|
Advanced Search Options
Case Laws
Showing 241 to 260 of 848 Records
-
2010 (10) TMI 1016
Issues involved:
The judgment involves an appeal against the conviction of the appellants under the Narcotic Drugs and Psychotropic Substances Act, 1985.
Issue 1: Conviction under Sections 23 and 20(b)(2) of the Act
The appellants were convicted under Section 23 and Section 20(b)(2) of the Act, respectively, and sentenced to imprisonment and fines. The arrests and recoveries of contraband were made on the same day, leading to a joint trial and common judgment.
Issue 2: Prosecution's Case and Evidence
The prosecution's case detailed the arrests, recoveries, and subsequent legal proceedings. Witnesses, including police officers and an independent witness, provided testimonies regarding the events. The defense claimed false implication due to enmity.
Issue 3: Witness Testimonies and Cross-Examinations
Witness testimonies, including those of an independent witness and police personnel, were scrutinized. Discrepancies in statements, handling of contraband articles, and compliance with legal procedures were highlighted.
Issue 4: Lack of Link Evidence and Compliance
The absence of link evidence regarding the custody and handling of seized contraband articles raised doubts. Non-compliance with legal provisions, such as Section 57 of the Act, regarding reporting of arrests and seizures, was noted.
Issue 5: Reliance on Police Testimonies
The reliance on the sole testimony of a police witness for conviction was challenged. Precedents emphasizing the need for corroboration and discrepancies in the recovery process were cited to question the validity of the conviction.
Issue 6: Compliance with Legal Provisions
The failure to comply with Section 57 of the Act regarding reporting requirements was highlighted. Non-compliance was deemed to impact the evidence and the overall case merits.
Judgment Outcome:
The appeals were successful, leading to the setting aside of the convictions and sentences imposed on the appellants. The lack of corroborative evidence, discrepancies in testimonies, and non-compliance with legal provisions contributed to the decision. Bail bonds were canceled, and sureties were discharged.
-
2010 (10) TMI 1015
Whether a Letters Patent Appeal (for short `LPA') is maintainable before the Division Bench against the judgment of the learned Single Judge of the High Court?
Whether the LPA was maintainable in view of the amendment of Section 100A CPC?
-
2010 (10) TMI 1014
Issues Involved:
1. Whether a guarantor, who is not a party to the loan agreement containing an arbitration agreement, can be subjected to arbitration.
2. Whether the appellant was a guarantor for the loan.
3. Whether the appellant could be liable for interest if he was a guarantor.
Issue-wise Detailed Analysis:
Issue 1: Arbitration Agreement Applicability to Non-Signatory Guarantor
The primary question was whether a guarantor, who did not sign the loan agreement containing the arbitration clause, could be subjected to arbitration and its resultant award. The loan agreements among the lender, borrower, and a guarantor (third respondent) contained an arbitration clause. However, the appellant only provided a letter of guarantee and did not sign any loan agreement or arbitration clause.
Legal Analysis:
- Section 2(b) and 2(h) of the Act: Define "arbitration agreement" and "party" respectively.
- Section 7 of the Act: Specifies that an arbitration agreement must be in writing and can be part of a contract or a separate agreement. It can also be inferred from an exchange of statements of claim and defense, provided the existence of the arbitration agreement is not denied.
- Findings: The appellant's letter of guarantee did not contain an arbitration clause, nor did it reference any document with such a clause. The loan agreements executed later did not include the appellant as a party. Therefore, there was no arbitration agreement between the lender and the appellant as per Section 7(4)(a) or (b) of the Act. The application under Section 11 of the Act did not allege an arbitration agreement with the appellant, and thus, the appellant did not accept any such agreement by non-denial.
Conclusion: There was no arbitration agreement between the appellant and the lender, making the arbitration awards against the appellant unsustainable.
Issue 2: Status as a Guarantor
The appellant contended that he was not a guarantor as he did not execute the loan agreements or a deed of guarantee. He argued that his initial letter of guarantee was rendered ineffective when the third respondent executed the loan agreements and the deed of guarantee.
Legal Analysis:
- Appellant's Position: The appellant provided a guarantee letter while he was a director of the borrower company. It was later decided that the third respondent would be the guarantor, and the appellant did not execute any further documents.
- Court's Position: The court noted that this contention pertains to the merits of the case and not the existence of an arbitration agreement. Therefore, it was not necessary to examine this contention in the current proceedings.
Conclusion: The appellant's status as a guarantor was not examined in detail due to the resolution of the primary issue regarding the arbitration agreement.
Issue 3: Liability for Interest
The appellant argued that even if he were considered a guarantor, he did not agree to guarantee the payment of interest, only the principal amount.
Legal Analysis:
- Guarantee Terms: If a guarantor's letter only guarantees the principal sum and not the interest, the guarantor cannot be held liable for interest.
- Court's Position: Given the resolution that there was no arbitration agreement with the appellant, this issue became moot and was not further considered.
Conclusion: The issue of liability for interest did not require further examination due to the finding on the primary issue.
Conclusion:
The appeals were allowed, and the impugned order of the High Court and the arbitration awards were set aside in part, specifically concerning the appellant. The court held that there was no arbitration agreement between the appellant and the lender, thus invalidating the arbitration proceedings and awards against the appellant. If the lender wishes to enforce the guarantee, it must do so through appropriate legal channels outside of arbitration.
-
2010 (10) TMI 1013
Issues Involved: The judgment involves the disallowance of foreign tour expenditure and repair expenditure u/s 143(3) of the Income Tax Act, 1961.
Foreign Tour Expenditure Disallowance:
The appeal pertains to the disallowance of foreign tour expenditure of &8377; 3,09,506 by the CIT(A). The AO and CIT(A) contended that the expenditure lacked evidence to prove its business purpose. However, the assessee argued that the visit to Germany was for business negotiations related to the manufacturing of toothbrushes. The Tribunal noted that the visit was for acquiring spares and machinery necessary for the business, hence allowing the claim based on business necessity and purpose.
Repair Expenditure Disallowance:
The appeal challenges the disallowance of repair expenses amounting to &8377; 84,118 by the CIT(A). The AO treated the expenditure as capital in nature due to construction work undertaken. The Tribunal disagreed, stating that the expenses on civil works and protective items did not provide enduring benefits and were akin to current repairs. Consequently, the disallowance was overturned, and the expenditure was deemed as revenue in nature.
In conclusion, the Appellate Tribunal ITAT Ahmedabad ruled in favor of the assessee, allowing both the appeals related to foreign tour expenditure and repair expenditure.
-
2010 (10) TMI 1011
Refund claim - N/N. 41/2007-ST dated 06.10.2007 - N/N. 03/2008-ST dated 19.02.2008 - N/N. 17/2008-ST dated 01.04.2008 - rejection on the ground for non-compliance of the provisions of aforesaid notifications and under the provisions of Section 11 B of the CEA, 1944 - Held that: - the time limit for claiming refund stands extended from 60 days to six months from the end of the quarter. The Board in his Circular No.112/06/2009-ST dated 12.3.2009 has clarified that the refund of service tax in respect of goods exported during the quarter March to June 2008 could be filed till 31 December 2008, if the refund is otherwise admissible - refund cannot be denied on ground of limitation - matter remanded to Commissioner (Appeals) for adjudging the admissibility of the refund claim on merits - appeal partly allowed and part matter on remand.
-
2010 (10) TMI 1010
Issues Involved:
1. Disallowance under section 40A(9) for contribution to sports club.
2. Disallowance of expenditure on rural development.
3. Disallowance of guest house expenditure under section 37(4).
4. Computation of deduction under section 80HHC.
5. Disallowance of provision for contractual liability towards third-party manufacturers.
6. Disallowance of provision for leave encashment.
7. Disallowance of provisional fees paid to architects.
8. Ad-hoc disallowance of staff welfare expenses.
9. Depreciation on repairs to the building.
10. Disallowance of bad debts under section 36(1)(vii).
11. Addition towards alleged sale of milk fat.
12. Withdrawal of appeals for certain assessment years.
Detailed Analysis:
1. Disallowance under section 40A(9) for contribution to sports club:
The assessee challenged the disallowance of Rs. 3,13,241/- under section 40A(9) for contributions to a sports club. The Tribunal followed its earlier decision in the assessee's own case for A.Y. 1994-95, allowing 25% of the expenditure. Consequently, the Tribunal directed the A.O. to allow 25% of the claimed expenditure, partially allowing the assessee's appeal.
2. Disallowance of expenditure on rural development:
The assessee contested the disallowance of Rs. 89,750/- incurred on rural development activities. The Tribunal referred to its earlier decision for A.Y. 1994-95, where similar disallowance was upheld. Following the precedent, the Tribunal confirmed the disallowance, dismissing the assessee's appeal on this ground.
3. Disallowance of guest house expenditure under section 37(4):
The assessee claimed Rs. 37,958/- for guest house maintenance and consultancy fees. The Tribunal upheld the disallowance based on its decision for A.Y. 1994-95 and the Supreme Court's ruling in Britania Industries Ltd., confirming the order of the CIT (A) and dismissing the appeal on this issue.
4. Computation of deduction under section 80HHC:
The A.O. included excise duty, sales tax, and miscellaneous income in the total turnover for computing the deduction under section 80HHC. The Tribunal directed the A.O. to exclude excise duty and sales tax, following the Supreme Court's decision in CIT vs. Laxmi Machine Works. However, it held that miscellaneous income related to the manufacturing activity should be included in the total turnover, partially allowing the appeal.
5. Disallowance of provision for contractual liability towards third-party manufacturers:
The assessee provided for excise duty liability payable by third-party manufacturers. The Tribunal upheld the disallowance, citing that the liability was contingent and not crystallized during the year. The decision was based on the Tribunal's earlier ruling for A.Y. 1994-95 and legal principles distinguishing between statutory and contractual liabilities.
6. Disallowance of provision for leave encashment:
The assessee made a provision of Rs. 60,00,000/- for leave encashment based on actuarial valuation. The Tribunal allowed the claim, referencing the Supreme Court's decision in Bharat Earth Movers vs. CIT, which held that provisions based on actuarial valuation are not contingent liabilities. The Tribunal directed the A.O. to allow the deduction.
7. Disallowance of provisional fees paid to architects:
The assessee claimed Rs. 68,000/- paid to architects for plans related to office shifting. The Tribunal treated the expenditure as revenue, not capital, and directed the A.O. to allow the claim, aligning with the Bombay High Court's decision in IBM - World Trade Corporation vs. CIT.
8. Ad-hoc disallowance of staff welfare expenses:
The A.O. made an ad-hoc disallowance of Rs. 10,00,000/- from staff welfare expenses, suspecting part of it was for guests. The Tribunal found the disallowance unjustified, noting the expenditure was primarily for employees and occasional government officials. It allowed the appeal, referencing the Andhra Sugar case.
9. Depreciation on repairs to the building:
The Tribunal upheld the disallowance of depreciation on guest house repairs, following its decision for A.Y. 1994-95 and the Supreme Court's ruling in Britania Industries Ltd., dismissing the appeal on this issue.
10. Disallowance of bad debts under section 36(1)(vii):
The A.O. disallowed Rs. 10,39,100/- of bad debts, questioning their nature. The Tribunal allowed the claim, following the Supreme Court's decision in T.R. Ltd. vs. CIT and Bombay High Court's rulings in Star Chemicals (Bom) Pvt. Ltd. and Oman International Bank (SAOG), which held that written-off debts need not be proven as bad.
11. Addition towards alleged sale of milk fat:
The A.O. added Rs. 43,84,558/- for alleged unrecorded milk fat sales based on production log discrepancies. The Tribunal found the addition unjustified, noting no evidence of unrecorded sales and discrepancies in log-sheet assumptions. It deleted the addition, allowing the appeal.
12. Withdrawal of appeals for certain assessment years:
The assessee withdrew appeals for A.Y. 1995-96 (ITA No.1641/Mum/2003) and A.Y. 1996-97 (ITA No.434/Mum/2003). The Tribunal dismissed these appeals as withdrawn.
Conclusion:
The Tribunal's decisions involved partially allowing some claims, confirming disallowances based on precedents, and remanding issues for further verification. The judgments emphasized adherence to legal principles and precedents, ensuring fair computation of allowable deductions and disallowances.
-
2010 (10) TMI 1009
Rectification of mistake - sub-section (1) of Section 35C - Held that: - the mistake apparent from records can be rectified only in respect of an order under Section 35C(1) which is the final order disposing of the appeal - the order which is sought to be rectified is not the order u/s 35C(1), but the stay order passed u/s 35F. In view of this, the provisions of Section 35C(2) cannot be invoked for rectification of stay order passed u/s 35F - ROM application dismissed.
-
2010 (10) TMI 1008
Issues involved: Interpretation of small scale exemption limit u/s Notification No. 16/1997 for goods manufactured by job workers, liability of duty on goods manufactured by job workers, consideration of job workers' clearances in assessing admissibility of exemption limit, determination of manufacturer for excise duty purposes based on job work arrangements, affixing of brand name on goods as manufacturing activity.
Summary:
Interpretation of small scale exemption limit: The case involved a dispute regarding the small scale exemption limit u/s Notification No. 16/1997 for goods manufactured by job workers. The Revenue contended that clearances by job workers for the appellant company should be considered in determining the admissibility of the exemption limit.
Liability of duty on goods manufactured by job workers: The appellant argued that since the goods were manufactured by job workers, no duty liability should be imposed on them. They also claimed that affixing the brand name on goods in their godown did not constitute manufacturing.
Consideration of job workers' clearances: The Revenue asserted that the goods manufactured by job workers should be included in the clearance value of the appellant company at their Silvasa unit. However, the Tribunal noted that the appellant had already discharged their duty liability for goods manufactured at their Silvasa unit and were entitled to small scale exemption for those goods.
Determination of manufacturer for excise duty purposes: The Tribunal emphasized that merely sending raw material to job workers for manufacturing did not make the appellant the manufacturer liable for excise duty. The job workers were considered the actual manufacturers in this case.
Affixing of brand name as manufacturing activity: The Tribunal concluded that affixing the brand name in the godown using a stencil did not constitute a manufacturing activity.
In the final decision, the Tribunal found no justification to confirm the duty demand or impose a penalty on the appellant. The appeal was allowed in favor of the appellant.
-
2010 (10) TMI 1007
Issues Involved:
1. Eligibility and quantum of Cenvat credit under Rule 57AC of Central Excise Rules, 1944.
2. Interpretation and applicability of Rule 57AC(2)(c) versus Rule 57Q(3) of Central Excise Rules.
3. Rectification of the Tribunal's order in light of the Supreme Court's decision.
Issue-wise Detailed Analysis:
1. Eligibility and Quantum of Cenvat Credit:
M/s. Saurashtra Chemicals Ltd. (SCL) received generators on 20-10-1998 and installed them in April 2000. At the time of receipt, the credit available was 75% of the total duty, but it could only be availed post-installation. With the amendment of rules effective from 1-4-2000, Rule 57AC of Central Excise Rules, 1944, became applicable. SCL availed 50% of the duty paid, claiming eligibility under the new rule. This was permitted by both the original adjudicating authority and Commissioner (Appeals). The Tribunal and the Gujarat High Court upheld this decision, but the Supreme Court, in its order dated 10-5-2007, decided in favor of the department, limiting the total credit to 75%.
2. Interpretation and Applicability of Rules:
The core issue was whether Rule 57AC(2)(c) or Rule 57Q(3) was applicable. Rule 57AC(2)(c) allowed 50% credit in the first year and the balance in subsequent years, while Rule 57Q(3) limited the credit to 75% of the duty. The Supreme Court clarified that Rule 57AC(2)(c) was applicable but limited the total credit to 75%, not 100%, as initially interpreted by the High Court. The Supreme Court's clarification indicated that the credit should be availed as per Rule 57AC(2)(c), but within the 75% ceiling.
3. Rectification of Tribunal's Order:
The Tribunal's order dated 23-5-2007, which allowed SCL to avail 50% credit in the second year, was challenged by the Revenue. The Gujarat High Court noted that the Supreme Court's decision was not considered in the Tribunal's order and allowed the Revenue to seek rectification. The Tribunal acknowledged that the Supreme Court had already decided the SLP in favor of the department, limiting the total credit to 75%. The Tribunal remanded the matter to the original adjudicating authority to determine the exact amount of credit admissible for the year 2001-2002, ensuring compliance with the Supreme Court's interpretation.
Conclusion:
The total Cenvat credit available to SCL is 75% of the duty paid, with 50% credit admissible in the first year and the balance in subsequent years. The Tribunal's earlier decision was rectified to align with the Supreme Court's ruling. The matter was remanded to the original adjudicating authority to calculate the exact credit for the year 2001-2002, ensuring adherence to the Supreme Court's interpretation and any other relevant issues.
-
2010 (10) TMI 1006
Issues involved: Appeal against the order passed by the Commissioner of Customs regarding the valuation of imported goods and the demand of duty.
Valuation of imported goods:
The department appealed against the Commissioner's order seeking to reject the declared value of the goods imported by the respondent and enhance the value for the levy of Customs duty based on contemporaneous imports and a confessional statement by the importer. The Commissioner found the discount claimed by the importer to be reasonable and in line with international trade practices. He also rejected the proposal to increase the value of the goods based on contemporaneous imports, as well as the plea of under-valuation by the importer relying on a statement that was later retracted. The Tribunal noted the lack of documentary support from the department, including the absence of the show-cause notice and other relevant documents. Despite the department's arguments, the Tribunal upheld the Commissioner's findings and dismissed the appeal.
Documentary support and lack of evidence:
The Tribunal observed that the department's appeal lacked documentary support, with key documents such as the show-cause notice, confessional statement of the importer, and retraction letter not being produced. The department criticized the Commissioner's decision regarding the importer's retraction letter without providing a copy for reference. Similarly, submissions regarding contemporaneous imports were made without supporting documents. The Tribunal concluded that the appeal seemed to be filed without substantial evidence, leading to the rejection of the appeal in favor of the Commissioner's findings which remained unchallenged. The lack of documentary evidence and the absence of key documents contributed to the dismissal of the appeal by the Tribunal.
-
2010 (10) TMI 1005
Issues: Refund claim filed beyond the prescribed time limit.
The judgment pertains to a case where the appellants filed a refund claim for excess Central Excise duty paid due to a calculation error. The refund claim was filed beyond the statutory period of one year. The appellants argued that the amount paid was not actually payable by them and should be treated as a deposit not subject to the limitation period. They cited precedents where courts allowed refund claims in similar situations. However, the Tribunal noted that the cited cases were not directly applicable to the facts of this case. The Tribunal observed that the refund claim was indeed filed beyond the prescribed time limit, as per Section 11B of the Central Excise Act. Consequently, the appeal was rejected, upholding the lower authorities' decision to reject the refund claim due to being time-barred.
-
2010 (10) TMI 1004
Issues:
Imposition of penalty under Section 11AC of the Central Excise Act, 1944 based on issuance of fake cenvatable invoices and availing inadmissible Cenvat credit.
Analysis:
The case involved appeals against the imposition of penalties under Section 11AC of the Central Excise Act, 1944 on the basis of fake cenvatable invoices issued by M/s. Ganpati Trade Link. The investigation revealed that M/s. Satish Metal Works (SMW) and M/s. Friends Enterprises (FE) admitted to purchasing these fake invoices and passing on cenvatable invoices to the appellants. A show cause notice was issued against the appellants for appropriation of demand and imposition of penalty under relevant rules. The appellants contended that they were unaware of the fraudulent nature of the invoices as they received goods through SMW/FE and discharged their duty liability using account payee cheques. They argued that no fraud or collusion could be attributed to them as they had received goods against duty paid invoices.
The advocate for the appellants emphasized that the appellants had availed Cenvat credit on duty paid invoices in good faith and had no knowledge of the fraudulent scheme orchestrated by M/s. Ganpati Trade Link. The appellants maintained that they had received goods through legitimate channels and had fulfilled their duty obligations accordingly. They argued that since there was no evidence of their involvement in the fraud, penalties should not be imposed on them.
On the other hand, the Departmental Representative (DR) contended that the appellants were aware of the fraudulent activities of M/s. Ganpati Trade Link as admitted by SMW/FE. The DR argued that since the appellants had availed credit based on fake invoices, they were liable for reversal of credit with interest. The DR cited a Supreme Court decision to support the position that in cases of proven fraud, penalties are justified.
After hearing both sides, the Member (J) of the Appellate Tribunal examined the facts and submissions. It was noted that the appellants did not dispute the reversal of credit with interest but sought waiver of the imposed penalties. The Tribunal found that the appellants had taken proper care in receiving goods and availing credit correctly based on legitimate documents. The suppliers, SMW/FE, confirmed supplying goods to the appellants with duty paid invoices, further supporting the appellants' position. Consequently, the Tribunal concluded that no fraud or collusion could be attributed to the appellants, and therefore, penalties were not justified. The impugned orders confirming penalties were set aside, and the appeals were allowed.
-
2010 (10) TMI 1003
Issues involved: Appeal against order confirming demand of duty u/s Notification 1/95-C.E. for procurement of mobile storage system.
Summary:
The appellant, a 100% EOU engaged in manufacturing cotton yarn, applied for a CT-3 certificate to procure a mobile storage system under Notification 1/95-C.E. The jurisdictional officer issued the certificate, and the goods were cleared by the manufacturer. A show cause notice alleged the system was like office furniture, not office equipment, denying the benefit of the notification. The original authority upheld the duty demand, which was confirmed by the Commissioner (Appeals).
The appellant argued that the system was classified by the manufacturer as office equipment and the attempt to re-classify after issuing the CT-3 certificate was unjustified. The respondent contended the system, placed on the floor, was not office equipment, citing precedents where similar items were classified as office furniture. Despite being a 100% EOU, the duty was demanded as office equipment was not covered by the exemption.
The Tribunal noted the exemption under Notification 1/95 is end-use based for goods supplied to a 100% EOU. The duty liability is determined at the time of removal from the manufacturing unit, and the classification is to be done by the officer-in-charge of that unit. The officer at the recipient unit cannot override the classification by the supplying unit's officer. The Tribunal set aside the lower authorities' orders, allowing the appeal with consequential relief.
*(Pronounced in Court)*
-
2010 (10) TMI 1002
Issues involved: Denial of Cenvat credit for services related to Wind Mill Turbine installation, invocation of longer period of limitation for demand, imposition of penalty.
Denial of Cenvat credit: The appellant's demand of &8377; 4,17,342/- was confirmed by denying them the benefit of Cenvat credit for services of erection, commissioning, and installation of Wind Mill Turbine away from the factory premises. The Commissioner (Appeals) found no nexus between the services received at the wind mill and the goods manufactured in the factory, leading to the denial of input services. The Tribunal cited previous cases to support this decision, stating that the issue on merit had been settled and no infirmity was found in the authorities' views.
Invocation of longer period of limitation: The demand related to March 2006, but the show cause notice was issued in December 2007 by invoking the longer period of limitation. The Tribunal observed that the issue was of legal interpretation and did not call for any penalty. Referring to previous cases, it was noted that longer limitation could only be invoked in cases of suppression or misstatement, which was not evident in this situation. The Tribunal held that the demand was hit by limitation, and penalty could not be imposed based on the decision in similar cases.
Imposition of penalty: Following the decision that the demand was barred by limitation, no penalty was imposed on M/s. Leamak Healthcare Pvt. Ltd. and on B.R. Patel. The imposition of penalty was set aside, and both appeals were allowed on the point of limitation.
-
2010 (10) TMI 1001
Issues involved: Appeal against the decision of the Commissioner regarding confiscation of goods and imposition of penalties.
Summary:
The Commissioner held goods valued at Rs. 1,60,11,879 liable for confiscation, but as the goods had already been exported, no confiscation order was passed. Penalties were imposed on the respondent and others. The department's appeal was limited to the Commissioner's decision not to impose a redemption fine after finding the goods liable for confiscation. The impugned goods were confirmed to have been exported and were not available for confiscation as they were already out of the country. The Customs Act allows for the option to pay a fine in lieu of confiscation, but in this case, since the goods were not available for confiscation, the question of granting the option of redemption did not arise. The appeal was disposed of accordingly.
-
2010 (10) TMI 1000
The Appellate Tribunal CESTAT NEW DELHI allowed an out of turn hearing for Appeal No. C/784/2008 related to export benefit of drawback on goods exported in 1999. The dispute was resolved in favor of the applicants regarding the classification of their product. The Registry was directed to list the case on 30-11-2010.
-
2010 (10) TMI 999
Refund claim - denial on the ground that the credit of specified duty can only be allowed in respect of inputs used in the final products cleared for export under Bond - Whether the deemed credit amount taken by the appellant in their Cenvat credit account register during March, 2007 i.e. after the deemed credit scheme is rescinded vide N/N. 8/2003-C.E. (N.T.), dated 1-3-2003? - Whether the deemed credit amount shall lapse after the scheme rescinded? - Held that: - The appellant is entitled to transfer the deemed credit balance into Cenvat credit account on denial of refund claim which was paid in cash. As such the impugned order is maintainable - credit available on inputs used in the manufacture of the final product is the credit of duty paid on such inputs. However the government from time to time, keeping in view the difficulties faced by the industry as regards production of documents, allow such credit on the basis of deeming provisions, as if the duty stands paid on the inputs so utilized - appeal rejected - decided against Revenue.
-
2010 (10) TMI 998
Issues:
Condensation of delay in filing appeals, applicability of limitation period for challenging void orders, jurisdiction of the Commissioner (Appeals) under the Customs Act.
Analysis:
The judgment dealt with three applications seeking condonation of delay exceeding three years and ten months in filing appeals. The appellant argued that the limitation period does not apply to void orders, citing Supreme Court decisions. The Revenue contended that the Commissioner (Appeals) had jurisdiction under the Customs Act, hence the orders were not void. The Tribunal noted the distinction made by the Supreme Court between void and irregular orders, emphasizing that lack of jurisdiction renders an order void ab initio. The Commissioner (Appeals) was found to have jurisdiction, and the Supreme Court precedent required challenging void orders within the limitation period.
The Tribunal emphasized that not all irregular orders are void, as there is a fine distinction between null and void orders and those that are irregular, wrong, or illegal. Lack of inherent jurisdiction renders an order null and void, while wrongful exercise of jurisdiction is an illegality. The Tribunal highlighted that the Commissioner (Appeals) had the authority to hear appeals against orders by lower Customs officers, thus rejecting the appellant's claim of the impugned order being void. Citing a Supreme Court ruling, the Tribunal reiterated that challenges to void orders must be made within the prescribed limitation period.
Ultimately, the Tribunal dismissed the applications as the impugned orders were found to be within jurisdiction and not void. Consequently, the delay in filing appeals was not condoned, leading to the dismissal of stay applications and appeals as time-barred. The judgment underscored the importance of challenging void orders within the stipulated limitation period to seek relief from the Court effectively.
-
2010 (10) TMI 997
Issues involved: Whether the appellants are liable to pay interest u/s 11AB of the Central Excise Act on the differential amounts of duty paid under supplementary invoices subsequent to clearance of goods.
Summary:
1. The appellants cleared final products on payment of duty based on initially agreed price, later revised leading to issuance of supplementary invoices for recovering differential price and duty. Department issued show-cause notice for interest u/s 11AB. Assessee contended that differential duty paid post-clearance cannot be considered non-levied or short-paid. Commissioner confirmed demand of duty and interest u/s 11AB.
2. Appellants argued Karnataka High Court's judgment favored them, distinguishing Supreme Court's decision in SKF India Ltd. case. Submitted propositions on transaction value principles. Referred to High Court decisions supporting their stance.
3. SDR contended that differential price collected was part of transaction value, and duty was self-determined and voluntarily paid, attracting interest u/s 11AB. Cited Supreme Court's decisions in SKF India Ltd. and International Auto Ltd. to support the department's position.
4. Tribunal noted that SKF India Ltd. case established that payment of differential duty under supplementary invoices attracts interest u/s 11AB. Rejected appellants' arguments on transaction value principles based on apex court rulings.
5. Tribunal emphasized that differential price collected is part of transaction value as per Central Excise Act. Reiterated apex court's stance in SKF India Ltd. and International Auto Ltd. cases, clarifying the applicability of transaction value concept.
6. Karnataka High Court's decision in BHEL case was deemed distinguishable as it did not consider transaction value definition or apex court's rulings. Tribunal upheld Supreme Court's decision in SKF case and International Auto Ltd. case, affirming levy of interest u/s 11AB.
7. Tribunal held that payment of differential duty by appellants falls under sub-section (2B) of Section 11A, justifying interest levy u/s 11AB. Upheld impugned orders demanding interest on differential duty payments.
8. All appeals were dismissed, sustaining the demand for interest under Section 11AB on the differential duty amounts paid by the appellants.
-
2010 (10) TMI 996
Issues Involved:
1. Mis-declaration of value and description of imported goods.
2. Liability of confiscation and penalty.
3. Cancellation of private bonded warehouse license.
4. Quantification and confirmation of duty demand.
5. Compliance with remand order directions.
Issue-Wise Detailed Analysis:
1. Mis-declaration of Value and Description of Imported Goods:
The Tribunal's remand order required the adjudicating authority to first decide on the issue of mis-declaration of value and description of the imported metal scrap. This included providing the appellants with all relied-upon documents supporting the allegations of under-invoicing and mis-declaration, and allowing cross-examination of officers if requested. The adjudicating authority found that the appellants had engaged in a "pre-planned and deliberate concealment of Brass Scrap in the guise of cheap metal scrap," leading to duty evasion amounting to Rs. 4,92,09,002.
2. Liability of Confiscation and Penalty:
The adjudicating authority was also tasked with determining the liability of confiscation under Section 111(d) and (m) of the Customs Act and the liability of penalty under Section 112(a). The authority ordered the confiscation of 1338.507 MT of imported goods and other specified quantities, imposing a redemption fine of Rs. 4,20,00,000 in lieu of confiscation. Additionally, penalties of Rs. 1,47,00,000 on the noticee company and Rs. 50,00,000 and Rs. 25,00,000 on two individuals were imposed under Section 112(a)/114A.
3. Cancellation of Private Bonded Warehouse License:
The remand order directed that if mis-declaration was established, the adjudicating authority should forward a copy of the order to the Development Commissioner for the calculation of cumulative Net Foreign Exchange (NFE) and directions for de-bonding. The adjudicating authority noted that the issue of cancellation of the warehousing license could be taken up by the proper officer upon receiving the Development Commissioner's findings.
4. Quantification and Confirmation of Duty Demand:
The Tribunal's remand order specified that quantification and confirmation of the duty demand should be adjudicated in light of the Development Commissioner's findings on NFE and de-bonding. However, the adjudicating authority proceeded to quantify and confirm the duty liability amounting to Rs. 4,92,09,002 and penalties before obtaining the Development Commissioner's report, which was a deviation from the remand order.
5. Compliance with Remand Order Directions:
The Tribunal observed that the adjudicating authority had not complied with the remand order's directions, which required the adjudicating authority to first decide on the mis-declaration issue, then forward the order to the Development Commissioner, and only thereafter quantify and confirm the duty and penalties. The Delhi High Court had also upheld the Tribunal's remand order, emphasizing that the adjudicating authority must follow the specified sequence of actions.
Conclusion:
The Tribunal found that the adjudicating authority erred by quantifying and confirming the duty and penalties before obtaining the Development Commissioner's report, as mandated by the remand order. Consequently, the Tribunal stayed the impugned order concerning the confirmation of duty demand and penalties until the disposal of the appeals, without insisting on pre-deposit. The findings were deemed prima facie, and the applications were allowed in relation to the demand made under the impugned order.
............
|
9911796707
