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Case Laws
Showing 241 to 260 of 1237 Records
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2014 (3) TMI 999
Conversion of shipping bills from one promotion incentive scheme to another after goods are exported - Held that:- Commissioner (Appeals) misconstrued the provision of Section 149 of the Act as well as the instruction in Board Circular No. 4/2004-Cus., dated 16-1-2004 and entertained undue request of the exporter under a misplaced sympathy. When the goods left India under certain declaration in shipping bill mentioning an incentive scheme and such declaration met scrutiny of Customs from that angle at the time of clearance, no belated switchover to a different scheme is permitted by law for want of scrutiny of the export under the different scheme after export of the goods. Appellant does not have right under law to approach again for change of declaration under law after export is made. Subsequent approach for change proves material suppression of fact in prior declaration questioning conduct of appellant - A belated claim of different incentive scheme against export done cripples the applicant to seek such change. Proviso to Section 149 of the Act has mandate not to entertain any amendment to the scheme after export. Even Board’s Circular No. 4/2004-Cus., dated 16-1-2004 in terms of para 3.2 is also made to seek such objective. In the present case belated request for conversion of incentive scheme is therefore not entertainable in law. - Decided in favour of Revenue.
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2014 (3) TMI 998
Condonation of delay - Held that:- If the unit of Shree Precoated Steel Ltd. was taken over by M/s. Essar Steel Ltd., and Shri Pinglay was with M/s. Essar Steel Ltd., it would automatically mean that Shri Pinglay was with the firm. Further, we have observed that after Shri Hiresh Dhakan left, anybody else could have take necessary action for filing the appeal and even after Shri Pinglay re-joined in May, 2003 there was a delay of about six months in filing the appeal. Considering these facts into account, this Tribunal came to the conclusion that there was no satisfactory explanation for the delay in filing the appeal. It is for these reasons, the application for condonation of delay was rejected and consequently the appeal also got rejected. In view of the clear findings recorded by us, we do not find any error committed while passing the impugned order - Decided against assessee.
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2014 (3) TMI 997
Refund of SAD in terms of Notification No. 102/2007-Cus dated 14.09.2007 - appellant has filed multiple refund claims against one bill of entry - Held that:- there is no such restriction either in the Notification or under the Act. The said restriction stands imposed by the Board vide its circular issued in exercise of executive powers. It is well settled law that the procedural restrictions imposed by way of executive instructions should not ordinarily be construed as mandatory and the same would always remain subservient to and are in aid to justice. It is well settled that interpretation which eludes or frustrates recipient of justice is not to be followed. It seems that the said procedural relevance stand issued by the Board for the purpose of convenience and easy administration of justice for deciding the refund claims - appellant can altogether be clubbed in the last refund claim filed in respect of the same bill of entry and can be decided together. As such, I find no justification in the impugned order of authorities below - Matter remanded back - Decided in favour of assessee.
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2014 (3) TMI 996
Denial of Notification No. 21/2002-Cus - no description of the capacity of output the goods could produce, in the invoices - Held that:- ampere criteria of the relay to the output of the power supply and the technical literature read with the invoices demonstrate that specifications of the goods fall within the norm of the notification. Once technical literature prove that there is no ambiguity as to satisfaction of notification criteria, it would not be unsafe to hold that the relay imported enjoy exemption benefit. - there is no further dispute by Revenue as to grant of benefit of notification to the appellant and no dispute on ampere criteria has been raised. - Decided in favour of assessee.
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2014 (3) TMI 995
Waiver of pre deposit - whether pre-condition of import prescribed by column 3 of S. No. 4 of Notification No. 13/2010, dated 19-2-2010 shall be satisfied if a certificate as prescribed in terms of para (b) of amended Notification No. 84/2010, dated 27-8-2010 is furnished by the importer at the time of import - Held that:- subsequent Notification No. 84/2010, dated 27-8-2010 which is in continuation of Notification No. 13/2010, dated 19-2-2010 and as per preamble of former that does not make subsequent notification to be an alien. Production of certificate from proper authority was mandatory condition of the notification dated 19-2-2010. Subsequent notification dated 27-8-2010 was issued to remove difficulty and appears to be clarificatory in nature. Following the ratio laid down by Apex Court in the case of ITW Signode India Ltd. v. CCE - [2003 (11) TMI 114 - SUPREME COURT OF INDIA], we are prima facie satisfied that if pre-deposit is directed at this stage that shall cause undue hardship to the appellant. Accordingly, there shall be waiver of pre-deposit of demand during pendency of the appeal or till 30-9-2014 whichever is earlier. - Stay granted.
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2014 (3) TMI 994
Imposition of penalty - Permission for allowed retesting of the goods nor allowed cross-examination of chemical examiner of CRCL - Held that:- Commissioner (Appeals) did not rely on IIT report on the ground that Revenue did not refer the sample to IIT. When there was no pleading made before Commissioner (Appeals), there is no reason to grant relief before Tribunal on new grounds. Report from IIT having been obtained at the back of Revenue that does not become admissible evidence. IIT report was obtained by appellant on 26-4-2006 which was subsequent to report of CRCL, dated 9-8-2004. After CRCL report, two years expired and IIT report was obtained by the appellant without knowledge of the Revenue. Such conduct clearly shows that appellant had made misdeclaration for which it followed above dubious practice. There is no reason to appreciate any bona fide of the appellant in view of material fact recorded in paras 10 and 11 of adjudication order which clearly proves that CRCL having been equipped with technology and technical expertise, that cannot be brushed aside nor can testing by that Laboratory considered empty formality. - Decided against assessee.
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2014 (3) TMI 993
Subletting of Custom House Agent license – It was alleged that Tribunal misdirected itself in holding that appellant has sub¬let his customs house agent license illegally and unauthorizedly in faovur of one Dnyaneshwar – Held that:- terms and conditions of appointment letter stated that he was not employee, but worked on commission basis – Therefore, apart from statements of persons referred to, Dnyaneshwar's own version is not in consonance with stand of appellant – Terms, that Dnyaneshwar would be given authority letter for handling documents on behalf of clients coupled with fact that Dnyaneshwar was to be solely responsible for settlement of disputes with statutory authorities, in¬charge of and maintaining secrecy of bank account goes to show that contract was not of employment, but something else – Finding of fact that license has been thus sub¬let to Dnyaneshwar is therefore, based on materials produced and cannot be said to be perverse in any manner – Appeal dismissed – Decided against Appellant.
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2014 (3) TMI 992
Fixation of rate of taxability – Revisionist claim was accepted by assessing officer that in respect of sale of “Jeeva soap”, revisionist is liable to pay eight per cent tax, later, when matter was re-opened, revisionist was made liable to pay 12 per cent tax – Revisionist contended that “Jeeva soap” is not soap, but is ayurvedic medicine – Held that:- revisionist obtained drug licence entitling revisionist to manufacture pharmaceutical preparations – Revisionist was manufacturing nothing but pharmaceutical preparations and, for pharmaceutical preparations, tax liability was to extent of eight per cent only – However branding of product “Jeeva” as soap, held out to its prospective buyers that revisionist is selling nothing but soap and there being no contention that “Jeeva soap” is not “washing soap”, same would be covered by entry “soap other than washing soap” attracting sales tax liability of 12 per cent – Thus, court refuse to interfere with revisions – Decided against revisionist.
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2014 (3) TMI 991
Denial of EOU Benefit - Not. No. 2/95-C.E. - DTA clearances made by it during the material period were in excess of 50% of the FOB value of the physical exports - Supreme Court after hearing the parties and condoning the delay dimissed the appeal filed by the Revenue against the decision of Tribunal, wherein tribunal held that EOU cannot be denied the benefit of Not. No. 2/95-C.E. as the appellant was allowed to sell the entire production of shrimp feed within the country, as the DGFT authorities have considered the DTA clearances as export clearances and issued EODC to appellant. A legitimate benefit extended under a Notification cannot be denied to the EOU for no fault of theirs. We also find considerable merit in the submissions made by the assessee relying on various judicial authorities. In the circumstances, sale of shrimp feed by the EOU in DTA should be treated as deemed exports and the impugned clearances entitled to the benefit of the Not. No. 2/95-C.E. allowed to it.
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2014 (3) TMI 990
Waiver of pre deposit - Quantum of pre deposit - Held that:- appellants have not been heard on merits as the appellants could not comply with the requirement of ₹ 15 lacs as a pre-deposit as directed by the Commissioner (Appeals) and upheld by the Tribunal in the present case. According to the learned counsel, the amount of ₹ 15 lacs could not be deposited due to financial constraints and was also excessive. - sum of ₹ 8 lacs be deposited as a condition precedent for hearing of the appeal by the Commissioner (Appeals) which would meet the ends of justice. - Decided partly in favour of assessee.
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2014 (3) TMI 989
Demand of service tax - Classification of service - Clearing and Forwarding Agents or Business Support Services - Jurisdiction of Court - Invokation of extended period of limitation - Imposition of penalty - Supeme Court found no reason to entertain the appeal filed by the assessee against the decision of Tribunal [2013 (12) TMI 1021 - CESTAT MUMBAI]; wherein Tribunal held that Since the amount collected is for various components of services, amount collected cannot be considered as including service tax and hence benefit of cum duty cannot be extended in terms of Section 67 (2) of the Finance Act, 1994 - conduct of the appellants has not been above board. Did not take registration till 2001, even after taking registration did not file returns etc., informing service tax authorities in Tamil Nadu about Pune registration, all these indicates suppression of facts as also contravention of law with willful intention to evade payment of duties.
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2014 (3) TMI 988
Denial of CENVAT Credit - Intention to evade duty - Held that:- AO has recorded a finding that the Assessee had not received the Concast Slab and yet it claimed Modvat/Cenvat credit on the same. It is on this basis, the AO has held that the requirement of the ingredient ‘with intent to evade duty’ was satisfied. This finding was set aside by the Commissioner (Appeals). However, the order of the AO has been upheld by the Tribunal. - Tribunal has recorded a finding that the impugned goods were not transported by the Assessee through the vehicles claimed by him. There is no illegality in the finding. - it cannot be said that the requirement of the ingredient ‘with intent to evade duty’ was not satisfied. - Decided against assessee.
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2014 (3) TMI 987
Denial of CENVAT Credit - Rent a cab service - Held that:- As the period involved in this appeal is before 1-4-2011 and the lower authorities are bound by the circular issued by C.B.E. & C., accordingly, the appellant has correctly availed the Cenvat credit with respect to rent-a-cab services. - appeal filed by the appellant is allowed with consequential relief, if any - Decided in favour of assessee.
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2014 (3) TMI 986
Denial of CENVAT Credit - construction of godowns - Held that:- Adjudicating authority has relied upon the amendments made to the definitions to input services under Rule 2(l) of the Cenvat Credit Rules, 2004 to hold against the appellants. On perusal of the said amendment, I find that the said amendment was brought into statute w.e.f. 1-4-2011, and the period involved in both these appeals is prior to the said amendment, I am of the view the amendment would not apply in the case in hand. - Impugned orders are set aside - Decided in favour of assessee.
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2014 (3) TMI 985
Denial of refund claim - storage and warehousing services - Bar of limitation - TR6 challan submitted by the appellant did not reflect the refund amount - Held that:- appellant have filed refund claim in time as the date of merger is with effect from 1-4-2004, which was ultimately decided on 30-4-2007 and refund claim is filed within a year i.e. 24-12-2007. Further, I find that both companies have amalgamated their merger. Hence, M/s. IBP Ltd. and appellant are the same legal entity. Therefore, they are entitled for refund claim. - Decision in assessee's own previous case [2011 (3) TMI 187 - CESTAT, CHENNAI ] followed - Decided in favour of assessee.
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2014 (3) TMI 984
Denial of CENVAT Credit - Capital goods - services availed for setting up of the factory - Held that:- It is only with effect from 1-4-2011 by amendment to the Rule 2(l) that words ‘setting up’ were omitted. The period of dispute in this case is from 2008-2009 to 2009-2010 i.e. the period prior to 1-4-2011 when the definition of “input service” specifically included the services used in relation to setting up of the factory or premises of the provider of output service. Thus the services, in question, used for setting up of factory have to be treated as input service and would be eligible for Cenvat credit, as the factory has been setup for manufacture of final products which are liable to Central Excise duty. Therefore denial of Cenvat credit, in question, is contrary to the provisions of Rule 2(l) of Cenvat Credit Rules, 2004. We find that the same view has been taken by the Tribunal in the case of Bellsonica Auto Component India Pvt. Ltd. (2014 (3) TMI 876 - CESTAT NEW DELHI) and also in the case of Madhusudan Auto Ltd. (2011 (4) TMI 554 - CESTAT, NEW DELHI). The impugned order, therefore, is not sustainable - The same is set aside - Decided in favour of assessee.
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2014 (3) TMI 983
Clandestine manufacure and removal of goods - Imposition of duty jointly and severally - whether demands can be confirmed jointly and severely was the subject matter of various decision of the Tribunal - Held that:- Adjudicating authority has not been able to make out his mind as to whether the duty has to be confirmed, if at all, against M/s. GTC Industries or KCL. It seems that on account of failure to come to conclusive finding as regards the evader of duty, he has found it easy to confirm the demands jointly and severely against both the parties. Apart from the imposing independent penalty of ₹ 29 crore to M/s. GTC Industries Ltd. - impugned order is required to be set aside and matter is required to be remanded for reconsideration and fresh adjudication - Decided in favour of assessee.
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2014 (3) TMI 982
Waiver of pre-deposit - Business Auxiliary Service or GTA Service - Held that:- Applicant was providing various services under different Agreements entered with M/s. Maharashtra State Power Generation Co. Ltd. and M/s. Karnataka Power Corporation Ltd. and other service recipients. - In respect of the demand which is confirmed denying the benefit of Notification No. 32/2004-S.T., we find that in the show cause notice, the demand was made on the ground that the applicant had provided Business Auxiliary Service and the adjudicating authority treated the same as GTA Service and denied the benefit of the Notification on the ground that the applicant had not fulfilled the conditions of the Notification. As per the terms and conditions of the Agreement the applicant had arranged the transportation and the applicants are not having any trucks, dumpers, tippers etc. and the applicants arranged the same from various transport agencies. The applicant being service provider had not availed any credit in respect of capital goods credit or inputs credit for providing the taxable service. - demand is confirmed on the ground that the applicants are providing Business Auxiliary Service. The applicants relies upon various terms and conditions of the Agreement entered into with the recipient which prima facie shows the activity undertaken by the applicant is GTA service. - prima facie the applicant had not made out a case for waiver of pre- deposit of the amount - Partial stay granted.
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2014 (3) TMI 981
Suspension of courier license - accredited courier - petitioner had not obtained any authorization from the consignee - The antecedents, IEC number, address, etc. was not verified by the petitioner and the consignments imported in the past were also from the same consignor which appears to have not been delivered at the door of the consignee. - Held that:- Arguments of the petitioner are not acceptable for the reason while the proviso provides for and confers jurisdiction on the Commissioner to order suspension, the second part of the same proviso confers right on the person affected, like the authorized courier, to apply to the Chief Commissioner in writing against such order and time stipulation is also given.
Therefore, it is sufficient efficacious remedy provided against suspension of licence ordered under Regulation 14 referred to supra. In this view, it cannot be said that the petitioner has no alternate efficacious remedy except filing of writ petition.
Be that as it may, we have to see equity and possible hardship to the bona fide consignees. While Mr. Kiran submits the suspension order has not only adversely affected its interest, but also against the interest of several customers in India who have indented medicines as also abroad, Mr. Dinesh Kumar for the Revenue submits respondents are very much willing to permit the petitioner to clear its consignments which had been received as on date.
The writ petition is rejected. However, respondents are directed to permit the petitioner to get the consignments, cleared as stated in the letter dated 19-3-2014 if the petitioner complies. - Decided against the appellants.
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2014 (3) TMI 980
Condonation of delay - Held that:- Tribunal should have condoned the delay in filing the appeal rather than to dismiss it on the ground of limitation. It is apart from the fact that the delay was hardly of 95 days and secondly : now the ground, which the appellant has stated in the present appeal, persuade us to condone the delay by holding that it constitutes sufficient cause within the meaning of Section 5 of the Limitation Act. - Delay condoned.
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