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Case Laws
Showing 201 to 220 of 925 Records
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2012 (6) TMI 733
Denial of Exemption Notification Nos. 3/2001 and 6/2002 - Necessary KVIC certificate was produced subsequent to the date of clearance - Held that:- Tribunal has earlier taken a lenient view in such cases. Accordingly, we are of the view that the delay in submission of the KVIC certificate is condonable and hence the impugned orders passed by both the authorities below require no interference - Decided against Revenue.
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2012 (6) TMI 732
Exemption under Notification No. 10/97-C.E., dated 1-3-1997 - Held that:- since the required certificates from the competent authorities in the specified department have been produced for grant of duty exemption, the same should not be denied - Decided against Revenue.
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2012 (6) TMI 731
Duty demand - Whether blending of ordinary petrol or HSD with MFA and selling the blended product under brand names "Power" and "Turbo Jet" at a higher price amounts to manufacture, and whether branded petrol and branded HSD would be liable to duty once again under Sub-heading 2710.11 and 2710.19 respectively - Held that:- appellants bring duty paid "Petrol" and "HSD" to their depot where part of such "Petrol" and "HSD" is blended with Multifunction Additives and said products are sold at higher price under the brand names "Power / Turbo Jet" respectively - blending of "Petrol" and "HSD" with Multifunction Additives does not bring about a new distinct product and such process cannot be treated as manufacture - Following decision of HINDUSTAN PETROLEUM CORPN. LTD. Versus COMMR. OF C. EX, DELHI & ROHTAK [2008 (9) TMI 154 - CESTAT, NEW DELHI] - Decided in favour of assessee.
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2012 (6) TMI 730
Penalty under Rule 25 - Held that:- it is evident that under this rule penalty can be imposed only on producer, manufacturer, registered person of a warehouse, or registered dealer. It is not the case of the prosecution that the appellants herein are producer, manufacturer, registered person of a warehouse or registered dealer. Therefore, in our considered view Rule 25 of Central Excise Rules, 2002 is not attracted in this case. Otherwise also the issue is covered by the order of Coordinate Bench of this Tribunal in the case of M/s. Dhanlaxmi Garments v. CCE, Surat-I, reported in [2008 (4) TMI 296 - CESTAT AHMEDABAD]. As such, order of the Commissioner imposing penalty on the appellants cannot sustain - Decided in favour of assessee.
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2012 (6) TMI 729
Duty demand - Invocation of extended period of limitation - Whether or not the appellant has manufactured and cleared the disputed caps and bags under the brand name Reebok and Nike to M/s. Sierra Industrial Enterprises (P) Ltd. and M/s. Reebok India Ltd - Held that:- If the appellant was a trader he could easily have produced in evidence the person from whom he procured these bags and caps. The appellant, however, has failed to produce any evidence to prove his claim that he was a trader only. From the record it is evident that the appellant was evasive and non-cooperative during the adjudication proceedings. He did even produce any evidence to substantiate his claim before the appellate authority. Not only this the appellant did not even produce his account books as also the supply contract with M/s. Sierra Industrial Enterprises (P) Ltd. and M/s. Reebok India Ltd. which could has thrown light on the issue and instead took a plea that his account books have been lost regarding which a FIR was lodged with the police.
From this it is evident, that FIR was lodged on an afterthought to justify, non-production of account books which would have brought true facts to light. Thus much importance cannot be attached to the FIR. From the above it is evident that the appellant has failed to adduce evidence, within his knowledge and control, to support his claim. Since, the appellant failed to lead the best evidence, in our considered view the Adjudicating Authority as also the Appellate Authority were right in drawing an adverse inference that he was the manufacturer of the caps and bags. Thus, the impugned order cannot be faulted - appellant did not get himself registered with the excise department as a manufacturer, therefore, the department could not have any way to know about the removal of excisable goods by the appellant without the payment of excise duty. Thus, in our view this is a clear case of deliberate concealment and suppression of fact on the part of the appellant as such the department was well within its rights to invoke extended period of limitation - Decided against assessee.
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2012 (6) TMI 728
Waiver of the condition of pre-deposit of duty demand - Penalty under Rule 25 - Held that:- It is undisputed that the appellant paid the excise duty within the grace period of 30 days as provided under the rules. The amount paid by the appellant, however, was slightly less in various instances and that shortfall was made good with interest in November 2009. From this, prima facie, it can be inferred that there was no intention on the part of the appellant to evade the payment of excise duty and the defaults occurred due to computation error. This inference gets strengthen from the fact that the amount of shortfall in the payment of excise duty is negligible as compared to the amount of duty paid for respective months. Undisputedly, the shortfall was made good by the appellant after it was brought to his notice - As compared to the amount of default, the amount of duty confirmed against the appellant is too huge, therefore, in our view calling upon the appellant to make pre-deposit of duty demand, interest and penalty would obviously cause him undue financial hardship - Stay granted.
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2012 (6) TMI 727
Duty demand - CENVAT Credit - Interest and penalty - Held that:- Even though during the period of dispute, there was no provision for recovery of the amount payable under Rule 6(3) of Cenvat Credit Rules, 2001/2002/Rule 57AD (2) of Central Excise Rules, 1944 from an assessee who had not paid the same, since such a provision for recovery was introduced with retrospective effect only by Section 82 of the Finance Act, 2005, while the amount not paid can be recovered along with interest by invoking the recovery provision - while the demand for the amount demanded under Rule 6(3) of Cenvat Credit Rules, 2001/2002/Rule 57AD(2) of Central Excise Rules, 1944 along with interest is upheld, the penalty of Rs. 59,73,020/- imposed on the appellant is set aside. As regard, the penalty of Rs. 1348/- for clearance of ODS without payment of duty, the same is not disputed and is upheld - Following decision of CCE and ST LTU, Bangalore v. Bharat Electronics Ltd. [2011 (3) TMI 512 - KARNATAKA HIGH COURT] and CCE, Allahabad v. JHV Sugar Corporation Ltd. [2009 (10) TMI 798 - CESTAT NEW DELHI] - Decided partly in favour of assessee.
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2012 (6) TMI 726
CENVAT Credit - GTA Service - Suo moto availment - Held that:- There is no dispute whatsoever on the amount of credit taken. In the instant case, the credit has been taken in pursuance to and in accordance with the order passed by the lower appellate authority vide order dated 12/11/2009. The said order has been upheld by this Tribunal also in the order dated 02/08/2011. That being the position, the appellant has rightly taken the credit. It is not a suo motu action on the part of the appellant but an action as directed by the lower appellate authority, which was reconfirmed by this Tribunal. Therefore, there is absolutely nothing wrong on the part of the appellant in availing the Cenvat credit - Decided in favour of assessee.
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2012 (6) TMI 725
Stay application - Interest liability - Goods destroyed in fire - Held that:- this order has been passed confirming interest on a duty demand which itself is pending decision at the lower appellate authority's level although the appellate authority considering the said appeal is different. Unless a final decision taken on the liability to pay duty, interest liability on duty cannot be confirmed. Therefore, in the interest of justice it is appropriate to grant unconditional waiver from the pre-deposit of interest adjudged against the appellant - Stay granted.
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2012 (6) TMI 724
Demand of duty on account of process of dyeing of cotton fabrics - Penalty - Held that:- The appellant may be given an opportunity of concessional penalty subject to payment of duty and interest within 30 days of service of intimation of duty and interest payable by the appellant - Matter remanded back - Decided partly in favour of assessee.
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2012 (6) TMI 723
Plea for waiver of pre-deposit - Banking and Financial Services - assessee alleged of not discharging tax liability on import of service on the basis of transactions entered into with ADB and IFC - payments made towards commitment charges, up-front fee, arrangement fee, agency fee and out of pocket expenses paid to ADB and IFC in respect of funds borrowed from aforesaid institutions - Held that:- Since issue involves interpretation of various provisions of law such as Article 246, 253 of the Constitution of India, the various provisions of ADB and IFC Act and the provisions of United Nations (Privileges and Immunities) Act, 1947 and Finance Act, 1994. Therefore, appellant has made out a case for 100% waiver of pre-deposit, accordingly, we waive the requirement of pre-deposit of entire amount of service tax, interest and various penalty and recovery thereof stayed during the pendency of the appeal.
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2012 (6) TMI 722
Business Auxiliary Service - Duty demand on collecting Passenger Service Fees (PSF) from the passengers who embark on a flight of the airlines - Held that:- As the applicants have no choice but to collect this PSF on behalf of AAI as per the reference to Ministry of Civil Aviation and they are bound to do collection of PSF for AAI, the activity undertaken by the applicant covers under ‘Business Support Service' and are not liable to pay service tax under ‘Business Auxiliary Service'- complete waiver of pre-deposit of the demands
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2012 (6) TMI 721
Denial of benefit of Notification No.12/2003-ST dated 20.6.2003 - appellant is engaged in providing the service of commercial training and coaching - AO denied granting benefit of Notification as the appellant is providing study material to students and the value of the said material has not been included in the assessable value - Held that:- A s decided in PINNACLE Versus COMMISSIONER OF C. EX., CHANDIGARH [2011 (8) TMI 570 (Tri)]it is not in dispute that the activity of the company is to provide coaching and the Revenue has not disputed the fact that the study materials were purchased by the appellants, therefore there is nothing in the Notification No.12/2003-ST which would help Revenue in their arguments. The Circular of CBEC No.59/8/2003-ST dated 20.6.2003 states that such exemption will be applicable only if material sold is ‘standard textbooks'. The question as to what is a ‘standard textbook' can lead to disputes, since the expression is not used in the notification and the fact that the books sold are of another entity, we do not find any reason to deny the benefits of the Notification No.12/2003-ST - in favour of assessee.
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2012 (6) TMI 720
Waiver of pre-deposit – Commercial Construction and Industrial Services or works contract - appellant was providing "Commercial Construction and Industrial Services" right from the beginning and after the introduction of services "Works Contract" with effect from 01.6.2007, they opted to pay service tax on the services provided by them under the category of Works Contract – Held that:- Board Circular dated 24.08.2010 has clarified that the services could be considered as works Contract services. Having given no reason in order in original, for classifying the services rendered by the appellant under the category of "Commercial Construction and Industrial Services", just simply denying the claim of the assessee , that services are not Works Contract services. Appellant has made out a prima facie case for waiver of pre-deposit
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2012 (6) TMI 719
Valuation (Service Tax) - Goods and materials sold by service provider to recipient of service - Retreading of tyres on job work basis - Maintenance and Repair service - tax paid on labour charges shown in the invoices and did not include cost of tread material procured - Notification No.12/03-ST – Held that:- Service provider is required to produce documentary proof specifically indicating the value of the said goods and materials so sold by them - invoices unilaterally raised by the appellants indicating the break-up without substantiating the amount attributable to the value of the goods supplied cannot be considered as documentary proof for the purposes of the said notification - assessee has not proved that the conditions under Notification 12/03 ST dated 20.06.2003 have been satisfied and, therefore, they are not entitled to the benefit of deduction of cost of raw materials consumed in providing the impugned service.
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2012 (6) TMI 718
Penalty u/s 271(1)(c) - sale of land - addition made in the revisionary proceedings on the basis of deeming provisions of section 50C - Held that:- In present case, AO has not disputed the consideration received by the assessee. The addition has been made on the basis of deeming provisions of section 50C. The assessee has furnished all the facts of sale, documents/ material before the AO, genuineness of which has not been doubted by AO. Only because the assessee agreed to the additions because of the deeming provisions it cannot be construed to be filing of inaccurate particulars on the part of the assessee. Hence, penalty cannot be levied on the basis of deeming provision - Decided in favor of assessee.
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2012 (6) TMI 717
DTAA between India and Singapore - taxability - consultancy charges @ 1% of the total transacted volume of forex derivatives, futures and options paid to Singapore Company - dis-allowance u/s 40(a)(i) on ground of non deduction of tax at source u/s 195 - Held that:- There is no dispute with the factual position that the GMPL did not have any permanent establishment in India, and with the legal principle laid down in the applicable tax treaty that, in the absence of the PE of GMPL, its business profits could not be taxed in India. The taxability under the source state under Article 7 of the applicable tax treaty, therefore, clearly fails.
Further, services were simply consultancy services which did not involve any transfer of technology. Unless there is a transfer of technology involved in technical services extended by Singapore company, the ‘make available’ clause is not satisfied and, accordingly, the consideration for such services cannot be taxed as FTS under Article 12(4) of India Singapore tax treaty.
Therefore, the income from consultancy services, which cannot be taxed under article 7, 12 or 14 because conditions laid down therein are not satisfied, cannot be taxed under article 23 either. It is also only elementary that when recipient of an income does not have the primary tax liability in respect of an income, the payer cannot have vicarious tax withholding liability either. Hence, CIT(A) was justified in holding non-taxability of such fees in India and non-existence of assessee's tax withholding obligation - Decided against Revenue.
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2012 (6) TMI 716
Distribution of assets on dissolution of partnership - taxability of sum received by a partner - Revenue contending accrual of capital gains - AY 78-79 - Held that:- Any amount paid to a partner as his share on dissolution of the partnership firm cannot be regarded as transfer not only in view of the clear mandate of Section 47(ii) but also because such receipt of amounts and/or property does not involve an element of transfer within the meaning of the definition of the word transfer in Section 2(47). See Prashant Joshi Vs. Income Tax Officer and anr (2010 (2) TMI 271 (HC)) - Decided in favor of assessee.
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2012 (6) TMI 715
Set off of loss incurred on purchase and sale of shares as Ordinary Business Loss or Speculation Loss - assessee contended non-application of Explanation to Section 73 on ground that only income which is included in gross total income is dividend income, i.e. "Income from other sources" - Held that:- Section 73 would not apply in view of the fact that the explanation thereto, does not operate in respect of a company whose gross total income consists mainly of income which is chargeable under the heads of "interest on securities", "income from housing property", "capital gains" and "income from other sources". In present case, in the relevant year, the income from other sources was the only chargeable income, as the respondent had suffered a business loss otherwise, hence, assessee fell within the purview of the exception carved out in the explanation to Section 73 and that consequently the assessee would not be deemed to be carrying on a speculation business for the purpose of Sec. 73(1) - Decided in favor of assessee.
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2012 (6) TMI 714
Registered Trust u/s 12AA - exemption u/s 11 & 12 - denial by invoking provisions of Section 13 - assessee-society was running educational institutions on the land in the ownership of wife of Secretary of the Society, given on lease to the assessee society in accordance with a renewable lease deed for a period of 30 years - AO under assumption that as per lease deed, it is seen that after 30 years, if lease is not extended then whatever investment is made in the construction of building on leased land will become the property of the lessor, thereon passing benefit to relative of trustee, which is in violation of Section 13 - Held that:- Assumption of AO that benefit has been conferred upon the relative of the Secretary of the Society in terms of section 13(3) is wholly unwarranted under the law and hypothetical. Said Clause is not, in absolute terms, to put the assessee to disadvantageous situation. Further, no event has happened in the AY under appeal. Whether in such event, the order of the AO would stand as on today because the option can be exercised in the year 2034, which nobody knows as to what would happen in future.
Moreover, aassessee was in an advantageous position to get a land at such a lower rate of Rs. 150/- per month and was authorized to carry out the construction on the leased land at its own cost. In addition, the need for the examination of the signatures of witnesses was denied in the absence of any dispute and the fact of passing contradictory order by the AO, by allowing depreciation to the assessee @ 10% i.e. admitting the ownership of the building with the assessee was acknowledged. Order of the CIT (A) was upheld in deleting the addition - Decided in favor of assessee.
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