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Showing 241 to 260 of 1271 Records
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2015 (6) TMI 1038
Period of limitation - Refund of excess duty paid in lieu of provisional assessment - Duty not been paid under protest - Import of Polypropylene Granules - Held that:- the Assistant Commissioner while ordering provisional assessments stated that I order that the duty leviable on such goods to be assessed provisionally under Section 18 of the Customs Act, 1962. Accordingly, the procedure of provisional assessment under Section 18 be followed until further orders. From this it appears that the provisional assessment was done for such goods, i.e. for all Bills of Entry during the period 16.5.1995 onwards and not for any particular Bill of Entry. Even, the order finalizing the provisional assessments also refers to Ex-bond Bill of Entry No. 5 dt. 16.5.1995 and subsequent Bill of Entries. Therefore, it would be reasonable to conclude that the Bills of Entry for the period January 1996 to 9th August 1996 were assessed provisionally. As regards the period from 9.8.1996 to February 1997 it is found that the Commissioner (Appeals) had accepted the appellants letter as a refund claim, there being no evidence to the effect that the letter was not received by the Department. Even the order of the Assistant Commissioner does not categorically state that the letter dt. 28.3.1997 was not received by the department.
Therefore, since the department did not challenge the Commissioner (Appeals) order, the refund for this period is not time barred. The contention of the appellant is also that the Bombay High Court order dt. 5.5.1997 setting aside the order of finalization dt. 9.8.1996 restores the status of provisional assessment in respect of all Bills of Entry filed upto the date of the High Court order and till the conclusion of the fresh adjudication proceedings. This contention merits acceptance because the High Court directed to continue the Bank Guarantee. In this view of the matter, we hold that the assessments were provisional and the question of payment of duty under protest did not arise.
Whether the test of unjust enrichment will apply to provisional assessments - Held that:- in view of the various judgments the test of unjust enrichment will not apply to provisional assessments before 13.7.2006 when sub-section(5) to Section 18 was introduced. Sub-Section 18(5) brought the concept of unjust enrichment into Section 18. Therefore, the test of unjust enrichment applies to refunds arising out of finalization of provisional assessments. - Decided against the appellant
Whether the bar of unjust enrichment was crossed - Held that:- there does not appear to be any doubt that the value of the finished products included the duty element because, as admitted by the appellant, due to charging of full rate of customs duty their total cost had increased. It is a well accepted fact that the price of finished goods depends on various factors such as raw material cost, manufacturing cost, market conditions, demand and supply situation. Therefore only because they did not increase the price when they paid duty does not by itself lead to a conclusion that the incidence of duty was not passed to the customers. The appellant had argued before the Commissioner appeals that they were showing the refund claim as receivables in their books of account. However on being given time by the Commissioner, they failed to produce a Chartered Accountants certificate certifying that the element of duty was not included in the cost of their products. Therefore, in the absence of any evidence to the contrary, it cannot be accepted that the duty element was not included in the price of the finished goods. Accordingly, the incidence of duty had been passed on to the consumers of the finished goods and therefore the bar of unjust enrichment was not crossed. - Decided against the appellant
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2015 (6) TMI 1037
Waiver of pre-deposit - Demand of duty and imposition of penalty - Section 11AC of the Central Excise Act, 1944 - Demand is based on one invoice book recovered in the premises of M/s. Sainath Industries, another manufacturer of the ceiling fans for VAPL and no notice has been issued to M/s. Sainath Industries, Also demand made on the basis of ceased records from M/s. Sainath Industries.
Held that:- no evidences have been placed by the appellant to show that they have not supplied fans and they have not received amounts from VAPL. In the absence of any evidence to show that appellant had manufactured the fans in the rural area in the premises shown by them, prima facie, the demand is sustainable. It is also noted that even though appellants received show-cause notice and acknowledgement was available on record, no reply was given by them. It was submitted by the appellant that they did not receive the personal hearing notices. In the absence of reply to the show-cause notice, the personal hearing notice could have been sent only to the address available with the Revenue and therefore it shows that appellant seems to be not bothered to pursue or reply to the show-cause notice which is another factor which goes against them. Needless to say that in case like this it would be necessary to go into all details and statements recorded and it will require lot of time and at this stage, we therefore consider that it would be sufficient if the appellant deposits 50% of the duty demanded. - Partial waiver granted and stay granted
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2015 (6) TMI 1036
Period of limitation - Appeal filed beyond condonable period of delay - Appellant contended that order in original dated 23.12.2010 was received on 16.1.2012 and appeal was filed on 27.3.2012 and hence was filed within the stipulated time - Held that:- order-in-original is deemed to have been served on the appellant by virtue of having been sent by registered post A.D. on 23.12.2010. The appellant had not submitted any evidence, leave alone cogent evidence, to rebut the presumption of deemed service. Therefore, the appeal filed before the Commissioner (Appeals) was clearly beyond even the statutorily condonable period and therefore the Commissioner (Appeals) was right to conclude that he had no option but to reject the appeal as time barred without going into the merits of the case. - Decided against the appellant
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2015 (6) TMI 1035
Eligibility of refund claim - Notification No.5/2006 read with Rule 5 of CENVAT Credit Rules - Non-taxability of output services - Held that:- the Hon’ble High Court of Karnataka in the case of mPortal India Wireless Solutions (P) Ltd. Vs. CST, Bangalore [2011 (9) TMI 450 - KARNATAKA HIGH COURT] has already held that the refund cannot be rejected on the ground of non-taxability of output service and eligibility for refund of the CENVAT credit availed on the input services which could not be utilised.
Period of limitation - Eligibility of refund claim - Notification No.5/2006 read with Rule 5 of CENVAT Credit Rules - Held that:- by following the decision of tribunal in the case of Apotex Research Pvt. Ltd. & others V. CC, Bangalore-CUS [2015 (3) TMI 346 - CESTAT BANGALORE], in the case of service received from abroad, the date of payment of consideration would be the relevant date for deciding the limitation. Therefore, impugned order is set aside. Matter remanded back
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2015 (6) TMI 1034
Liability to pay service tax - Technical inspection and certification agency service received from abroad - Held that:- there is no finding that appellants are not using the service for business or commerce. it can be said that service is partly performed in India. Since the report is received in India and the testing is done on the goods sent by the appellant. However, because of the exclusion as per Rule 3(3), prima facie, we find that service tax may not be liable to be paid. In view of the above, requirement of pre-deposit is waived and stay against recovery is granted during the pendency of appeal. - Decided in favour of appellant
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2015 (6) TMI 1033
Waiver of pre-deposit - Period of limitation - Section 85(3A) of the Finance Act, 1994 - Appellant contended that the Commissioner (Appeals) reckoned the date of the primary order (28-2-2013) for the purpose of computing the delay but the period for filing the appeal should be reckoned from the date when its rectification of mistake application was disposed of and if so done, its appeal before the Commissioner (Appeals) was not time-barred.
Held that:- the ROM application filed by the appellant under Section 74 of the 1994 Act was disposed of by the Assistant Commissioner only on 19-6-2013 and therefore the time for filing of appeal before the Commissioner (Appeals) should be reckoned from that date, and if so done the appeal filed by the appellant remains within the period prescribed in Section 85 of the 1994 Act. - Pre-deposit waived of and matter remanded back
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2015 (6) TMI 1032
Valuation - Includability - Total cost of services - Services of Air-conditioning and Electricity - Appellant contended that while supplying the said services, he uses diluted water as also diesel, the cost of which should be excluded from the service, inasmuch as the same would amount to sale of goods but as per Department diesel and diluted water is not being supplied by the appellant directly to the customers and as such it is not a case of sale of goods.
Held that:- the diluted water and diesel are not the goods being supplied by the appellant to their customers so as to exclude the cost of the same but are the raw materials being used by them for providing the final services. As such taking into account the overall facts and circumstances, we are of the view that the appellant should be put to some terms of deposit, as a condition of hearing of their appeal and direct them to deposit an amount of ₹ 5,00,000,00/- (Rupees Five Crores only) within a period of 12 weeks from today.
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2015 (6) TMI 1031
Liability of Service tax - Services received from foreign service providers - Intellectual Property Services, Management Consultancy Services and Business Auxiliary Services - Amount paid towards service tax by reversal of Cenvat credit - Appellant submitted that an amount paid by utilizing Cenvat credit related to the period prior to April, 2006 and the demand for payment of service tax on output services has been dropped for this period, so, the question of recovery of Cenvat credit utilized for payment of service tax does not arise.
Held that:- Commissioner has clearly held that for the period prior to 18-4-2006, there is no liability for payment of Service Tax on services received from abroad. Therefore, whether they paid the amount by utilizing Cenvat credit or by cash is irrelevant. Strictly going by law, when the demand for Service Tax on output services is dropped, the amount paid would be refundable. The only question is whether the appellant is required to pay the amount because it is inadmissible. So, in the absence of any allegation that the credit was not admissible and in view of the specific allegation that the credit could not be utilized for payment of Service Tax for output services, the Commissioner, as submitted by the appellant, has clearly traveled beyond the show cause notice. Moreover, in the absence of any finding that the credit is inadmissible, it cannot be recovered also. Therefore, the order of the Commissioner directing to pay an amount is not sustainable and accordingly, set aside. - Decided in favour of appellant
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2015 (6) TMI 1030
Eligibility for refund of Cenvat credit - Accumulated and claimed under Notification No. 5/2006 issued under Rule 5 of Cenvat Credit Rules, 2004 - Information Technology Software Service (ITSS) not liable to tax - Held that:- it was submitted that this claim has been rejected on the belief that the claim related to the period April, 2008, but the claim actually related to the period subsequent to 16-5-2008, by which time ITSS had become liable to service tax.
Appellant not registered till June, 2008 - Held that:- by following the decision of Tribunal in the case of Apotex Research Pvt. Ltd. & Others Vs. CC, Bangalore-CUS [2015 (3) TMI 346 - CESTAT BANGALORE], even before registration, credit can be taken.
No co-relation between export invoices and FIRC - Held that:- Ld. Commissioner (Appeals) has observed that the appellant has not furnished details of all the exports in respect of which the particular FIRC pertains. The amount shown in the FIRC is more than the export invoices in respect of which refund is claimed. Ld. C.A. agrees that the appellant shall furnish the reconciliation statement showing all the export invoices relating to the particular FIRC irrespective of the period covered by the refund claims. Moreover, it was also submitted that department insisted on bankers certificate of the FIRC whereas the instructions are to the contrary. In my opinion, self-certification should be sufficient.
Cenvat credit shown in the ST-3 returns does not tally with the amount claimed in the refund claims - Held that:- the refund claim is not based on ST-3 returns and ST-3 return is nothing but a report of transactions that have taken place over a period covered by the returns. On the ground that the figures in ST-3 returns were not correct or there was a substantial difference, refund claim cannot be rejected. For the purpose of consideration of refund claim, the relevant documents on the basis of which credit was taken, nature of service and its nexus and utilization of the service for rendering output service are relevant and merely because there was some mistake in the ST-3 returns, substantive right of assessee for refund cannot be rejected. In view of the above, the impugned order is set aside. - Matter remanded back
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2015 (6) TMI 1029
Service Tax Voluntary Compliance Encouragement Scheme, 2013 (VCES) - Short and delayed payment of duty of ₹ 439/- - Amt short paid at the time of making first instalment but was subsequently paid at the time of second instalment - bonafide mistake pertaining to calculation of tax - Superintendent of Service tax initiated action under Section 87 of the Finance Act, 1994, and directed the petitioner No. 1 to pay an amount of ₹ 25,85,877/- as “Tax Dues” immediately along with interest at the applicable rate under Section 75 of the Finance Act, 1994, notwithstanding the fact that the said amount has already been paid in its entirety and duly accepted by the concerned Service Tax authorities.
Held that:- Secretary, Ministry of Finance, Department of Revenue, Government of India, New Delhi, is directed to consider this rather unique case of the writ petitioners and take an appropriate decision in the matter supported with cogent reasons, as expeditiously as possible. - Petition disposed of
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2015 (6) TMI 1028
Impugned orders passed by denying the opportunity of cross examination - Tribunal held that in the absence of identification of any buyer of the raw materials and any supplier of the scrap used for substituting such raw material and on the face of the fact that the Revenue's case mainly based upon the non-entry of transportation trucks at the check posts and the various statements recorded during the investigations, it is necessary that the persons, whose statements are relied upon, are offered for cross-examination reported in [2008 (8) TMI 895 - CESTAT AHMEDABAD] - dismissed the tax appeal as not maintainable by relying on the decision of division bench of this Court in the case of Commissioner of Central Excise & Customs v. Stovec Industries Ltd. [2013 (1) TMI 72 - GUJARAT HIGH COURT], held that tax appeal below ₹ 10 lakh is not maintainable.
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2015 (6) TMI 1027
Validity of Commissioner (Appeals) order - Order passed was that the appeal has been filed beyond the condonable period and therefore, the appeal is not maintainable and cannot be entertained - Held that:- as no personal hearing has been given before taking a decision that delay cannot be condoned. In the circumstances, the impugned order is set aside and the matter is remanded to the Commissioner (Appeals) with a direction to decide the admissibility and maintainability of the appeal and thereafter, pass a speaking order with regard to the admissibility and maintainability of the appeal. - Appeal disposed of
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2015 (6) TMI 1026
Maintainability - Monetary limits - Recovery of Cenvat credit along with interest and imposition of penalty - Purchase of Sugar Confectionery namely Butter Scotch packaged in 30 gms. pouch in bulk and availed Cenvat credit on the said goods - Assessee put one 30 gms. pouch containing Butter Scotch inside the pack of Coffee Bite weighing 500 gms. manufactured by the assessee with the indication that the 30 gms - Appellant contended that for preferring an appeal, monetary limit is fixed and only if the monetary limit exceeds ₹ 2 Lakhs, appeal can be filed. Since the monetary limit in the present case, even as per the order of the Commissioner (Appeals) is well within the limit of ₹ 2 Lakhs, the present appeal, is not maintainable.
Held that:- even though the appeal has been admitted way back on 8-9-2008, a cursory look at the duty demand would reveal that the demand is approximately ₹ 1 lakh. The reason for the litigation policy being put into operation coupled with the fact that the duty demand is only to the tune of ₹ 1 lakh approximately would not stand in the way of this Court to bring this appeal within the ambit of the above policy inspite of the appeal having been admitted on 8-9-2008. Therefore, even though this appeal is filed to consider the question of law, we are not inclined to entertain this appeal in view of the preliminary objection made by the the respondent that the monetary limit to prefer an appeal is pegged at ₹ 2,00,000/- by the litigation policy of the Government issued by the Ministry of Finance, Department of Revenue, Central Board of Excise & Customs vide Instructions dated 20-10-2010.
It is very clear from the records that the monetary limit having been fixed at ₹ 2 lakhs, even as per the order of the Original authority, the interest and penalty being less than ₹ 2 Lakhs, the appeal is not maintainable. Therefore, in the light of circular issued by the Board dated 20-10-2010, the Court is not inclined to entertain this appeal. - Decided against the revenue
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2015 (6) TMI 1025
Deduction under section 80HHC - whether Tribunal was justified in law in allowing deduction to the assessee under section 80HHC of the Income-tax Act, 1961 on that position of the export sale proceeds which was not brought or received by it in India in convertible foreign exchange within the period stipulated under section 80HHC(2) of the Income-tax Act and even no extension of time was granted by the competent authority (Reserve Bank of India)? - Held that:- As seen, under the said section deduction in respect of the profit can be made if the amount is received in convertible foreign exchange within a period of six months from the end of the previous year or within such further period as the "Competent Authority may allow in this behalf". The assessee, through its banker, by letter dated October 30, 2001 had applied to the Reserve Bank of India for extension of time till December 1, 2001. The Reserve Bank of India in its reply dated December 28, 2001 advised that as the date, that is, December 1, 2001, till which extension was sought for, had already expired, the assessee should apply for further extension. Incidentally the amount was received on November 26, 2001. The question is whether the letter dated December 28, 2001 by the Reserve Bank of India can be treated to be an order allowing extension of time. Since "allow" means permission, a positive act, and as in a case of grant of permission it should be in an unambiguous language and in explicit terms, the letter of the Reserve Bank of India requesting the assessee to apply for further extension cannot be taken as an approval in any manner whatsoever. The finding of the Tribunal that "deduction to the exporter should not be denied merely on the hyper technical view" cannot be accepted.
Therefore, the question is answered in the negative and in favour of the Revenue and against the assessee.
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2015 (6) TMI 1024
Addition u/s 68 - Held that:- The Income- tax Appellate Tribunal, after considering the rival contentions and on perusal of material on record, by common order partly allowed the appeals filed by the Department and held that in respect of parties (sundry creditors) other than relating to whom additions made by the Commissioner of Income-tax (Appeals) are to be restored to the Assessing Officer by casting the initial burden on the assessee to discharge such burden by filing confirmation letters of sundry creditors and reserving liberty to the Assessing Officer to make verification of the confirmation if felt so necessary and also opining that the Assessing Officer may call upon the assessee to adduce evidence in the form of producing such parties. For the assessment year 2004-05, the matter was restored back to the file of the Assessing Officer in respect of the addition representing the closing balance of fifteen creditors with the liberty being granted to the assessee as well as the Assessing Officer as granted for the assessment year 2003-04.
Addition u/s 69C - Held that:- The assessment order would also indicate that in respect of the sundry creditors as reflected in the balance-sheet of the assessee was not proved by the assessee though sufficient opportunity was granted. The order of the Assessing Officer does not indicate about any explanation having called for by the Assessing Officer from the assessee and such explanation having been not accepted so as to treat the same as income of the assessee for such financial year. However, it requires to be noticed from the order of the Tribunal that after analysing the case law it has been held that section 68 read with section 69C can be invoked in respect of the sundry creditors which are not proved by the assessee before the Assessing Officer. As such we are of the considered view that the principles contained in section 68 as well as section 69C would be squarely applicable to sundry creditors in case of a trader, as obtained in the facts of the present case. In fact, credit purchases are nothing but expenditure and if sundry credits are not proved by the assessee addition can be made by the Assessing Officer by resorting to section 69C. Accordingly, substantial question of is being answered in favour of the Revenue.
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2015 (6) TMI 1023
Addition u/s 68 - undisclosed cash credit - Held tht:- We do not find any strength in the allegation made by the AO. Allegations are baseless and without any supportive evidence. On the contrary, these two companies have paid share application money from their bank accounts through account payee cheque, therefore the transaction cannot be treated as bogus. Since the AO has not made any further enquiry, merely because of the false allegation, a genuine transaction cannot become non genuine transaction.
The First Appellate Authority has considered the facts in the light of the provisions of Sec. 68 of the Act and have deleted the additions in respect of these six companies. On the basis of same documentary evidences brought on record before us, we do not find any reason to interfere with the findings of the Ld. CIT(A). - Decided in favour of assessee
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2015 (6) TMI 1022
Waiver of pre-deposit - Issue of limitation - No finding on the issue of limitation raised by the appellant and it was without dealing with that contention that the appellant was ordered to deposit ₹ 1 crore by the Tribunal - Held that:- the order of the Tribunal itself shows that the appellant himself had admitted that 35 lakhs of the service tax demanded was for the normal period. This, therefore, mean that the issue of limitation, though not considered by the Tribunal, cannot have any relevance in so far as this 35 crores is concerned. Therefore, appellant is directed to deposit ₹ 35 lakhs within four weeks from today and report compliance before the Tribunal. Subject to deposit, pre deposit of the balance due under the order impugned before the Tribunal will stand dispensed with. The order of the Tribunal will stand set aside. - Appeal disposed of
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2015 (6) TMI 1021
Classification - Whether the furnace of the appellant is 'pusher type' or 'batch type' for determination of ACP (annual production capacity) for levying monthly liability - Report of the NISST was given to the assessee in advance. Assessee has not lead any rebuttal evidence in the form of any Chartered Engineer's Certificate - Primary authority has not only taken the report of the NISST, but also examined the annual production based on the declarations filed by the assessee itself and the claim of the assessee with regard to the nature of mill being run by it - Held that:- the contention of the learned counsel for the assessee that the mill is low speed mill and the authorities treating it as high speed mill, fixed higher annual production capacity and demanded higher duty, cannot be countenanced. The questions of law framed for consideration form part of questions of fact, on which the primary authority has categorically recorded finding based on report of the technical committee and the same has been concurred by the appellate Tribunal and on re-appreciation of the entire material on record, we do not find any legal infirmity or irregularity to interfere with the same. - Decided against the appellant
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2015 (6) TMI 1020
Mark-to-Market loss arising on re-valuation of forward contract agreements on the closing date of accounting year - whether is not a notional loss and, therefore, allowable? - Held that:- The learned CIT(A) followed the decision of DCIT vs. Bank of Bahrain and Kuwait (2010 (8) TMI 578 - ITAT, MUMBAI) and also the decision of CIT vs. Woodward Governor India Pvt. Ltd. [2009 (4) TMI 4 - SUPREME COURT ] to hold that the liabilities for foreign exchange was incurred during the normal course of assessee’s business and in fact the gain earned on such revaluation having been accepted and brought to tax in the respective years, there is no reason to arrive at a different conclusion in this year merely because there is a loss. He accordingly correctly directed the AO to allow the impugned claim of the assessee. - Decided against revenue
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2015 (6) TMI 1019
Reopening of assessment - assessee had claimed depreciation in respect of tenancy rights, whereas according to the provisions of section 32 depreciation is allowable only on tangible assets and the amended provisions for depreciation pertaining to intangible assets also does not include within its fold, tenancy rights and that so, due to the wrong claim of depreciation made by the assessee, income had escaped assessment - Held that:- There was no tangible material available with the A.O. at the time of recording of reasons for initiating reassessment proceeding so as to enable such reassessment proceedings to be initiated, the return of income filed by the assessee was processed u/s 143(1) of the Act on 26-10- 2005. At that time, the tax audit report filed by the assessee was before the A.O. and it was this very tax audit report, and nothing else, or further, which had come to the notice of the A.O., on the basis of which, the reasons for reopening the completed assessment of the assessee were recorded. The reasons recorded, as reproduced above, do not talk of any independent tangible material having come to the notice of the A.O. In “CIT vs. Orient Craft Ltd.” (2013 (1) TMI 177 - DELHI HIGH COURT ), it has been held, inter alia, that the expression “reason to believe” cannot have two different standards and sets of meaning one applicable where the assessment order earlier made u/s 143(3) of the Act, and another applicable where the intimation was issued u/s 143(1);that as such, where the reasons disclosed that the A.O. reached the belief of escapement of income “on going through the return of income” filed by the assessee after he accepted the return u/s 143(1) without scrutiny and nothing more, this was nothing but a review of the earlier proceedings and an abuse of power by the A.O. This is exactly what has happened in the present case, as discussed. The reasons recorded by the A.O. do not show that any tangible material come in the possession of the A.O. subsequent to the issue of the intimation u/s 143(1) of the Act, as such, and therefore, the notice reflected an arbitrary exercise of the power conferred u/s 147 of the Act.
It is held that in the absence of any tangible material before the A.O., the A.O. was not entitled to invoke the reassessment jurisdiction and to proceed to reopen the completed assessment of the assessee. Accordingly, the reassessment proceedings are found to be void ab initio, and as such, they were cancelled. - Decided in favour of assessee
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