|
Advanced Search Options
Case Laws
Showing 281 to 300 of 1251 Records
-
2012 (12) TMI 973
Denial of rebate claim - Availment of CENVAT Credit - manufacturer exporter accepted the same as mistake and reversed the said availed credit - Held that:- Applicant Exporter as manufacturer was regularly submitting his Central Excise Returns and never suppressed anything, his pleas of above mistake as having been committed inadvertently needs to be considered and his subsequent reversal of that part of inadmissible Cenvat credit should be taken as compliance of applicable provisions of Notification No. 21/2004-C.E. (N.T.), dated 6-9-2004 read with Rule 18 of Central Excise Rules, 2004. Government therefore following the principle as adopted in M/s. Cot Fab Exports [2005 (11) TMI 100 - GOVERNMENT OF INDIA] is of the considered opinion that such a substantial benefit of rebate claim should not be denied once the Cenvat credit stands reversed. - Decided in favour of assessee.
-
2012 (12) TMI 972
Denial of rebate claim - During the relevant time duty of said goods was nil as per Notification No. 29/2004-C.E., dated 9-7-2004 as amended vide Notification No. 58/2008-C.E., dated 7-12-2008 - applicant paid duty on the exempted goods - Held that:- As per explanation 1(A) to Section 5(A) of Central Excise Act, 1944 the manufacturer of such goods has no option to pay Central Excise duty since Notification No. 29/2004-C.E., dated 9-7-2004 as amended, issued under Section 5A(1A) of Central Excise Act, 1944 grants unconditional exemption from whole of duty. The duty paid cannot be treated as duty paid under the provision of Central Excise Law. As such, the rebate of said amount is not admissible to the applicant under Rule 18 of Central Excise Rules, 2002 read with Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 since exported goods cannot be treated as duty paid goods. - impugned order-in-appeal is upheld to this extent - amount so paid by the applicant is to be treated as voluntary deposit with Government and same is to be refunded in the manner it was initially paid. In the instant case the same was paid from Cenvat credit account and hence government directs that the said amount may be allowed to be re-credited in their Cenvat credit account. - Decided partly in favour of assessee.
-
2012 (12) TMI 971
Denial of rebate claim - ARE-1 value was higher than FOB value declared on Shipping Bills - Held that:- Rule 6 is applicable where the ‘price is the sole consideration’. But, in the instant case the applicant received free of cost material, processed them and manufactured the final export product exported the same. While exporting the final export material, they declared conversion charges of converting free of cost material into final export product which they were actually going to realize. The applicant was neither going to realize total cost of final export goods nor the total amount declared in AREs-1 which include value of free material received from foreign party plus cost of conversion. Under such circumstances, if at all there is any amount which is considered of sole consideration, would be cost of conversion and not anything else. The FOB value declared in Shipping Bills which is equivalent to cost of conversion is the transaction value in this case which is realized toward export sale proceeds - The original authority has rightly held that transaction value in this impugned case is FOB value declared in Shipping Bills and rebate of duty payable on said value is required to be sanctioned. Any excess duty paid is required to be refunded in the manner it was paid - Decided in favour of assessee.
-
2012 (12) TMI 970
Imposition of penalty - Theft of goods - Clandestine removal of goods - Applicability of Rule 4 - Held that:- Fact of looting/robbery, which also led to murder of security guard of applicant’s factory premise, has not been disputed. As such, the applicant was a victim of theft incident. Under such circumstances, provisions of Rule (4) of the said rules cannot be applied as the applicant, a manufacturer, has not removed the goods unauthorisedly. Further, there is no specific allegation in Show Cause Notice or impugned orders that the goods were removed by the applicant in unauthorised manner from their factory premises. Theft has occurred in spite of taking all possible preventing measures by the applicant. - this is not a case where the applicant has applied for remission of duty under Rule 21 of the Central Excise Rules, 2002. Applicant has already deposited the demand amount of ₹ 49,147/-. In view of this position there is no case for imposition of penalty since there is no clandestine removal of goods by the applicant. As such, Government sets aside the penalty imposed on the applicant - Decided in favour of assessee.
-
2012 (12) TMI 969
Confiscation of goods - Commercial quantity goods - baggage declaration not present - Held that:- Applicant passenger, on arrival at the airport had reported at the red channel. There is no charge of misdeclaration or concealment of said goods. The goods are confiscated as the same were in commercial quantity and did not constitute bona fide baggage - Applicant has also requested to allow duty free baggage allowance as per rules. In this regards, it is noted that the woollen textiles valuing ₹ 30,000/- cannot be treated in commercial quantity and its value is also well within admissible duty free baggage allowance. Therefore, said textiles valuing ₹ 30,000/- may be allowed clearance under duty free baggage allowance available under the Baggage Rules. The other items are in commercial quantity and do not constitute bona fide baggage under Section 79 of Customs Act, 1962 and said goods are imported in violation of Sections 79 & 11 of Customs Act, 1962 r/w para 2.20 of FTP 2009-14. Therefore the order for confiscation of said goods and imposition of penalty cannot be assailed. - applicant has not sought re-export of goods on his arrival, under Section 80 of Customs Act, 1962. He has deliberately attempted to import the said goods illegally and therefore his request for re-export cannot be accepted at this stage - allows clearance of woollen textiles valuing ₹ 30,000/- is allowed under duty free baggage allowance - Decided partly in favour of assessee.
-
2012 (12) TMI 968
Denial of rebate claim - applicant exported the goods after more than 2 years from the date on which the goods were cleared from factory - failure to obtain the extension from Jurisdictional Commissioner - Held that:- applicant initially exported the goods covered vide 8 AR4/ARE’s of year pertaining to 1998 and 2000 under bond without payment of duty. However, they failed to export the goods within stipulated time/extended time and paid duty applicable on such goods vide TR-6 challan dated 22-6-2000 and also vide entry in RG 23 Pt. II dated 22-6-2000. Subsequently, in 2003, after receiving fresh export orders, they cleared the goods. The applicant filed rebate claim of duty paid by them vide abovesaid TR-6 challan and entry in RG 23 Pt. II, both dated 22-6-2000. Government finds that the said duty was paid by the applicant for the reasons of failure to export the goods under Bond. It cannot be claimed as rebate under Rule 18 of Central Excise Rules, 2002. However, applicant exported the goods subsequently and is claiming rebate.
Goods are exported after lapse of 6 months period from the date of clearance of goods for export from factory. Applicant has not produced any valid permission from the competent authority to export said goods after 6 months. The applicant has violated the provisions of Condition 2(b) of Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 and failed to make compliance of said mandatory condition. Therefore, the rebate claim is not admissible to the applicants under Rule 18 of Central Excise Rules, 2002 r/w Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004. - Decided against assessee.
-
2012 (12) TMI 967
Denial of rebate claim - benefit of exemption under Notification No. 56/2002-C.E., dated 14-11-2002 - Interest on delayed refund claim - Held that:- Rule 18 of Central Excise Rules, 2002 was amended retrospectively w.e.f. 1-3-2002 to 7-12-2006 vide Section 88 of Finance Act, 2008 allowing rebate of duty paid on excisable exported goods for that portion of duty for which refund has been granted in terms of area based exemption notification to the manufacturer. The said amendment in Rule 18, make such rebate claims admissible during the period 1-3-2002 to 7-12-2006. Government observes that the retrospective validation of admissibility of rebate claims, made the claimant entitled for said rebate claim during the relevant period. The said amendment has not put any bar on payment of interest in terms of Section 11BB for delayed payment of said refund claims. So the time limit provided under Section 11BB for the purpose of computing interest liability has to be adhered to. Interest liability arises when any duty ordered to be refunded under Section 11B(2) is not refunded within three months from the date of receipt of application under Section 11B(1). Since the said amendment has not put any restriction on the payment of interest in terms of Section 11BB, the argument of department that interest will arise after three months of amendment, does not hold good. - interest under Section 11BB becomes payable on the expiry of three months from the date of receipt of the application under sub-section (1) of Section 11B of the Act and any explanation/reasons due to which the delay occurred, will not have any bearing upon the said legal position. Therefore, Government finds no infirmity in the impugned order-in-appeal and upholds the same. - Decided against Revenue.
-
2012 (12) TMI 966
Reopening of assessment - accommodation entries - Held that:- The assessee has discharged his onus by filing complete details ie. purchase of shares, share certificate, Demat account, confirmation from Buniyad Chemicals Limited of whose shares were purchased. Consideration was paid through account payee cheque, therefore, there is no material against the assessee from which it can be said that the transaction entered by the assessee was not genuine. It is further noticed that in case of Kataria Ketan Ishwarlal (2010 (4) TMI 1029 - ITAT MUMBAI), the additions were made on the basis of statement of Shri Mukesh Chokshi. The Tribunal by noting that Mr. Chokshi has issued a general statement and it cannot be applied in each and every case, there was no direct evidence against that assessee. Accordingly, the amount of addition made in that case was deleted by the Tribunal. Here facts are similar. Neither the statement of Mukesh Chokshi was provided to the assessee nor there was any cross examination of Mukesh Chokshi, whereas contrary to that the assessee has filed all the details required for providing for purchase of shares were genuine. It is not a case of the department, whatever the consideration was paid by the assessee through cheque for purchasing of shares have come back to the assessee under the garb of bogus purchases as there is no evidence against the assessee. Keeping in mind all these facts and circumstances of the case, thus hold that the addition made and sustained on account of purchase of shares only on the basis of statement of Mukesh Chokshi, was not justified - Decided in favour of assessee.
Unaccounted gift - unexplained credit - Held that:- admit the additional evidence as they go to the root of the case. The additional evidences are in shape of gift given to the assessee by one Ms Fareeda Manasswala. Copy of her passport and confirmation letter are filed as additional evidences. They were not filed before the AO or before the CIT(A). Therefore, to meet the end of justice, I set aside this issue to the file of the Assessing Officer to consider these evidences and then pass a fresh order after affording opportunity of being heard to the assessee - Decided in favour of assessee for statistical purposes..
-
2012 (12) TMI 965
Cheating - Swindling of amount - Non following of procedure by magistrate - Section 202 of the Code of Criminal Procedure - Held that:- High Court took the view that prima facie the bare allegation of cheating did not make out a case against the accused for issuance or process under Section 418 of 420 of the I.P.C. Further, it was held that the C.J.M. did not follow the procedure laid down under Section 202 of the Cr.P.C. - The duty of a Magistrate receiving a complaint is set out in Section 202 of the Cr.P.C. and there is an obligation on the Magistrate to find out if there is any matter which calls for investigation by a criminal court. The scope of enquiry under this Section is restricted only to find out the truth or otherwise of the allegations made in the complaint in order to determine whether process has to be issued or not. Investigation under Section 202 of the Cr.P.C. is different from the investigation contemplated in Section 156 as it is only for holding the Magistrate to decide whether or not there is sufficient grounds for him to proceed further.
Amendment was not noticed by the C.J.M. Ahmednagar. The C.J.M. had failed to carry out any enquiry or ordered investigation as contemplated under the amended Section 202 of the Cr.P.C. Since it is an admitted fact that the accused is residing outside the jurisdiction of the C.J.M. Ahmednagar, we find no error in the view taken by the High Court. All the same, the High Court instead of quashing the complaint, should have directed the Magistrate to pass fresh orders following the provisions of Section 202 of the Cr.P.C. Hence, we remit the matter to the Magistrate for passing fresh orders uninfluenced by the prima facie conclusion reached by the High Court that the bare allegations of cheating do not make out a case against the accused for issuance of process under Section 418 or 420 of the I.P.C. - Matter remanded back - Decided in favour of Appellant.
-
2012 (12) TMI 964
Stay of order - exemption denied in respect of sales/ supply of HSD made to fishermen society on the ground that the societies were not holding a licence under the Act - Held that:- Prima facie it appears that the remedy under section 7A(2) of the Act would be available against the fishermen's societies for the breach, if any. The Tribunal itself records in its order dated August 28, 2012 that the issue arising before them is debatable. Further,find that the petitioner for the year 1989-90 had paid an amount of ₹ 8.73 crores as tax under the Act. In light of the above the disputed amount of ₹ 30.80 lacs is relatively a amount and the stay could be granted without any condition of part payment. Matter to be concluded expeditiously.
-
2012 (12) TMI 963
Entry tax on raw material, i.e., glass shell, glass panel, glass funnel and neck tube at the rate of one per cent - whether be treated to be covered by entry 49 of Schedule II of the Madhya Pradesh Sthaniya Kshetra Me Mal Ke Pravesh Par Kar Adhiniyam, 1976 ? - levy of interest under section 13 of the Entry Tax Act read with section 26(4)(a) of the Vanijya Kar Adhiniyam, 1994
Held that:- Keeping in view the language employed in the respective entry and the undisputed fact that the items in question are made of glass and that they are not parts or accessories of television but are used as raw material for manufacturing of parts and accessories of television, we are of the view that the items in question are covered by entry 42 of Schedule II to the Entry Tax Act.
Under the said provision, the interest has been levied on delay in payment of tax. Since a submission has been made that the said interest is relatable to the difference on the rate of tax claimed by the petitioner under entry 42 of the Entry Tax Act and rate of tax levied by the assessing authority under entry 49 of the Entry Tax Act, and since this court has held that entry 42 is applicable, therefore, the interest levied by the assessing authority to that extent cannot be upheld. W.P. allowed - matter is remitted back to the assessing authority for fresh assessment
-
2012 (12) TMI 962
Refund of the excess amount paid to the Sales Tax Department, Government of Assam - Held that:- Raw petroleum coke and calcined petroleum coke have been treated to be a part of one entry "coke in all its forms". The principle that different commercial commodities attract separate tax was distinguishable.
In view of the judgment of the honourable Supreme Court 1994 in State of Bihar v. Universal Hydrocarbons Co. Ltd. [(8) TMI 248 - SUPREME COURT OF INDIA] in respect of same commodity, it is not necessary to go into the general principle whether different commercial commodities will attract separate tax as laid down in the judgment of the honourable Supreme Court in State of Tamil Nadu v. Pyare Lal Malhotra [1976 (1) TMI 151 - SUPREME COURT OF INDIA] which was held to be distinguishable in its applicability to the entry of "coke in all its forms".Set aside the impugned order and direct that a fresh decision be taken in the matter,
-
2012 (12) TMI 961
Works contract - assessee transfers property in form of ink and other materials in execution of printing works - Held that:- No sale of goods is involved in executing the work of printing merely because the printer has used the ink in the process. The use of ink in the process cannot be held to be transfer of goods by the printer to the person for whom a printing job has been executed.
The view taken by the Bombay High Court in R.M.D.C. Press Pvt. Ltd. [1998 (9) TMI 635 - BOMBAY HIGH COURT] fully supports the assessee and is in consonance with the view taken by the honourable Supreme Court in Bharat Sanchar Nigam Ltd. v. Union of India [2006 (3) TMI 1 - Supreme court]. W.P. allowed
-
2012 (12) TMI 960
Issues involved: Seizure of goods based on conflicting documents, validity of seizure, failure to account for goods.
Seizure of goods based on conflicting documents: The judgment of the court highlighted that at the time of seizure, two sets of documents with identical serial numbers were found in possession of the truck driver. One document authorized the driver to deliver goods to one person, while the other authorized delivery to a different person. The Tribunal declared the seizure as invalid, emphasizing that the seizing authority did not verify if there were actual persons at the addresses mentioned in the documents. It was also noted that the enforcement authority failed to seize similar documents to prevent future misuse. The Tribunal did not dispute the presence of two sets of identical documents with identical serial numbers but focused on whether the driver could explain the goods' ownership. The court concluded that the driver's attempt to account for goods using conflicting documents justified the valid seizure of the goods, overturning the Tribunal's decision.
Validity of seizure: The Tribunal's decision regarding the invalidity of the seizure was deemed questionable by the court. The court reasoned that the circumstances, where the driver possessed documents with conflicting instructions on delivery, indicated a failure to account for the goods adequately. The presence of identical serial numbers on documents authorizing delivery to different persons raised doubts about the driver's ability to justify ownership of the goods. Therefore, the court intervened, allowing the revision and setting aside the Tribunal's order, thereby upholding the validity of the seizure.
Failure to account for goods: The key issue before the Tribunal was whether the truck driver could provide a satisfactory account of the goods being transported. The court emphasized that the driver's reliance on documents with conflicting instructions and identical serial numbers created a situation where the ownership and delivery of the goods were not adequately explained. This lack of clarity in accounting for the goods led to the court's decision to support the seizure as valid and justified, ultimately overturning the Tribunal's ruling.
-
2012 (12) TMI 959
Issues involved: Classification of product as fertilizer for taxation under Uttarakhand Value Added Tax Act.
Summary:
The High Court considered two revisions concerning the classification of a biodynamic preparation product as fertilizer for taxation purposes. The product was marketed as a catalyst for compost heap conversion into fertilizer. The Department disputed its classification as fertilizer, citing the lack of a specific definition in the Uttarakhand Value Added Tax Act. Despite evidence of the product being purchased and used as fertilizer, the Department maintained its stance based on the representation of the product as a catalyst. The first appellate authority set aside the Department's order for further inquiry. The Tribunal ruled in favor of the assessee, considering the market perception of the product's use. However, the High Court disagreed with the Tribunal's decision, emphasizing the product's packaging representation and directed the assessing officer to investigate if the product could increase soil fertility. Consequently, the High Court allowed the revisions, upheld the first appellate authority's order, and instructed further inquiry into the product's soil fertility impact.
-
2012 (12) TMI 958
Issues:
The issues involved in this case are whether the plant and machinery transferred by the respondent-assessee to its holding company constitute moveable or immovable properties, and whether the transfer should be treated as a sale for the purpose of levying sales tax.
Plant and Machinery Classification:
The respondent-assessee contended that the plant and machinery transferred were immovable properties, thus not subject to sales tax. However, the assessing officer treated the transfer as a sale. The Tribunal held that the machinery, specifically a boiler and its accessories, were immovable properties without conducting an independent investigation into their removability. The assessing officer found that the boiler was purchased and installed by the respondent-assessee, indicating it could be removed if desired. The Tribunal concluded that the transfer was a book adjustment due to the holding company relationship.
Estoppel and Representation:
The court found that the respondent-assessee, by representing the transfer of plant and machinery in its balance-sheet, was estopped from later claiming it was merely a book adjustment. The representation in Schedule 10 of the balance-sheet clearly indicated a transfer had occurred, preventing a contradictory stance. Consequently, the court set aside the Tribunal and first appellate authority's orders, reinstating the assessing officer's decision.
This judgment highlights the importance of consistent representations and the impact of estoppel in legal proceedings involving property transfers and taxation assessments.
-
2012 (12) TMI 957
Issues:
The judgment discusses the application of Section 15A of the U.P. Trade Tax Act, 1948 in a case involving the importation of goods in contravention of Section 28A.
Analysis:
The court examined the provisions of Section 28A, which require an importer to obtain a prescribed declaration form before bringing goods into the state from outside. Sub-section (2) of Section 28A outlines specific obligations for importers regarding goods consigned by road, including furnishing the form to the consignor, delivering a copy to the first check-post, or to the assessing authority if no check-post is present, and retaining a copy for themselves.
In the case at hand, the importer failed to produce the required form at the check-post when the truck carrying the goods passed through. However, it was established that the form had been obtained before reaching the check-post, and it was promptly produced upon realization of the oversight. The court found that while there was a technical violation of Section 28A due to the initial failure to present the form at the check-post, the subsequent production of the form demonstrated compliance with the legal requirements.
Consequently, the court concluded that there was no basis for the assessing authority to conclude that the importer had contravened the provisions of Section 28A. As a result, the court intervened in the matter, overturning the penalty imposed by the assessing authority and setting aside the orders issued by the appellate authority and the Tribunal. The revision was allowed, and the penalty was revoked.
This judgment highlights the importance of procedural compliance in matters related to the importation of goods under the U.P. Trade Tax Act, emphasizing that technical lapses may not always amount to substantive violations warranting penalties.
-
2012 (12) TMI 956
Issues involved: Challenge to the vires of newly amended rule 54 of the Madhya Pradesh Value Added Tax Rules, 2006 and insertion of new form No. 41A.
Judgment Summary:
The petitioner challenged the vires of the newly amended rule 54 of the Madhya Pradesh Value Added Tax Rules, 2006 and the insertion of new form No. 41A by the State Government. The amendments required dealers to furnish audit reports prepared by chartered accountants or members of the Institute of Cost and Works Accountants of India. The petitioner argued that legal practitioners were excluded from verifying accounts due to these amendments, which mandated certification by chartered accountants. The Bombay High Court had previously addressed a similar dispute and dismissed the writ petition, a decision upheld by the Supreme Court. The High Court of Madhya Pradesh, considering the precedent set by the Bombay High Court and the Supreme Court's decision, found no merit in the present petition and dismissed it without costs.
This summary provides a detailed overview of the issues involved in the legal judgment, including the challenge to the newly amended rule 54 and the insertion of form No. 41A. It highlights the petitioner's argument regarding the exclusion of legal practitioners and the precedent set by the Bombay High Court and the Supreme Court in similar cases. The High Court of Madhya Pradesh's decision to dismiss the petition is clearly explained, maintaining the legal terminology and key points from the original text.
-
2012 (12) TMI 955
Reassessment proceedings - goods clandestinely removed - Held that:- All that the assessing officer did was to rely on the show-cause notice issued by the Excise Department. Nowhere did he conclude that there was a case of clandestine removal of goods without payment of tax under the VAT Act. Merely because the Excise Department issued a show-cause notice, that cannot be a ground to presume and conclude that there was evasion of excise duty implying thereby that there was also evasion of tax under the VAT Act. It is not even the case of the Department that such show-cause notice proceedings has culminated into any final order against the petitioner.
Reassessment order cannot be sustained and is accordingly quashed. When the order is ex facie illegal and wholly untenable in law, mere availability of alternative remedy would not preclude us from interfering at this stage in a writ petition.
-
2012 (12) TMI 954
Penalty imposed - Whether the order of the revisional authority in setting aside the order of the Appellate Authority and levying penalty is bad in law?
Whether the Additional Commissioner passes the orders in revision was vested with jurisdiction to exercise the power of revision?
Held that:- The records clearly disclose that the assessee along with the revised returns has paid the tax as well as the interest.The Government has also not framed the rules in this regard, whether the assessee is entitled for exemption or not, is also not clear. In the absence of the same, the returns has been filed.
Subsequently, in the revised returns, the tax has been paid at the rate of 4% thereafter, in the second revised returns, the tax has been paid at the rate of 12.5% with interest. The Assessing Authority has not taken into consideration the contention taken by the assessee. Further, Section 2(28) defines return which includes revised returns. Hence, the question of imposing penalty by the Assessing Authority for filing the revised returns has to be re-examined. The issue regarding the jurisdiction of passing the order under Section 64 has not been taken before the Revisional Authority or the Assessing Authority. Hence, the Assessing Authority has to reconsider the matter afresh.
With regard to the interest is concerned, the Assessing Authority has not levied any interest. However, the revisional authority has directed the Assessing Authority to levy interest on the differences of the tax paid by the assessee. The specific contention taken by the assessee is that he has already paid the differences of the tax with interest, hence the question of paying interest does not arise. This issue is also to be considered by the Assessing Authority. Appeal allowed by way of remand.
............
|
9911796707
