|
Advanced Search Options
Case Laws
Showing 241 to 260 of 383 Records
-
2012 (1) TMI 189
Issues Involved:
The issues involved in the judgment are:
1. Whether the Tribunal was right in setting aside the order despite a pending decision in another case?
2. Whether the Tribunal was correct in setting aside the demand for interest and penalty when the statute mandates their imposition upon confirmation of the duty demanded?
Issue 1:
In the appeal, the appellant contended that the order passed by the Appellate Authority in reducing the interest and penalty in a related case was illegal and lacked jurisdiction. The High Court had upheld the Appellate Authority's decision in that case. The Supreme Court, in a connected appeal, established that authorities have no discretion in imposing penalties. Therefore, the High Court found the impugned order reducing the penalty and interest to be legally flawed. Consequently, the appeal by the department was allowed.
Issue 2:
The appellant argued that the Tribunal erred in setting aside the order despite a pending decision by the Supreme Court in another matter. The Supreme Court, in a related case, had clarified that authorities do not have discretion in imposing penalties. Given this legal position, the High Court found the Tribunal's decision to reduce the penalty and interest to be incorrect in law. Consequently, the High Court allowed the appeal by the department.
-
2012 (1) TMI 188
Issues involved:
Whether the appellant was liable to pay service tax prior to the insertion of the explanation in the Finance Act, 1994 on 01/05/2006.
In this case, the appellant, engaged in clinical testing of drugs and formulations service, appealed along with a stay application for the dues adjudged in the impugned order. The activity undertaken by the appellant falls under the explanation to Section 65(106) of the Finance Act, 1994 w.e.f. 01/05/2006, and they have been regularly paying service tax on their activity. The crucial issue at hand is whether the appellant was liable to pay service tax before the mentioned insertion date. The period in question is from 01/07/2003 to 31/03/2006.
The Tribunal, after waiving the pre-deposit requirement, decided to proceed with the appeal due to the narrow compass of the issue, which has already been addressed in previous decisions. The Tribunal referred to the case of B.A. Research India Ltd. vs. Commissioner of Service Tax, Ahmedabad and Synchron Research Services P. Ltd. vs. Commissioner of Service Tax, Ahmedabad, where it was held that prior to the insertion of the explanation in the Finance Act, 1994 on 01/05/2006, the appellant's activity was not liable to service tax. Following the precedent, the Tribunal concluded that the issue is settled, and consequently, set aside the impugned order, allowing the appeal.
In conclusion, the Tribunal disposed of the appeal and the stay application in favor of the appellant based on the established legal position regarding the liability to pay service tax before the specified amendment date.
-
2012 (1) TMI 187
Title: Supreme Court Judgment 2012 (1) TMI 187 - SC Order
Judges: H.L. Dattu and Chandramauli Kr. Prasad, JJ.
Decision: Delay condoned, Dismissed.
-
2012 (1) TMI 186
Issues:
The judgment involves challenges to additions confirmed by Ld CIT(A) for 1/4th of car expenses, 1/4th of car depreciation towards personal use, and unexplained money in a bank account amounting to Rs. 22.51 lakhs for the assessment year 2005-06.
1/4th of Car Expenses and Depreciation:
The assessing officer disallowed a portion of car expenses and car depreciation towards personal use, which the assessee contested before Ld CIT(A) and subsequently before the tribunal. The tribunal upheld the disallowance, deeming it reasonable based on the explanations provided.
Unexplained Money in Bank Account:
The department discovered cash deposits exceeding Rs. 10.00 lakhs in an undisclosed bank account maintained with CITI Bank, totaling Rs. 22.51 lakhs. The assessing officer added this amount to the total income of the assessee u/s 69A of the Act due to unsatisfactory explanations provided. The assessee claimed the funds were received from their sister residing in Italy, routed through the brother for sponsoring educational expenses. Despite confirmation letters from the brother and sister, the tax authorities remained unconvinced, citing lack of detailed remittance information and evidence supporting previous transactions between the siblings. The tribunal, after reviewing the bank account details and explanations, found the assessee's contentions unconvincing, affirming the decision of Ld CIT(A) to dismiss the appeal.
In conclusion, the tribunal upheld the additions of 1/4th of car expenses and depreciation for personal use, along with the inclusion of unexplained funds in the bank account, dismissing the appeal of the assessee.
-
2012 (1) TMI 185
Additions under section 68 - assessee obtained 25 advance licenses from DGFT under DEEC scheme for duty free imports, has grossly over invoiced export of CD ROMs to show its export obligations as having been fulfilled. It was alleged in the aforesaid report that the assessee had partly sold a few of these licenses to various importers for duty free imports - ITAT confirming the order of the CIT(A) in deleting additions.
-
2012 (1) TMI 184
Whether the offences registered against the detenu way back in the year 1980 upto the last offence registered on August 14, 2010 have been noted by the detaining authority in reaching at the satisfaction that the detenu's activities were prejudicial to the maintenance of public order and he was dangerous person within the meaning of Section 2 (b-1) of the 1981 Act?
Whether the order of detention dated January 10, 2011 cannot be sustained and has to be set aside?
-
2012 (1) TMI 183
Issues involved:
The issue involves the waiver of pre-deposit of demands amounting to Rs. 5,61,521/- and Rs. 14,56,143/- in two separate cases, along with interests and penalties, u/s Rule 3 of the Export of Service Rules.
Summary:
Issue 1: Waiver of pre-deposit of demands
The Appellant, acting as an agent for a foreign buyer in exporting sea food, claimed that they exported services and received payment in foreign currency, thus arguing that service tax is not liable to be paid. The Appellant sought waiver of pre-deposit of demands based on a previous Stay Order in their favor. The Additional Commissioner opposed the waiver, stating that the commission was received in Indian rupees from Indian exporters. The Tribunal, after considering the submissions, held that the Appellant received the commission for services rendered in foreign exchange only. Citing a previous waiver of dues in the Appellant's favor and a case law, the Tribunal granted the waiver of pre-deposit and stayed the recovery of dues until the disposal of the appeals.
This judgment by the Appellate Tribunal CESTAT BANGALORE involved the issue of waiver of pre-deposit of demands amounting to Rs. 5,61,521/- and Rs. 14,56,143/- in two separate cases, along with interests and penalties u/s Rule 3 of the Export of Service Rules. The Appellant, acting as an agent for a foreign buyer in exporting sea food, claimed that they exported services and received payment in foreign currency, thus arguing that service tax is not liable to be paid. The Appellant sought waiver of pre-deposit of demands based on a previous Stay Order in their favor. The Additional Commissioner opposed the waiver, stating that the commission was received in Indian rupees from Indian exporters. The Tribunal, after considering the submissions, held that the Appellant received the commission for services rendered in foreign exchange only. Citing a previous waiver of dues in the Appellant's favor and a case law, the Tribunal granted the waiver of pre-deposit and stayed the recovery of dues until the disposal of the appeals.
-
2012 (1) TMI 182
Condonation of delay - delay of three months and five days in preferring the appeal - dispute is relating to the valuation of physician samples of medicaments - Held that: - there was neither any fraud, collusion or any wilful misstatement or suppression of facts or contravention of any of the provisions of the Act or the rules made thereunder, that can be attributed to the respondent, for invoking larger period of limitation - there being no mala fide attributed to the appellant on the ground of extended period of limitation as well as penalty, no error could be seen in the order of the Tribunal - appeal dismissed - decided against Revenue.
-
2012 (1) TMI 181
Issues involved:
The issues involved in the judgment are:
1. Whether the Tribunal committed substantial error of law in setting aside the order suspending CHA license.
2. Whether the Tribunal erred in ignoring negligence on the part of the CHA leading to misdeclaration of export of goods.
Issue 1:
The first issue pertains to the suspension of the CHA license of the respondent. The Tribunal had set aside the order suspending the CHA license issued to M/s. Kashyap Shipping Pvt. Limited by the Commissioner of Customs, Kandla. The Tribunal was questioned for committing a substantial error of law in this regard. The Tribunal's decision was challenged by the revenue.
Issue 2:
The second issue revolves around the negligence on the part of the CHA, which led to the misdeclaration of export of goods. The Tribunal was accused of passing an order ignoring this evident negligence, which allowed others to use the license without fulfilling statutory obligations under rule 13 and rule 14 of the Customs House Agent Licensing & Regulations, 2004.
The High Court, in its judgment, noted that the present Tax Appeal was against the ex-parte suspension order of the CHA license, which was later confirmed after a hearing. Subsequently, the respondent challenged the further order of suspension separately before the Tribunal, which was allowed. The revenue then filed a separate Tax Appeal against the Tribunal's decision.
The Court observed that since the initial suspension order had merged into the subsequent order confirming the suspension after a hearing, and considering that the revenue had filed an independent appeal pending before the Tribunal, the present Tax Appeal was disposed of as it was not required to be entertained.
-
2012 (1) TMI 180
Issues Involved:
1. Implementation of the Court's order dated 05.05.2010.
2. Validity of the Revenue's action against the assessee under Section 11A of the Central Excise Act.
3. Legality of the freezing and forfeiture of the Escrow Accounts.
4. Effect of the retrospective amendment by the Finance Act, 2011 on the existing judgments.
Summary:
1. Implementation of the Court's Order:
The assessee filed Misc. Case No.1926 of 2011 seeking implementation of the Court's order dated 05.05.2010 in C. Ex. App. No.1 of 2008. The application was rejected by the Commissioner, Central Excise, citing Section 72 of the Finance Act, 2011, which provided for a retrospective amendment of the exemption notifications. The Court held that the retrospective amendment did not conflict with the existing judgments and only relaxed the conditions for exemption.
2. Validity of Revenue's Action:
The Revenue issued a notice u/s 11A of the Central Excise Act demanding recovery of duty with interest and penalty for the period from 9.7.2004 to 30.9.2004, alleging non-compliance with exemption conditions. The Customs, Excise and Service Tax Appellate Tribunal (CESTAT) set aside the Revenue's order, and the High Court upheld this decision, stating that the conditions for exemption had been duly complied with.
3. Legality of Freezing and Forfeiture of Escrow Accounts:
In WP(C) No.591 of 2008, the learned Single Judge quashed the actions of the Commissioner of Central Excise in freezing and forfeiting the Escrow Accounts. The Court found that the Commissioner acted without proper application of mind and at the behest of superior authority, violating the principles of natural justice. The Court directed the defreezing of the accounts and allowed the assessee to make withdrawal applications for investments.
4. Effect of Retrospective Amendment by Finance Act, 2011:
The Revenue argued that the Finance Act, 2011 nullified the basis of the Court's judgments. However, the Court held that the retrospective amendment did not conflict with the judgments but rather made the conditions more liberal by extending the time for compliance. The Court clarified that the judgments remained executable and directed the Revenue to finalize the matter within three months, applying the amended terms and conditions for exemption.
Conclusion:
The Court dismissed the Revenue's appeals and upheld the judgments favoring the assessee. The Finance Act, 2011 was to be applied in accordance with the existing judgments, and the Revenue was directed to finalize the matter within three months.
-
2012 (1) TMI 179
Classification of coconut oil packed in containers and pouches - Appellants is repacking the goods of brand "New Nihar Naturals" declared to be edible grade coconut oil received from HLL into small retail packets - Classification under chapter sub-heading No. 33 or under Chapter No.15.
-
2012 (1) TMI 178
The Supreme Court dismissed the appeal in the case with citation 2012 (1) TMI 178 - SC. Justices H.L. Dattu and Chandramauli Kr. Prasad were part of the judgment.
-
2012 (1) TMI 177
Issues:
The issues involved in this case are:
1. Whether education cess is payable by 100% EOU on DTA clearances under the Proviso to Section 3(1) of the Central Excise Act, 1944.
2. Whether education cess is leviable under Section 93(1) of the Finance Act, 2004, upon 100% EOU in clearances in DTA.
3. Whether the deemed fiction has to be carried out for the legislative intent logically stretching it to the unrealistic end.
Issue 1:
The dispute revolves around the education cess payable on basic customs duty plus education cess and countervailing duty inclusive of education cess, which the respondent assessee has already paid on its clearance of goods from the export-oriented unit to the domestic operation area. The High Court held that the appeal would not be maintainable before it due to the exclusion clause contained in Section 35G of the Central Excise Act. The exclusion clause in Section 35G is expansive and excludes all appeals arising out of orders of the Tribunal relating to the determination of any question having a relation to the rate of duty of excise. The Tribunal's decision in favor of the manufacturers, stating that education cess was not required to be paid again, falls under the expression "the order determining a question having relation to the rate of duty of excise." The decision directly impacts the rate at which manufacturers should pay excise duty on their clearances in the DTA from EOU Units.
Issue 2:
The High Court emphasized that the exclusion clause in Section 35G of the Central Excise Act is broad and encompasses any order concerning the determination of a question related to the rate of duty of excise. The Tribunal's ruling in favor of the manufacturers, rejecting the Revenue's claim that education cess needed to be paid again, was considered to be within the scope of the exclusion clause. The decision directly affects the computation of excise duty and whether education cess should be included in the calculation. The High Court concluded that the respondents' preliminary objection was valid, and the Tax Appeal was dismissed as not maintainable before the Court.
Issue 3:
The High Court highlighted that the exclusion clause in Section 35G of the Central Excise Act is extensive and covers orders related to any question having a relation to the rate of duty of excise. The Tribunal's decision favoring the manufacturers and rejecting the Revenue's contention that education cess should be paid again was deemed to fall under the exclusion clause. The decision impacts the rate at which manufacturers are required to pay excise duty on their clearances in the DTA from EOU Units. The High Court upheld the respondents' preliminary objection and dismissed the Tax Appeal as not maintainable before the Court.
-
2012 (1) TMI 176
By product versus waste - Whether the fatty acids/soap stock, waxes and gums obtained in course of refining of the vegetable oils are eligible for duty exemption under the Notification No. 89/95-C.E - the decision in the case of COMMISSIONER OF CENTRAL EXCISE, JALANDHAR Versus AG FLATS LTD. [2011 (7) TMI 968 - CESTAT, NEW DELHI] referred - Held that: - appeal dismissed.
-
2012 (1) TMI 174
Issues involved:
The appeal against the order of the Customs, Excise & Service Tax Appellate Tribunal regarding waiver of pre-deposit of duty of Customs.
Details of the Judgment:
1. Issue of Financial Hardship and Pre-Deposit Amount:
The appellants, a company facing financial crisis, sought waiver of pre-deposit of duty and penalties amounting to &8377; 2,46,16,126 due to financial difficulties caused by mandatory penalties and financial crisis. Despite some machinery installation, commercial production had not commenced due to technical problems and accumulated losses. The Central Bank of India had initiated recovery proceedings under the SARFAESI Act against the appellants, adding to their financial burden. The High Court acknowledged the financial hardship faced by the appellants and modified the Tribunal's order, reducing the pre-deposit amount to &8377; 10 lakhs only. This deposit would result in the waiver of the remaining duty and penalties imposed on the company, with recovery stayed pending appeal. The Court emphasized the need to avoid undue hardship to the appellants and directed the Tribunal to expedite the appeal process upon deposit of the revised amount.
2. Modification of Tribunal's Order:
The High Court, after considering the financial difficulties faced by the appellant company and the initiation of recovery proceedings by the Central Bank of India, modified the Tribunal's order regarding the pre-deposit amount. The Court reduced the pre-deposit requirement from &8377; 80 lakhs to &8377; 10 lakhs only, ensuring that the balance duty and penalties would be waived upon this deposit. The recovery of the outstanding amount was stayed pending appeal, with instructions for the Tribunal to promptly hear and decide the appeal on its merits and in accordance with the law. The Court's decision aimed to alleviate the undue hardship faced by the appellants while ensuring a fair resolution of the appeal process.
-
2012 (1) TMI 173
Issues involved: Challenge to the validity of block assessment order u/s 158BD of the Income Tax Act due to delay in issuing notice.
Summary:
The appeal was against the block assessment order dated 29-06-2004, initiated in the block period ending 29-11-1995. The main issue was the delay in issuing the notice u/s 158BD to the assessee, which was challenged on the grounds of being time-barred. The Department conducted a search and seizure operation in the hands of the assessee's husband on 29-11-1995, and the block assessment was completed on 29-11-1996. However, the assessing officer initiated block assessment proceedings in the hands of the assessee on 26.6.2003, more than three years after the completion of assessment in the husband's case. The delay in issuing the notice was contested by the assessee's counsel, citing a decision of a 5-Member Special Bench of the Tribunal.
The Department argued that there was no prescribed time limit for issuing notice u/s 158BD and that as long as the assessment was completed within the prescribed period after issuing the notice, the delay did not invalidate the proceedings. The Tribunal referred to a similar case where it was held that issuing a notice u/s 158BD after three years from the completion of assessment in the searched person's case was time-barred. The Tribunal emphasized the importance of issuing the notice within a reasonable period after the completion of assessment in the searched person's case, as per the provisions of the Act.
Based on the precedent and legal analysis, the Tribunal concluded that the block assessment order passed against the assessee u/s 158BD was indeed time-barred by limitation. Therefore, the order was quashed in favor of the assessee. As the legal issue was decided in favor of the assessee, other grounds raised were not adjudicated, and the appeal was allowed.
This judgment highlights the significance of timely issuance of notices u/s 158BD in block assessment proceedings to ensure compliance with the statutory provisions and avoid being time-barred.
-
2012 (1) TMI 172
The High Court of Andhra Pradesh dismissed the appeal under Section 35L of the Central Excise Act, 1944, and imposed costs of Rs. 5,000 to be paid to the Andhra Pradesh State Legal Services Authority within two weeks. List for compliance on 23-2-2012.
-
2012 (1) TMI 171
The Appellate Tribunal CESTAT NEW DELHI ruled that there was no need for the Revenue to file cross objections as the impugned order was against the appellants. The delay in filing cross objections was condoned, and the stay petition was allowed.
-
2012 (1) TMI 170
Capital gain - Whether the provision of Section 53-A of the TPA has any applicability on the facts of the present case? - specific performance of agreement to sell dated July 22nd, 2008 executed by Sangeeta-defendant No.1 through her attorney Sharanjit Singh Sodhi in favour of the plaintiff with respect to the property mentioned in the head note of the plaint - Held that:- Proviso to Section 49 of the Act makes the things more clear. It envisages that an unregistered document affecting immovable property and required by this Act or the TPA to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877. A conjoint reading of Section 17(2)(v) and proviso to section 49 of the Act leaves no room for doubt that an agreement to sell property itself does not create any right, title to the property. It is the sale-deed which when executed will create right, title and interest in the property. Hence, an agreement to sell is not required to be registered and the same is receivable in evidence in a suit for specific performance under Chapter II of the Specific Relief Act, 1877.
This Court would like to observe that the application itself is not maintainable as the same does not disclose any of the situations mentioned in Order 7 Rule 11 of the Code. The question as to whether the agreement to sell in question being unregistered was receivable in evidence was required to be adjudicated at the time of evidence as such, the application (Annexure P-3) was not maintainable.
-
2012 (1) TMI 169
Issues Involved:
1. Limitation for reopening assessment.
2. Violation of natural justice.
3. Powers of the Deputy Commissioner u/s 35 of the KGST Act.
Summary:
1. Limitation for reopening assessment:
The petitioner challenged the Deputy Commissioner's order for reopening the sales tax assessment for 1996-97, arguing that the limitation period had expired u/s 19(1) of the KGST Act. The High Court clarified that the assessing officer has five years from the end of the relevant year to revise an assessment. However, the Deputy Commissioner, exercising supervisory powers u/s 35(1), has four years from the date of the original assessment order to correct any omissions or mistakes. The Court rejected the petitioner's contention, stating that the limitation periods for the assessing officer and the Deputy Commissioner are distinct and serve different purposes.
2. Violation of natural justice:
The petitioner contended that the Deputy Commissioner's order was passed without issuing notice and providing an opportunity to be heard, violating sub-section (3) of section 35. The High Court found that notice was served through affixture at the petitioner's business place, as the business was closed and no residential address was provided. The Court noted that the Deputy Commissioner directed a re-examination of the assessment due to new information from a crime file indicating tax evasion. The Court concluded that the petitioner still had the opportunity to contest the reassessment before the assessing officer, thus there was no denial of natural justice.
3. Powers of the Deputy Commissioner u/s 35 of the KGST Act:
The High Court upheld the Deputy Commissioner's authority to revise orders prejudicial to the interest of the Revenue u/s 35(1). The Court emphasized that the Deputy Commissioner's powers are supervisory and distinct from the assessing officer's powers u/s 19(1). The Deputy Commissioner acted within the four-year limitation period provided u/s 35(2)(c) to correct the assessment based on new evidence of tax evasion. The Court found no infirmity or irregularity in the Deputy Commissioner's order, as it aimed to prevent tax evasion and ensure proper tax collection.
Conclusion:
The High Court dismissed the appeal, affirming the Tribunal's order and the Deputy Commissioner's authority to revise the assessment. The Court found no violation of natural justice or limitation issues, emphasizing the distinct supervisory powers of the Deputy Commissioner u/s 35 of the KGST Act.
............
|
9911796707
