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Showing 261 to 280 of 1254 Records

2014 (8) TMI 994

Want of territorial jurisdiction - entitlement to receive disability compensation, which becomes payable only in case a seaman becomes incapacitated as a result of the injury - whether the Patna High Court is correct in taking the view that it has no jurisdiction to entertain the writ petition? - Held that:- Considering the entire facts of the case narrated hereinbefore including the interim order passed by the High Court, in our considered opinion, the writ petition ought not to have been dismissed for want of territorial jurisdiction. As noticed above, at the time when the writ petition was heard for the purpose of grant of interim relief, the respondents instead of raising any objection with regard to territorial jurisdiction opposed the prayer on the ground that the writ petitioner- appellant was offered an amount of ₹ 2.75 lakhs, but he refused to accept the same and challenged the order granting severance compensation by filing the writ petition. The impugned order, therefore, cannot be sustained in the peculiar facts and circumstances of this case.
In the aforesaid, the appeal is allowed and the impugned order passed by the High Court is set aside and the matter is remitted to the High Court for deciding the writ petition on merits.
2014 (8) TMI 993

Amendment to Bills of Entry – Correction of arithmetic/clerical mistake – Appellant imported Alkaline Battery cells and filed three Bill of Entry – Since certain arithmetic/clerical errors had crept, CVD was paid on basis of MRP wrongly assuming it to be “per piece” instead of per package – Appellant sought modification/rectification for such arithmetic/clerical mistake which had crept into Bills of entry – Despite clear findings by higher appellate authorities, adjudicating authority, refused to amend Bill of Entry – Held that:- It stands established that there were certain clerical/arithmetic errors in Bill of Entries – In identical circumstances, tribunal in case of De Nora India Ltd. [2012 (12) TMI 384 - CESTAT, Mumbai] has allowed amendment to BE and even granted refund of excess duties involved – Impugned order did not properly examine aspect of rectification/modification in Bill of Entries, despite given past developments in present case – Therefore impugned order is unsustainable and accordingly same is quashed and set aside – Decided in favour of Appellant.
2014 (8) TMI 992

Confiscation of Goods - Imposition of penalty - Tribunal vide impugned order reported in 2011 (5) TMI 709 - CESTAT, BANGALORE held that merely because assessee could not fulfill export obligation, goods do not become automatically liable to confiscation - No confiscation was warranted, confiscation order was set aside and for penalty matter was remanded back - High court while relying upon principle of Commissioner of Customs v. Motorola India Limited reported in 2011 (4) TMI 1014 - KARNATAKA HIGH COURT held that issue relating to whether Tribunal was justified in setting aside levy of duty, has to be decided by Apex Court in appeal to be preferred under Section 130E of Customs Act, 1962 and not by High Court - In view of said principle, appeal was not maintainable - Appeal dismissed.
2014 (8) TMI 991

Maintainability of appeal - Held that:- when the matters were called, there was no representation for the appellant through its counsel and the appellant is also not present in Court. The above conduct of the appellant, clearly shows that the appellant is not interested in pursuing the appeals. Therefore, these appeals are dismissed for non-prosecution - Decided against assessee.
2014 (8) TMI 990

Denial of SSI Exemption - Brand name - High Court will interfere only if it is satisfied that the case involves a substantial question of law. This is the position notwithstanding the fact that the subject matter of the appeal should fall within those described in the first limb of sub-section (1) of Section 35G. Adverting to the impugned order of CESTAT, we see that the Tribunal has pointedly decided all disputed issues of facts on the contentious point as to whether manufacture of goods was carried out in the brand name of another establishment. The answers given by the Tribunal are purely answers to questions of facts, based on the evidence on record. - Decided against Revenue.
2014 (8) TMI 989

Disallowance of commission paid to Directors of the company - whether not an allowable expenditure within the meaning of section 36(1)(ii) as well as section 37(1)? - CIT(A) deleted the addition - Held that:- As per the proposition laid down by the Jurisdictional High Court, in the case of Metaplast P. Ltd. Vs. DCIT (Delhi)[2011 (12) TMI 320 - Delhi High Court] Section 36(1)(ii) is not attracted if the payment of commission is part of salary paid by the company in terms of the appointment order, which is approved at the Annual General Meeting.
In the case of one hand, the commission in question is paid as per the terms of appointment and has been approved at the Annual General Meeting of the company held on 15.09.2004. The Annual General Meeting approved the remuneration package of (1) Mr. H.L. Khushalani (2) Mr. Vivek Khushalani and (3) Mrs. Raksha Walia w.e.f. 01.04.2004.The approval was granted in accordance with the provisions of Sections 198, 269, 309, 310 and Schedule XIII of the Companies Act 1956.
Perusal of the resolution demonstrate that the commission in question is nothing but another form of salary which is paid for service rendered. Thus, the order of the ld. CIT(A) has to be upheld. Also see CIT-1 Vs. Convertech Equipments Pvt. Ltd [2012 (12) TMI 451 - DELHI HIGH COURT] - Decided against revenue.
2014 (8) TMI 988

Jurisdiction of authority - Held that:- there was no representation for the appellant/Department. However, learned counsel for the respondent is present in Court. The above conduct of the appellant counsel in not appearing before this Court clearly shows that the appellant is not interested in pursuing the appeal. Therefore, this appeal is dismissed for non-prosecution. - Decided against Revenue.
2014 (8) TMI 987

Imposition of penalty - whether the Tribunal was justified in setting-aside the penalties imposed on others - Held that:- Court in the case of Commissioner of Customs, Bangalore v. Motorola India Limited reported in [2011 (4) TMI 1014 - KARNATAKA HIGH COURT] has held that whether the terms and conditions of notification dated 1-4-1997 has been complied with by the assessee or not, and whether the levy of duty, interest and penalty is legal or not, and the Tribunal was justified in setting aside the levying of duty, interest and penalty are all questions relating to determination of rate of duty payable, entitlement of exemption under notification. They have to be decided by the Apex Court in an appeal to be preferred under Section 130E and not by the High Court in an appeal preferred under Section 130 of the Act. Therefore, these appeals preferred by the Revenue under Section 130 of the Customs Act, 1962 is not maintainable. - Decided against Revenue.
2014 (8) TMI 986

Denial of refund claim - Notification No. 41/2007-S.T., dated 6-10-2007 - amount of Service Tax was paid in relation to the export of goods - Held that:- Notifications allowed refund of Service Tax in relation to only those services which are listed therein and which were received in relation to export of goods. The services in respect of which the appellants have claimed the impugned refund are not listed in either of the two notifications. The appellants have not been able to give any evidence that the refund claimed by them is in respect of services which are listed in these notifications. It needs to be mentioned here that it being a case of refund, the onus is on the appellants to show that they are eligible for refund and evidently the appellants have failed to discharge that onus. - Decided against assessee.
2014 (8) TMI 985

Denial of benefit of exemption - Banking or other Financial services - Held that:- since it is settled law that an exemption Notification must be strictly and narrowly construed, treating a bank authorised by the RBI (to transact Government business) as the agent of the RBI and thus entitled to exemptions clearly confined to the RBI (under Notification No. 22/2006-S.T.), is an interpretation that warrants deeper analysis and possible reconsideration. - Matter places before President, for appropriate administrative orders as to constitution of a Larger Bench for consideration of following question:-
Whether qua Notification No. 22/2006-S.T., dated 31-5-2006, the commission received from the Reserve Bank of India by a scheduled bank (entrusted with functions of transaction of Govt. business) for rendition of “Banking or Financial” service is entitled to exemption from Service Tax on the ground that the banking company providing such taxable service is an agent of the Reserve Bank of India and thus entitled to exemptions specified in clause (i) of Notification No. 22/2006-S.T., dated 31-3-2006.
2014 (8) TMI 984

Denial of CENVAT Credit - Manpower supply agents service - Input service - Nexus with manufacturing activity - Held that:- As regards the service of receiving trained personnel for manning the occupational health centre at Sirohi factory, it is seen that the appellant in terms of Rule 65T of the Rajasthan Factories Rules are required to maintain an occupational health centre as their employees are more than 500 and they carry out hazardous operations. Unless the appellant comply with this provision of the Rajasthan Factories Rules, they would not be allowed to carry on their manufacturing activity. Therefore, I hold that the service of receiving trained medical personnel through manpower supply agency for maintaining the occupational health centre has to be treated as in or in relation to manufacture of final product and would be eligible for Cenvat credit as input service.
As regards the services of supply of trained manpower received through manpower supply agents at project office at Udaipur and corporate office at Mumbai, the Jurisdictional Assistant Commissioner in his order dated 3-11-2008 for the previous period has given a finding that these personnel recruited through manpower supply agents are used in connection with activities relating to business and, therefore, this service also has to be treated as covered by the definition of input service. - Decided in favour of assessee.
2014 (8) TMI 983

Duty demand - Maintainability of appeal - Held that:- Stake involved in the present case is ₹ 33,819/-. In view of the above, we do not feel it necessary to interfere with the order passed by the Tribunal and accordingly, we do not express any opinion on the questions of law raised. - Decided against Revenue.
2014 (8) TMI 982

Waiver of pre deposit - “construction of complex” and “works contract” services - Held that:- From the provisions of Section 65 and on general interpretative principles it is clear that where a word or an expression is defined in an enactment such definition, unless a contrary intention is evident would govern the meaning of an expression wherever it occurs in the same enactment. Residential complex is defined in Section 65(91a) and this definition would govern the scope of the expression “residential complex” under Section 65(105)(zzzza) as well. - In view of the decision of the Tribunal in Macro Marvel Projects and as the petitioner has constructed EWS, LIG and MIG houses as stand alone units for the Rajasthan Housing Board, it cannot be, prima facie, held that the petitioner had provided construction of residential complex service. We, therefore grant waiver of pre-deposit in full and stay all further proceedings for realisation of the adjudicated liability, pending disposal of the appeal - Stay granted.
2014 (8) TMI 981

Waiver of pre deposit - Business Auxiliary Service - Held that:- In respect of the remaining four invoices, he has taken a view that Export of Service Rules, 2005, cover the case of the appellant and therefore, they should receive the consideration in convertible foreign exchange to become eligible for treatment of services rendered as ‘export of service’. The appellant has made a submission that the services are covered by the provisions of Board’s Circular No. ST-56/5/2003, dated 25-4-2003 wherein it is clarified that services rendered by the appellant become part of the services to another person to whom the service has been rendered and that service is exported, such service has to be treated as secondary service and tax need not be paid. - appellant was not given the entire work which DHS is required to be executed. Only some portion of the work has been given and the name of the foreign client is available and the invoices of DHS have been produced which show that DHS has received consideration in foreign exchange and service rendered by the appellant was part of the services rendered by DHS to the foreign client. Therefore, prima facie, we find that the Board’s Circular may be applicable and the appellant’s service can be considered as secondary service rendered to DHS as primary service. Accordingly, since the appellant has made out a prima facie case in their favour, the requirement of pre-deposit of the adjudged dues is waived and stay against recovery is granted for a period of 180 days from the date of this order. - Stay granted.
2014 (8) TMI 980

Denial of CENVAT Credit - Captive consumption - whether the appellant is eligible to avail Cenvat credit on inputs used in the intermediate product jig wire and jig rods captively consumed in the manufacture of dutiable final products - Held that:- jig wires and jig rods were consumed in the process of manufacture of Knitting Pins. The Commissioner (Appeals) also accepted that these goods are intermediate products. It is also noted that these goods are essential for the manufacture of final product. - these items are intermediate products captively used in the manufacture of dutiable final product and therefore, Cenvat credit cannot be denied - Decided in favour of assessee.
2014 (8) TMI 979

Waiver of pre deposit - discrepancy between the gross taxable value shown in the ST-3 return and the receipt shown in the balance-sheet - Held that:- Since the Tribunal has exercised discretion in waiving 75% of the demand, this Court does not find any ground warranting interference with such discretionary order. However, considering the consequences for non-compliance of the conditions imposed in the impugned order, this Court extends the time for deposit of 25% of the duty imposed upon the petitioner till four weeks from date. - Decided conditionally in favour of assessee.
2014 (8) TMI 978

Waiver of pre deposit - benefit of the exemption Notification - Held that:- After ascertaining the stand of the learned counsel for the appellant and also of the learned counsel for the respondent, both agree that the appellant can be given an opportunity to make good its contentions in the appeals and the matter be decided on merits, on the condition that the appellant will deposit a sum of ₹ 40 lacs - Decided conditionally in favour of assessee.
2014 (8) TMI 977

Denial of refund claim - Provisional assessment - Bar of limitation - Held that:- The refund claim has been filed by the Appellant on account of revision/final fixation of sale price. It was denied to them on various grounds viz. the assessment was not provisional, refund claim was filed beyond the time-limit prescribed under Section 11B of the Central Excise Act, 1944, and also the Appellant failed to establish that the burden of excess duty has not been passed on to the customers, as required under Section 12B of CEA, 1944 - Appellant had failed to satisfy the Department that the excess duty paid by them at the time of clearance of the goods, had not been recovered from the customers, or in other words, the burden of duty has not been passed by the Appellant on to the customers, the contention of the assessee is that initially, the price of excisable product namely, synthetic oil, cleared to M/s. Bokaro Steel Plant, was provisionally fixed at ₹ 80/- per litre, but later it was reduced to ₹ 62.79 per litre.
Basic fact of collection of the amounts shown in the respective invoices raised at the time of clearance of the goods, is disputed by the Appellant. The Appellant have placed before us a Chartered Accountant’s Certificate certifying that the Appellant had not collected the amounts shown in the invoices at the time of clearance of the goods. - Consequently, the impugned Order is set aside and the matter is remitted to the Original Adjudicating Authority, as consented by both sides, only for the limited purpose of examination/scrutiny of the issue whether the burden of duty has been passed on to the customers or otherwise. - Decided in favour of assessee.
2014 (8) TMI 976

Disallowance of product development expenses - expenditure incurred for the designing charges of packaged drinking water bottle and changing of colour of the cap of the beverages bottles - revenue v/s capital - Held that:- The assessee is into manufacturing and sale of fast moving consumer goods products and has various competitors in the market having similar line of products. Keeping with the market trends and pace of consumer preferences, the changes in the design of the products and also the quality of the products is an essential part of market strategy to augment sale and profit. Such an expenditure incurred for designing the product cannot be held to be of enduring benefit. Even otherwise also, if the advantage of such expenditure is merely for augmenting the assessee's trading/ business operations or to carry on the business more efficiently for profitability, leaving the fixed capital untouched, the expenditure would generally be on the revenue account, even though the advantage may have an enduring benefit for a brief period. Here in this case, the assessee has changed the design of the bottle and the colour of the cap as is a regular phenomenon to be carried out between one to two years which cannot be held to be for an enduring benefit or major change in the profit making apparatus. Such expenditures are required for either augmenting the sale or to survive in the market under stiff competition. Therefore, such expenditure has to be treated as revenue expenditure and, accordingly, the disallowance as confirmed by CIT(A) under the head product development expenditure is allowed. - Decided in favour of assesse.
Eligibility for deduction under section 80- IB - additional ground raised - Held that:- Assessing Officer in the assessment year 2004-05, while passing the order under section 143(3), has allocated the business/depreciation losses to the demerged company. Such an order was also confirmed by the learned Commissioner (Appeals) also, however, the Tribunal, in that year has allowed the assessee's claim carried forward losses which was apportioned due to demerger. This order of the Tribunal is now subject matter of appeal before the hon'ble High Court. Learned counsel submitted that if the hon'ble High Court reverses the order of the Tribunal, then, there would be no carried forward of losses, hence, will result into positive income and then deduction under section 80-IB has to be allowed. Thus such a plea is too prompt, however, being a legal plea based on statutory provision, we direct the Assessing Officer that in case, as a result of any order passed by the High Court, resulting into setting aside of the Tribunal order or denying the claim of carried forward of losses, then the Assessing Officer while computing the positive income of the assessee for this year, shall examine the claim of deduction under section 80-IB. - Decided in favour of assessee for statistical purposes.
Market research expenses - revenue v/s capital - Held that:- Assessee has incurred market research expenditure mainly on the existing products such as "Simply Imlee" and "Frooti" to find out the consumer preferences and choice of various age group consumers, so as to target the sales of these products accordingly. These expenses are incurred for constant endeavour to carry out market research which is inevitable for fast moving consumer goods industry to remain in competition and are routine expenditure carried out in the ordinary course of business for strengthening the existing brands. Therefore, the learned Commissioner (Appeals) has rightly held that such expenses incurred on market research is nothing but revenue expenses - Decided in favour of assesse.
2014 (8) TMI 975

Entitlement to deduction under section 80-IA - Decision relied by CIT(A) to allow the claim is being challenged in High Court - Held that:- Since the learned Commissioner of Income-tax (Appeals) while allowing the claim of deduction under section 80-IA(4) has followed the decision of the Tribunal, therefore, merely because the Revenue has challenged the decision of the Tribunal before the hon'ble High Court, the same in our opinion cannot be a ground to take a contrary decision than the view taken by the Tribunal. In this view of the matter, we uphold the order of the Commissioner of Income-tax (Appeals) and the ground raised by the Revenue is dismissed. - Decided in favour of assesse.