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Case Laws
Showing 281 to 300 of 770 Records
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2012 (4) TMI 549 - ALLAHABAD HIGH COURT
Seizure order - rejection of representation by the transporter of the goods under section 48(7) of the Act by the Joint Commissioner (SIB/Enforcement) - Held that:- Seizure of the goods in the case at hand on the ground that the dealers are nonexisting is bad in law.
Admittedly, in the present case the goods were seized immediately on their entry in the State of U.P. without allowing the time for its exit to expire. In such situation, it is wrong to presume that the goods have been retained in U.P. for the purposes of sale. Apart from the above, as the goods were duly accompanied by the requisite documents, no presumption arises under law that they were likely to be sold within the State of U.P. Appeal allowed. The authorities were not justified in passing the order of seizure and the higher authorities committed jurisdictional error in rejecting the representation and appeal of the revisionist.
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2012 (4) TMI 548 - ANDHRA PRADESH HIGH COURT
Notice of attachment challenged - bar of recovery proceedings under section 22 of the SICA - Held that:- Upon failure of the company to comply with the notice issued by them under section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI), they have taken over the possession of the movable and immovable assets of the company on January 22, 2005 under section 13(4) of the SARFAESI.
All that is required by section 22(1) of the Act is that in cases where an inquiry is pending or scheme is under preparation or consideration or a sanctioned scheme is under implementation or an appeal is pending, no proceedings, as stated in section 22 of the Act for execution, distress or the like, shall be proceeded with except with the consent of the Board or as the appellate authority. What is contemplated by section 22(1) of the Act is only a previous consent of the Board for the proceedings to be initiated against a sick company. It is not an absolute bar. Appeal dismissed.
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2012 (4) TMI 547 - UTTARAKHAND HIGH COURT
Penalty levy - revision application - Held that:- Tribunal has not given any reason in its order as to why for the first default the penalty would be of ten per cent of the tax deducted and, why such penalty will increase by five per cent for every subsequent default committed in every subsequent months.
Furthermore, there is no pronouncement as to whether penalty is at all leviable in respect of deduction made, but deposited beyond the time specified. In the circumstances, we interfere with the judgments and orders of the Tribunal under revisions and set aside the same and, remit back the matter to the Tribunal for consideration whether penalty is at all leviable in case where deductions made have been deposited, but belatedly and, if so, whether penalty imposable for such a crime can be equated with the crime of not deducting or with not depositing after deduction; as well as what should be the rational penalty to be imposed for delay in depositing deducted tax with reasons in support thereof
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2012 (4) TMI 546 - MADRAS HIGH COURT
Conditional stay of recovery that appellant to deposit 25 per cent of the demand on or before March 30, 2012 challenged - Held that:- The condition imposed directing the appellant to pay 25 per cent of the demand cannot be said to be unreasonable. Even as per the second proviso to section 52 of the Act, for preferring appeal, 25 per cent of the dues between the amount of tax assessed and the tax admitted by the dealer to be due is required to be paid and the proof thereafter to be furnished before the appeal was entertained. W.P. dismissed.
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2012 (4) TMI 545 - ALLAHABAD HIGH COURT
Registration fee on the import of coal - Held that:- In the present case the petitioners are bringing coal from the collieries of Coal India Limited purchased by e-auction. They also purchase coal from the traders of Jharkhand, Bihar and Assam. There is no provision under the Indian Forest Act, 1927, and the Rules of 1978 for registration of any dealer. There is only a provision of registration of marks for issuance of foreign passes. The petitioners are not the importer of coal from outside India nor exports the coal within the country to outside India.
On the aforesaid facts and circumstances the insistence for registration and for charging the registration fees is beyond the authority conferred upon the respondents under the Indian Forest Act, 1927 and the Rules of 1978. W.P. allowed to the extent that the petitioners will not be required to obtain registration for movement of coal within the State of U.P. If any registration fee is charged from the petitioners, the same shall be returned to them.
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2012 (4) TMI 544 - MADRAS HIGH COURT
... ...
... ... ..... e is on appeal before this court. 4. It is contended by the appellant that the beverage sold by the assessee contains additions and hence the same would not fall within the purview of the exemption notification. As already noted the exemption notification is unqualified and it exempts milk with or without any addition for being sold as beverage. As per the Oxford Dictionary "beverage" means "a type of drink except water". In Webster's Third International Dictionary, "beverage" has been described as "liquid for drinking especially such liquid other than water (as tea, milk, fruit juice, beer) usually prepared (as by flavouring, heating, admixing) before being consumed". 5. Going by the abovesaid dictionary meaning, in the absence of any other definition available under the Act and applying the decision reported in Deputy Commissioner of Sales Tax v. Pio Food Packers 1980 46 STC 63 (SC) the tax case revisions are dismissed. No costs.
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2012 (4) TMI 543 - MADRAS HIGH COURT
Eligibility certificate challenged - notice to the petitioner to repay the unauthorised availment of deferral to an extent of ₹ 21.79 crores - Held that:- In the present case, the fact that the petitioner themselves have come forward to challenge paragraph 5.3 of the eligibility certificate (after 10 years) will show that they are bound by the eligibility certificate. Secondly, the delay in challenge was not explained to this court. Even further clarifications were issued by the SIPCOT reiterating their earlier stand. If the petitioner's contentions are accepted, it will go contrary to the incentive provided under the said scheme.
In the light of the above, there is no case made out to interfere with the impugned demand notice. There is no illegality in paragraph 5.3. of the eligibility certificate issued by the SIPCOT. Hence both writ petitions will stand dismissed.
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2012 (4) TMI 542 - KERALA HIGH COURT
Refund claim - tax remitted by mistake - Held that:- If tax paid forms part of price and is passed on to the purchaser, then the respondent is not entitled to unjustly enrich themself by getting refund of tax remitted voluntarily that is passed on along with product price to the purchaser. In order to consider these matters, we remand these assessments to the assessing officer.
Assessing authority shall specifically examine the scope of other Notifications S.R.O. Nos. 316/2005, 946/2007 and 123/2010 while deciding the matter. We allow the revisions by setting aside the orders of Tribunal and the first appellate authority and remand the matter to the assessing authority to re-consider the claim of the respondent for refund after giving an opportunity to the respondent to establish that tax paid on raw material is not passed on to the purchasers by including in the product price.
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2012 (4) TMI 541 - CALCUTTA HIGH COURT
Waiver of pre deposit - Non complaince of pre deposit - Held that:- Tribunal directed the Petitioner-Company to make a pre-deposit of 25% of the amount of duty confirmed within a period of 8 (Eight) weeks and report compliance on 19th April, 2012. It is not understood on what basis the Petitioner-Company was directed to pre-deposit 25% of the amount of duty, if the learned Tribunal could not arrive at any definite finding with regard to its financial condition, in the absence of I.T. Returns, Balance-sheet and other relevant records. Moreover, having recorded the submission that the factory had been closed since 2003 it is difficult to appreciate how the learned Tribunal could have directed pre-deposit of 25% and in absence of any specific finding that the submission of closure was not correct. The impugned order cannot be sustained and the same is set aside and quashed - Decided in favour of assessee.
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2012 (4) TMI 540 - CESTAT AHMEDABAD
Denial of rebate claim - Refund claim or rebate claim - Held that:- appellant had filed rebate claim and refund claim. Rebate claim stands allowed by the revisionary authority subject to condition that no refund is sanctioned to the appellant in respect of the claim filed by them. It was submitted during the hearing that appellant has received the rebate claim in terms of revisionary order passed by the Govt. of India. Therefore, in terms of the order of Govt. of India itself, the question of sanction of refund by the original authority consequent to the order in appeal passed by the Commissioner (Appeals) which is impugned before me, does not arise. Accordingly, the appeal filed by the Revenue is in-fructuous - Decided against Revenue.
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2012 (4) TMI 539 - CESTAT AHMEDABAD
CENVAT Credit - appellant has neither maintained separate records nor paid an amount equivalent to 10% of the value of excisable goods cleared without payment of duty to the SEZ developers - Whether the appellant is required to pay 10% of the value of excisable goods, in terms of provisions of Rule 6 of Cenvat Credit Rules - Held that:- clearances made to SEZ developers do not qualify for waiver of conditions laid down in sub Rule (1), (2), (3) and (4) of Rule 6 of Cenvat Credit Rules, 2004 - supplies made to SEZ developers are to be treated as deemed exports and is covered by provisions of Rule 6 (6) of Cenvat Credit Rules - Following decision of Sujako Interiors Pvt. Limited vs. CCE, Ahmd. [2011 (2) TMI 624 - CESTAT, AHMEDABAD] - Decided in favour of assessee.
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2012 (4) TMI 538 - CESTAT AHMEDABAD
CENVAT Credit - job worker services, cargo handling services and servicing of motor vehicles - Held that:- availability of the cenvat credit in respect of duty paid by the job worker has already been considered by the Tribunal and in the case of Multi-Organic Pvt. Ltd. [2010 (3) TMI 513 - CESTAT, MUMBAI]. It has been held that even though the job worker is entitled to exemption under Notification No.8/2005-ST and if he has not availed the exemption, the service tax credit would be admissible to the person who availed the services of job worker. The present case is similar to the one decided by the Tribunal and therefore the credit availed by appellant is in order. As regards cargo handling services he drew my attention to the invoice issued by the CHA which clearly shows that the amount was paid by the CHA A.V. Joshi & Co. CFS on behalf of the appellant. The invoice shows the name of the forwarders and also mentions A/c Royal Touch Aluminium Pvt. Ltd. There is no dispute that appellant has received the service and in view of the fact that the invoice clearly shows that the service was provided on account of the appellant and payment was made by A.V. Joshi & Co. as a pure agent, the credit has to be held as admissible. As regards the service tax paid on service tax of vehicles, the ld. counsel fairly submits that he is not pressing the eligibility since the amount involved is small - credit of service tax paid on cargo handling services, in view of the fact that invoice clearly shows the name of the appellant and amount has been paid on their behalf and there is no dispute that service has been received by them, the credit is admissible - Decided partly in favour of assessee.
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2012 (4) TMI 537 - CESTAT NEW DELHI
Duty demand - Clandestine removal of goods - Assessee produced the invoices as also other statutory documents showing that the clearances were effected through the documentary invoices maintained by them - Accepting such evidences, the original adjudicating authority dropped the demand - Held that:- I find no substantial reason for doubting the correctness of the invoices inasmuch as it is not the Revenue’s case that there was any cutting or overwriting in the invoices. No further investigations were made by the Revenue at the buyers’ end. As such the charges of clandestine removal cannot be upheld on the basis of doubts expressed by the Revenue and required much stronger evidence to establish the same. As such I find no reasons to set aside the orders of both the authorities below which has examined evidences and has held in favour of the respondents - Decided against Revenue.
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2012 (4) TMI 536 - CESTAT MUMBAI
Waiver of pre-deposit of duty - Bar of limitation - Held that:- there is no evidence on record to show that the goods in question are capable of being bought and sold in the market. Even no market enquiry was conducted in reference to the goods in question. In these circumstances, the applicants have a strong case in their favour. Therefore, pre-deposit of the duty, interest and penalty is waived and recovery thereof stayed during the pendency of the appeal - Stay granted.
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2012 (4) TMI 535 - CESTAT AHMEDABAD
Refund of service tax paid - terminal handling charges and repo charges - invoices are issued by third parties and not by the actual service provider and do not reflect the details such as name, address and registration etc. of the actual service provider - Held that:- In respect of service tax paid on transport of goods from the inland container depot to the port of export through road carriers and railways, refund has been rejected on the ground that the invoices bear the note service tax to be paid by you directly to the government at the time of payment to us. A view has been taken that the remark shows that M/s. Sai Krupa Freight Forwarders Pvt. Ltd. is not paying the service tax but the service receiver has to pay the tax. As regards refund claim in respect of technical testing and the analysis service and services of inspection and certification of agency, it has been held that the applicant failed to produce evidence of payment of service tax to the government. In the appeal memorandum other than submitting that refund claim has been rejected wrongly and appellant has satisfied all the conditions and limitations as per the notification is concerned, there is no other submission. No documents have been enclosed to the appeal memorandum other than show cause notice, order-in-original and the impugned order. Appellants have also not come forward to offer any documentary evidence even though seven opportunities were given to them for explaining their case - Decided against assessee.
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2012 (4) TMI 534 - CESTAT AHMEDABAD
CENVAT Credit - LDO and HSD - Held that:- Credit of duty paid on input and Capital goods is admissible under the Cenvat Credit Rules. The terms input and Capital goods are defined in the Rules in clause (g) of Rule 2 of Cenvat Credit Rules, 2002 (subsequently clause (k) of Rule 2 of Cenvat Credit Rules 2004). High Speed Diesel and Motor Spirit were specifically excluded from the definition of input right from the inception. Light Diesel Oil (LDO) was added to the exclusion list vide Noti.No.13/2003 CE(NT) dt.01.03.2003. W.e.f. 01.03.2003, LDO along with Diesel and Motor Spirit are items outside the definition of inputs. Explanation 1 to the clause leaves no doubt whatsoever that LDO, High Speed Diesel Oil and Motor Spirit shall not be treated as input for any purpose whatsoever. The provisions of Cenvat Credit Rules (w.e.f. 01.03.2003) exclude HSD and LDO from the definition of input in unequivocal terms and there is no ambiguity or confusion in the provisions. Intent, purpose and object of the amendment are clear that Government modified the rules to bar credit on LDO by excluding it from the inputs as defined under the cenvat credit Rules irrespective of its use. HSD always remain outside the ambit. - hat an item is used in the manufacture of final goods is not sufficient to define it as input. Motor Spirit, High speed Diesel and LDO are specifically excluded from the purview of inputs. Even if HSD and LDO is used in the manufacture of final goods, it cannot be considered as input for purpose of credit under the Rules ibid. When an item has been specifically excluded from the definition, the usage criterion cannot bring it in the ambit of definition - Decided against assessee.
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2012 (4) TMI 533 - CESTAT MUMBAI
Duty demand - Penalty u/s 11AC - Held that:- amount of Rs. 13,69,790/- is already paid prior to the adjudication order and the amount is appropriated in the adjudication order. The provisions of Section 11AC of the Central Excise Act provide the equal amount of penalty in case the demand is confirmed by invoking the reasons of fraud or wilful mis-statement. The provisions of Section 11AC also provide that in case the duty determined along with interest is paid within 30 days of the date of communication of the order, an amount of penalty liable to be paid by such persons shall be 25% of the duty so determined. In the present case, as the amount of duty of Rs. 13,69,790/- is already paid, and appropriated by the adjudicating authority, therefore we find no infirmity in the impugned order whereby the Commissioner has imposed a penalty of 25% of the duty, which is already paid - Decided against Revenue.
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2012 (4) TMI 532 - CESTAT CHENNAI
Maintainability of appeal - Issue less than 5Lakhs - Held that:- These appeals have been filed on 27-1-2012. As per the Board’s instruction dated 17-8-2011, issued under Section 35R of the Central Excise Act, 1944, no appeals are required to be filed before the Tribunal in cases involving duty of Rs. 5 lakhs or less. The said instruction does not allow clubbing of appeals of similar nature or recurring nature. As such, these appeals have been filed in contravention of the said instruction dated 17-8-2011 issued under Section 35R of the Act and hence the said appeals are not maintainable - Decided against Revenue.
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2012 (4) TMI 531 - CESTAT BANGALORE
Denial of CENVAT credit - Goods transport agency (GTA) service - whether outward transportation of goods was covered by the definition of input service under Rule 2(l) of the CENVAT Credit Rules, 2004 for the period prior to 01/04/2008 - Held that:- outward transportation of goods was covered by the definition of input service prior to substitution of the word upto for the word from in clause (ii) of Rule 2(l) - Following decision of Commissioner Vs. ABB Ltd. [2011 (3) TMI 248 - KARNATAKA HIGH COURT] - Decided in favour of assessee.
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2012 (4) TMI 530 - CESTAT NEW DELHI
Waiver of pre deposit - Flight catering services - Held that:- Prima facie find that meal tray provided in the flight catering is nothing but assembly of various food items purchased from the market and produced in the factory of the appellant/applicant, when prima facie, cannot be termed as an activity falling within the definition of “Manufacture” calling for the incidence of excise duty. Placing of brand name in the cutlery package can at best be termed as information indicating that the catering was done by the appellant - appellant has a prima facie case for waiver of the condition of pre-deposit. We may note that in a similar matter relating to Tej Sets Air Catering Ltd. the Tribunal granted stay [2012 (11) TMI 354 - CESTAT, NEW DELHI]. That even on the principle of parity, the appellant is entitled to waiver of condition of pre-deposit of duty, interest and penalty - Stay granted.
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