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Showing 281 to 300 of 1437 Records
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2015 (3) TMI 1163
Interpretation of Notification - Whether can be applied retrospectively or not - Petitioner hotelier was granted eligibility of certificate for exemption for a period of 10 years w.e.f. 5.11.1996 to 4.11.2006 but curtailed upto 31.3.2006 instead of 4.11.2006 by issuing notification dated 31.3.2006 and 15.9.2006, making retrospective amendment which is without authority of law - Held that:- it is a fundamental rule of law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act, or arises by necessary and distinct implication. The Hon'ble Supreme Court held that a subordinate legislation can be given a retrospective effect, if any power is contained in this behalf in the main act. Rule making power is a species of delegated legislation. A delegatee therefor can make rules only within the four-corners thereof. No statute can be construed to have a retrospective operation unless such a construction appears very clearly in terms of the Act – by a delegated legislation the right accrued to the petitioner cannot be taken away. Thus, the Supreme Court held that the amendments carried out could not take away the rights of the petitioner with the retrospective effect.
Here, the exemption, which was granted already earlier notification was available to the petitioner up to 4.11.2006, but vide notification dated 15.9.2006 to 31.9.2006, it was restricted up to 31.3.2006, meaning thereby, for a period of near about six months, petitioner has been liable for payment of tax for which there was no power with the State Government to withdraw such exemption with retrospective effect. The aforesaid exemption could not have been withdrawn by the State Government vide notification dated 15.9.2006 with retrospective effect. Therefore, Notification dated 31.3.2006 and 15.9.2006, insofar as it relates to the petitioner only, restricting the exemption of notification till 31.3.2006 is not sustainable under the law and the petitioner who was extended the benefit of exemption from payment of tax till 15.9.2006 shall be entitled to get the aforesaid exemption. - Decided in favour of petitioner
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2015 (3) TMI 1162
Winding up petition - Claim for balance outstanding - on account of supply and on account of Sale Tax due to non-submission of ‘C’ Form - Appellant supplied goods and received part payment - Held that:- whether the claim is just and without any defence, is examined by the Company Judge applying the principles that the Court would adopt in an action under Order XXXVII of the Code or Chapter XIII A of the Rules of this Court in its Original Side. Applying such principles of law, the Court may not admit the winding up petition, once it is satisfied, the claim is bona fide disputed, when the Court is not sure as to the chance of success of the defence, it would often direct the company to show their bona fide by depositing the claim amount or any part thereof. Here, the respondent miserably failed either to show, they had a plausible defence or show, they were otherwise solvent also there is not any defence to the claim found. The respondent is not prepared to deposit the entire principal claim, so, the winding up petition is liable to be admitted. - Appeal disposed of
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2015 (3) TMI 1161
Liability of sales tax and imposition of penalty on supply of printed materials - Printed on the orders received from their customers and according to their specifications without ascertaining the predominant intention of the parties to the transaction - Works contract - Claimed exemption on sales effected on printed materials, printed out of his own materials such as paper, ink, etc. - Held that:- by following the decision of this Court in the case of Heritage Printers v. Joint Commissioner (SMR) of Commercial Taxes [2015 (11) TMI 1427 - MADRAS HIGH COURT], the assessee is not liable to pay tax on supply of printed materials and printed materials supplied by the assessee have commercial value in the sense that they cannot be marked in the open market and the impugned transactions were purely ones of work and labour. - Decided against the revenue
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2015 (3) TMI 1160
Entitlement for refund claim - Courier service, storage and warehousing service and CHA service - Manufacture and export of readymade garments - Service tax paid on taxable services utilized in business of export - Entitled for exemption under Notification No. 41/2007-ST dated 6.10.2007 - Services are specified service availed by the appellant and paid service tax thereon to the service provider - Held that:- the appellant is entitled to refunds of Service Tax as claimed by them in all the four appeals save and except in respect of CHA service for the period Jan, 08 to March, 08 as the said service was notified from 1.4.2008. In course of export, the documents are generated as the transaction progresses and all the documents are not generated at one point of time. The whole refund claim cannot be rejected only on the ground of non-finding of all the particulars or an instrument or documents, if it is available in other accompanying documents which are annexed together, supporting the transaction of export. The intention of the legislature is not to export the domestic taxes and to encourage export. Therefore, the services have been utilized in the course of export business of the appellant and accordingly, the appellant is entitled for refund. - decided in favour of appellant
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2015 (3) TMI 1159
Denial of CENVAT credit - Non receipt of physical goods - Held that:- The only basis to deny the Cenvat credit to the manufacturer buyer is that the vehicles involved were not used in transportation of the goods in question. But Revenue has failed to prove the charge with any corroborative evidence for reliance of the statement of the transporter in question which are analyzed herein above in detail. Therefore, the allegation that vehicles were not used in transportation of goods is not sustainable. Consequently the allegation for non transportation of goods is set aside.
The Cenvat credit to the manufacturer buyer of the goods in question cannot be denied. Consequently, the demand of duty along with interest is not sustainable. Consequently penalties on all the appellants are not sustainable - Decided in favour of assessee
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2015 (3) TMI 1158
Transaction value for the purpose of charging excise duty - demanding the differential duty - cost of transportation, handling, etc. and one lump sum amount inclusion in excised duty - Held that:- While arriving at the transaction value for the purpose of charging, excise duty, the cost of transportation from the factory to the depot or any other place or premises from where the excisable goods are sold have to be included and no abatement in respect of such charges is permitted. In the present case, the goods have been sold and delivered at the ONGC Nhava Depot and on the total value charged, Sales Tax has been collected. In other words, the sales took at the ONGC Nhava Depot. We have perused invoices in respect of supplies made by the appellant at the ONGC Depot and these facts also become very clear from the invoices. Further, in these invoices the total amount charged is indicated and there is no bifurcation as to what is the amount charged for towards the price of the goods, the excise duty element, the cost of transportation, handling, etc. and one lump sum amount is charged which is inclusive of excise duty.
The appellant’s claim to the contrary is not evident from the invoices raised as there is no mention in these invoices of any charges towards transportation, handling etc. In these circumstances, the contention of the appellant that these are towards transportation and handling charges cannot be accepted. Since the sale takes place at ONGC Nhava Depot, that is the place relevant for determination of the transaction value in terms of Section 4(1)(b) read with Rule 7. Therefore, notwithstanding the fact that depot was not included as a place of removal, prior to 14-05-2003, the appellant has no case at all. After 14-5-2003, the price at the ONGC depot is clearly the value on which duty liability has to be discharged.
As regards the invocation of extended period of time, merely because the appellant is a Public Sector Undertaking, it does not mean that the appellant is liable to pay duty only for the normal period of limitation. If the appellant does not comply with the provisions of law and the documentary evidences available on record does not support the appellant’s contention, the presumption that the appellant suppressed the facts would naturally arise. The law does not make any distinction between a PSU or non-PSU. In this view of the matter, invocation of extended period of time in the present case is fully justified. Consequently, the assessee is also liable to penalty under the provisions of Section 11AC of the Central Excise Act, 1944. Therefore, we do not find any infirmity in the impugned order passed by the lower adjudicating and appellate authorities. - Decided against assessee
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2015 (3) TMI 1157
Seeking quash of respondent's proceeding dated 20.02.2015 - Demand of tax @14.5% and levy of penalty in terms of section 27 of the Act 2006 - Respondent contended that petitioner collected the tax amount but have not paid the same to the department - Held that:- there is no mentioning about the non-payment of tax amount collected by the petitioner in the impugned orders. Hence, the said contention cannot be accepted. The impugned orders dated February 20, 2015 are very clear that the turnover is less than ₹ 10 lakhs. Therefore, the petitioner has the benefit of section 3 of the Act 2006. So, the proceedings of the respondent dated February 20, 2015, are quashed. - Decided in favour of petitioner
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2015 (3) TMI 1156
Non-allowance of interest on delayed provisional refund - Section 53 of the Maharashtra Value Added Tax Act, 2002 - Manufacturer in cotton yarn, hosiery fabrics, electronic goods holding certificate of entitlement during the period of assessment - Held that:- the Tribunal has rightly interpreted the provisions of sections 51, 52 and 53 of the MVAT Act while partly allowing the appeals. It is to be noted here that a conjoint reading of the provisions of section 51 and 53 of the MVAT Act and by applying the same, the Tribunal has rightly remanded the matter back to the assessing authority to calculate the period of delay as per observations made in the impugned judgment and has directed to award interest over delayed refund to the respondent. Also there is no substantial question of law as contemplated under section 27 of the MVAT Act is involved in the present appeals. Decided against the revenue
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2015 (3) TMI 1155
Seeking directions for re-opening of case - Entitlement for seeking deduction - In respect of sales returns in the relevant assessment year 1997-98 in which the sales of the returned goods had taken place despite the fact that the assessment for that year 1997-98 is completed - Exemption claimed in succeeding year instead of in the relevant year after satisfying the necessary conditions - Held that:- deduction should be made only from the turnover for the assessment year 1997-98 provided the other requirements of the provisions of the law are satisfied. However, in case the claim is made perfectly and in time the assessment relating to the assessment year 1997-98 can be reopened and the claim have to be considered on merits and necessary revised orders have to be passed. Therefore, the orders of the ADC which are in accord with the law, which is obtaining, cannot be said to be faulty. Hence, the impugned order deserves to be set aside. - Decided in favour of appellant
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2015 (3) TMI 1154
Deemed dividend u/s. 2(22)(e) - Held that:- we find that the liquid funds available with the assessee were ₹ 31,24,44,463/- and assessee had granted loans during the year amounting to ₹ 11,26,65,003/-, which works out to 36.06% of total liquid funds available. Hence, it can be safely concluded that the lending activity is substantial part of the business of M/s. JAFPL from the factual position as stated herein above from the angle of funds deployment criterion.
The provisions of section 2(22)(e) of the Act cannot be made applicable for inter corporate deposits as received by the assessee. Thus in respect of expression ‘substantial part of the business’ and the alternative argument of the assessee that what was received by the assessee from M/s. JAFPL is only in the nature of inter corporate deposits and not loans and advances. Hence, the provisions of section 2(22)(e) of the Act cannot be made applicable in the facts of the case, we hold that no addition could be made in the hands of the assessee u/s. 2(22)(e) of the Act. - Decided in favour of assessee
Disallowance u/s. 14A - Held that:- We find that no satisfaction was recorded by the ld.AO in terms of Rule 8D(1) of the IT Rules, 1962, which is mandatory as in the instant case, the assessee had disallowed a sum of ₹ 15,451/- voluntarily in the return of income u/s. 14A and without giving a categorical finding how the said figure is incorrect having regard to the accounts of the assessee, the ld.AO cannot resort to directly adopt the Rule 8D(2) and make disallowance thereon. We find that both the ld. AO as well as the ld. CIT(A) had not addressed this aspect, which is crucial and it goes to the root of the matter. We hold that without recording satisfaction in terms of rule 8D(1), the ld.AO cannot directly apply the Rule 8D(2) of the I.T Rules 1962. Thus we have no hesitation in directing the ld. AO to delete the addition made on this count u/s. 14A of the Act - Decided in favour of assessee
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2015 (3) TMI 1153
Winding up petition - unable to pay the admitted debt - period of limitation - Held that:- The present petition deserves to be dismissed only on the ground that debt sought to be enforced is time barred besides not being admitted. The undisputed case of the petitioner company is that transaction took place way back in the year 1998. The debit note was issued by the respondent company on account of supply of raw material for manufacture of drugs on job work basis. It is claimed by the petitioner company that the raw material supplied was spurious, hence, the amount should not have been debited in the account of the petitioner company. The petitioner company has not produced on record any copy of the account to show as to what was the final balance in the account of the petitioner company. Even if there was any such dispute, the same could be raised within the period of limitation when the debit note was issued by the respondent company or at the most when the account was settled with the respondent company. As is claimed, the petitioner company filed application before the BIFR, which was registered as case No. 348/1998. It was declared sick vide order dated 14.5.1999. Pendency of an application filed by the petitioner company before the BIFR does not mean that it could not proceed against its debtors in the Court of law within the period of limitation to enforce any debt. To cover the period of limitation, reference is sought to be made to the order dated 25.3.2009 passed by the BIFR wherein it was mentioned that the company shall take action for recovery of ₹ 1,72,00,000/- from the respondent company. Complete copy of the order has not been placed on record.
If the petitioner company had to recover any amount from the respondent company, it was required to initiate appropriate proceedings within the period of limitation. However, the case set up by the respondent company is that debit note was issued on 31.3.1999 for ₹ 1,72,88,254/- for the raw material supplied by the respondent company. The same cannot be said to be the amount to be recovered from the respondent company as the raw material was admittedly supplied. It is not even the pleaded case of the petitioner company that either raw material was returned back or the drugs manufactured therefrom were supplied to the respondent company.
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2015 (3) TMI 1152
Cancellation of registration certificate - Interest demand - place of removal - duty ought to have been paid on 17-12-2007 i.e. the date on which Central Excise registration was granted to Sri Chamundeshwari Sugars Ltd.- whether the goods can be deemed to have been removed on the date on which the factory premises were handed to Sri Chamundeshwari Sugars Ltd? - Held that:- It cannot be said that there was deemed cancellation of registration certificate on 17-12-2007 and there was no deemed removal of sugar on the date of transfer and therefore there was no need for the appellants to pay duty before clearances and since they have paid the duty at the time of removal from the place of removal i.e. a portion of warehouse belonging to them, it has to be held that the demand for interest cannot be sustained.
The departmental officers have failed to ensure that the registration certificate of the appellant was cancelled which invariably is done before a registration certificate is issued to the next person. In such cases invariably, the person who is surrendering the license or whose license is cancelled is required to pay all the arrears or pay duty on the goods. If they were to do so, the duty would have been collected on the date itself. Similarly if the appellants were to be aware of these provisions, they could have taken permission to store the goods elsewhere without payment of duty from the Commissioner explaining the peculiar circumstances and then also there could have been no problem. The Commissioner has the power to give permission to store the goods without payment of duty elsewhere. If the proper procedure was to be followed, duty would have been collected or permission would have been given for storage elsewhere keeping the fact in mind that the sugar manufactured by the appellant was to be cleared to the market only with the clearance of the concerned Government authority. However, have not been able to find legal provision which provides for enforcement of the demand made by the Revenue. - Decided in favour of assessee
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2015 (3) TMI 1151
Capital Incentive subsidy received for establishing industry in Backward area - whether is to be reduced from actual cost of asset? - Appellant prays to hold that Capital Subsidy, is not to be reduced from ‘Actual Cost’ - Disallowance of Depreciation by reducing Written down value of assets by subsidy received - Held that:- The perusal of the Package Scheme of Incentive, 1993 reflect that the scheme was formulated to give incentive for setting up the industries in certain belts of Maharashtra and for the purpose of working out the amount of subsidy, though the cost of eligible investment was taken as the base, but the said subsidy was not specifically intended to meet the cost of assets. In view thereof, it could not be held that the incentive received by the assessee under the Package Scheme of 1993 in the form of subsidy was covered under provisions of Explanation 10 to section 43(1) of the Act and consequently, the subsidy amount was not to be reduced from the cost of the assets. Accordingly, the Assessing Officer is directed not to reduce the value of the subsidy from the cost of assets while allowing depreciation on the said assets of the assessee. - Decided in favour of assessee
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2015 (3) TMI 1150
Eligibility of refund claim - Notification No.5/2006-CE(NT) read with Rule 5 of CENVAT Credit Rules 2004 - Rejected on the ground that credit taken without having registration and no nexus between the input services and output services in respect of several services - Held that:- issue of credit taken without registration is covered by the decision of Hon'ble High Court of Karnataka in the case of mPortal India Wireless Solutions Pvt. Ltd. Vs. CST, Bangalore [2011 (9) TMI 450 - KARNATAKA HIGH COURT], therefore, the claim cannot be rejected. As regards nexus, appellant has submitted a statement showing each service, name of the output service and justification and on going through the statement, it is considered that appellant has made out a case as regards nexus. Therefore, the appellant is eligible for refund claim. - Decided in favour of appellant with consequential relief
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2015 (3) TMI 1149
Competition Commission of India - whether it is possible, in the context of the scheme of the Competition Act, 2002, for two adversaries to reach a settlement, thereby closing the doors for an investigation or inquiry? - Held that:- It is clear that a settlement is possible both in the European Union and in the United States to the extent indicated above. To some extent, the obligations imposed by the World Trade Organisations upon its member countries, are the same. In such circumstances, we do not see any reason as to why the Scheme of the Competition Act, 2002 should be taken to prohibit any settlement, especially when the scope of Section 27 of the Act is very wide, conferring jurisdiction upon the Commission to pass residuary orders. Hence, our answer to the first question is that it is possible within the framework and scheme of the Competition Act, 2002, to allow settlements and compromises to be reached between parties, provided the Commission is of the considered view that such settlements and compromises (1) would not lead to the continuance of Anti-Competitive Practices (2) would not allow the abuse of dominant position to continue and (3) would not be prejudicial to the interest of consumers or to the freedom of trade.
Whether this court can record a memorandum of settlement like the one that the parties have reached in this case - Held that:- In the case on hand, the Director General of the Competition Commission of India has already completed the investigation and filed a report. In Chapter 8 of the Report, the Director General has concluded that the practices and conduct of the appellant are restrictive in nature to control the film exhibition business. This conclusion has been reached only on the ground that the appellant limited and controlled the exhibition of movies as well as innovative use of technology in the exhibition of feature films in the territory of Tamil Nadu, unless its own directions are obeyed. It is also pointed out in the Report that the appellant was guilty of violation of the provisions of Section 3(3) (b) read with Section 3(1) of the Act. The Director General has placed on record that in yet another case, initiated at the instance of Reliance Big Entertainment (Private) Limited, the appellant was imposed with a penalty.
The investigation Report of the Director General not only concludes that the appellant is guilty of violation of the provisions of the Act relating to Anti-Competitive Practices, but also points out that it is the second instance of such nature. Therefore, we are of the considered view that the appellant should file the memorandum of compromise/settlement before the Competition Commission itself so that the Commission will be in a better position to appreciate whether the same could be accepted with or without modifications.
In view of the above, the writ appeals are disposed of permitting the appellants to file the Memorandum of Compromise/Settlement entered into between them and the second respondent, before the Competition Commission. Upon the parties filing the Memorandum, the Competition Commission may look into the same in the context of what we have indicated above and pass appropriate orders either rejecting the compromise or accepting the same with or without modifications. The Commission may bear in mind that if in the light of the compromise, any further proceeding would only be an exercise in futility, the same shall not be undergone just for the purpose of completion of formalities.
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2015 (3) TMI 1148
Revision under section 263 - nominal membership fees received by the assessee from such persons, who were not the members of the cooperative society, but were associated with it on account of certain transactions - Held that:- The assessee had not declared the said receipts on the premise that the same were capital receipts. However, the said receipts were in the nature of nominal membership fees or entrance fees charged by the assessee from such nonexisting members of the cooperative society who had transacted with the assessee society and hence, the said receipts were to be charged as revenue receipts in the hands of the assessee. In view of the admission of the learned Authorized Representative for the assessee in this regard, we uphold the order of Commissioner in including sum of ₹ 52,960/- as income of the assessee - Decided against assessee
Interest accrued on NPAs - Held that:- Since the issue has already been settled, then the non-assessability of such income on accrual basis i.e. interest on NPAs, by the Assessing Officer cannot be said to be prejudicial to the interest of Revenue. However, the said principle is to be applied only in respect of non-recognition of income on accrual basis relatable to NPAs and not on the said income received by the assessee on receipt basis during the captioned assessment year. The Assessing Officer in the first round of proceedings had already made an addition of ₹ 1,62,42,236/-. in the hands of the assessee, which has been upheld by the CIT(A) and though the ground of appeal has been raised by the assessee in this regard in ITA No.237/PN/2013, but the contention of the learned Authorized Representative for the assessee before us was that the said ground of appeal is not being pressed. Once a particular addition has been made in the hands of the assessee by the Assessing Officer in the assessment order, then no further addition can be made on that basis, by way of initiation of proceedings under section 263 of the Act. Accordingly, we hold that the exercise of jurisdiction by the Commissioner under section 263 of the Act in respect of interest income relatable to NPAs is invalid as the assessment order passed by the Assessing Officer is not prejudicial to the interest of Revenue and such order even if erroneous, cannot give power to the Commissioner to initiate proceedings under section 263 of the Act. - Decided in favour of assessee
Addition on amount of dividend forfeited and credited to the Reserve account - Held that:- The Revenue is not in appeal against the relief allowed by the CIT(A) in assessment year 2009-10 and in view of the ratio laid down by Delhi Bench of the Tribunal in Gulshan Mercantile Urban Coop. Bank Ltd. [2011 (4) TMI 1359 - ITAT DELHI] and also in view of the fact that such reversal of unclaimed dividend and credit to the Reserve Account cannot be treated as income of the assessee under section 28 of the Act, we direct the Assessing Officer to delete the addition - Decided in favour of assessee
Addition on account of the transfer of creditors balance to Reserve Fund - claim of the assessee before us was that the provisions of section 41(1) of the Act were not applicable - Held that:- No merit in the plea of the assessee in this regard in view of the fact that the assessee itself had transferred the credit balance of unclaimed creditors to the Reserve Accounts and the provisions of section 41(1) of the Act are clearly attracted, wherein it is provided that where any allowance of deduction has been made in the assessment for any year in respect of any loss, expenditure or trading liability incurred by the assessee and subsequently, during any previous year if any benefit has been obtained by the said person by way of remission or cessation thereof, then the amount obtained by such person or the value of benefit accruing to him, shall be deemed to be the profits and gains of business or profession. In the facts of present case also, the assessee on its own motion had transferred the credit balance due from creditors against expenses to its Reserve Fund and the provisions of section 41(1) of the Act were clearly applicable. - Decided against assessee
Claim of expenditure on amortization of premium of HTM securities entitled to assessee
Disallowance of audit fees under section 43B - Held that:- Audit fees is not included under section 43B of the Act and hence, we find no merit in the order of Assessing Officer, in this regard. Accordingly, we direct the Assessing Officer to allow the expenditure booked on account of audit fees payable. - Decided in favour of assessee
Allowability of loss on merger of Sinhagad Urban Co-operative Bank Ltd.- alternative depreciation on difference in asset and liability of bank merged - Held that:- Authorized Representative for the assessee fairly admitted that the issue may be remitted back to the file of CIT(A) to examine the allowability of depreciation on intangible assets under section 32(1)(ii) of the Act, in the light of ratio laid down in The Cosmos Co-op Bank Ltd. Vs. DCIT (2014 (1) TMI 1696 - ITAT PUNE ) wherein held difference paid by the assessee in excess of liabilities over the realizable values of the assets taken over represent payment for any business or commercial rights of similar nature and are liable to be construed as intangible asset, contemplated under section 32(1)(ii) of the Act. Accordingly, it was held that the assessee is entitled to the allowance of depreciation in terms of section 32(1)(ii) of the Act. In view thereof, we restore this issue back to the file of CIT(A) to re-adjudicate the issue
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2015 (3) TMI 1147
Non-compliance of Tribunal's order - Revenue officer did not comply with the order's of the Tribunal already given till date because of which assessee's goods are pending at the Port and is incurring huge detention and demurrage charges - Held that: non-compliance of the order by the Revenue officer who is a party to the appellate proceedings is indicative prima-facie of disregard of law. The Tribunal does not have power or authority to enforce execution of its orders. Therefore, the appellant is at liberty to pursue appropriate remedy for execution of the previous order of Tribunal. - Dismissed as infractuous
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2015 (3) TMI 1146
Penalty u/s 271(1)(c) - whether deduction under section 54F of the Act is applicable or not? - Held that:- Where penalty is imposed in respect of any addition where the High Court has admitted the appeal on substantial question of law, then the sustainability of the addition itself becomes debatable, and in such circumstances penalty cannot be levied under section 271(1)(c) of the Act. Penalty can only be imposed for concealment of material particulars or furnishing of inaccurate particulars by the assessee. In the facts of the present case, we are of the view that the assessee cannot be held guilty of the concealment of any material particulars of his income or having furnished inaccurate particulars of such income, so as to attract the provisions of section 271(1)(c) of the Act. - Decided in favour of assessee
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2015 (3) TMI 1145
Clandestine removal of the goods - raw material found in their factory and the finished goods lying in their factory unaccounted - non-maintenance of the statutory records - confiscation of goods - Held that:- After going through the show cause Notice and the impugned order the allegation against the appellant is that the goods lying in their factory are unaccounted and not entered in the statutory records since 21-7-2007 and till the date of visit that is 3-8-2010. On the basis of these, intent was drawn that these were lying in the factory for clandestine removal of the goods. No corroborative evidence has been produced by the Revenue to establish the intent of the appellant to remove the goods clandestinely. Therefore, following the decisions of Steel Complex Ltd., Mutual Mecaplast Ltd. [2005 (10) TMI 160 - CESTAT, BANGALORE ] and Pharma Indiana Laboratory (2008 (7) TMI 430 - HIGH COURT OF GUJARAT AT AHMEDABAD ) hold that in this case provisions of Rule 25 of Central Excise Rules, 2002 have not been complied with. Therefore, goods are not liable for confiscation. Consequently, redemption fine and penalty is not imposable on the appellant and penalty on Shri Harish Kumar Sharma is not imposable under Rule 26 of the Central Excise Rules, 2002. - Decided in favour of assessee
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2015 (3) TMI 1144
Entitlement for abatement - stoppage of production - Held that:- When a manufacturer of Gutka/Pan Masala is manufacturing Gutka/Pan Masala pouches of different RSPs and for a certain period of 15 days or more, he stops the production of only one particular RSP, he will not be entitled for abatement, if continues the production or clearances of Pan Masala/Gutka of other RSPs by operating those machines. As find that from the language of Rule 10 it is clear that for claiming abatement under Rule 10, there must be total Gutka/Pan Masala pouches which have to be sealed in such a manner that same cannot be operated and besides this, there should be no clearances of any specified goods during the period of stoppage of production for which abatement has been claimed. From the objectives of notifying the goods for assessment and collection of duty based on capacity of production, as mentioned in Section 3A(1) of the Central Excise Act, 1944 and from perusal of the Rules framed under Section 3A(1), it is clear that these rules have been framed keeping in view the widespread duty evasion by Pan Masala/Gutka manufacturers and the provisions of various rules of Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008 including Rule 10 thereof must be seen in this background. The interpretation of Rule 10 sought by the appellant would be not only against the provisions of this rule but would also be against the smooth functioning of the system of collection of duty from Gutka/Pan Masala units, as envisaged under these Rules. It appears that it is not the case of the appellant that during the period of abatement, there was total stoppage of production and clearances.
It is very much clear that there should be complete stoppage of the machine which is not in the matter in hand. Therefore, find that both the lower authorities have concluded correctly that the appellant has not satisfied the condition of the grant of abatement as production in the factory of the notified goods was in operation. Appellant is not entitled for abatement. - Decided against assessee
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9911796707
