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Case Laws
Showing 241 to 260 of 1442 Records
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2014 (2) TMI 1204
Rejection of appeal - Bar of limitation - date of delivery of order in original - Held that:- Report from Asstt Commnr,indicates that all possible efforts were made to trace documentary proof in respect of service of OIO by all the alternative means provided under section 37 C of Central Excise Act 1944, but the same is not traceable. On such categorical report, the first appellate authority, in my considered view should have held with the alternative method of service has provided under sec. 37 C were not exhausted. - there is nothing on record to show that the revenue has exhausted all the modes of serving of OIO on the appellant before embarking on pasting of the OIO on the premises of the appellant. In my view, division bench in the case of M/s Trans Global Agencies Pvt Ltd., vs CCE, Daman, [2009 (3) TMI 722 - CESTAT, AHMEDABAD] which is of would cover the issue directly in favour of the appellant. - Impugned order is set aside - Matter remanded back - Decided in favour of assessee.
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2014 (2) TMI 1203
Denial of CENVAT Credit - credit of the CVD and used it for payment of duty on the repaired transformers cleared from the appellant’s factory - Held that:- Admittedly, the duty was paid by the appellant on the full value of the transformer including the value of the damaged parts. It is not the case of the Revenue that parts were imported separately and duty was paid on the separate parts. It is a complete transformer, which was imported on payment of duty and it is the complete transformer which was subsequently converted into a new transformer, which was cleared on payment of duty. As per the provisions of Rule 3 (1) (vi) of CENVAT Rules 2001, an assessee is entitled to take the CENVAT credit of the additional duty on customs leviable on the goods imported and paid under Section 3 of the Customs Tariff Act, 1975. The Bill of Entry filed by the appellant clearly reveals the payment of CVD on the complete transformer. Merely because on account of under-going through sea-voyage from India to Holland and back, some of the parts might have got damaged requiring re-attaching, re-conditioning/repair cannot be made a ground for denial of the duty paid on the said parts. Even at the cost of repetition, I would like to observe that it is not the parts, which were imported by the appellant but the complete transform and at the time of payment of CVD on the complete transformer, including the damaged parts, the customs authorities did not object to payment of duty on the damaged parts. As such, I find no justification for denial of the credit. - Decided in favour of assessee.
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2014 (2) TMI 1202
Valuation - Enhancement in value - Held that:- In the case of Ganesh Trading Co., reported in [2014 (1) TMI 64 - CESTAT NEW DELHI] this Tribunal has held that although Bill of Entry has been assessed and value has been enhanced and goods have been cleared on enhanced value without any protest, the importers cannot be precluded from challenging assessed bill of entry on the sole ground that goods cleared at enhanced value. Therefore, case relied upon by learned AR is not applicable to the facts of this case. In this case learned Commissioner (Appeals) himself has asked the basis of enhancement of value of the impugned goods which had been replied by the concerned Astt. Commissioner and gave reasons for enhancement. In these circumstances, we hold that enhancement has been done without any basis. Therefore, transaction value has been accepted. Impugned order is set aside. - Decided in favour of assessee.
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2014 (2) TMI 1201
Denial of benefit of notification - Held that:- there was no notification benefit at the initial stage of import. When such benefit was forgone that cannot be claimed by a subsequent act at later stage. Law is well settled that pleading not made at the initial stage suit cannot be amended by an affidavit. Such repair is not permissible by law - Decided against Assessee.
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2014 (2) TMI 1200
Condonation of delay - Held that:- Same was not endorsed to the present appellant it is only the addendum dated 26-6-2008 is endorsed to the present appellant. In these circumstances, we find merit in the contention of the applicant that the impugned order was received by the applicants only in the month of June, 2008 along with the addendum. Thereafter appellant approached the Hon’ble Punjab & Haryana High Court and the High Court returned the petition to the appellant vide letter dated 28-2-2013 to present the same before the appropriate court along with order passed by the Hon’ble Punjab & Haryana High Court. Thereafter appellant filed present appeal on 18-3-2013. - As per the provisions of Section 129A(5) of the Customs Act 1962, Tribunal is empowered to condone the delay on showing sufficient cause for not filing the appeal within the normal period of limitation. In the present case as much time is consumed in the proceedings before the Hon’ble High Court by way of filing writ petition. In these circumstances, we condone the delay in filing the appeal. - Matter remanded back - Delay condoned.
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2014 (2) TMI 1199
Rejection of books of accounts on the basis of findings during the assessment proceedings and relying on the electricity consumption - Regular assessment v/s assessment u/s. 153A - Held that:- The finding is that nothing incriminating was found in the course of search relating to these assessment years. The additions, therefore, were not corresponding to the seized material during the course of search. The relevant income tax returns, in normal course, are disclosing the particulars. They were already on record. The returns have been accepted. In such circumstances, the Tribunal, as also, the Commissioner of Income Tax (Appeals) have in their orders, held that there are several factors which have to be taken into consideration and while arriving at a conclusion with regard to the alleged production calculated on the basis of electricity consumption. Rejection of books for these years only on the ground that there has been divergence in the consumption of electricity, therefore, was held not justified.
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2014 (2) TMI 1198
Legality of notice - Held that:- notice which has been issued, as we read it, is merely advisory by which the petitioner has been advised that a service tax is payable since the service which is rendered is taxable service under Section 65 of the Finance Act, 1994. The petitioner has been advised to pay service tax in order to avoid any penal action. - need not make any observation on that aspect as a notice is to be issued before determining the issue in accordance with law. - Petition disposed of.
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2014 (2) TMI 1197
Eligibility of deduction under Section 10(1) - whether activity of development and marketing seeds is purely a commercial activity and does not fall under Agricultural activity - ITAT allowed claim - Held that:- We are unable to accept the far-fetched idea that artificial production of seeds can be sold or used for commercial purpose.
May be a few hybrid seeds could be produced by artificial method in a laboratory. The seeds so produced with non-agricultural activity again will have to be sown in the agriculture field to have a larger quantity for sale in the market. Accordingly, we hold that the seed is a product of agricultural activity. Therefore, the sale of the same cannot be brought under the provisions of the Income Tax Act. We, therefore, upheld the decision of the learned Tribunal in this matter. - Decided in favour of assesse.
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2014 (2) TMI 1196
Consideration of trader as manufacturer – Demand of differential CVD – Appellant claim that they are selling fans only to industrial consumers, manufacturers, and there is no retail market for these fans since only manufacturers can use it – Taking view that appellant is trader and cannot be considered as class of buyer, proceedings were initiated against appellant which has culminated in confirmation of demand for differential CVD with interest and penalty – Whether appellant being trader can be considered as manufacturer for purpose of applicability of packaged commodity – Held that:- if class of buyer is not examined and insisted upon at time of importation, it would not be possible to ensure that conditions of packaged commodities would be followed subsequently – Therefore, treatment of appellant as trader as done by impugned order seems to be correct view – Admittedly show cause notice was issued on 25-6-2013 i.e. that out of 9 months of 2012-2013, demand for first three months has to be reduced – Therefore, approximately liability that would arise on appellant is about ₹ 25 lakhs – Even though financial difficulty was mentioned during hearing, no documentary evidence was produced to show any financial difficulties – Under said circumstances, appellant directed to deposit amount – There shall be waiver of pre-deposit of balance dues and stay against recovery during pendency of appeal – Decided partially in favour of Assesse.
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2014 (2) TMI 1195
Non-compliance of provision of NDPS act – Appeal aginst Conviction – Appeal is directed against judgment of trial whereby appellant was convicted for offence under Section 15 of NDPS Act, 1985 and sentenced to undergo rigorous imprisonment alongwith fine – Appellant assailed case of prosecution on ground that appellant was apprehended on outskirts of village but no independent witness from village joined and also that there was non-compliance of provisions of Section 50 – Held that:- It cannot be believed that Inspector was not aware of fact that his colleague Inspector posted at same place was not gazetted officer – Where statute has provided deterrent type of punishment for person found in possession of narcotic it is required that case be investigated by complying all required legal formalities – Manner in which search for contraband and recover was conducted reflects that only formality was completed by police without having any real intention of giving option to appellant for his search before gazetted officer or Magistrate – Non-joining of independent witness is not such circumstance which render official witnesses totally unreliable – Case of prosecution suffers from lapses, entire process of recovery from appellant; joining of independent witness; calling of gazetted officer at spot; non-production of case property before SHO of police station reflect casual manner in which police had proceeded – Therefore, judgment of trial Court set aside – Decided in favour of Appellant.
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2014 (2) TMI 1194
Provisional Release of Goods - Petitioners were alleged to have been indulged in secret removal of goods without payment of duty – Addl. Commissioner passed order and permitted provisional release of goods seized on condition of executing full value bond along with 25% cash security – According to petitioners, recording of quantity of goods, raw material as well as finished products was not accurate – Held that:- it would be appropriate to permit petitioners to clear finished goods as per provisional release order, subject to fulfilment of condition mentioned in current judgment – On application that may be made by petitioners, provisional release of raw material also permitted by competent authority – Petition disposed of.
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2014 (2) TMI 1193
Jurisdiction of Court - Confiscation - DEEC Scheme- the appellant was the holder of two DEEC Advance Licence bearing No. 07002638 dated 21-8-1998 and No. 0710000070 dated 13-5-1999, incorporating the actual user condition and issued under EXIM Policy under 1997-2002 by the licensing authority - Held that:- following the decision on the case of Commissioner of Customs, Bangalore v. Motorola India Ltd., [2011 (4) TMI 1014 - KARNATAKA HIGH COURT] ; it is held that the case does not fall within the jurisdiction of this Court as contemplated by Section 130 of the Customs Act, 1962 - Matter remanded back - Decided against Revenue.
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2014 (2) TMI 1192
Penalty under Rule 27 - Delay in making duty payment - Held that:- Tribunal has allowed the entire appeal of the petitioner and the penalty imposed under Rule 25 has been quashed. However, admittedly, as there was delay in deposit of the duty, the general penalty clause under Rule 27 is enforced and a general penalty of ₹ 2,000/- was imposed for each default. In doing so, no error has been committed by the Tribunal which warrants interference - Neither, any prejudice caused was demonstrated or established before us nor is any illegality pointed in the matter of imposing general penalty under Rule 27. Admittedly, the appellant had committed a delay in deposit of the duty and if the duty was not deposited within the stipulated period, the general penalty under Rule 27 could be imposed and in doing so, as no illegality is committed and no breach of statutory provision is established, that being so, we see no reason to interfere into the matter. - Decided against assessee.
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2014 (2) TMI 1191
Maintainability of appeal - Section 35G - Held that:- Once the appellant in MACE 6/2006 themselves admitted the position that no appeal under Section 35G was maintainable as no substantial question of law is involved in the matter and when this order dated 23-8-2006 passed in MACE No. 6/2006 above is still in existence, in ignorance of or contrary to the same, this Court cannot now take cognizance of the matter and hear this appeal on the ground that some substantial question of law is involved. The order passed on 23-8-2006 as indicated herein above operates as Res judicata so far as hearing of this appeal is concerned. That being so, till the order passed on 23-8-2006 stands and is not withdrawn, reviewed/recalled or set aside in a proper proceedings, no indulgence in this appeal can be made by this Court now.
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2014 (2) TMI 1190
Validity of Tribunal's order - Whether the CESTAT is right in dismissing the appeal and vacating the mandatory penalties imposed when there is a plethora of conflicting decision on the same issue by various higher appellate forums/authorities - Held that:- Respondent has to pay Central Excise Duty in the years 1994, 1995 and 1996, but they paid duty only on 5-11-1997. Even though, the respondent has paid duty on 5-11-1997 and that too prior to issuance of show cause notice, dated 7-9-1998, the respondent cannot absolve its liability from paying penalty under the Section mentioned - CESTAT without properly considering the said provision has simply found that since before the issuance of show cause notice the respondent has paid Central Excise Duty, it need not pay penalty. Since the said Section deals with short levy or short payment or erroneous refund and non-payment, this Court is of the view that the approach made by the CESTAT with regard to penalty is totally erroneous and therefore, the order passed by the CESTAT is liable to be set aside and the substantial question of law settled in the present Civil Miscellaneous Appeal is having substance. - Decided in favour of Revenue.
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2014 (2) TMI 1189
Denial of CENVAT Credit - transportation of goods - whether Cenvat credit of Service Tax can be taken for the outward freight for excisable goods delivered by the appellants at the premises of their buyer M/s. Mahindra and Mahindra - Held that:- Where the place of delivery of the goods is the customer premises and the freight is borne by the manufacturer, the place of removal has to be held as the customer’s factory gate. I find that the Board has also clarified the issue vide Circular No. F/137/85/2007-CX-IV, dated 23-8-2007. Even after the amendment of the definition of “input services” with [effect from] 1-4-2008, replacing the words ‘from the place of removal’ to “up to the removal”, the place of removal get extended up to the buyers premises in case of FOR sales and as such the said amendment would not made any difference, where the sales are on FOR basis. - In the case of FOR destination sales, the ownership and risk is transferred when the seller manufacturer delivers the goods to the buyer at his premises. As such, I find no reasons to deny the Cenvat credit of Service Tax paid on the transportation of goods. - Decided in favour of assessee.
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2014 (2) TMI 1188
Denial of refund claim - Notification No. 17/2009-S.T., dated 7-7-2009 - Export of goods - Held that:- any refund claim filed beyond one year is to be dismissed as time bar. In the case in hand since there is no dispute that refund claims which has been rejected by the lower authorities has beyond limitation of one year as provided in notification the said orders needs to be upheld and I do so. - However, refund in respect of terminal handling charges allowed following the decision of [2014 (11) TMI 973 - GUJARAT HIGH COURT] - Decision in the case of COMMISSIONER OF CENTRAL EXCISE Versus AIA ENGINEERING PVT. LTD. [2015 (1) TMI 1044 - GUJARAT HIGH COURT] followed - Decided partly in favour of assessee.
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2014 (2) TMI 1187
Denial of CENVAT Credit - construction services - Held that:- Service provider had rendered the services to appellant in respect of the activities as mentioned hereinabove on the construction/erection temporary storage/godowns were during the initial period when the factory premises of the appellant was being set up and also subsequently. - If the temporary shed which has been constructed is within the factory premises and admittedly being used for storing of cement and steel, it would be only for any one of the activities as is mentioned in the definition. In my view, the definition under Rule 2(l) allow for credit of such an amount paid as Service Tax. - Decided in favour of assessee.
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2014 (2) TMI 1186
Entitlement to benefit of deduction u/s 80IA - CIT(A) allowed benefit on power division on the premise that the same constitutes an independent unit de hors its existing sugar plant - Held that:- The issue in dispute is squarely covered by the decision of the ITAT in assessee’s own case for preceding AYs 2007-08 to 2009-10 [2012 (2) TMI 483 - ITAT HYDERABAD] wherein observed that the Tribunal while considering the issue of disallowance of assessee’s claim of deduction u/s 80IA by AO on the allegation that the power generation unit is a continuation of the old business and has been set up by splitting up of business in existence, negatived the finding of AO and allowed assessee’s claim of deduction observing that even if the undertaking is established by transfer of building, plant or machinery, it is not formed as a result of such transfer, in our considered view; the assessee could not be denied the benefit. We also find that a new undertaking for manufacture of power with steam as by-product was formed out of fresh funds, in separately identifiable premises, under a separate license with manifold increase in capacity with new machinery and buildings without transfer of any portion of the old buildings or machinery which pre-existed. To constitute reconstruction, there must be transfer of assets of the existing business to the new industrial undertaking. In our opinion, generation of power unit is separate and distinct undertaking for which separate approval was obtained and recognised by the IREDA and it cannot be said that splitting of existing business structure. Therefore, in our considered opinion, the lower authorities are not correct in denying the deduction under section 80IA of the Act. - Decided in favour of assessee.
Deduction u/s 80IA claimed by assessee on cost of steam sold to sugar unit - CIT(A) delted addition - Held that:- The issue in dispute is squarely covered by the decision of the ITAT in assessee’s own case for preceding AYs 2007-08 to 2009-10 [2012 (2) TMI 483 - ITAT HYDERABAD] lower authorities did not dispute that the profit credited to Profit and Loss Account in respect of steam is only ₹ 11.43 Lakhs. Thus, even assuming that steam is not power as held by the Assessing Officer, at best the department could have treated only ₹ 11.43 lakhs as ineligible profits for the purpose of claiming the deduction under section 80IA of the Act. To hold otherwise, would be a gross error as the expenditure debited to the profit and loss account of the power unit is still being retained by the department while making the computation. The CIT [A] also agrees that steam has no value as no price was charged for the same in the earlier year but ignores the fact that in the absence of gross total income in the earlier year no exemption could have been claimed. Therefore, we direct that only ₹ 11.43 lakhs is to be treated as ineligible profits for the purpose of deduction under section 80IA of the Act and for the balance sale amount of steam to sugar division, the assessee company is eligible for deduction under section 80IA of the Act. However, the calculation of value of the steam produced by the power plant has to be determined after considering the cost and production record of respective unit and thereafter quantification of deduction has to be done in accordance with the order of the Tribunal cited supra. This issue is remitted back to the file of the Assessing Officer with a direction to the assessee to furnish necessary records for the purpose of determining the value of the steam produced and transferred to sugar unit. - Decided in favour of revenue for statistical purposes.
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2014 (2) TMI 1185
Denial of CENVAT Credit - Bogus invoices - Availment of credit without actual receipt of goods - Held that:- Appellant has reflected three different figures, 80990 MTs in form 3CD which is a statutory return under the income-tax law, being the total quantity of Cenvatable inputs and non-cenvatable inputs received, 92,427 MTs in the RG-23A Part I register for the quantity of cenvatable inputs received and 78,408 MTs in the daily stock statement, which is a statutory register prescribed for receipt of raw materials. In view of the variations in the receipts, the appellant was directed, during the course of hearing on 25-9-2013, to produce copy of the balance sheet and schedules showing the details of inventory held for the year 1995-96, so as to resolve the difference among the three figures reflected in the three different accounts maintained by the appellant. The appellant has produced a copy of balance sheet and the schedule. However, the said document does not reflect the opening balance, receipt and the closing balance of the raw material, but merely indicates the quantity of raw material consumed during the year. Thus, this document is of no use in ascertaining the receipt of raw materials, during 1995-96.
As per the daily stock statement register, the quantity of receipt of raw materials during the year 1995-96 is found to be 78,408 MTs. Further, from the statement of Shri Pattanshetti, Assistant Manager (Stores) of the appellant firm, it is evident that the receipt of goods were entered as soon as they were received and the consumption of the goods were also recorded on a daily basis. If the appellant had followed this procedure as admitted by them, there is no reason to disbelieve the figures reflected in the daily stock statement maintained by the appellant. Therefore, we hold that for excise purposes reliance placed by the adjudicating authority on the figures reflected in the daily stock statement register cannot be faulted at all. - On the basis of these evidences available, we have no hesitation to conclude that the quantity of raw material received by the appellant during 1995-96 was only 78,408 MTs. and therefore, the appellant could have taken credit only on this quantity. Accordingly, we hold that the adjudicating authority has correctly confirmed the demand - However, some portion of demand is not sustainable - Penalty imposed is alsoo reduced - Decided partly in favour of assessee.
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