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Showing 221 to 240 of 1666 Records
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2017 (10) TMI 1449
Benefit of tax treatment provided u/s 44BB - receipt from rental of vessels received from non-production sharing companies (i.e. second leg contracts) - royalty under section 9(1)(vi) or it is a receipt chargeable to tax under section 44 BB - CIT(A) has erred in holding that no distinction can be made between receipts from Production Sharing Contract Participants ('PSC partners') and Non-Production Sharing Contract entities (Non PSC Partners) and between services rendered by first-leg and second-leg vendors - HELD THAT:- Services and facilities provided by the assessee along with plant and machinery are used in offshore drilling operations i.e., the activity of prospecting for or extraction or production of mineral oils. Consequently, the requirements of section 44BB are satisfied in the present case.
There is no merit in the contentions of the revenue that the assessee is not an eligible assessee under section 44BB since it has not directly entered into contract with the ONGC and it is not undertaking the activities specified in section 44BB itself and being second leg contractors they are not eligible under section 44BB.
On the issue of operation of the amendment to section 44BB and 44DDA, the CIT-(A) has observed that considering the interpretation contained in OHM LTD. [2012 (12) TMI 422 - DELHI HIGH COURT] the position of the case would not change specially when the services are squarely covered in consonance with what is envisaged under section 44BB of the Act. We find that the Tribunal in [2016 (2) TMI 921 - ITAT DELHI] has also held the services rendered as envisaged under section 44BB of the Act. The Ld. CIT-(A) has followed the decision of the jurisdictional High Court on the issue in dispute and thus, we do not find any error in the finding of the ld. CIT-A.
Charging of interest under section 234B - HELD THAT:- Interest u/s 234B & 234C is not chargeable, since assessee is a nonresident and as such tax is to be deducted at source by Indian party. The Hon’ble High Court in the case of DIT Vs. NGC Network Asia [2009 (1) TMI 174 - BOMBAY HIGH COURT] and in the case of DIT Vs. Clifford Chance LLP [2009 (7) TMI 1215 - BOMBAY HIGH COURT] has decided issue in favour of assessee.
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2017 (10) TMI 1448
Meeting of COC being conducted which appears to be a sensitive issue - HELD THAT:- The RP as well as to the COC is directed to convey the meeting of COC in the first week of November and to peruse and consider the legal opinion as received b: the RP from various sources and to take conscious decision thereon further the present applicant EXIM Bank should also be given opportunity to put forth its stand before the COC as well as the view of the RP also to be taken into consideration and thus the COC has to take collective decision.
The matter be listed on 10th November, 2017 for reporting compliance of the direction issued.
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2017 (10) TMI 1447
Disallowance u/s 14A - no exempt income - HELD THAT:- In the absence of any exempt income, it was held that no disallowance u/s 14A could be made. The I.T.A.T. had relied upon the decision of the Hon'ble Jurisdictional High Court in the case of CIT Vs. Lakhani Marketing Inc [2014 (7) TMI 44 - PUNJAB AND HARYANA HIGH COURT] and in the case of CIT Vs. Holcim India Pvt. Ltd [2014 (9) TMI 434 - DELHI HIGH COURT] . DR has not brought to our notice any contradictory decision of the Hon'ble jurisdictional High Court. Moreover, the CBDT Circulars issued are binding on the authorities under the respective statutes and are not binding on courts as held by the Hon’ble Apex court in the case of Commissioner of Central Excise vs Ratan Melting and Wire Industries [2008 (10) TMI 5 - SUPREME COURT OF INDIA] . Therefore, we find no merit in the content ion of the Ld. DR that the disallowance is to be made u/s 14A of the Act in view of the CBDT Circular No.5/2014. - Decided against revenue.
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2017 (10) TMI 1446
Penalty on CHA u/s 114 of CA - Smuggling - Red Sanders - violation of the provisions of Customs Broker Licensing Regulations, 2013 - whether the appellant was also in aid of abetting the stakeholders to attempt the smuggling of prohibited goods, namely Red Sanders? - Held that:- It is not the case of the appellant that he knew the exporter, from whom on getting the shipping bill, he was present at the time of initial stuffing of the containers and only in the presence of himself, the container were seized with proper declared goods from the exporter. When that being so, the appellant cannot claim knowledge that at the time of initial stuffing, only the declared goods were stuffed and subsequently only it might have been tampered. Since the appellant did not have any knowledge of the initial stuffing also, as he had stated that he had lent license only to the Litheesh of M/s. Flamingo, the said defence taken by the appellant in the reply to the show cause notice cannot be accepted.
In the case on hand because of the attitude on the part of the appellant in lending his CHA license to a third party for usage without knowing the actual importer and the goods to be imported, is a serious issue and for the said purpose, since the appellant was admittedly get only ₹ 1,000/- for each consignment, the appellant has not only misused the CHA license but also very recklessly and carelessly lend it to some unscrupulous perons for facilitating smuggling activities and therefore such act on the part of the appellant shall be viewed seriously.
Taking into account the said aspect of the issue, the imposition of penalty of a sum of ₹ 5 lakhs by invoking the provisions of the Customs Act, in the considered view of this Court, is not only justifiable but also acceptable as there was no excess imposition of penalty on the part of the revenue in this regard compared with the omission and commission of the appellant - the order-in-original as has been confirmed by the CESTAT through the impugned order is liable to be sustained and the substantial questions of law raised before this Court are to be answered in favour of the Revenue.
Appeal dismissed - decided against appellant.
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2017 (10) TMI 1445
Addition u/s 56(1) OR 68 - bogus share capital - Share premium received - scope of amendment to sec 56(2)(viib)and year of application - HELD THAT:- The provisions of sec 56(2)(viib) are applicable w.e.f. 1st April, 2013 and will accordingly apply in relation to AY 2013-14 and subsequent Assessment Years. The income as mentioned in section 56(2)(viib) is included in definition of section 2(24) w.e.f. 01-04-2013. Therefore, the provisions of these sections cannot be made applicable prior to that A.Y. 2013-14. It is pertinent to note that the CIT(A) had issued the show cause notice to the assessee to tax the share capital under section 68 of the I.T. Act, 1961 as against section 56(1) applied by the AO.
AO has made whole addition by invoking section 56 hence the amended provision w.e.f. 01-04-2013 are applicable only on shares premium received on fair market value. In view of these facts, it is clear that share premium received cannot be considered as income for the year under consideration by invoking provisions of section 56(1) of the Act. Therefore, in our considered view, the ld. CIT(A) has rightly deleted the addition.
Disallowance of expenses - assessee has not started the business activity, hence expenses have to be capitalized - HELD THAT:- CIT(A) held that the financial expenses, salary expenses, water & electricity expenses, repairs & maintenance expenses were in relation to building which was given on rent. Thus these expenses are direct bearing to the income of the year credited in P & L A/c. It is also noted that during search no incriminating document was found to show the suppression of income or inflation of expenses. In view of the above facts and circumstances of the case, we concur with the findings of the ld. CIT(A) on the issue in question. Thus the solitary ground of the Revenue is dismissed.
Addition u/s 68 - non providing opportunity of cross examination of the materials gathered and statement recorded behind the assessee - HELD THAT:- As during the course of hearing of appeal before the ld. CIT(A), the assessee had requested for cross examination of Shri Sanbtosh Choubey Shri Ajit Sharma, Shri RajeshKumar Singh and other persons which was denied by the ld. CIT(A). The ITAT Coordinate Bench in the case of Prateek Kothari [2016 (12) TMI 1756 - ITAT JAIPUR] has given verdict that without providing opportunity of cross examination of the materials gathered and statement recorded behind the assessee cannot be used. However, we hold that Revenue is free to initiate proceedings in the hands of these concerns who have received the amount after deposit in cash/DD in respective bank A/cs. Thus Ground of the assessee is allowed.
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2017 (10) TMI 1444
Corporate Insolvency Resolution Process - proceedings before BIFR stood abated - similarity in the intension for incorporation of Sick Industries Companies (Special Provisions) Act 1985 and Insolvency and Bankruptcy Code 2016 - HELD THAT:- Although the proceedings before the Hon'ble BIFR stood abated but due to filing an Application before the Hon'ble NCLT within a period of 180 days, those very proceedings shall continue. It is also vehemently pleaded that the new proceedings shall commence from that very stage from where it is transferred. A Notification in the form of Insolvency & Bankruptcy Code (Removal of Difficulties) Order, 2017 had clarified that if an order has been passed by BIFR or AAIFR then for continuing the resolution process the scheme shall be incorporated from the stage where it was before the repeal of the SICA Act.
Under the said repealed Act, the resolution plan had already been approved by OA, hence not required to submit another plan. Rather, an argument is that there is no requirement of even a submission of form no.6 and the Professional can submit resolution plan under section 30 of I&B Code. out of abundant precaution Form NO.6 had been filed to be considered for granting permission to carry out the CIRP from the stage it was left before BIFR and other Authorities due to repeal of the SICA Act. The sanctioned SS- 08 scheme thus to be considered as Approved Resolution Plan (ARP).
Considering the provisions of section 10 of The Code that the Debtor Company had in fact committed a default in not repaying the outstanding Debt to certain patties, the Petition under consideration deserves to be "admitted" - commencement of the Corporate Insolvency Resolution Process is hereby declared with effect from the receipt of this Order. The IRP is hereby directed that, the Scheme Sanctioned under SICA shall be deemed to be an Approved Resolution Plan as prescribed UIs, 31 (1) of the I & B Code, 2016. However, rest of the compliances are to be made as per the provisions of the Code, some Of them specified hereinabove.
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2017 (10) TMI 1443
Admission of substantial question of law - HELD THAT:- following substantial question of law admitted
Whether on the facts and circumstances of the case, the ITAT has erred in law and fact by not setting aside the issue of addition of ₹ 3,38,72,852/- on non-genuine purchases to the file of the CIT(A) while the learned ITAT quashed the direction of CIT(A) on the same especially in view of the fact that the ITAT is the ultimate fact finding authority, it should have either settled the issue on the basis of material on record or set aside the matter to the CIT(A) for deciding within the powers vested in it?
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2017 (10) TMI 1442
Imposition of penalty - amount of service tax along with interest stands deposited by the appellant - Business Auxiliary Service - Held that:- The Commissioner (Appeals) observed that the service tax was actually paid on 14-6-2011. The interest was paid on 18-4-2013. The Commissioner (Appeals) observed that there is a long delay in payment of interest and therefore, Section 78 may be invoked - the findings of the Commissioner (Appeals) cannot be accepted for the reason that the delay in payment of interest cannot be construed as suppression of facts with intent to evade payment of tax. Therefore, the impugned order by the Commissioner (Appeals) cannot be sustained.
The order passed by the adjudicating authority is upheld. The order of the Commissioner (Appeals) is set aside - appeal allowed - decided in favor of appellant.
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2017 (10) TMI 1441
TDS u/s 194C OR 194J - short deduction of tds - work under taken by the sub-contractor - demand u/s 201 and 201(l A) - whether sub-contractor company is doing civil construction work and payment for that is covered u/s 194C of the act only? - HELD THAT:- Section 194J mandates deduction of tax at 10% in respect of payments made towards "fee for technical services". Technical services has been defined in Explanation 2 to clause (vii) of sub-section (l) of section 9
In the instant case, the appellant is executing a works contract (Thermal Power Plant) for its customer. This involves men, machinery, material and other tangible and intangible in goods. For the construction of a Thermal Power Plant, the services of technical personnel including engineers is inevitable. The scope of the sub-contract was actual execution of work involving the services of technical personnel as well as non-technical personnel. However. what the appellant intended to get from its subcontractor was a physical output, a tangible structure and not merely the services of its qualified, professional engineers/staff. The contract between the two parties is for work which clearly satisfies the provisions of section 194C and does not by any stretch of imagination attract the provisions of section 194J
In any case, the sub-contractor has already offered the payments received from the appellant tax. as per the evidence furnished by the AR. As per section 191 of the Act. A person shall be treated as assessee in default only when (i) he does not deduct tax at source as required under the Act from the payments made to the assessee: and (ii) the assessee has also failed to pay such tax directly. In view of the above, the appellant cannot be deemed as an assessee in default and the disputed short deduction of tax cannot be demanded from the appellant as per the case law of Hon’ble Supreme Court in Hindustan Coca Cola Beverages (P.) Ltd. V. CIT. [2007(8) TMI 12 Supreme Court]. This ratio has also been inserted subsequently w.e.f. 01.07.2012 as proviso to section 201 (I) of the Act.
We confirm the finding of the Id CIT(A) that tax on such payment to subcontractor was required to be deducted 194C of the Act and same was complied with by the assessee. Therefore, there is no short deduction of tax at source u/s 201 of the Act and hence, there cannot be any interest liability a/s 201(IA) of the Act. Hence we dismiss the appeal Of the Revenue.
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2017 (10) TMI 1440
TP adjustment - exclusion of amounts written back for computing the operating margin of the assessee - HELD THAT:- In the case of Gillete Diversified Operations Pvt. Limited [2016 (4) TMI 1349 - ITAT DELHI], the Co-ordinate Bench of the Tribunal, Delhi had decided the issue in favour of the assessee and held that if the reversal of provision / write back is on account of revenue in nature, it should be included as part of operating income and if the liabilities originally created were on account of capital items then their write back cannot be considered to be a normal instances of business and hence to be excluded as operating income. The aforesaid order of the Tribunal has also been accepted by the Revenue as no appeal on the issue that whether write back is to be excluded for working out the operating profits has been preferred by the Revenue before the Hon’ble Delhi High Court meaning hereby that the issue of write back is to be considered as part of operating income has attained finality. Before us, Revenue has also not placed any contrary binding decision in its support.
Also in the case of Sony India (P) Ltd [2018 (7) TMI 825 - ITAT DELHI] hold that the amount of write back of ₹ 37.49 crores which is on account of amounts written back of expenses / liabilities is to be considered as part of operating income. Before us, assessee also submitted that if the write back amount of ₹ 37.49 crores is included as operating income, the operating margin would works out to 42.94% as against the operating margin of 14.36% of the comparable companies and therefore the transactions of the assessee with it’s A.E’s would be at arms length requiring no adjustment to the income. We find that on this issue there is no finding of TPO. We therefore for the limited purpose of verifying the aforesaid contention of assessee remit the issue to the file of TPO - Ground of the assessee is allowed for statistical purposes.
provision for warranty expenses disallowance u/s 37 - provision @ 1.15% of the total sales turnover uniformly on all the products - unascertained liability and not an accrued liability - contingent liability - HELD THAT:- We find that identical issue arose in assessee’s own case in earlier years. The AO was directed by the Co-ordinate Bench of Tribunal to decide the issue after examining the nature of business, nature of products manufactured, past history of warranty claims, methods adopted by the assessee for acquiring the provision and decide the issue keeping in mind the decision in the case of Rotork Controls India (P) Limited Vs. CIT [2009 (5) TMI 16 - SUPREME COURT OF INDIA].
The issue is identical to that of earlier years of assessee and since in earlier year, the issue was remitted back to AO, we therefore for similar reasons restore the issue back to the file of AO to decide the issue afresh. - Appeal of the assessee is allowed for statistical purpose.
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2017 (10) TMI 1439
Levy of service tax - payment made to the expatriate employees - employer – employee relationship or not - Held that:- The expatriates working under the appellant are their employees and there is an employer – employee relationship and thus, there is no supply of Manpower Service which is rendered to the appellant by the foreign/Holding Company. Further, no payment was made by the appellant to the Holding Company.
As the issue involved in the present matter is covered by the order of the Hon’ble Allahabad High Court in CCE vs Computer Sciences Corporation India Pvt. Ltd. [2014 (11) TMI 125 - ALLAHABAD HIGH COURT], hence the service tax could not be levied on the impugned amount.
Appeal allowed - decided in favor of appellant.
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2017 (10) TMI 1438
Clandestine removal - certain manufactured goods have not been entered in statutory records - certain torn out invoices were also found in dustbin - case of appellant is that neither invoice no. is mentioned nor name of the consignee is mentioned therefore it cannot be alleged that goods has been cleared clandestinely - Held that:- In the case of clandestine removal neither invoice no. is required nor the name of the consignee is required. Only modus operandi is to be seen - The Revenue has been able to produce evidence in form of the torn off invoices and statement of Shri Nagappa certifying the allegations made by the Revenue.
The contention of the appellant that the said statement has been retracted by way of an affidavit which has been placed on record at the time of reply to the show cause notice and same has not been considered. I find that the affidavit which has not been filed with the Department in time cannot be the basis for retraction that the statement has been retracted on next day by Shri Nagappa. Therefore, the retraction is not admissible.
Revenue has been able to prove clandestine removal of goods on the basis of the torn of invoices recovered during the course of investigation - demand with interest and penalty upheld.
Demand of ₹ 32,815/- (Rupees Thirty-Two Thousand Eight Hundred and Fifteen only) has been confirmed on the goods seized during the course of investigation as the said goods has been cleared on payment of duty during the said period is set aside.
Penalty imposed on Shri Raviraj partner - Held that:- As M/s. Maharaja Industries is partnership firm, therefore separate penalty on the partner cannot be imposed. Therefore, penalty imposed on Shri Raviraj, partner is set aside.
Appeal allowed in part.
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2017 (10) TMI 1437
Absolute confiscation - smuggling or not - seizure of Bullock and Cattle - redemption fine - penalty - Held that:- Nobody claimed the seized cattle. The circumstantial evidences would show that the driver of the vehicle fled away while the vehicle was being intercepted by the BSF. The driver of the vehicle had not given any statement on the procurement of the seized cattle. Thus, it is clearly evident that the said vehicle was carrying the cattle for attempted illegal illicit export to Bangladesh. Hence, the submission of the Ld. Counsel on this issue has no effect.
In the present case, it is seen that the driver of the vehicle ran away on seeing the BSF patrol party. It appears that the driver, the agent of the owner of the vehicle, had knowledge of the illegal transport of smuggled goods. So, confiscation of the vehicle is justified - Penalty not justified - appeal allowed in part.
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2017 (10) TMI 1436
Corporate insolvency process - notice under sub-section (1) of Section 8 was issued by a lawyer - existence of 'dispute', within the meaning of Section 8 read with sub-section (5) of Section 5 of I&B Code - HELD THAT:- In view of provisions of I&B Code, read with Rules, as referred to above, we hold that an 'Advocate/Lawyer' or 'Chartered Accountant' or 'Company Secretary' in absence of any authority of the Board of Directors, and holding no position with or in relation to the Operational Creditor cannot issue any notice under Section 8 of the I&B Code, which otherwise is a lawyer's notice' as distinct from notice to be given by operational creditor in terms of section 8 of the I&B Code. See UTTAM GALVA STEELS LIMITED VERSUS DF DEUTSCHE FORFAIT AG & ANT. [2017 (8) TMI 1198 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI].
Adjudicating Authority appointing any ‘Interim Resolution Professional’ or declaring moratorium, freezing of account, if any, and all other order(s) passed by Adjudicating Authority pursuant to impugned order and action taken by the ‘Interim Resolution Professional’, including the advertisement published in the newspaper calling for applications all such orders and actions are declared illegal and are set aside. The application preferred by Respondent under Section 9 of the I&B Code, 2016 is dismissed.
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2017 (10) TMI 1435
Deduction u/s. 54F - complete the construction and occupy the same within the period of three years from the date of sale of original asset, if the construction had commenced within the period of three years - HELD THAT:- It is seen from the copy of the remand report sent by the ACIT, Noncorporate Circle (5)-1 to the CIT (A) dated 26.08.2016, which is in the paper book, that the ITI inspected “the property on 17.08.2016 and found that the said property is a land having a small portion in the middle of property constructed (about 1500 sq.ft.).
This indicates that the size of house is just about 1500 sqft only in the sprawling land of 1 acres 25 cents. Though the assessee has made out a case for deduction u/s 54F, as per the ratios of the jurisdictional HC , however, a question arises that when the assessee has invested in 1.25 acres of land but constructed a house in the land just about 1500 sq.ft. only and claims the benefit of deduction u/s 54F on the entire investments in the 1.25 acres land and its compound wall etc, on the investment of how much land and buildings should she be given the benefit of deduction u/s 54F has not been examined by the lower authorities at all. In the case of Commissioner Of Income-Tax, Vs Zaibunnisa Begum [1984 (7) TMI 62 - ANDHRA PRADESH HIGH COURT] has laid the tests to be applied for the determination of the extent of land appurtenant to a building in the case involving sale of land and buildings, in sub para 18, supra, we are of the view that they could very well be applied in the case of purchase of land and construction of house as is involved in this case also
We deem it fit to restore the matter for the determination of the extent of land appurtenant to a building (in this case the house) to the AO and direct him to re-determine the eligible deduction u/s 54F , afresh, on the lines on which the Honourable High Courts have laid the guidelines, supra, after giving adequate opportunity to the assessee. - Revenue’s appeal is treated as partly allowed for statistical purposes.
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2017 (10) TMI 1434
Transfer pricing adjustment - international transactions pertaining to provision of Information Technology enabled services ("ITeS") - exclusion of comparables - HELD THAT:- Turnover filter cannot be held to be a good filter unless it affects the profitability of the comparables
R System International Ltd. excluded on account of different financial year - AR contended that the data for the relevant financial year i.e., April to March can be derived from the quarterly data available on the website of the company, therefore this comparable should be included in the list of comparables - HELD THAT:- In the instant case, assessee has tried to demonstrate that data for the relevant financial year (April to March) can be derived from the data available on website. Therefore, we are of the opinion that this comparable should be included in the list of comparables and before doing so the AO/TPO will examine the details and if the data for the relevant financial year can be derived from the data available on the website and it stands on other filters, the same can be included in the list of comparables.
Credit of risk adjustment - HELD THAT:- Since the Tribunal has repeatedly held that in such circumstances risk adjustment should be given after making necessary verification, we are of the view that in the instant case we should restore the matter to the TPO to consider the contentions of the assessee and after taking into account all relevant facts make the risk adjustment while determining the ALP for international transactions.
Excluding provision for doubtful debt from the cost base in the computation of mark up of certain comparable companies - HELD THAT:- Same treatment should be given while excluding/including the provisions for bad and doubtful debts in the case of the assesse company and the comparables. If the provisions of the doubtful debts have been excluded in the case of assessee company, the same be excluded in the case of comparables. Two different types of treatment cannot be given in the case of assessee company and the comparables. Therefore we also restore the issue to the AO/TPO to examine the facts relating to provision for doubtful debts in the assessee company as well as in the case of comparables.
Rejecting claim of adjustment on account of accelerated depreciation - HELD THAT:- Wherever rates of depreciation are different in the case of assessee and the comparables, the depreciation adjustment should be allowed. The Tribunal has repeatedly held that adjustment for difference in depreciation rate should be allowed in order to determine the ALP. See EXL SERVICE. COM (INDIA) PVT. LTD. VERSUS ASSTT. CIT CIRCLE-11(1) NEW DELHI. [2014 (12) TMI 894 - ITAT DELHI]
Tribunal has taken a consistent view that wherever different rates of depreciation are charged in the case of assessee as well as the comparables, the depreciation adjustment should be allowed. In the instant case, the learned counsel for the assessee has tried to demonstrate that the rate of depreciation charged in the case of assessee and the comparables are different. Therefore we are of the view that let this matter be re-examined by the TPO/AO and if they notice that the rates of depreciation are different in the case of assessee and the comparable companies, the reasonable depreciation adjustment be made in order to determine the ALP for the international transactions.
Working capital adjustment should be allowed while determining the ALP without putting any cap thereon. Therefore, we restore this issue to the file of the AO/TPO to allow the working capital adjustment while computing the ALP for international transactions.
Deduction u/s 10A - HELD THAT:- This ground is covered by judgment of jurisdictional High Court in the case of Tata Elxsi Ltd. [2011 (8) TMI 782 - KARNATAKA HIGH COURT] in which it has been held that whenever any expenditures are to be excluded from the export turnover, the same should also be excluded from the total turnover. We, accordingly, following the same, direct the AO/TPO to exclude the telecommunication charges from the turnover also as it was excluded from the export turnover.
Addition u/s 14A r.w.r. 8D - HELD THAT:- Assessee has earned the exempted income and the AO has invoked the provisions of section 14A and applied Rule 8D for determining the disallowances. Since rule 8D takes care of all aspects of interest bearing funds and interest free funds and expenditure incurred in management of portfolios etc., we are of the view, that once it is decided that provisions of section 14A is to be invoked, disallowances are to made as per Rule 8D of the Rules. Accordingly, we find no infirmity in the order of the AO.
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2017 (10) TMI 1433
SSI Exemption - use of brand name of others - it was alleged that the appellant on the seat cover was using the brand name of “Hind Ware” which was owned by M/s. Hindustan Sanitary Ware Industries - Held that::- The appellant was doing a job work/manufacturing exclusively for M/s. Hindustan Sanitary Ware Industries. No such item was sold in the market or third party. The final packing was also done at the factory premises as per the instruction of M/s. Hindustan Sanitary Ware Industries - When it is so, the brand name was not used by the appellant for its own benefit but it was a part of job work/ business by putting the label of the brand name and hand over after packing to the M/s. Hindustan Sanitary Ware Industries.
There is no justification to sustain the impugned order and the same is hereby set aside - appeal allowed decided in favor of appellant.
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2017 (10) TMI 1432
Concessional rate of duty for goods falling under Chapter 56, made of cotton, not containing any other textile material - benefit of N/N. 29/2004-C.E., dated 9-7-2004 as amended by N/N. 7/2012, dated 17-3-2012 - Department was of the view that the goods manufactured by the appellant contained other textile materials along with cotton and hence, not entitled to take concessional rate of duty under the notification - period of dispute is July, 2008 to June, 2014 - Held that:- From the test results, it is found that the appellant has used raw materials in the form of cotton, not only cotton but also other fibres such as wool acrylic, etc. - In the finished goods also, the chemical examiner has recorded presence of acrylic polyester, wool, nylon and viscose mixed in cotton.
The notification extends the concessional rate of duty only for goods of Chapter 56 if the goods are made of cotton not containing any other textile material - The test result has clearly shown that the finished goods manufactured by the appellant contain significant amount of fibres other than cotton also. Consequently the benefit of exemption will not be available to the appellant.
Appeal dismissed - decided against appellant.
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2017 (10) TMI 1431
Rebate of duty on the exported goods - handicrafts - applicant was earlier a hundred per cent EOU and they subsequently opted out of EOU Scheme - duty was paid at the time of debonding of unit - rejection of rebate on the ground that no central excise duty was paid by the applicant as DTA Unit and the duty paid by hundred per cent EOU was paid because it was required to be paid at the time of de-bonding of the unit - Held that:- In the instant case the goods had been cleared by a hundred per cent EOU on clearance of goods into DTA in terms of proviso to Section 3 of the Central Excise Act whose status became at par with the duty paid goods available in the market. He has further observed that it is not a case of clearance of excisable goods on payment of excise duty for export under claim of rebate but is a case of export of goods already lying with them as duty paid goods. Rebate of duty on goods initially cleared into DTA but which are subsequently exported is not covered under Rule 18 of CER, 2002 - The Commissioner (Appeals) has correctly observed that earlier payment of duty at the time of de-bonding of goods was made by the applicant as a hundred per cent EOU and not by the applicant as a DTA Unit who actually exported the goods. The different status of the applicant as hundred per cent EOU and as DTA Unit is supported by the very fact that earlier the applicant had different registration and subsequently after de-bonding of the goods the applicant got the earlier registration changed as DTA Unit.
It is beyond any dispute that they did not pay any separate duty of excise on the exported goods when these were cleared from their factory under the ARE-1s and thus it cannot be accepted that the applicant exported the goods on payment of Excise duty under duty rebate claims. Accordingly, the applicant is not found eligible for rebate of duty in respect of exported goods simply for the reason that they had earlier paid duty while these were de-bonded from hundred per cent EOU Scheme - revision application rejected.
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2017 (10) TMI 1430
Rebate of duty - export of goods - DI pipes - rejection of rebate on the ground of Jurisdiction - rebate rejected on the ground that the said rebate claim falls under the jurisdiction of Assistant Commissioner, Division KDH-I Khardah, West Bengal wherefrom the goods were exported and not falling in the jurisdiction of Bokaro Division where the respondent filed the rebate claim - Held that:- It cannot be overlooked that respondent was compelled to send the semi-finished DI pipes to the Khardah unit for some minor job work due to not receiving any response from Commissioner of Central Excise, Ranchi under Rule 16B of C. Ex Rules for sending the goods for job work to Khardah unit. Moreover, the duty of Excise has been paid by the respondent in Bokaro Division only and rebate of duty is also claimed against the duty paid in the Bokaro Division only. No duty is paid by the unit at Khardah and, therefore, respondent’s rebate claim does not have any nexus with the Central Excise Division covering Khardah unit.
The Government does not find any fault in the order of Commissioner (Appeals) and no merit is found in Revision application filed by the applicant - rebate cannot be rejected on this ground - revision application dismissed.
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9911796707
