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Showing 261 to 280 of 1678 Records
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2016 (9) TMI 1424
Validity of assessment order - reversal of ITC - TNVAT Act - Held that: - The petitioner, on receipt of the notice, produced C Forms and the respondent while considering the explanation offered by the petitioner and the C Forms, verified the same and found it to be correct and allowed concessional rate of tax. However, sought to reverse the Input Tax Credit [ITC] u/s 19[2][v] and 19[5][a] of the TNVAT Act, 2006 - In the absence of any proposal in the show cause notice, this could not have been done by the respondent, even assuming that he has some material to do so.
On technical ground, the impugned orders insofar as directing reversal of ITC u/s.19[2][v] and 19[5][a] of the Act, are quashed and in other aspects, the orders of assessment, being in favor of the dealer/petitioner herein, is confirmed.
Petition allowed in part.
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2016 (9) TMI 1423
Maintainability of appeal - monetary limit - tax effect not exceeding the monetary limits - Held that:- In the present case, the tax effect is ₹ 16.08 lakhs, as mentioned in paragraph 11 of the Appeal Memo.
In view of the above, the Revenue, does not press the present Appeal.
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2016 (9) TMI 1422
Withdrawal of appeal - Held that:- After arguing the Appeal for some time, the counsel for the Appellants prays for withdrawal of the Appeal with liberty to the Appellants to file review application before the learned single Judge, seeking review of the order dated 18th April, 2006.
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2016 (9) TMI 1421
Deduction u/s 54EC - time limit for investment in six months - Held that:- Section 54EC(1) of the Act restricts the time limit for the period of investment after the property has been sold to six months. There is no cap on the investment to be made in bonds. The first proviso to section 54EC(1) of the Act, specifies the quantum of investment and it states that the investment so made on or after 01/04/2007 in the long term specified asset, by an assessee, during any Financial Year does not exceed fifty lakhs rupees.
Prior to amendment, the time limit of ₹ 50 lakhs as prescribed u/s 54EC of the Act is per year and if the assessee invest ₹ 50 lakh each in two different years, otherwise fulfilling other conditions of section 54EC, such appellant will be entitle to the benefit of ₹ 1 crore and not merely ₹ 50 lakhs. In the case of the assessee, the capital gains arose on account of two distinct capital asset, arising from two distinct and separate agreements, one vide agreement dated 28/04/2008 and another vide agreement dated 14/10/2008, therefore, there are two separate computation of capital gains, for each assets. The assessee while computing capital gains has sought reinvestment benefit by investing, in the bonds prescribe u/s 54EC on 30/09/2008 against capital gain on 28/04/2008 and on 09/04/2009 against capital gain on 14/10/2008, therefore, the case of the assessee is clear, consequently, in view of the foregoing decision this ground of the assessee, in both appeals, is allowed.
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2016 (9) TMI 1420
Condonation of delay of 161 days in filing appeal - main ground in the application is that the delay occurred on account of the time taken by the Appellant in prosecuting a review petition before the Appellate Tribunal for Electricity - Held that: - this Court had condoned the delay without noticing the bar Under Section 125 of the Electricity Act, 2003 for condoning delay beyond 60 days after expiry of the limitation period. Therefore, the order dated 03.08.2015 condoning the delay of 161 days in filing the appeal is recalled.
In the facts of the present case, since the principles of Section 14 of the Limitation Act, 1963 are not attracted, Interlocutory Application No. 1 of 2015 for condonation of delay is dismissed.
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2016 (9) TMI 1419
Condonation of delay of 498 days in filing appeal - reasons for delay put forth show that the appellant has not taken effort or diligence to file the appeal within time - Held that: - the appellant has not explained reason for delay of each day or explained the delay with dates on which the appeal was sent to Kolkata or the date on which appeal was handed over to the consultant etc. - although it is stated that the papers got misplaced in transit, it is not stated when and how the appellant traced out the papers again and on which date handed over the same to the consultant for filing the appeal. On the whole, the appellant has not made out satisfactory ground for condoning the delay.
The application for COD will stand allowed on payment of cost of ₹ 25,000/- to the respondent/Department within a period of four weeks from today.
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2016 (9) TMI 1418
Computation of income from business of life insurance - Manner of computation of income under Section 44 - Held that:- As section 44 of the Act is applied, distinction between various heads of income paled into insignificance. Assessee had in, its return, separately shown the revenue in its shareholders account and revenue derived from its policy holders account. Revenue account for policy holders account clearly reflected the change in valuation of liability in respect of life-policies which were accounted. Surplus/deficit as per shareholders account may be aggregated with surplus/deficit of the policy holders account for determining the income of the assessee u/s. 44 of the Act. - Decided against revenue
Not allowing set-off of losses under policyholders' account in accordance with the provisions of Section 70 while computing the total income of the Appellant - Held that:- As we have held that surplus/deficit as per shareholders account should be aggregated with surplus/deficit in the policy holders account for determining the profile/loss in the policy holders account for determining the profile/loss of the assessee u/s 44, and such aggregation would results in a loss of ₹ 34,45,94,000/- as per the impugned order, the view of setting off of losses against income u/s 70,72 would be academic and hence not decided.
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2016 (9) TMI 1417
Principles of natural justice - appellants submits that the similar issue is pending before the Hon’ble High Court in Civil Petition No.C-3726/2015 and CM No.6651/2015, where the principle of natural justice was taken against the order passed by the Designated Authority - Held that: - the liberty is granted to the appellant to come again after having final verdict from the Hon’ble High Court, if need be within the prescribed time - appeal disposed off.
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2016 (9) TMI 1416
Benefit of N/N. 11/97-Cus., dated 1-3-1997 - import of Computer Software - Held that: - there are no debarring provision incorporated in that notification to prohibit telecom, medical and other systems to be ineligible to get the exemption benefit when a software is imported to make the system functional - appellant is entitled to the grant of notification that has not prohibited it to get the benefit thereof - appeal allowed.
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2016 (9) TMI 1415
Penalty u/s 1AC of the CEA, 1944 - it was alleged that appellant has been clearing the manufactured goods, such as GSM/GPRS modems without payment of excise duty for demonstration purpose to Uttarakhand unit - intent to evade or not? - Held that: - The non-maintenance of records while clearing the goods out of the factory, is a strong indication of suppression of facts with intention to evade payment of duty. The appellants have also not disclosed such removals in any of their statutory records or in the ER-1 Returns - the explanation that the goods were removed for demonstration purpose and without intent to evade payment of duty is not tenable - the ingredient required for invoking the penal provisions u/s. 11AC of Central Excise Act, 1944 are established - penalty upheld - appeal dismissed - decided against appellant.
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2016 (9) TMI 1414
Attachment orders - recovery of dues - Held that:- As rightly pointed out by the petitioner, the object of the demand is to secure the interest of the revenue. The Income Tax Officer acquires jurisdiction to attach the property based on a certificate issued by the Tax Recovery Officer, certifying that the assessee is a defaulter. Tax Recovery Officer has not issued such a certificate. Even assuming that the Tax Case Appeal filed by the Revenue is entertained, that by itself, will not make the petitioner as an assessee in default, on account of the fact that the entire tax liability is wiped of pursuant to the order of ITAT.
Assuming further that the Revenue succeeds in the Tax Case Appeal, automatically, the assessee will not be treated as defaulter, since the consequential orders have to be passed, notice of demand have to be issued, time has to be granted, thereafter, proceeding has to be initiated and certificate has to be issued by the Tax Recovery Officer, declaring the petitioner as defaulter, and only then, the order of attachment of immovable property of the petitioner could be effected.
Writ Petition is allowed, and the first respondent/Tax Recovery Officer is directed to pass appropriate orders for lifting the order of attachment of the immovable property of the petitioner, and return the original documents given as surety to the second respondent, vide letter, dated 04.09.2012, and pass necessary consequential orders with due intimation to the Sub Registrar, Neelankarai
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2016 (9) TMI 1413
Validity of SCN - Maintenance or repair services - The respondent company was paying service tax from 01.07.2012 to 31.12.2013 under protest, and thereafter the respondent company stopped payment of service tax to the department - case of appellant is that coercive measures to recover service tax cannot be taken, without issuing a formal SCN - Held that: - in the notification of the department, it is clearly stated that depending upon the monetary limit, Central Excise Officers have been authorised by the Board to issue notices under Section 73 of the Finance Act, 1994. Circular No. 80/1/2005-ST dated 10.08.2005, based upon the N/N. 30/05-ST dated 10.08.2005, has been subsequently modified vide Circular No.130/ 12/2010-ST dated 20.09.2010. Section 73 of the Finance Act, 1994, mandates determination of specific amount in the notice - In Hon'ble Supreme Court in the case of State of West Bengal vs. Karan Singh Binayak, [2002 (3) TMI 910 - SUPREME COURT], it is held that inherent power under Section 151 of the CPC cannot be invoked, to re-open settled matters.
Since, the order impugned in this Appeal is an order passed by the Writ Court in W.P. No. 36494 of 2015 on 04.02.2016, this Court does not possess any jurisdiction to annul or modify or invalidate or overturn the earlier decision of the Writ Court in W.P. No. 9496 of 2014 dated 02.04.2014, which is not the subject matter of the present Writ Appeal.
We deem it fit that an opportunity should be given to the appellant department, to put forth their contention on merits before the Writ Court, along with the Miscellaneous Petition - the matter is remitted back to the writ court, to reconsider the matter afresh - appeal allowed by way of remand.
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2016 (9) TMI 1412
Refund claim - Since, the goods were eligible for supply at Nil rate of duty and since the duty was paid appellant filed claim of refund - denial on the ground of time limitation and that proper original documents like invoices (under Rule 11 & PLA) were not submitted - Held that: - the substantial provisions of law which is to be eligible for refund has been complied with by the appellant. The endorsement of refund on original copies of invoices is not a substantial requirement to be eligible for refund - the Original Authority is directed to grant refund to the appellant within 60 days of receipt of copy of this order in his office - appeal allowed.
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2016 (9) TMI 1411
Refund of penalty - time limitation - Section 11B of the Central Excise Act, 1944 - Held that: - Section 11B ibid deals with filing of refund application in respect of Central Excise duty. Since there is no specific mention about refund of penalty in Section 11B ibid, the time limit prescribed therein would not have any application for sanction of such refund amount - refund of penalty allowed - appeal allowed - decided in favor of appellant.
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2016 (9) TMI 1410
Recovery of Rebate allowed - main allegation is that rebate was claimed by the appellant on the strength of invoices/bills without physically receiving the goods - Held that: - the show cause notice has not spelt out the source of procurement of alternate materials. The only documents relied upon showing procurement of materials is no way related to the disputed period - It is evident from rebate sanction orders from the period from 8-12-2006 to 18-9-2007 that entire facts were before the department and the appellant had given undertaking as required by the department to refund the amount sanctioned if demanded within a year.
It was also found that ARE-2 containing all the details of raw materials used were filed by the appellant within 24 hours of export clearance from the factory - the demand is time-barred.
Appeal allowed - decided in favor of appellant.
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2016 (9) TMI 1409
Benefit of N/N. 21/2002-Cus., dated 1-3-2002 - import of toner cartridge nut declared as ink cartridge to avail the benefit of notification - Held that: - There was import of toner cartridge by the appellant under 12 bill of entries beginning from 7-5-2004 till 5-8-2004. During this period, the N/N. 21/2002-Cus., dated 1-3-2002 has undergone amendment. N/N. 66/2004-Cus., 9-7-2004 granted benefit of duty concession to ink cartridge at the relevant point of time of import but not to toner cartridge - while issuing N/N. 21/2002-Cus., dated 1-3-2002 legislature had not intended to cover toner cartridges under ink cartridges - appellant fails to succeed - appeal dismissed.
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2016 (9) TMI 1408
DEPB credit - export of cotton knitted T-shirts round neck - enhancemnet of declared FOB - Held that: - it is not disputed that the goods which were exported are cotton T-shirts knitted round neck. It is also not disputed that the said T-shirts were of good quality and the declared quantity was also found to be correct - the adjudicating authority was correct in accepting the declared FOB value as correct. The First Appellate Authority has not considered the issue in a proper perspective and in a routine manner, set aside the impugned order - appeal allowed.
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2016 (9) TMI 1407
Extension of time for re-export of goods - goods re-imported for reprocessing, etc. - N/N. 158/95-Cus., dated 14-11-1995 - Held that: - The N/N. 158/95-Cus. allows the normal period of 6 months for re-export and also empowers Commissioner of Customs to allow re-export within extended period not exceeding a further period for 6 months - We are not able to comprehend that when the fact of re-export of the goods is not in dispute how the duty of customs on the goods which have already been exported could be confirmed. The facts on record indicate that there have been circumstances like frequent electricity cut leading to delay in re-export of the goods which is beyond the permissible period of 6 months.
The Commissioner of Customs is directed to reconsider the matter leniently to grant ex post facto permission for re-export within the further period of 6 months in terms of N/N. 158/95-Cus. - appeal allowed by way of remand.
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2016 (9) TMI 1406
CENVAT credit - taxable product subsequently becoming exempt - Held that: - indefesible right to Cenvat credit cannot be denied or forgone unless otherwise required by law for extinguishment of such right. Abridgment of the vested right was recognised by law w.e.f. 1.3.2007 incorporating sub-rule 3 (2) to Rule 11 of CCR 2004. Present case being prior to such introduction of law, the order denying Cenvat credit is set aside - appeal allowed.
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2016 (9) TMI 1405
Refund of excess service tax paid - entitlement to interest - Held that: - If an amount is paid by an assessee, in duly of excise, pursuant to a liability created under a Statute or by statutory order, passed by competent authority, and such demand is later found illegal, Section 11 AB contemplates that amount received shall be refunded to assessee provided that the incidence of such duty had not been passed on by him to any other person - In the present case, the amount in question, refund whereof is claimed, was not paid. It is not such amount of duty which was deposited by assessee. To check evasion of 'Excise duty' or 'Service Tax', raid was conducted on 12.1.2007, when during raid, sum of ₹ 25,55,000/- was got deposited. Amount of interest thereon was subsequently realized from petitioner on 29.3.2007 i.e. before issue of notice on 3.7.2007. Such deposit was involuntary by petitioner since no one shall deposit a huge money without creation of liability in law. Such an amount has been held to be a pre-deposit and principles of unjust enrichment has been held inapplicable in such cases.
Circular No. 802/35/2004-CX : MANU/EXCR/0037/2004 dated 8.12.2004 provides that against an order whereunder refund is admissible to an assessee with regard to the pre-deposit, if an appeal is pending, that shall not be taken as justification for denying refund.
Interest on delayed deposit or refund - Held that: - a Division Bench of Delhi High Court in Surinder Singh v. Union of India, [2006 (11) TMI 12 - HIGH COURT, DELHI], relying on Supreme Court judgment in Prince Khadi Woollen Handloom Producers Cooperative Society v. CCE, [1996 (11) TMI 72 - SUPREME COURT OF INDIA], said that State, if has wrongly collected a tax from a person, and, even if there is no specific provision, still is liable to refund tax alongwith interest.
The consensus of the authorities of various High Courts as well as Supreme Court is that any amount received by Revenue, as deposit or pre-deposit i.e. unauthorizedly or under mistaken notion etc., cannot be retained by Revenue since it has no authority in law to retain such amount and it must be refunded with interest.
Petition allowed - decided in favor of petitioner.
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