates, MS ingots, and MS channels in fabricating parts and machinery.
- Disagreement between the Department and the Commissioner (Appeals) on the eligibility of Cenvat credit.
- Application of the decision of the Larger Bench of the Tribunal in the case of Vandana Global Ltd.
- Consideration of the principles laid down by the Hon'ble Supreme Court in relevant cases.
Analysis:
The appeal before the Appellate Tribunal CESTAT NEW DELHI arose from the Department challenging the order of the Commissioner (Appeals) upholding the original authority's decision in favor of the assessee regarding the availing of Cenvat credit on certain items. The respondent, a manufacturer of VP sugar molasses, was alleged to have taken credit on MS plates, MS ingots, and MS channels as capital goods, which the Department contended did not fall under that category. The original authority accepted the respondent's explanation that these items were essential for the manufacturing process and dropped the proceedings initiated by the show cause notice. The Department, however, filed an appeal against this decision.
During the proceedings, the Department argued that the items were not used in the manufacture of capital goods as claimed by the respondent and cited a similar case for comparison. On the other hand, the respondent's advocate pointed out that the show cause notice did not mention the items being used for repair and maintenance, and bringing up a new case was impermissible as per relevant Supreme Court decisions.
The Tribunal carefully considered the submissions and found that while the items in question did not inherently qualify as capital goods, their eligibility for Cenvat credit depended on their use in fabricating parts and machinery. The Tribunal noted that the records did not conclusively establish the specific use of the items in question and observed that the Commissioner (Appeals) had accepted the original authority's finding without further evaluation. In light of this, the Tribunal decided to set aside the orders of the Commissioner (Appeals) and the original authority and remand the matter for fresh consideration. The Tribunal emphasized the need for a thorough review, considering the decision of the Larger Bench in the case of Vandana Global Ltd.
In conclusion, the appeal was allowed by way of remand, and the cross objection was also disposed of. The Tribunal maintained that all issues were to be kept open for further examination by the original authority after granting both parties a reasonable opportunity to present their case.
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