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Showing 261 to 280 of 1439 Records
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2015 (7) TMI 1184
Inordinate delay in pronouncing the Judgment - Held that:- We may notice that the learned Counsel for the Third Respondent wanted to file Counter -Affidavit on merits, but we put to him that we are not really examining the controversy on merits and our setting aside the Order of the Second Respondent is solely on account of the inordinate delay in pronouncing the Judgment, without commenting on the merits of the controversy.
We have, thus, no option but to set aside the Order dated 9.3.2010 of the Second Respondent solely on the ground of extraordinary delay in pronouncing the Judgment after six years. Consequently, the Order of the IPAB dated 24.2.2014 would also have to go. We are of course conscious of the fact that this once again sets the clock back, but there is no other option in the given circumstances.
Taking into consideration the aforesaid facts, we expect the Second Respondent to dispose of the Opposition Application within a period of two months from the receipt of a copy of this Order, based on the records already available and the submissions of the learned Counsel for the parties.
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2015 (7) TMI 1183
Disallowance on account of Molasses Reserve Fund - whether Molasses Reserve Fund is in the nature of provision and it is not an actual liability and provision for contingent liability is not allowable as deduction? - Held that: - The first appellate authority followed the order of the coordinate bench of the Tribunal in the assessee’s own case for the asstt. year 1995-96 and allowed the claim of the assesseE. We find no infirmity in the same. Thus this ground of the revenue is dismissed.
Disallowance treating the capital subsidy received from Central Government as revenue receipt - whether interest was neither actually incurred nor was there any liability on the assessee to incur the same - Held that:- The first appellate authority at page 20 para 10 considered this issue. He followed the decision of the coordinate bench of the Tribunal in the assessee’s own case for the assessment year 1990-91 and allowed the claim of the assessee. We also observed that the decision of the Tribunal was upheld by the Jurisdictional High Court . Hence we dismiss this ground of the revenue.
Deletion on account of depreciation on discarded assets u/s 32 - Held that:- First appellate authority applied the judgment of the Jurisdictional High Court in the case of CIT vs. Oswal Agromills Ltd.[2010 (12) TMI 947 - Delhi High Court] and CIT vs. Yamaha Motors India Pvt. Ltd. [2009 (8) TMI 27 - DELHI HIGH COURT] and allowed the claim of the assessee. No contrary decisions are brought to our notice by the Ld. - Decided against revenue
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2015 (7) TMI 1182
Waiver of pre-deposit - The said order was passed on 30.4.2015 and a period of 8 weeks time was given to the appellant for depositing the dues in question. Neither the dues stand deposited nor any application for recalling of the said ex parte order stands filed by the assessee within a period of more than 2= months. As such, the prayer of the learned advocate to adjourn the matter to a further date so as to enable them to file an application cannot be appreciated and accepted. Learned advocate has not been able to give any valid reason for not taking the action during the intervening period
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2015 (7) TMI 1181
Revision u/s 263 - basis of the order of CIT is this that there is no registration u/s 12AA or approval u/s 10 (23C) of the I. T. Act - Held that:- We find that as per the impugned order, the only basis of CIT for holding that the assessment order is erroneous is this that there is no registration certificate u/s 12AA. But we find that as per letter dated 03.06.2015 of CIT, Meerut, this assessee society is enjoying 12A Registration w.e.f. 22.09.1987 and hence, the very basis of the order of CIT is nonexistent. Therefore, the impugned order of CIT u/s 263 is not valid and we quash the same. - Decided in favour of assessee
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2015 (7) TMI 1180
Taxability - Sec.6(1)(c) of the Act - rental charges received for letting out the hoardings - control over the hoardings let out to lessee - Held that: - Here is a case where under a contract or work order hoarding is transferred to a lessee for a specified period enabling the lessee to display the advertisement works on it according to the wishes and imaginations of the lessee and therefore the assessee is totally excluded from the realm of the work that is carried out by the lessee in the hoardings let out. So also, with regard to the maintenance of the advertisement materials on the hoardings, the revision petitioner has no manner of role during the period of the contract and the same are also absolutely under the control of the lessee. Therefore, we are of the considered opinion that there is definitely a transfer of right to use goods by transferring the hoardings to the lessee by the revision petitioner and therefore the said product is exigible to tax as provided under the Act.
After the introduction of sub-article 29A and clause (d) of Article 366, there is a clear power conferred on the Legislature to impose tax on the transfer of right to use any goods for any purpose (whether or not for a specified period) for cash, deferred payment or other valuable consideration. So the duty casted on the authority was to find out whether there is a transfer of right by an assessee to a third person for the use of goods and once it is found, the assessee is liable to pay tax.
The goods defined under Sec.2(xx) of the K.V.A.T Act takes in not only the goods identified in common parlance but also various other kinds of products including livestock, all materials, commodities and articles and every kind of property (whether as goods or in some other form) involved in the execution of a works contract, and all growing crops, grass or things attached to, or forming part of the land which are agreed to be severed before sale or under the contract of sale. Therefore, when the facts of this case are considered, taking into account the said definition also, we are of the opinion that there was transfer of right to use goods by the revision petitioner which makes it exigible and liable to pay tax under Sec.6(1)(c) of the Act.
Revision dismissed - decided against assessee.
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2015 (7) TMI 1179
CENVAT credit - Various input services - nexus with output services - Held that: - the Ld. Commissioner (Appeals) has allowed the cenvat benefit on the disputed services, holding that security service are pertaining to business and are well covered with the definition of input service. With regard to the manpower recruitment supply service, he observed that the disputed services are directly related to the manufacture of final product - the said services have the nexus with the manufacture of final product by the appellant - credit allowed - appeal dismissed - decided against Revenue.
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2015 (7) TMI 1178
Disallowance of Abatement claim - compounded levy scheme - denial on the ground that the conditions of the Rules have not been fulfilled by the appellant in-as-much-as the appellant had not intimated the electric meter reading - Held that: - The fact of suspension of production in the factory of the appellant has not been disputed in the impugned order. While claiming abatement for different periods, the appellant had clearly intimated to the Department regarding the closure of the furnace. Thus, in my opinion, the substantive right cannot be denied to the appellant - I find support from the decision of this Tribunal in the case of Aswad Steels and Alloys (P) Ltd. Vs. CCE, Meerut-I [2009 (8) TMI 185 - CESTAT, NEW DELHI], cited by the appellant that the benefit cannot be denied for the mere fact of non-disclosing of electric meter reading - appeal allowed - decided in favor of appellant.
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2015 (7) TMI 1177
Reversal of cenvat credit - Rule 21 of the Central Excise Rules, 2002 - Remission of duty - Interest - Held that: - the Hon’ble Allahabad High Court in the case of CCE vs M. Kumar Udyog (P) Ltd. reported in [2014 (7) TMI 832 - ALLAHABAD HIGH COURT] has held that accident of fire due to short circuit is an unavoidable accident, for which the assessee is entitled to remission of duty under Rule 21 ibid. In view of the said judgment, the impugned order denying the benefit of remission on this ground is not justified.
The Cenvat Statute nowhere provides that in case of fire accident, the cenvat credit attributable to the said goods has to be reversed. Further, sub-rule (5C) of Rule 3 of the Cenvat Rules calls for reversal of cenvat credit, in the eventuality, where the payment of duty is ordered to be remitted under Rule 21 of the Central Excise Rules, which is not the situation in the present case, in as much as, the remission application filed by the appellant has not been considered by the Jurisdictional Central Excise Authorities.
Considering the fact that the report submitted by the appellant is not clear, I am of the opinion that the matter should go back to the original authority for consideration of the actual amount settled by the Insurance Company upon verification of the documents submitted/ to be submitted by the appellant - Appeal allowed by way of remand.
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2015 (7) TMI 1176
Computation of ALV based on municipal rateable value of the property - Held that:- It is a decided issue that AO is prevented in this case and property from disturbing the ALV qua the (i) considering the notional interest on deposit and (ii) not considering the Municipal Ratable value-based-ALV of the property. In this year, AO has not garnered any incriminating material against the assessee‟s claim relating to ALV of the property in question. After considering the above submissions of the assessee as well as the arguments of the Ld DR for the Revenue, who essentially argued for setting aside the appeal to the file of the AO, we find the need for dismissing the arguments of the Ld DR. - Decided in favour of assessee.
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2015 (7) TMI 1175
Cenvat credit - Rule 9 of the cenvat credit Rules - Held that: - Tribunal in the case of Krishna Maruti Limited vs.CCE, Delhi reported in [2012 (6) TMI 461 - CESTAT, New DELHI] has held that cenvat credit is not deniable merely because the invoice contained the address of the corporate office, when there is no dispute about the duty-paid character and their receipt in the factory premises and their utilization in the manufacture of the final product by the appellant - Appeal allowed - decided in favor of the assessee.
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2015 (7) TMI 1174
CENVAT demand - GTA service - Commission Agent service - whether, the appellant is required to reverse the service tax credit, in the eventuality, where the inputs are removed as such from the factory? - Held that: - Rule 3(5) of the Cenvat Credit Rules provides that when inputs or capital goods on which cenvat credit has been taken are removed as such from the factory, the manufacturer of the final product shall pay an amount equal to the credit availed in respect of such inputs or capital goods and such removal shall be made under the cover of an invoice referred to in Rule 9. On perusal of the said statutory provisions, it reveals that reversal of equal amount of cenvat credit is required in case of removal of inputs and capital goods and not with regard to credit taken on the input service - the demand confirmed in the present case by the Authorities below is not sustainable - appeal allowed - decided in favor of appellant.
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2015 (7) TMI 1173
CENVAT credit - forged invoices - Held that: - I find that upon proper analysis of the documents submitted by the Respondent, since the Ld. Commissioner (Appeals) has arrived at the conclusion that the appellant (respondent herein) had in fact received the goods covered under the disputed invoices, maintainability of the impugned order cannot be questioned at this juncture, especially in view of the fact that the Revenue has not brought on any tangible evidence to prove non-receipt of the goods by the respondent. Further, I find that in an identical set of facts, involving the same supplier M/s M K Steel (P) Ltd., the Hon’ble Allahabad High Court in the case of M/s Juhi Alloys [2014 (1) TMI 1475 - ALLAHABAD HIGH COURT] have dismissed the appeal filed by the Department, holding that once the goods have been received by the recipient under the cover of duty paid documents for use in the intended purpose, the genuineness of the said documents cannot be questioned by the Department.
Appeal dismissed - decided against Revenue.
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2015 (7) TMI 1172
MODVAT credit - period from October, 1999 to December, 1999 - manufacture of sugar and molasses, falling under chapter 17 of the First Schedule to the Central Excise Tariff Act, 1985 - Rule 57 G/ 57 T of the Central Excise Rules, 1944 - welding electrodes - denial on the ground that some of the disputed goods are not covered in the definition of capital goods - denial also on the ground that Non-filing of declaration by appellant before taking credit.
Welding electrodes - Held that: - With regard to the eligibility of modvat benefit on welding electrodes, the Tribunal in the earlier round of proceedings has decided negatively, against which the appellant has not preferred any appeal before the higher appellate authorities. Thus, I am not expressing any opinion on this aspect and the original authority is at liberty to recover the same, if not already paid by the appellant.
Non-filing of declaration by appellant before taking credit - Held that: - With regard to non-filing of declaration by the appellant before taking modvat credit, I find that the receipt and utilization of the impunged goods have not been disputed by the authorities below. Thus, in such an event, non-filing will be construed as mere procedural lapse, for which the substantive right conferred under the statute cannot be whittled down and the benefit cannot be denied to the appellant. Hence I am of the view that denial of modvat benefit on the ground of non-filing of declaration is not a justifiable ground and as such, the appellant is eligible for the cenvat credit on these point.
Eligibility as capital goods - Held that: - With regard to denial of modvat benefit on the ground that the disputed goods are not covered under the definition of capital goods, I find that the authorities below have not recorded any specific reason in support of their contention. It is observed that the appellant has given ample justification in their reply to the show cause notice, as well as in the appeal memorandum filed before the First Appellate Authority, explaining the reasons for their eligibility to the modvat benefit. Therefore, I am of the view that the matter is required to be remanded back to the Original Authority for consideration of the submissions made before him, by the appellant with regard to the eligibility aspect of the disputed goods, and thereafter for passing a reasoned and speaking order.
The appellant is eligible for the modvat benefit which was disallowed to it for non filing of declaration. With regard to the dispute about coverage of capital good under the definition, the impugned order is set aside and the matter is remanded to the Original Authority for passing a reasoned and speaking order, taking into consideration the submissions made/ to be made by the appellant. The penalty imposed under Rule 173 Q in the impugned order is set aside - appeal disposed off - decided partly in favor of appellant - matter on remand.
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2015 (7) TMI 1171
Reversal of CENVAT credit - process loss - job work - processing of sugar - whether, the appellant is required to reverse the cenvat credit on the quantity of finished goods short received in the factory from the job worker’s premises, which is attributable to the process loss at the factory of the job worker? - Held that: - Rule 3 of the Cenvat Credit Rules, 2004 permits a manufacturer to take cenvat credit of duties paid on the inputs received in the factory of manufacture of final product. Since Cenvat credit has been taken by the appellant on the quantity received, as indicated in the Bill of Entry, taking of such credit is in conformity with the requirement of Rule 3 ibid. No stipulation/ embargo has been created in the cenvat statute that in case of process loss happened at the factory of the job worker, the recipient/principal manufacturer is required to reverse the cenvat credit. In absence of any specific provisions contained in the statute, requiring the manufacturer to reverse the cenvat credit, in such an eventuality, I am of the view that the cenvat credit already reversed by the appellant before issuance of the SCN and subsequent claim of the said credit by way of filing of refund application, is the proper course of action taken by the appellant for restoring such credit. Further Rule 4(5) (a) ibid provides for reversal of cenvat credit, in the possible event, where the goods have not been received from the job workers premises. The said provisions nowhere suggest that in case of process loss, the manufacturer is also required to reverse the cenvat credit. Thus, in absence of any specific stipulation being contained in the cenvat statute for reversing the cenvat credit attributable to the shortage in the quantity received in the factory on account of process loss, denial of cenvat benefit is not proper and is contrary to the statutory mandates.
Compliance of with the requirements of Rule 16 ibid - Held that: - I find from the available records that the Jurisdictional Assistant Commissioner has granted the letter permission to the appellant for sending the goods to the job worker and has also prescribed the conditions therein, which have been duly complied with by the appellant.
I am of the considered opinion that rejection of refund claim by the Authorities below is not legal and proper. Therefore, the impugned order is set aside and the appeal is allowed in favour of the appellant with consequential benefit of refund.
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2015 (7) TMI 1170
Demand - export of “knitted woollen shawls (Dyed)” - advance licence scheme - mis-declaration of goods - Held that: - In so far as mis-declaration in respect of quantity as well as description of the goods in Shipping Bill No.4319 dated 22.05.1999 is concerned, after confirming the findings to that effect, the CESTAT reduced the redemption fine to ₹ 3,00,000/- lakhs and personal penalty of ₹ 2,00,000/- - We are not inclined to interfere with the discretionary power exercised by the CESTAT in the given facts and circumstances of the case.
Appeal dismissed - decided in favor of respondent-assessee.
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2015 (7) TMI 1169
Seeking release in PMLA Case pending before Principal District & Sessions Judge, Ahmedabad (Rural), Designated Special Court under PMLA Act at Ahmedabad - matter adjourned by HC [2015 (7) TMI 1168 - GUJARAT HIGH COURT] - Held that:- The Special Leave Petition is disposed of.
However, we request the High Court to decide the Writ Petition[Special Criminal Application (Habeas Corpus)], pending before it, on merits.
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2015 (7) TMI 1168
Seeking release in PMLA Case pending before Principal District & Sessions Judge, Ahmedabad (Rural), Designated Special Court under PMLA Act at Ahmedabad - Held that:- Today, one more fact has been brought to our notice by learned counsel for the petitioner that non-bailable arrest warrants issued against the main accused in the same case have been quashed and that accused has been allowed to join investigation under court protection.
Because of the two orders of the Supreme Court dated 12.2.2015 and 07.07.2015 and in view of the objections raised by respondents regarding maintainability of the petition, prima facie, this Court is of the view that a clarification will be necessary as to whether this Court was competent to decide the present petition of habeas corpus under Article 226 of the Constitution of India. Learned counsel for the petitioner has also agreed to move such application before the Supreme Court to obtain necessary clarification/suitable direction in the matter.
Now this matter is adjourned to 30.07.2015 for further proceedings. Rejoinder, if any, to the written submissions be filed before that date.
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2015 (7) TMI 1167
Unaccounted sales - variation in stock at the time of search - Tribunal has allowed the appeals on the ground that other than the papers seized by the Department, there was no direct or indirect documents to prove that the assessees indulged in unaccounted sales - Held that:- Appellate Authority while dealing with this aspect of the matter has come to the conclusion that it is not the case of the assessees that the entries recorded are untrue and they do not relate to the assessees and accordingly held that Section 292C would not come in aid of the Department to draw an inference that all entries relate to sale. The Tribunal has further come to the conclusion that there is nothing in the seized material to show that unaccounted sales were found in the course of search. This finding of the ITAT is factually incorrect. As observed supra, the Assessing Authority has referred to the sale invoices to an extent of ₹ 5,40,765/- and deducted the said amount as can be gathered form para 6.17 of the assessment order.
The order of the Assessing Authority is cogent and well reasoned. Every minute detail is reflecting in the said order. In a case of search of seizure, the revenue may discover assessees’ failure to account several transactions which ought to have been brought to tax. It is only in such circumstances that the provisions of search and seizure are invoked. Assessee took a definite stand that the entries found in the loose sheets were reflecting in the regular books. The assessees were given a fair and reasonable opportunity to substantiate their stand. Both the assessee and the chartered accountant failed to substantiate the same. There is no doubt with regard to the possession of documents in question. It is clearly recorded in the order of assessment that the partner S.Rudramuniyappa and the Chartered Accountant who accompanied him miserably failed to substantiate their claim. On facts, we are convinced that there is no dispute with regard to the seizure of documents and the assessee as well as the Chartered Accountant were given sufficient opportunity to substantiate their claim but they miserably failed justify their stand.The substantial questions of law raised in these appeals are answered in favour of the revenue.
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2015 (7) TMI 1166
Permission of this Court to withdraw the Writ Petition - Held that:- Permission sought for is granted.
The Writ Petition is disposed of as withdrawn.
It is clarified that the withdrawal of the present Writ Petition will not come in the way of any other Writ Petition that is already pending or that may be filed by the petitioner.
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2015 (7) TMI 1165
Cenvat Credit - Sales Commission/’Dalali - Held that: - The matter is no more res integra in view of the decision of the Hon’ble High Court of Gujarat in the matter of CCE Ahmedabad II vs Cadila Healthcare Ltd [2009 (8) TMI 172 - CESTAT, AHMEDABAD], where it was held that such service tax is ineligible for availment of Cenvat credit on this issue.
As regards penalty, the action of the appellant in taking the Cenvat credit of the service tax to the commission agents could be out of bona fide belief as to eligibility to Cenvat credit as it is in relation to the business of manufacturing and selling. I find that the said bona fide belief of the appellant cannot be considered as erroneous and that too, to invoke the extended period of limitation for imposition of equivalent amount of penalty. In my view, the appellants have made out a case for setting aside the penalties imposed by the lower authorities. Accordingly, I set aside that portion of the order which imposes equivalent amount of penalty on the appellant under the provisions of Rule 15 of the Cenvat Credit Rules, 2004 read with Section 11AC of the Central Excise Act, 1944.
Appeal disposed off - decided partly in favor of appellant-assessee.
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