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Showing 281 to 300 of 1750 Records
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2018 (1) TMI 1473
Transfer pricing adjustment - ALP determination - international transactions - expenses incurred by the assessee towards advertisement and sales promotion expenses as helping the promotion of "Renault" brand in India - HELD THAT:- Just because assessee mentioned that marketing expenditure incurred by it helped promotion of Renault brand in India, it cannot be presumed that such expenditure resulted in any ‘’international transaction.
Expenditure was incurred by the assessee, to create market share for its Cars and marginal benefits derived by its principal abroad, as an off shoot cannot in our opinion convert it to a international transaction. See MARUTI SUZUKI INDIA LTD. VERSUS COMMISSIONER OF INCOME TAX [2015 (12) TMI 634 - DELHI HIGH COURT] - Decided in favour of assessee.
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2018 (1) TMI 1472
Valuation of imported goods - declaration of lower value - Rule 5 of the Customs Valuation Rules, 2007 - reliance placed on NIDB data and also to the circular issued by the DGOV - Held that:- Department had not invoked the provisions of Rule 12 of the Valuation Rules, for rejecting the declared value. Thus, in absence of rejection of declared value, the value declared by the appellant cannot be re-determined, by resorting to the provisions of Rule 5 of the Rules - the Department has not produced any other evidence to reject the value declared by the appellant.
The re-determination of value by the authorities below cannot be sustained and the value declared by the importer should be considered for the purpose of assessment of bill of entry and for payment of customs duty on such declared value - appeal allowed - decided in favor of appellant.
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2018 (1) TMI 1471
Deduction u/s 80IC - substantial expansion during the assessment year - claim of deduction @ 100% - HELD THAT:- A perusal of the order of the AO reveals that he has not disputed that the assessee unit has carried out substantial expansion as provided under clause (b) of sub section (2) read with clause (ix) of sub section (7) of section 80IC. Almost similar view has also been taken by in the case of ‘M/s Stovekraft India vs. Commissioner of Income Tax’ [2017 (12) TMI 69 - HIMACHAL PRADESH HIGH COURT].
We, therefore, do not find any justification at this stage to give the AO a second innings to re-examine undisputed facts.
The impugned order of the CIT(A) is set aside and the AO is directed to grant to the assessee deduction at the rate of hundred percent of its eligible profits - Decided in favour of assessee.
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2018 (1) TMI 1470
The following questions of law arise:-
(1) Did ITAT fell into error in its findings with respect to existence of a fixed place Permanent Establishment (PE) of the assessee in India?
(2) Did ITAT fell into error in concluding that assessee/appellant’s separately independent agent PE, was located in India?
(3) Whether on the facts and the circumstances of the case and the law, the ITAT was justified in attributing as high as 35% of the profits to the alleged marketing activities and thereafter, attributing 75% of such 35% profits to the alleged PE of the Appellant in India?
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2018 (1) TMI 1469
Excisablity - fabricated items - erection of sheds or erected structures classifiable under chapter sub-heading 7308.90 and liable for duty - Held that:- In the impugned order it nowhere has been shown that the job workers or contractors were hired labour, as contemplated under Section 2(f) of the Central Excise Act - though the revenue has placed reliance upon decision of Mahindra & Mahindra [2005 (11) TMI 103 - CESTAT, NEW DELHI] but in the present case it is nowhere appearing that the goods in questions were first fabricated and then attached to the earth. Further if the goods are attached to the earth are not capable of being moved are immovable property, it cannot be made liable for duty.
It is a fit case to remand the case back to the adjudicating authority to decide the case afresh - appeal allowed by way of remand.
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2018 (1) TMI 1468
Mis-declaration of imported goods - Revenue entertained a view that the appellant has misdeclared the goods as re-rollable scrap falling under chapter heading 7204 whereas the goods were defective iron plates falling under chapter heading 7208 and attracting duty @ 10% - Held that:- Admittedly the examination report has found the said goods to be defective iron plates of square or rectangular size with cut edges and of various thickness and lengths - In such a scenario the goods cannot be held to be prime or defective iron sheets and in the light of such variations in the sizes of the goods along with the fact that their edges were cut and worn out and the fact that they were in not serviceable for the purpose of sheets, it has to be held that the same are metal waste and scrap, which are admittedly not usable as such because of breakage, cutting up, wear-tear or other reasons.
The goods can be used only by remelting the same and as such has to be held as being waste and scrap - there is no misdeclaration in the goods - appeal allowed - decided in favor of appellant.
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2018 (1) TMI 1467
Penalty on CHA, Shri Sanjay Kumar Yadav - smuggling - mis-declaration of export goods - wooden jaap malas made with the beads of the sandalwoods - Held that:- It appears that Shri Sanjay Kumar Yadav, Prop, has admitted that he let his office used for packing the goods and preparing documents thereof with the active participation of Shri Pushpendra Saini of M/s. Bhavya Exports and Shri Santosh Saini, employee of Shri Taran Tyagi. In exchange of that he got remuneration as admitted by Shri Sanjay Yadav as well as Shri Santosh Saini in their respective statements - thus, it appears that Shri Sanjay Yadav was actively involved in the packing of the goods which was prepared by red sandalwood. It means that he was well aware that the items are prohibited items.
It is not the duty of the CHA to pack the goods. But, in the instant case the CHA was involved in packing of the goods which are prohibited. When it is so, then we have no sympathy with him - appeal dismissed - decided against appellant.
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2018 (1) TMI 1466
Refund of excise duty - Excise Duty paid in PLA and in respect of clearance of the finished goods on monthly basis - N/N. 20/2007-C.E., dated 25-4-2007 and Notification No. 38/2008-C.E., dated 10-6-2008 - part refund rejected as it is hit by clause 3(a) of the said notification - Held that:- In the present case, the appellant submitted monthwise refund claims pertaining to the period from July, 2010 to February, 2012 vide their letter dated 15-3-2012 for a total amount of ₹ 35,59,568.00. Thus, it is a clear violation of clause 3(a) of the said notification - The notification provides that the manufacturer shall submit a statement of the duty paid through PLA on a monthly basis. In the present case, the appellant had not filed the statement as per the provisions of the said notification. Therefore, the refund claims were rightly dismissed - appeal dismissed - decided against appellant.
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2018 (1) TMI 1465
Area based exemption - N/N. 50/2003 dated 10-6-2003 - requirement to make the declaration by 31-12-2009 (last date) to claim the benefit - Rejection of benefit on the ground that the appellant has made such a declaration only after on 25-9-2014 (after four years) - Held that:- It appears that the appellant has filed the declaration belatedly to get the benefit of Notification 50/2003 retrospectively which is not permissible - The requirements of Notification No. 50/2003 is that the verification will have to be made on the spot at the time of starting of commercial production - The said requirements are mandatory. After the period of more than four years, it cannot notify and verified.
The benefit under Notification No. 50/2003 cannot be granted to the appellant retrospectively - benefit rightly denied.
CENVAT Credit - Held that:- When the appellant is paying the duty for the period under consideration the appellant is entitled for Cenvat credit as per law subject to the satisfaction of conditions and verification - Hence, for allowing the Cenvat credit for the period under consideration, the matter is remanded to the Original Authority to examine the same on merit and allow the claim.
Appeal allowed in part by way of remand.
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2018 (1) TMI 1464
Non-payment of service tax - Renting of Immovable Property Services - applicant had taken registration with Service Tax department but did not discharge service tax on taxable income received - period from April, 2010 to March, 2015 - demand of service tax under proviso to Sections 73(1) of the Finance Act, 1994 and interest thereon under Section 75 of the Finance Act, 1994 and penalty u/s 76, 77 and 78 of the Finance Act, 1994 apart from demanding late fee for belated filing of returns under Section 70 of the Finance Act, 1994 - An amount of ₹ 51,69,268/- paid by the applicant during the course of investigation was sought to be appropriated towards the service tax demand.
Collection of market fee/slaughter house charges - Held that:- The right to collect market fee/slaughter house fee were granted to individuals (lessees) for a financial year based on bids offered during auction conducted by the Municipal Council, Mahaboobnagar for a specified amount. The lessee shall deposit part of the specified amount as three months advance towards the market fee/slaughter house fee. The lessee shall remit the balance specified amount in nine monthly equal instalments starting April of the financial year. The three months advance amount paid by the lessee will be adjusted in the last three months of the financial year (January-March). The lessees shall collect the market fee/slaughter house fee as per Scheduled Rates already fixed and notified by the Municipality - collection of market fee/slaughter house charges were not towards renting of immovable property - Bench holds that no service tax is payable on slaughter house fee collected by the applicant during the impugned period.
It is also seen that with respect to ‘market fee’, Board vide Circular No. 157/8/2012-S.T., dated 27-4-2012 had clarified that the services provided by Agricultural Produce Marketing Committee are classifiable under ‘Business Auxiliary services’. Para 5 of the said circular reads as “As statutory bodies, APMCs provide basic facilities in the market area out of the ‘market fee ’ collected from the licencees, mainly to facilitate the farmers, purchasers and others. APMCs provide a host of services to the licencees in relation to procurement of agricultural produce, which are ‘inputs’ in terms of the definition given in Section 65(19) of the Finance Act, 1994 itself. To that extent the meaning of ‘input’ is much wider in scope than the meaning assigned in Rule 2(k) of Cenvat Credit Rules, 2004. Therefore, it is clarified that the services provided by the APMC are classifiable as BAS and hence covered by the exemption under Notification 14/2004-S.T.”
Demand of service tax under the category of ‘Renting of Immovable Property Service’ - Held that:- It is observed that prior to 1-7-2012, the services provided by the applicant would not be covered under Renting of immovable property service but more appropriately covered under Business Auxiliary Service and exempted in terms of Notification No. 14/2004 S.T., dated 10-9-2004. With effect from 1-7-2012, with the introduction of Negative List, the services provided by a ‘local authority’ such as Panchayat, Municipality, Municipal Committee, etc., as well as services relating to agriculture and agricultural produce are covered under the Negative List. Further activity in relation to any function entrusted to a municipality under Article 243W of the Constitution are specifically exempt under mega exemption notification No. 25/2012-S.T., dated 20-6-2012. In any case, the charges collected by the applicant cannot be considered as consideration for services relating to renting of immovable property. Hence the Bench holds that the demand of Service Tax on market fee under ‘Renting of Immovable property service in not sustainable.
Penalty - Held that:- Bench is in agreement with the department’s view that but for the investigation done by the Anti-Evasion Wing of the Jurisdictional Commissionerate, the non-payment of service tax by the applicant would not have come to light and there would have been loss of revenue to the Government exchequer. However considering the fact that the applicant is a Municipality, a local authority, there could be no reasonable belief to charge mala fides - the Bench considers it a fit case to accord full immunity from penalty to the applicant.
Prosecution - Held that:- The Bench considers it as a fit case for grant of immunity from prosecution to the applicant.
Application disposed off.
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2018 (1) TMI 1463
Maintainability of application before settlement commission - contentious issue - Whether the applicant is eligible for exemption in respect of Erection, Commissioning or Installation services which is sought to be classified under the Works Contract Services in the SCN as it involved transfer of property in goods so as to deny the benefit of exemption under Notification No. 25/2012-S.T. for the period after 1-7-2012?
The applicant’s contention is that Sl. No. 12 of the mega exemption Notification No. 25/2012-S.T., dated 20-6-2012 clearly excludes services provided to Government authority by way of construction, erection, commissioning, installation of canal, dam or other irrigation works and laying of Pipelines conduit for water supply or water treatment and the same are eligible for exemption which is rejected by the Commissioner on the ground that the services rendered to M/s. KBJNL, a Govt., of Karnataka undertaking fall under the category of “Works Contract Service” and as such being a declared service under Section 66E(h) of the Finance Act, 1994 is not eligible for exemption under clauses (d) & (e) of Sl. No. 12 of the Notification No. 25/2012-S.T.
Held that:- The Bench is of the considered view that Settlement Commission is not the forum to decide upon contentious issues, by evaluating the evidences let in by the rival parties to the proceedings. Such an act would tantamount to the Settlement Commission adjudicating upon the notice, based on the submissions made by the rival parties to the proceedings. It is now a well settled proposition that the Settlement Commission is not an adjudicating authority. It is only an arbitration forum where a dispute is settled in the interest of both the parties within the framework of law.
This principle has clearly been enunciated by the Hon’ble High Court of Bombay in the case of Amrut Ornaments [2014 (3) TMI 418 - BOMBAY HIGH COURT].
The Bench observes that the case is not one that can be settled in this Forum in view of rival claims, leading to total divergence on facts and on law, which fall under the domain of adjudicating authority. The Bench observes that the issue of analysing the facts, interpretation of legal provisions and exemption notification and consequently determining the tax liability or otherwise of services merely on the basis of claims made by the applicant vis-a-vis the counter claims made by the department cannot be decided in this forum as in an adjudication proceeding - The case on hand, the Bench observes, involves both disputed questions of fact and law. Hence, it would be more appropriate that the case is adjudicated upon by the proper adjudicating authority after appreciation of facts and evidence let in by the applicant and pass order by following the due process of law.
The Bench, by virtue of the powers vested in it in terms of Section 32L of the Central Excise Act, 1944, made applicable to Service Tax matters under Section 83 of the Finance Act, 1994 rejects the case and sends the case back to the adjudicating authority for adjudication in accordance with the provisions of the law.
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2018 (1) TMI 1462
Non-payment of service tax - manpower recruitment and supply agency service - it was alleged that consideration in respect of services provided, though Service Tax was claimed and received by the applicant, they had not declared the actual service consideration in the periodical statutory ST3 returns - POT Rules - N/N. 30/2012-ST., dated 20-6-2012 - Applicant contended that they were totally new to business segment and not well-versed with the rules and regulations.
Held that:- The Bench finds there is considerable force in the argument put forth by the Commissioner. Even though the Service Tax was wrongly paid by the Service recipients, instead of the Service provider, i.e. the Applicant, and even accepting that the wrong payment had happened under mistake of law, the fact remains that Service Tax was short paid by the Service provider vis-a-vis the value determined by them under Section 67 of the Finance Act, 1994. Ignorance of law cannot be pleaded as an excuse for not fulfilling the statutory fiscal obligations. If the Service recipients had paid Service Tax, which they need not have paid, it was for them to approach the proper authority and seek refund - Payment of Service Tax by the service recipients of the Applicant cannot extinguish the liability cast on the Applicant.
The Bench is of the view that the Applicant is required to pay an additional Service Tax of ₹ 6,70,831/-. The Bench, thus, settles the Service Tax liability at ₹ 80,30,602/- (Rs. 80,22,513 + ₹ 8,089/- (not covered in the Show Cause Notice, but accepted by the Applicant and paid). The Applicant, having paid ₹ 73,59,771/- (Rs. 73,51,682/- + ₹ 8,089/-), is required to pay the remaining amount of ₹ 6,70,831/-.
Liability of Interest - Held that:- As the Applicant is required to pay an additional amount of ₹ 6,70,831/- towards Service Tax, the quantum of interest payable shall vary and the Applicant shall work out the revised interest liability to the satisfaction of the Jurisdictional Commissioner.
Penalty - Held that:- It has to be construed that the Applicant had failed to discharge the statutory obligations and their act entails penalty, as proposed in the show cause notice - The Co-Applicant also becomes liable to penalty, as proposed, inasmuch as the contracts entered into by the Applicant had explicit mention about the taxability of services rendered and he was responsible for declaring the correct taxable service consideration to the department, which had not been done - However, the Bench observes that the Applicant had made a full and true disclosure and had paid all the Service Tax dues with interest, barring a small disputed portion. The Applicant had also cooperated with the department and the Settlement Commission during the proceedings, which act makes a case for the Applicant and the Co-Applicant for grant of partial waiver from penalty - part penalty waived.
Prosecution - Held that:- The Bench considers it a fit case for grant of immunity from prosecution to the Applicant and Co-Applicant.
Application disposed off.
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2018 (1) TMI 1461
Addition u/s 14A r.w.r. 8D - HELD THAT:- As decided in case of Vireet Investment (P) Ltd. [2017 (6) TMI 1124 - ITAT DELHI] as held that for computing average value of investment, for the purpose of disallowance u/s. 14A r. w. Rule 8D only those investments could be considered which would yield exempt income. - Decided in favour of assessee.
MAT - Disallowance of expenditure relatable to exempt income for working out book profit u/s. 115JB - HELD THAT:- We find that in the case of Vireet Investment (P) Ltd. (supra), identical issue has been decided against the revenue and in favour of the assessee in assessee’s own case for AY. 2010-11 [2017 (9) TMI 655 - ITAT MUMBAI]. Considering the above, we decide last Ground of appeal against the revenue
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2018 (1) TMI 1460
Benefit of Sl. No. 106 of N/N. 12/2012-Cus., dated 17-3-2012 - Mis-declaration and mis-classification of imported goods - import of “Protein Meal Animal Feed Supplement” in the guise of “Organic Manure Composite Fertilizer” - evasion of customs duty - allegation based on evidences and statement recorded from various entities involved - the applicant and the co-applicant have paid the entire differential customs duty demanded during the course of investigation, even before the issue of SCN; however, they are before the Bench with a prayer to extent the benefit of Customs Exemption Notification No. 12/2012-Customs, dated 17-3-2012 (Sl. No. 106) which is applicable to ‘Feed additives or premixes’ falling under CTH 2309 90 10 attracting basic Customs duty of 20%.
Held that:- The evidence gathered during the course of investigation have clearly proved that the invoice, packing list etc., have been fabricated with false description of the goods and the goods imported have been sold to poultry agencies directly as animal feed. The poultry agencies have not carried out any further manufacturing activity with the goods purchased and sold them directly in the market as a ‘animal feed supplement’. Further, when the goods imported vide B/E No. 5420683, dated 27-5-2016 and B/E No. 5490477, dated 2-6-2016 were referred to Animal Quarantine and Certification Service, Govt, of India, reported that the goods referred to them contained ‘Meat and Bone meal’ which comes under the category of ‘Livestock products’ and is categorized as high risk commodity. As per N/N. 2666(E), dated 16-10-2014, the import of the said product can be done only after obtaining Sanitary Import Permit (SIP) in advance from the Ministry of Agriculture & Farmers’ Welfare, New Delhi. Secondly Tuticorin port is not authorized for import of livestock products.
It clearly proves that the goods imported cannot be termed as ‘Feed additives or premixes’ and in fact is ‘animal feed’ and therefore, the Bench is of the considered view that the benefit of the exemption notification cannot be extended to the goods in question and accordingly, rejects the claim of the applicant for extending the benefit.
Finalization of provisional assessments - Held that:- The Bench orders finalization of all the 4 Bills of Entry treating the goods as ‘Protein Meal animal Feed Supplement’ and not ‘Organic Manure-Composite Fertilizer’, as claimed by the applicant and hold that the goods are classifiable under CTH 2309 90 10 which the applicant admitted while filing this application.
Penalty - Held that:- The act of the main-applicants and co-applicants attract penalty under the provisions invoked in the SCN. However keeping in view the full and true disclosure of additional duty liability, co-operation extended during the investigation and the proceedings before the Settlement Commission, the Bench considers this as a fit case for extending partial immunity from penalty to the main-applicants and co-applicants.
Prosecution - Held that:- The Bench is inclined to consider grant of immunity from prosecution to the main-applicants and co-applicants.
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2018 (1) TMI 1459
Re-export of confiscated gold on payment of reasonable redemption fine and penalty - no concealment of the goods in question - mere failure to declare the goods - The revision application has been filed mainly on the ground that he had requested the Commissioner (Appeals) to allow re-export of the confiscated gold articles on payment of reasonable fine and penalty. But the Commissioner (Appeals) has completely ignored their above request and has instead allowed redemption of confiscated goods on payment of Customs duty, heavy redemption fine of ₹ 4,80,000/- and harsh fine of ₹ 2,50,000/-.
Held that:- The Government finds that the gold articles namely one gold kara, one gold chain and one gold cut piece, total weighing 454 gms are apparently not of commercial quantity for a person earning such high salary. It has not been alleged even in the above two orders. The purchase of these articles by the applicant from his own income source is also not dispute in the above two orders. Above all it is not established in this case that the applicant had concealed these three articles in his baggage or in his body parts - the Government finds that the element of concealment of gold is not established and the only fault on the part of the applicant has been that he did not declare the importation of the above three articles to the Customs Officers before his departure from the arrival hall. Therefore, the above three articles of the value of ₹ 12,47,535/- are certainly liable for confiscation under Section 111 of the Customs Act and the applicant has also not disputed this aspect.
Considering the fact that the applicant is working in Dubai as a Sales Manager and the Commissioner (Appeals) has not rejected the applicant’s request for re-export of the goods in his Order, the Government allows the re-export of goods on payment of redemption fine of ₹ 3,00,000/-, Further, it also agrees that penalty of ₹ 2,50,000/- imposed on the applicant is also on the higher side and considering the above facts, the same is reduced to ₹ 1,00,000/-. The fine and penalty of the above amount will not only eliminate any profit of margin, if any, but will also have a positive effect on the applicant to ensure strict compliance of law in future. Thus, the applicant can re-export all the confiscated gold articles on payment of Redemption Fine of ₹ 3,00,000/- and Personal Penalty of ₹ 1,00,000/-.
Revision application allowed in part.
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2018 (1) TMI 1458
Duty Drawback - classification of exported goods - women narrow fabric elastics - whether classified under Heading No. 5806 or otherwise? - Held that:- The revenue authorities have accepted that the product of the applicant is made by using these raw materials and with the technique of warp and weft. Considering all these facts, it is apparent that the woven fabric elastics exported by the applicant were narrow woven fabrics falling under S. No. 5806 01 and not under 5604 as held by the Deputy Commissioner and the Commissioner (Appeals - the Deputy Commissioner and the Commissioner (Appeals) have not offered any reason in their orders and have not discussed any detail on the basis of which the applicant's products can be classified under 5604.
Considering the nature of the product, its size, its contents and its manufacturing techniques, the Government feels that the applicant's product exported under shipping bill No. 1945690, dated 27-9-2012 are not classifiable under 5604 which only covers rubber thread and cord, textile covered, textile yarn and strip and the goods of Heading 5404 or 5405, impregrated, coated, covered or sheathed with rubber or plastics and not the goods like narrow woven fabrics exported by the applicant. Accordingly, the applicant is eligible to avail drawback of duty at the rate applicable to the goods of S. No. 5806 of Drawback Schedule which was originally claimed by the applicant.
Revision application allowed.
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2018 (1) TMI 1457
Duty Drawback - re-export of aircraft under Section 74 of Customs Act, 1962 - rejection of drawback on the ground that duty is not finally assessed and the matter is sub-judice - Held that:- The Dy. Commissioner has denied duty drawback to the applicant by citing a reason that duty has been paid in this case on provisional basis and Commissioner (Appeals) has given an additional reason that importability of the aircraft is yet to be settled. Both these reasons are manifestly unfounded and misplaced as the issue regarding levy of duty has already been finalized by the Commissioner of Customs, Kolkata, and the applicant has not contested his order to the extent of recovery of Customs duty. Duty demanded from the applicant has already been paid.
Further even if it is accepted that duty has been paid on provisional basis, it cannot be ignored that applicant has also requested for drawback of duty in reference to actual Customs duty paid by them whether it is final or provisional. The appeal filed by the applicant before CESTAT against Commissioner’s order before CESTAT also does not have any nexus with the applicant's claim for duty drawback and if there is any recovery of dues thereafter it can be settled even subsequently - But merely because of their pending appeal, the drawback of duty cannot be refused when they have already paid customs duty much before and the disposal of the appeal can take its own time.
Government is fully convinced that duty drawback is admissible in this case in accordance with Section 74 of the Customs Act, 1962 and it should be paid immediately to the applicant - revision application allowed.
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2018 (1) TMI 1456
Maintainability of application before Settlement Commission - Waiver of penalty - immunity from prosecution - Demand of differential Customs duty - contraventions made in respect of imports made through Air Cargo, Bangalore - whether the application is maintainable in terms of provisions of Section 127L(i) of the Customs Act, 1962? - Held that:- Section 127L of the Customs Act, 1962 which bars an applicant from approaching the Settlement Commission, if he had been penalized by the Commission previously on ground of concealment of any particulars from the Officer of Customs - The Section envisages that a person who is penalised for concealment of particulars of his duty liability cannot approach the Settlement Commission again.
In the instant case, Shri B.M. Rakesh, Managing Partner of M/s. Virddhi Interiors, Bangalore has filed the instant application for Settlement on 4-8-2017. Shri B.M. Rakesh, as Proprietor of M/s. Vainatheya International Agency, Bangalore, and M/s. Vriddhi Interiors, Bangalore had earlier filed their settlement applications for settlement of their dispute arising of the impugned SCN both on 15-3-2017. Settlement Commission disposed the above applications vide Final Order No. 31-32/2017-Cus., dated 31-7-2017 and imposed a penalty of ₹ 1,30,000/-. In its Final Order No. 33-34/2017-Cus., dated 31-7-2017 the Bench imposed a penalty of ₹ 1,10,000/- on M/s. Vriddhi Interiors, Bangalore. Both the above mentioned Settlement Orders were despatched from this Office on 1-8-2017 and received by the applicants on 5-8-2017 and 9-8-2017 respectively as per the applicant.
At the time filing of the instant application on 4-8-2017, the applicant was not aware that he was penalised in the application filed earlier emanating out of the same SCN. The Final Orders No. 31-32/2017-Cus. & No. 33-34/2017-Cus., both dated 31-7-2017 of the Settlement Commission will become binding on the applicant from the date of receipt of the Order as decided by various higher judicial fora. The Bench also finds force in the argument of the applicant that the bar imposed under Section 127L of the Customs Act is applicable only in respect of ‘any other matter’ as envisaged, whereas the current application filed by the applicant is relating to the same matter dealt earlier by the Bench arising out of the same SCN. Thus the Bench holds that the instant application is maintainable under the relevant provisions of the Customs Act, 1962.
Whether penalty is imposable on Shri B.M. Rakesh, Managing Partner of M/s. Vriddhi Interiors? - Held that:- The entire modus operandi as to how the applicant devised a scheme to evade the payment of applicable Customs duty is discussed in detail. Thus it is seen that the duty evasion has been resorted to by way of wilful misstatement, suppression of facts and misdeclaration of their import values and clearances of import goods. It is the bounden duty of the applicant to pay the customs duty to Government as per the laws laid down. Failure not to do so without any logical and cogent reasons has to be treated as wilful suppression with an intent to evade taxes. Hence, the applicant is liable to penalties as proposed in the show cause notice. Hence penalty is imposable on the applicant as per the provisions of Customs Act invoked in the SCN - keeping in view the full and true disclosure of additional duty liability, co-operation extended during the investigation and the proceedings before the Settlement Commission, the Bench considers this as a fit case for extending partial immunity from penalty to the applicant.
Prosecution - Held that:- Taking into consideration the facts and circumstance of the case, the Bench considers it a fit case to grant immunity from prosecution to Shri B.M. Rakesh, Managing Partner of M/s. Virddhi Interiors, Bangalore.
Application disposed off.
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2018 (1) TMI 1455
Duty Drawback - supplementary claim - rejection on the ground of being time barred - Rule 15(1) & (2) of Drawback Rules, 1995 - Held that:- Supplementary claim is governed by the provisions of Rule 15 of the Drawback Rules as per which where the exporter finds that the amount of drawback paid to him is lesser than what he is entitled to, he may prefer a supplementary claim within a period of three months. As per Rule 15(i)(ii) of Rules, the three months period is counted from the date of payment/settlement of the original drawback claim by the proper officer. However, the time period of three months can be extended by the Assistant/Deputy Commissioner of Customs for a further period of nine months on being satisfied that the exporter was prevented by sufficient cause from filing his supplementary claim within the aforesaid period of three months.
In the instant case the applicant has not received any drawback claim and instead their original drawback claim was entirely rejected as mentioned in Commissioner (Appeals)’s order. In fact it appears that the applicant has filed the drawback claim for the second time after rejection of the earlier claim rejection of the earlier claim as the second claim is also for the same amount of ₹ 1,64,740/-. Therefore, on the face of it, it is not even a supplementary claim. Thus, the primary condition for filing the Supplementary Drawback claim which is payment of drawback of duty in first place is not attracted in this case as is envisaged in Rule 15.
The Government finds that the original authority and appellate authority have correctly rejected the applicant’s claim - revision application dismissed.
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2018 (1) TMI 1454
Addition u/s 41 - Addition on account of non-genuineness of the creditors - genuineness of sundry creditors was not established as the assessee failed to furnish the addresses of creditors - HELD THAT:- In the instant case, there is no ambiguity that the assessee has not written off the sundry creditors pertaining to the television division though the same was shut down long time ago. But the balance of sundry creditors is very much reflecting in the books of the assessee. These sundry creditors were brought forward from the earlier years which imply that these were accepted in the earlier years. Thus non-furnishing of address of such sundry creditors cannot be the reason for invoking the provision of section 41(1) of the Act. Hence, the ground of appeal filed by the Revenue is dismissed.
Addition on account of undisclosed income - Difference in interest income shown by assessee and interest income as disclosed in form 26AS - HELD THAT:- A detailed reconciliation statement was filed by the assessee before the Ld. CIT(A) on the basis of which the relief was given. But the same does not amount to additional evidence in view of the order of Mumbai Tribunal in the case of Swift Freight India Limited [2015 (1) TMI 738 - ITAT MUMBAI]. Thus we hold that no additional document was filed before the Ld. CIT(A). The Ld. DR has not brought anything on record contrary to the finding of the Ld. CIT(A). Thus, we hold that no additional document was admitted by the Ld. CIT(A) in contravention to the provision of the Rule 46A of the Income Tax Rules. Hence, we respectfully following the consistent view of the Tribunal decline to interfere with the order passed by the Ld. CIT(A) on this account and accordingly the ground take by Revenue is regretted.
Addition on account of undisclosed rental income - assessee has not accounted for the income of TDS deducted by the parties - HELD THAT:- We note that the addresses of both the parties namely Nokia India Pvt. Ltd. and Nokia Siemens Network Pvt. Ltd. were available before the AO at the time of assessment but the AO has not exercised power given u/s 133(6) and 131 of the Act to verify whether any income has accrued to the assessee or not. The affidavit furnished by the assessee before the ld. CIT(A) does not amount to additional evidence in view of the order of Mumbai Tribunal in the case of Swift Freight India Limited [2015 (1) TMI 738 - ITAT MUMBAI]. Thus, we hold that no additional document was filed before the Ld. CIT(A). Thus, in view of the above, we do not find any infirmity in the order of Ld. CIT(A). Hence, the ground of appeal raised by the Revenue is dismissed.
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