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Showing 261 to 280 of 1407 Records
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2015 (2) TMI 1153
Seeking cross-examination of persons - Section 81 of TN VAT Act - Held that:- prior to the introduction of the Act 2006 with effect from 2007, this court had considered a similar issue with regard to the Tamil Nadu General Sales Tax Act in the case of T. M. Rajaganapathi Traders v. Commercial Tax Officer, Salem reported in [2005 (2) TMI 781 - MADRAS HIGH COURT]. Section 54 of the Tamil Nadu General Sales Tax Act is pari materia to section 81 of 2006 Act. This court held that aggrieved person is entitle to cross-examine and that the authority concerned shall issue summons in terms of the provisions of the said Act. Similarly as per Section 81 of the 2006 Act, the authority is empowered to issue summons to the persons and give an opportunity to the dealer to cross-examine them, without which there would be no scope for the authority concerned to rely on the materials for determination of tax liability of the dealer. - Petition disposed of
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2015 (2) TMI 1152
Entitlement to get exemption from payment of entry tax for the period from April 1, 2001 to March 31, 2002 - Notification No. A-3-8-95-STV (69) dated August 7, 1995 - Neither a registered dealer under the Central Sales Tax Act, 1956 nor purchased any goods from outside M. P. - held that:- as per certificate issued by the Department, it is clear that the petitioner is a registered dealer under the Central Sales Tax Act, 1956. The Department has issued C form to the petitioner from time to time right from October 16, 1986 to December 25, 2003. As per photocopies of the C form register, the petitioner is purchasing the goods from outside the State of Madhya Pradesh and, therefore, liable to pay the entry tax. From the record, it is also clear that prior to relevant order and after the relevant order, the petitioner has already purchased the goods from outside the State of Madhya Pradesh for which C forms were issued to the petitioner from time to time. The petitioner after its registration under the Central Sales Tax Act, 1956 purchased the goods from outside the State of Madhya Pradesh and therefore, is liable to pay the tax as per the Act and is not entitled to take the benefit of notification. - Decided against the petitioner
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2015 (2) TMI 1151
Validity of order passed in exercise of powers under Section 32 of the APGST Act, 1957 - Petitioner suppressed sales turnover for the assessment years 1993-94 to 1996-97 - Inspection was done during the period from May 15, 1996 to May 20, 1996 - Amount of ₹ 3,000/- collected towards composition fee for the offence under section 32(1)(a) of the Act - Held that:- as per the provision under section 32(2) of the Act, any order passed or proceeding recorded by the prescribed authority under sub-section (1) shall be final and no appeal or application for revision shall lie therefrom. In view of the said provision, when the offence was compounded by collecting fee as per provisions contemplated under section 32(1)(b) of the Act, it is not open to the respondent to reopen the matter and increase composition amount by invoking power under section 32(1) (a) of the Act. Further it is also to be noticed that inspections were made during the year 1996 from May 15, 1996 to May 20, 1996, however, proceedings are initiated in May, 2002 nearly after 5% years. Even for the revision of assessment, the limitation contemplated is only 4 years. Further, in view of the absence of any enabling provision to review the order passed under section 32 of the Act, the impugned order passed by the respondent is without any jurisdiction and at the belated stage. - Decided in favour of petitioner
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2015 (2) TMI 1150
Service of assessment order - Petitioner contended that the assessment order dated December 24, 2012 was never served upon him and he has obtained copy of the same only after the recovery notices were issued - Held that:- the notice of demand was sent to the petitioner along with another letter for recovery of the amount and the registers in which the entries were entered were produced before us on December 1, 2014. From the file of the respondents, it is found that there is no application by the petitioner for supply of copy. Also the petitioner could not produce any document showing that he had applied for copy of the order dated December 24, 2012. Therefore, it is unable to accept the statement of the petitioner that he was not aware of the order dated December 24, 2012. This appears to be an afterthought. He could not have filed the copy of the order dated December 24, 2012 unless he had received a copy of the same.
Unofficial obtainment of copy of order - Held that:- any such system of unofficially obtaining copies of the assessment orders is not approved. The assessment order as well as the letter dated December 24, 2012 was correctly addressed to the petitioner. They have been entered in the register and shown to have been dispatched.
Demand of tax - Petitioner contended that demand runs into more than a crore of rupees and he is a small businessman and would be doomed if he has to pay this amount - Held that:- the stand of the petitioner that he is a poor person is incorrect. On November 27, 2012, the petitioner made a prayer to the Superintendent of Taxes that he would be dumping about 1000 cubic meters of unsized damaged and disputed timbers from the godown in his house since he required the space for the marriage of his daughter. The Superintendent of Taxes deputed certain officials to go to the godown of the petitioner and their report reveals that there was a huge amount of timber and the petitioner was asked to produce valid documents such as invoices, permits in form 26, TP copies, sales memos, etc., to show that these timbers have been validly imported but the petitioner failed to produce any such documents. The assessing authority has valued the timber at ₹ 12,000 per cubic meter whereas the assesse claims that the value is ₹ 3,000 per cubic meter. Even if the valuation of the petitioner is accepted, the value of 1000 cubic meters works out to ₹ 3 crores. If the petitioner can dump wood worth ₹ 3 crores, it is unbelievable that he is a poor person. As the petitioner has not come to court with clean hands, therefore, he is not entitled to any discretionary relief from this court. - Decided against the petitioner
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2015 (2) TMI 1149
Deduction u/s.80IB(10) - requirement to produce the completion certificate from the PM - Held that:- Amendment w.e.f. 01-04-2005 requiring certificate of completion of project within 4 years of approval is not applicable to the projects approved prior to that date and therefore the assessee is entitled to deduction u/s.80IB(10) of the I.T .Act
There is no dispute in this case on the fact that the architect of the assessee Shri Mangesh Bhandarkar has made an application for occupancy certificate to the PMC on 08-12-2008. As per the admitted position of law, the assessee was required to complete the housing project on or before 31-03-2009. The PMC did not issue the completion certificate for the reason that the assessee has not handed over the amenity space. In our opinion, the format in which the architect of the assessee has filed the application for getting the occupancy certificate may be the procedural default and that will not deprive the assessee from its legitimate claim u/s.80IB(10). Moreover, the PMC has not pointed out that the application is not in prescribed format. We accordingly allow the grounds taken by the assessee and direct the AO to allow the deduction. - Decided in favour of assessee
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2015 (2) TMI 1148
Levy of fees under section 234E - intimation issued under section 200A in respect of processing of TDS - Held that:- We find that the issue in all these appeals is now squarely covered in favour of the assessee by the decision of ITAT Amritsar Bench in the case of Sibia Healthcare Private Limited vs. DCIT [2015 (6) TMI 437 - ITAT AMRITSAR] adjustment in respect of levy of fees under section 234E was indeed beyond the scope of permissible adjustments contemplated under section 200A.
As intimation under section 200A, raising a demand or directing a refund to the tax deductor, can only be passed within one year from the end of the financial year within which the related TDS statement is filed and that time has already elapsed and the defect is thus not curable even at this stage. In view of these discussions, as also bearing in mind entirety of the case, the impugned levy of fees under section 234E is unsustainable in law. We, therefore, delete the impugned levy of fee under section 234E of the Act. - Decided in favour of assessee.
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2015 (2) TMI 1147
Capital goods CENVAT Credit - whether the appellant would be liable to pay interest under Section 11AB on the wrongly taken capital goods CENVAT Credi and penalty under Rule 13(2) of CENVAT Credit Rules, 2001 read with Section 11AC of Central Excise Act, 1944? - Entitlement to exemption under a notification No. 15/94-C.E. dated 1-3-1994 which is subject to non-availment of CENVAT Credit in respect of inputs/input services or capital goods would be available when initially such CENVAT Credit had been taken but was reversed subsequent to clearance of the goods - Held that:- Since in the present case, there is no dispute that entire CENVAT Credit, though wrongly and fraudulently taken, has been reversed, we hold that the appellant cannot be denied the benefit of exemption Notification No. 14/2002-C.E. during period from 1-3-2002 to 31-3-2003 as for the purpose of this exemption the appellant would have to be treated as not having availed any capital goods or inputs duty CENVAT Credit.
On a conjoint reading of Section 11AB and Rules 3 and 4 of the Cenvat Credit Rules we proceeded to hold that the interest would be payable from the date Cenvat credit is wrongly utilized. No reason to read the word “OR” in between the expressions ‘taken’ or ‘utilized wrongly’ or ‘has been erroneously refunded’ as the word “AND”. On the happening of any of the three circumstances such credit becomes recoverable along with interest.
Where the entire duty had been paid along with interest before the issuance of show cause notice but still in the adjudication order no option was given by the Commissioner to pay 25 per cent. of the amount of duty demand confirmed towards penalty within 30 days in terms of proviso to Section 11AC, the benefit of lower penalty cannot be denied and that in such cases, the penalty imposable would be 25 per cent. of the duty demand. But in this case, the conditions set down in the case of K.P. Pouches [2008 (1) TMI 296 - DELHI HIGH COURT ] are not satisfied as the appellant have not paid the interest under Section 11AB on the wrongly taken CENVAT Credit, which as discussed above, is leviable. In view of this we hold that the benefit of lower penalty in terms of proviso to Section 11AC is not available to the appellant.
As regards penalty under Rule 26 of the Central Excise Rules, 2002 on Sh. Vineet Sethi. The impugned order does not discuss as to how the elements required for attracting the penal provisions of this Rule are present in this case. Hence, the penalty on Sh. Sethi has been set aside.
Thus while the duty demand of ₹ 2,24,81,249/- against the appellant in respect of the clearances of grey cotton fabrics during period from 1-3-2002 to 31-3-2002 along with interest thereon under Section 11AC and penalty of equal amount is set aside, the CENVAT Credit demand of ₹ 66,69,432/- against the appellant along with interest and penalty of equal amount is upheld. As regards, the penalty of ₹ 50,000/- under Rule 26 of Central Excise Rules, 2002 on Sh. Vineet Sethi is imposed, the same is set aside. Thus, while the appeal filed by M/s. Orient Texfabs Ltd. is partly allowed the appeal filed by Sh. Vineet Sethi is also allowed.
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2015 (2) TMI 1146
Levy of tax - 20 packages of footwear and 11 packages of shirts were seized - Goods transported through courier without proper documents showing the consignment was meant for the B.S.F. or C.R.P.F. authorities as the transaction was sent through business mail - Held that:- the assessing officer assessed the margin of profit at 12.70 per cent. On footwear and 19.51 per cent. at readymade garments. While doing so, the assessing officer did not take into consideration the fact that this transaction between the petitioner and B.S.F. and the C.R.P.F. and there could be no wrong statements in the accounts. The transaction which had taken place at Delhi could not be the subject-matter of the TVAT Act in Tripura. The only fault was that the goods were being transported without proper documents. The tax, payable for sale in Tripura had to be paid by B.S.F. or the C.R.P.F. on the amount which they were to receive and not on the amount which they paid to M/s. Dheer Marketing Company for supply of the shoes and shirts which were supplied from Delhi but sent to Tripura. Whether the sale had taken place at Delhi or whether the sale was an inter-State sale whereby goods moved from one State to the other, the State of Tripura had no right or authority to levy tax on the same.
Forfeiture of bank guarantee furnished and levy of penalty - Held that:- during this process, great delay occurred and the contract of the petitioner was cancelled and he has finally taken back the goods to Delhi. As the petitioner has suffered enough for his fault, so, no penalty should be imposed upon him. Also the Bank guarantee shall stand automatically discharged. - Petition disposed of
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2015 (2) TMI 1145
Refund claim under Notification NO. 27/2012-CE (NT) dated 18.6.2012 denied - Held that:- As decided in Sandoz Pvt. Ltd. vs. Commissioner of Central Excise, Belapur [2015 (10) TMI 882 - CESTAT MUMBAI ] the failure to debit on the date of filing the refund claim is not such a lapse that it would debar the appellants from the refund. On the day of debiting the CENVAT account they have fulfilled the conditions of the notification. In that event they become entitled to refund on that date. In view of above the impugned order is set aside, the appeal is allowed with consequential benefit.
As only violation alleged in the impugned order is failure to debit the CENVAT Credit account before filing the refund claim. - Decided in favour of assessee
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2015 (2) TMI 1144
Validity of order passed by revisional authority in exercise of powers under Section 9C of the A.P. Entertainments Tax Act, 1939 - Master cable operator providing signals to subscribers through other cable operators - Evasion of entertainment tax by not furnishing correct and full information - Held that:- in view of the specific provision under section 9C of the Act conferring the revisional powers only on Entertainments Tax Commissioner or the Entertainments Tax Joint Commissioner, the Additional Commissioner is not empowered to review the order passed by the Appellate Deputy Commissioner, in the absence of valid delegation. The office order dated June 19, 2014, issued by the Commissioner of Commercial Taxes, allocating the subjects/functions among the various posts in the office of the Commissioner of Commercial Taxes, also would not give any authority for the first respondent-Additional Commissioner (CT) (Legal), to exercise powers under section 9C of the Act. Such allocation order issued by the Commissioner is only for the purpose of internal administration in the office of Commissioner, but basing on such orders of allocation, statutory powers conferred under section 9C of the Act cannot be bypassed. Therefore, the Additional Commissioner (CT) (Legal) is not competent to pass orders under section 9C of the Act, in the absence of any authority contemplated in the said Act. - Decided in favour of petitioner
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2015 (2) TMI 1143
Seeking modification of sentence order - Convicted under Section 20 of the Narcotic Drugs and Pshychotropic Substances Act - Recovery of ganja - Non-joining of independent witnesses and Gazetted Officer - Held that:- the joining of independent witness is not the rule of law but rule of caution. In case the evidence of official witnesses is trustworthy, in that case conviction can be maintained on the testimony of official witnesses alone. The non-joining of Gazetted Officer does not create any dent in the prosecution story. The delay of two days in sending the sample for chemical analysis is not fatal. Even according to the instructions, the sample can be sent within 72 hours. Mere fact that CFSL Form was not prepared at the spot is not a ground for acquittal. No reasoning has been given by the appellant as to why false case has been registered against him. In this case recovery was effected on 02.09.2011 but the witnesses were examined on 01.05.2012 and 30.11.2012 respectively. So due to lapse of memory, the above said discrepancies have occurred. The said discrepancy is not such which goes to the root of the case.
Therefore, the conviction recorded by the trial court does not call for any interference and the same stands affirmed. However, in view of Section 427 Cr.P.C, the sentence can be made to run concurrently in appropriate cases. Since the appellant is not facing trial in any other case except the above mentioned two cases, the sentence of present caseunder Section 20 of NDPS Act as well as sentence in respect of another case under Section 22 NDPS Act, are ordered to run concurrently. - Decided against the appellant
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2015 (2) TMI 1142
Reopening of assessment - increase in shortage - Held that:- A bare reading of comparative shortage in various commodities dealt with by the assessee, as reproduced by the CIT(A) at page no.8 of his appellate order shows that there was practicably no excessive shortage during the relevant period as compared to the shortage in the earlier assessment years 2003-04 and 2004-05. The increase in shortage during the relevant period was mainly in some commodities whose total turnover was very less, at a figure less than ₹ 1.00 lakh in the entire year. We find that the AO has calculated the average shortage in various commodities purchased and sold by the assessee at 2.52% by taking average of the shortage in various commodities, which includes the commodities wherein the assessee has a very insignificant turnover. In these facts, we are of the view that even on merits, there was no justification for reopening of assessment by invoking section 147 of the Act. We find that no comparable case of lesser shortage in various commodities dealt with by the assessee has been cited by the AO in the assessment order.
It is a case of change of opinion on the part of the AO which was not permissible for invoking provisions of section 147 of the Act. In these facts, we are of the view that the CIT(A) was justified in striking down the reopening in this case - Decided in favour of assessee
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2015 (2) TMI 1141
Reopening of assessment - Held that:- There is neither any discussion about the submissions made by assessee nor about the satisfaction recorded by the AO nor about the objections raised by assessee in the re-assessment proceedings on jurisdiction. In fact, Ld. CIT(A) did not even comment about the veracity of reopening of the assessment. As seen from the later part of the order, he did not even examine whether the AO made addition or disallowed expenditure. AO brought an amount of ₹ 15,77,330/- to tax as an addition under the head income from other sources, even after accepting that an amount of ₹ 1,50,300/- pertains to a firm. Without even understanding whether the amount was an addition to the income returned or disallowance of the expenditure claimed, the Ld. CIT(A) confirms the 'disallowance' made by the AO. This shows not only the non-application of mind by the CIT(A), but also total ignorance of facts and law on the matter under consideration. In our opinion it is the CIT(A) who took hyper technical view and not assessee.
The re-assessment order of AO and impugned order of CIT(A) are set aside - Decided in favour of assessee
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2015 (2) TMI 1140
Eligibility for the Notification No. 62/95-C.E - suppression of relevant facts - non supply of goods shown trading of - bogus purchase of components for boxes from various traders - Held that:- There was no response from the Department informing the appellant that they are not eligible for the Notification No. 62/95-C.E. On the contrary, from para 52 of the order-in-original passed by the Joint Commissioner, it is seen that another manufacturer M/s. Jai Forging and Stamping (P) Ltd., located in the same industrial area and falling under the same division was also manufacturing same goods for supply to Defence and in his case the benefit of exemption Notification No. 62/95-C.E., dated 16-3-1995 had been extended. Thus, from this it is clear that during the period of dispute, the Department were of the view that the private manufacturers manufacturing ammunition boxes and supplying to Defence are covered by Serial No. 16 of the Notification No. 62/95-C.E. and such supplies are fully exempt from duty. This is also clear from Superintendent (Technical)’s letter dated 27-8-2001 to the Jurisdictional Superintendent of Central Excise. In view of these facts, the Department cannot allege that the appellant have suppressed the relevant facts from the Department.
As regards, the allegation that the appellant during 2002-2003 had shown trading of goods worth about ₹ 33 lakhs and on inquiry, it was found that the persons from whom they claim to have produced those goods have not supplied, it is seen that the goods which are claimed to have been purchased from M/s. PH Steel, M/s. Jay Gee Steels, M/s. S.N. Traders and M/s. Ranji Products are the complete sets of components for boxes and the components of boxes like M.S. Brackets etc. The dispute in this case is in respect of the ammunition boxes manufactured by the appellant supplied to Ordnance factories of the Ministry of Defence in respect of which the appellant had informed the Department that they are availing of SSI exemption to the extent available and they would be availing the Notification No. 62/95-C.E. It is, therefore, not understood as to how the allegation that the appellant showed bogus purchase of components for boxes from various traders is relevant. - Decided in favour of assessee
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2015 (2) TMI 1139
Writ petition - Seeking No Objection Certificate for clearance of the betel nuts consignment - Consignment failed to confirm to the standards laid down by the notified laboratory and the referral laboratory - Held that:- the petitioner in the 'Bill of Entry' had not mentioned the product as 'Ungarbled Betel Nuts' but described the item as 'areca nuts (betel nuts)'. However, in the affidavit filed in support of the Writ Petition, the Appellant/Petitioner had endeavour to mention that the product is as 'Ungarbelled Betel Nuts'. When the Petitioner had applied to FICS which specifies inspection of the goods by drawing samples to find out/examination as to whether meets the required standards prescribed under Food Safety and Standards (Food Product Standards & Food Additives) Regulation 2011. In this connection, this Court very significantly points out that by Section 97(1) of the Food Safety and Standards Act (Prevention of Food Adulteration Act, 1954, was repealed) and only the ingredients of Food Safety and Standards Act, 2006 is applicable to all kinds of exports (including import made by the Appellant). Therefore, the view taken in the impugned order to the effect that the petitioner had miserably failed to make it any case for granting the relief claimed by the petitioner and suffers from no material irregularity or patent illegality in the eye of law. Therefore, No Objection Certificate is not to be granted. - Decided against the appellant
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2015 (2) TMI 1138
Legality and validity of Tribunal's order - Direction of confiscation of 8 seized prerecorded cassettes as also the cassettes already exported - Misdeclaration i.e overvaluation of goods resulting in contravention of the provisions of section 113(d) and (i) of the Customs Act - Held that:- the very transfer of the right to telecast of the said serial overseas is not given appropriate weightage while drawing a conclusion that the goods were over valued. The valuation of the goods concluded by the revenue at the rate of ₹ 21,000/ is rightly overturned as the valuation of the blank video cassettes and not the artrights which are sought to be transferred. Also the order of the Tribunal reflects that the said fact was appropriately weighed before it concluded that there is no contravention of the provisions of Customs Act. It has looked into the fact that the evidence, as to the terms arrived at in the agreement between the Respondent No.1 and the purchaser about transfer of the rights thereof, was not dealt with on record so as to establish that the said was over valued. Also it looked into the approach of the learned Commissioner that the export though also admitted to be under an agreement entered into with a foreign buyers and the remittance of ₹ 1.32 crores received by the Respondent No.1 through local banking channel was also not properly appreciated. Also it looked into the description and the valuation of the goods as was declared in the shipping bill in terms of the agreement and the physical value of the cassettes and the cost of recording thereof. The Tribunal having regard to the evidence brought before it, has rightly taken into account the transaction value of the goods declared as per the agreement to the extent i.e. ₹ 1.32 crores having regard to the transfer of not only the video cassettes but the contents thereof and right to telecast the same. Therefore the view taken by the Tribunal is a plausible view and no material illegality or irregularity can be noticed therein. - Decided against the appellant
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2015 (2) TMI 1137
Cocoa beans imported as an item of food on the basis of license for importing food under the FSS Act - Whether imported cocoa beans satisfy any of the specification or standards under the FSS Act or the Rules framed thereunder - Held that:- cocoa powder, which is produced from cocoa beans, is specified under clause 2.11.6 of the Regulations. It is meant as a powder which is the partially defatted product derived from the ‘cocoa bean’, the seed of Theobroma cacao L. Therefore, when the Statute has prescribed standards for cocoa powder and has consciously decided not to fix any standards for ‘cocoa beans’, it can safely be assumed that no standards had been fixed under the FSS Act or Regulations for ‘cocoa beans’.
No Objection Certificate - To obtain from FSS authorities for permitting clearance of the cargo - Whether product is sub-standard/unsafe or not - Held that:- when a food item is imported, it is the bounden duty of the Food Safety Officer exercising power under Section 47(5) of the FSS Act to take sample and sent the same for analysis, to ensure that the food item is neither sub-standard nor unsafe. The learned Single Judge was not justified in permitting import of a consignment which, according to the Food Safety Officer, was unsafe or sub-standard. In the event of a like situation where no specific standard is prescribed for a particular imported food item, still the Food Safety Officer has to certify that the food item is not sub-standard or unsafe. Therefore, the jurisdiction of the Food Safety Officer to grant or reject clearance certificate of food items on sufficient materials cannot be disputed or doubted. Hence it was appropriate that the Food Safety Officer should have been directed to conduct analysis based on appropriate standards or even BIS standards to ensure that the product is neither sub-standard nor unsafe for import. - Writ Appeal disposed of
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2015 (2) TMI 1136
Validity of Advance License on the date of Ex-bonding of goods - Advance licence was not valid on the date of filing e-Bond Bills of Entry but were later revalidated up to 30-7-2008. Therefore, even if they were revalidated later, they covered the period when the ex-bond Bills of Entry were filed - Held that:- the Customs allowed extension of the Bond period beyond 31-3-2008 which was denied by them earlier, so there would have been no problem for the appellant to wait till the Advance Licenses were got revalidated. Therefore, the appellant suffered only because the Customs refused to extend the Bond period beyond 31-3-2008 and no reason has been given by Assistant Commissioner of Customs to the appellant as to why further extension could not be granted to the appellant who are a PSU. It appears that, as is usual with the department, it was ambitious to get the huge amount of duty in furtherance of their objective of maximum revenue collection up to 31st March. Not granting extension of Bond period beyond 31-3-2008 when the Advance Licenses were still to be got revalidated from DGFT, is rather unfair on the part of the department. Had the department granted extension, this entire litigation could have been avoided. As the issue is more of a procedural nature than of a substantial nature, the Advance Licenses must be treated as valid at the time of ex-Bonding of goods.
Refund claim - Admissibility - When the assessment not challenged by making any remarks about Advance Licenses on the Bills of Entry - Held that:- the appellants are eligible for refund followed by the judgment in the case of Karnataka Power Corporation v. Commissioner [2002 (4) TMI 79 - SUPREME COURT OF INDIA]
Refund claim - Bar of Unjust Enrichment - Held that:- the facts are not clear as to how the imported goods were dealt with, whether the imports were actually used to manufacture products for which prices have been fixed on import parity basis. Therefore, it needs to be looked into by the Commissioner (Appeals). - Decided partly in favour of appellant
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2015 (2) TMI 1135
Evasion of Central Excise duty - suppression of production and clandestine removal of its final products - admission made by director of evasion - Held that:- As stated earlier, Shri Vinod Kumar Yadav, Director, himself admitted the shortage and the entire impugned duty was also paid at the time. When Director himself admitted the shortage in his voluntary statement which was never retracted, it is not understood, who was going to cross-examine Shri Shree Ram Khandelwal and the panchas and to what end. The Director himself had admitted in his statement (which was recorded almost a fortnight after 16-8-2007) the contents of the statements of Shri Shree Ram Khandelwal which were recorded after drawing the panchnamas. The Director never retracted his statement nor even allege any threat or inducement.
The respondents are bound by the admission made by their Director and could not later on complain that the shortage was not properly arrived at. Even at the time of signing of the panchnama prepared at the spot, the Director of the respondents or any other representative never took exception to the mode of verification adopted by the officers for arriving at the quantity of the goods found short.See COMMISSIONER OF CENTRAL EXCISE, CHANDIGARH Versus NABHA STEELS LTD. [2004 (4) TMI 143 - CESTAT, NEW DELHI ]. It is evident from the foregoing including the inculpatory statement of Shri Vinod Kumar Yadav, Director that he is clearly liable to penalty under Rule 26 ibid. - Decided against assessee
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2015 (2) TMI 1134
Period of Limitation - Refund claim - Appellant filed refund claim for the period of 01.10.2007 to 31.12.2007 on 16-06-2008 which was beyond time limit of sixty days but after revenue's claim of time-barred it contended that this is a re-submission made after rectification of deficiencies in response to the letter of the Assistant Commissioner dated 22.5.2008 and actual claim was filed on 28.2.2008 - Held that: The application filed on 28.2.2008 did not contained the amount of refund which they sought to claim and also the classification of various input (taxable) services in respect of which the refund was claimed. The claim was also not accompanied with any documents showing payment of service tax and other documents required to be enclosed alongwith with the refund claim as per the condition laid down under the said notification. As per Notification No. 41/2007-ST dated 06.10.2007, the refund claim was required to be accompanied with the documents “evidencing export of goods, payment of Service Tax on the specified services for which claim for refund of Service Tax paid is filed and copy of written agreement entered into by the exporter with the buyer of said goods.” In these circumstances it can not be held that the appellants had filed a “refund claim” (even a defective one) on 28.2.2008 and that what they did on 16.6.2008 was to re-file it after removal of defects. Therefore, the application filed on 28.2.2008 can by no stretch of imagination be called a refund claim (defective or otherwise) and held that the appellants filed the refund claim for the first time only on 16.6.2008 which is clearly beyond the prescribed time limit. - Decided against the appellant
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