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Showing 281 to 300 of 1255 Records
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2015 (5) TMI 981
CENVAT Credit - whether there was any malafide on the part of the assessee to avail the credit in respect of the exempted goods also - Held that:- Availment was with the due knowledge of the Revenue inasmuch as the same was being reflected in their statutory records as also in returns. This was an action of ignorance on their part and not being aware of the law. Inasmuch as it was being availed with the knowledge of the Revenue by reflecting the same in the statutory records and inasmuch as they deposited the entire amount along with interest on being pointed out by the Revenue, the situation as envisaged under Section 11A (2B), would prevail. In such a scenario the Revenue should not have issued any show-cause notice - payment of interest by the appellant is in fact penal in nature and is required to be considered as a substitute for the contravention committed by them. The provisions of Section 11A (2B) actually covers such situations only. In my view the said Sections stand introduced by the Legislature so as to avoid and reduce litigation. If the Revenue is still insisting on issuing show-cause notice in such cases, the entire purpose of the said Section gets defeated. - Penalty is set aside - Appeal disposed of.
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2015 (5) TMI 980
Availability of Cenvat credit - Cargo Handling Services - Commissioner (Appeals) did not examine the entire IWBs and in the absence of the same, it was not possible for him to judge the availability of entire credit - Held that:- only grievance is examination of the entire bunch of photocopies of IWBs. They are not aggrieved or doubting the availability of all the certificates issued by CCI covering the entire transactions. If that be so, I do not consider any infirmity in the views of Commissioner (Appeals). Admittedly M/s. Container Corporation of India would issue the certificates based upon the IWBs, issued by them and as long as such certificates cover the services in question, credit would be available - no justifiable reasons to interfere in the impugned order of Commissioner (Appeals) - Decided against Revenue.
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2015 (5) TMI 979
Demand of differential duty - valuation - related partly - Penalty u/s 11AC - respondent did not pay correct Central Excise duty in respect of the supplies of sanitary ware products made to interconnected undertaking by the original authority - Held that:- Commissioner (A) in the impugned order has considered the provisions of law such as Section 4(3)(b), Rule 10 of Valuation Rules, the Circular issued by CBEC F.No.354/81/2000-TRU dated 30.6.2000 and the Circular No.643/34/2002-CX dated 1.7.2002 and came to the conclusion that in view of the fact that appellants were supplying to independent suppliers also and as required under Rule it could not be said that appellants were not selling their product except or through an interconnected undertaking or a related person, the price at which goods are sold to RAK, Mumbai, cannot be rejected in terms of Rule10(b) of Valuation Rules. Therefore he came to the conclusion that in the absence of any evidence to show that RAK Mumbai was a related person, when there were independent sales to other buyers, as per provisions of Rule 10(b), the sales to RAK, Mumbai has to be considered as a sale to an unrelated person. In the appeal memorandum as well as the submissions of learned AR, what is being stated is that this order is not correct and the decision of the appellate authority taking a view that valuation should be done on the Rule 10(b) is not correct and Rule 11 should have been applied - two parties to the transactions in this case can be considered as related persons and in the absence of any evidence to show the same in the appeal memorandum or in the submissions of the learned AR, we do not find any reason to interfere with the conclusions reached by the learned Commissioner (A) in the impugned order. - Decided against Revenue.
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2015 (5) TMI 978
Duty demand - Finalization of Provisional assessment - Deduction of trade discounts - Held that:- Dispute is only about the quantification of the trade discounts whose deduction is to be allowed. There is no dispute about eligibility of the trade discounts for deduction. The Department’s contention is that the quantum of trade discounts whose deduction is permissible must be determined on the basis of the details of each clearance and that the manner in which the Assistant Commissioner has quantified the account is not correct. Since, the dispute is only about quantification, we set aside the Commissioner (Appeals)’s order with regard to the quantification of the trade discount and remand the matter to the original Adjudicating Authority for re-determining of the quantum of trade discount based on consignmentwise details. - Appeal disposed of.
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2015 (5) TMI 977
Penalty u.s 11AC - Appellant did not collect the central excise duty attributable to the removal of tractor parts - Held that:- Since the manufacturing activity of the appellant was known to the Department through maintenance of various records and Audit conducted by the Central Excise officers from time to time, it cannot be alleged that the appellant has indulged in suppression of facts with intent to evade payment of central excise duty. The invoices issued by the appellant in favour of its buyers clearly indicate that they are undertaking manufacture of tractor parts on job work basis, which according to the appellant falls under the purview of taxable service, on which they had discharged the service tax liability. Payment of service tax proves the bonafides of the appellant that they had no intention to evade payment of central excise duty and accordingly, upon detection of mistake that job work activity will not be consider as service and will fall under the purview of manufacture, the appellant appropriately discharged the central excise duty liability alongwith interest.
There is no element of suppression, wilful misstatement, fraud etc. involved in the present case, justifying invocation of the extended period of limitation for issuance of the show cause notice and for adjudication of the proceedings, especially for the purpose of imposition of mandatory penalty. I am also of the view that since, the entire duty liability alongwith interest has been paid by the appellant before issue of show cause notice, the appellant should get the benefit of provisions of section 11A (2B) of the Central Excise Act 1944, according to which, there was no requirement of issuance of show cause notice, once the duty alongwith interest has been paid. Further, since the ingredients mentioned in the proviso to section 11 A and section 11AC of the Central Excise Act are absent in the present case, the question of imposition of penalty does not arise. - impugned order is set aside - Decided in favour of assessee.
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2015 (5) TMI 976
Denial of exemption claim - appellant’s claim for the benefit of Notification No.115/75 as amended which exempts goods manufactured in a factory coming under the category of oil mill or solvent extraction industry - Job work - prescribed procedure not followed - Held that:- Prescribed procedure under Notification No.214/86 was not followed and therefore RRRL or the appellant is liable to pay duty. The Commissioner also considered the appellant’s claim for the benefit of Notification No.115/75 as amended which exempts goods manufactured in a factory coming under the category of oil mill or solvent extraction industry on the ground that the factories involved in refining and extracting crude oil are separate and to get the benefit of exemption, entire activity has to be in one factory - factories which are engaged in extracting crude oil and refining the same would be covered by the term ‘oil mill and solvent extraction industry’. The decisions also support the claim that even if a factory is engaged only in refining, it would be still covered by the terms used in the notification. That being the position, the appellant is clearly eligible for the benefit of Notification No.115/75 CE as amended. It has to be noted that the decisions applied to the situation prior to amalgamation as well as after amalgamation. This is because in the case of Prakash Solvex (2008 (1) TMI 328 - CESTAT NEW DELHI), the Tribunal was dealing with a case where only refining was undertaken - There was an alternative claim made for the benefit of Notification No.89/95 which exempts waste, parings and scrap arising during the manufacture of exempted goods. - Decided in favour of assessee.
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2015 (5) TMI 975
Denial of MODVAT Credit - benefit of Notification No. 5/99-CE dated 28.02.1999 vide Sl.No. 137, which exempts yarn subjected to process of winding with or without the aid of power and on which duty has been paid and the process of doubling the yarn is undertaken in a continuous process - Held that:- Appellants are bringing duty paid single yarn and undertaking the process of winding and twisting and doubling the yarn, and counts wound in a cone in one integrated process and claimed the benefit of Notification No. 5/99 dated 28.02.1999 vide Sl.No. 137. The decision relied upon by the Ld. Counsel in the case of Sr. Raj Rajeshwara Co.op. Spinning Mills Ltd. (2004 (5) TMI 333 - CESTAT, BANGALORE), wherein it has been held that single ply yarn continue to remain yarn and no new product come to existence and merely because of the process of winding on the cops, the goods do not become different. Alternatively, the appellants claim the benefit of Sl. No. 130 of the Notification No. 5/99 which exempts multiple or cabled yarn manufactured in a factory which does not have the facilities for producing single yarn. We find that the Apex Court in the case of Swastic Rayon Processors (2006 (11) TMI 31 - SUPREME COURT OF INDIA), has held that twisting and doubling of yarn does not amount to manufacture and the yarn continues to be yarn.
As the appellant has received only duty paid single yarn and carried out the process of doubling, twisting, winding all in one process on TFO machine, the adjudicating authority has not brought out any evidence and merely denied the benefit of Notification No. 5/99 on the grounds that there is no separate winding machine. Since all he above three activities are integrated in one machine as above, we do not find any justification in the order of the lower authorities in denying the exemption under Notification No. 5/99 dated 28.02.1999. - appellant is eligible for the exemption under the Notification No. 5/99. Since the appellant is eligible for the exemption under the above notification, the question of availing of MODVAT Credit on the inputs does not arise - Decided in favour of assessee.
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2015 (5) TMI 974
Benefit of exemption under notification no. 12/94 dated 1/3/1994 - SSI exemption - Clubbing of clearances - Held that:- Appellant has installed boilers in the year 1994 and requested to Rajasthan State Electricity Board to increase the power load from 16HP to 63HP and the same has been sanctioned and power load has been increased with effect from 24/1/1995. Therefore, the appellant is not entitled for the benefit of notification no. 12/94 for the period from 24/1/1995 to 31/03/1996. As the appellant has already installed boilers in the year, 1994 itself, the claim of the appellant is that they started using the power with effect from 01/04/1996, to support this contention, the appellant has failed to produce any corroborative evidence to substantiate their claim. Therefore, benefit of notification no. 12/1994 Central Excise dated 1/3/1994 is not available to the appellant for the period from 24/1/1995 to 31/03/1996.
SSI Exemption - appellant are using of this trademark since, 1987 and are the owner of the trademark. Therefore, the appellant are entitled for benefit of exemption under notification as SSI Unit as they are not using the brand name of any other person.
The only reason for clubbing the clearance of Washwell Soap Private Limited to the main appellant s clearance is that the proprietor of main appellant is one of the Directors in Washwell but no other investigation was done to ascertain the fact that there is mutuality of interest between both the units and the price charged by the main appellant from Washwell Soap are lower than the price charge from other person as Revenue has not investigated these facts. Therefore, merely being the proprietor is the Director of M/s. Washwell, the clearance of Washwell cannot be clubbed with the clearance of the appellant. - demand on this account is not sustainable and the same is set aside - Decided partly in favour of assessee.
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2015 (5) TMI 973
CENVAT Credit - debit notes - whether appellant is entitled to the Cenvat credit of the service tax paid in respect of the services covered by debit notes - Various service - Held that:- Law requires evidence to show provision of service, value thereof, identity of provider and recipient thereof and service tax charged to protect interest of Revenue. Therefore, it would be proper for the Adjudicating authority to enquire from the concerns which had issued debit notes/letter heads, as to whether the particulars mentioned therein are correct and provision of service covered by those debit notes/letter heads were really provided to the appellant. Upon conduct of enquiry, if the authority is satisfied as to genuineness of the debit note and identity of the parties, the form of invoice shall not be material but substance thereof shall govern the claim. This enquiry shall provide immunity to Revenue to prevent double claim of Cenvat credit one on the basis debit notes/letter heads and subsequently on the basis of invoices if any - CENVAT Credit is allowed - Decided in favour of assessee.
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2015 (5) TMI 972
Addition under Section 2(22)(e) for deemed dividend - Held that:- the payment of money by inflating the purchase cannot be construed as loan or advance. In the case of loan or advance, the recipient has the obligation to repay the amount. In the case of inflating the purchase amount, at the best, we can say that the recipient has to appropriate the amount. Therefore, it cannot be construed as loan or advance within the meaning of Section 2(22)(e) of the Act. Once it cannot be construed as loan or advance, the provisions of Section 2(22)(e) are not applicable. If there is any evidence to show that M/s Aachi Masala Foods Pvt. Ltd. has inflated the purchase, it is for the Assessing Officer to examine and disallow the expenditure claimed by M/s Aachi Masala Foods Pvt. Ltd. towards purchase of spices. At any stretch of imagination, such inflated purchase cannot be treated as loan or advance. Thus addition deleted - Decided in favour of assessee.
Addition under Section 69 - Held that:- Assessing Officer came to a conclusion that the assessee admitted on 17.09.2009 that he made unaccounted sum of ₹ 46,20,000/- for purchase of a property at Athipattu Village, Ambattur. A copy of the sworn statement recorded from the assessee is available at page 1 of the paper-book. This sworn statement does not show any admission made by the assessee for investment of unaccounted amount of ₹ 46,20,000/-. It is not known whether any other statement was recorded from the assessee. The Revenue could not file any material to show that the assessee has admitted the unaccounted sum of ₹ 46,20,000/- for purchase of Athipattu Village, Ambattur. The CIT(Appeals) found that the investments in immovable property were made out of the borrowed funds. However, the details of borrowed funds were not available on record. In those circumstances, this Tribunal is of the considered opinion that the matter needs to be re-examined by the Assessing Officer to find out the details of the borrowed funds and its nexus for making investments in immovable property.
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2015 (5) TMI 971
Assessability of capital gains in the hands of assessee on sale of land - Held that:- In the absence of the assessee having established its case of the land sold by him was agricultural land, we uphold the order of CIT(A) in assessing the income under the head 'income from capital gains' at ₹ 96 lakh. In the absence of assessee having failed to furnish any evidence vis-a-vis its claim of deduction under section 54 of the Act, the same is also rejected. Upholding the order of CIT(A), we dismiss the grounds of appeal raised by the assessee. - Decided against assessee
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2015 (5) TMI 970
Transfer pricing adjustment - TPO benchmarking the transaction of interest due on amounts outstanding from its AEs at LIBOR plus 300 basis points - Held that:- The assessee in the present set of facts was carrying on its business with its AEs and the majority of business receipts were receivable from the AEs. Once the transaction between the assessee and its AEs was in foreign currency, then the same part takes the nature of international transaction and the said transactions have to be looked upon by applying the commercial principles with regard to an international transaction. If that is so, then the domestic lending rates cannot be applied in order to benchmark the transaction of the assessee with its AEs and the international rates fixed by LIBOR would come into play. There was substantial delay in receipt of payment from AEs and substantial amount stood unrecovered from the AEs beyond the stipulated periods. The assessee initially did not charge interest from the AEs and subsequently, charged interest from AEs at AFR i.e. America n Federal Rate @ 2.98%. The amount is in the character of loan or borrowing after the stipulated credit period and consequently, such recovery of dues in the international transaction with its AEs is to be benchmarked by applying CUP method of international bank rates.
Accordingly, we hold that LIBOR plus rates have to be applied to the amounts due from the AEs beyond the period of 25 days, which was the weighted average number of days delay allowed to the third parties. After excluding the period of 25 days, interest is to be charged on the balance number of days of delay by applying LIBOR plus rates. We find that the TPO had applied average rate of LIBOR plus 300 basis points as the reasonable rate of interest, which the assessee should have charged to its AEs. The TPO had also charged plus 200 basis points as guaranteed commission. The CIT(A) has given a finding that in the absence of any expenditure having been incurred by the assessee on such guaranteed commission, there was no merit in including the same. The Revenue is not in appeal against the said finding of the CIT(A) and in the totality of the above said facts and circumstances, where it has not been established that the assessee has not paid any commission, there was no merit in charging plus 200 basis as guaranteed commission. However, we uphold the order of TPO in benchmarking the transaction of interest due on amounts outstanding from its AEs at LIBOR plus 300 basis points. The Assessing Officer / TPO shall determine the adjustment, if any, to be made in the hands of assessee on account of interest chargeable on the amounts due from its AEs beyond the credit period of 25 days after allowing the benefit of interest recovered by the assessee from its AEs
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2015 (5) TMI 969
Demand of differential duty - Benefit of Notification No. 12/201 dt. 17/3/2012 and Notification No. 46/2011 - Held that:- Since the issue has been referred to a Larger Bench it is the convention that unconditional stay is granted on pre-deposit, till the matter is resolved by the Larger Bench, Following the said convention, we allow the application for wavier of pre-deposit of the amounts involved and stay recovery thereof till disposal of the appeal. - Stay granted.
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2015 (5) TMI 968
Discharge of bank Gurantee - Held that:- Vide Final Order dt. 29.4.2015 had allowed the appeals filed by M/s. Global Vectra Helicorp Ltd. and also dismissed the appeal of the Revenue. We do find that the M/s Global Vectra Helicorp Ltd. had executed the two Bank Guarantees No. namely ININ1MB08G306212 dated 5.9.2008 and ININ1MB08G306409 dt. 19.9.2008 both issued by the Royal Bank of Scotland, N.V. Brady House, 14 Veer Nariman Road, Fort Mumbai 400 023 which is valid upto 2.9.2015 and 16.9.2015 respectively. - Since the appeal filed by the appellant M/s. Global Vectra Helicorp Ltd. has already been allowed by the Bench, in our considered view the Bank Guarantees which have been executed by M/s. Global Vectra Helicorp Ltd. needs to be discharged - Appeal disposed of.
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2015 (5) TMI 967
Benefit at Serial No.123 of Notification No.12/2012-Cus., dated 17.3.2012 - whether coal imported by the appellant is steam coal or bituminous coal. - Held that:- commodities listed therein are exempted and the coal figured at serial No.207 in both the notifications. It was also submitted that the coal imported by the appellant was from Indonesia, a notified country. Since the original adjudicating authority has not considered this submission and eligibility requires examination of certificate of country of origin and fulfillment of other conditions, if any in the Notification, it was submitted that matters may be remanded at this stage itself. - Matter remanded back - Appeal disposed of.
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2015 (5) TMI 966
Duty demand - Capital goods - rate and valuation of the assets - Section 28AB - Held that:- The impugned order concludes that Microsoft Corporation , USA is not the owner of the appellant or of MGSCI even though these entities may be subsidiaries of Microsoft Corporation USA, as they are distinct legal entities and therefore appellant and MGSCI are separate legal entities. The impugned order proceeds on the basis that while a holding company may have effective control over a subsidiary, such control does not amount to ownership of the holding company over the subsidiaries, which is the condition for sharing of assets. - Confirmation of the duty demand on the appellant is thus unassailable and warrants no appellate interference. The impugned order also holds that appellant’s liability to customs duty must be calculated from the date of commencement of sharing of the assets between the appellant and MGSCI. Since this sharing of the assets constitutes the contravention of the condition in Notification No.52/2003-Cus, which has triggered the liability to duty, it is appropriate that duty on the valuation should as on the date of commencement of sharing of the assets by the appellant with MGSCI. - impugned order suffers from no infirmity - Decided against assessee.
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2015 (5) TMI 965
Violation of condition of Section 112 (b) of the Customs Act, 1962 - No knowledge about removal of oil from barge and loading thereof into the tanker lorry - Held that:- As the barge has gone out of control of the owner, it is left to the persons concerned, who operated the barge thereafter. Accordingly, there shall be no penalty on Smt. Josephine Sudarsan. However, so far as her husband Shri Tomy Corera is concerned, he was managing the barge and that was under his control even though that was let out. - barge was carrying fuel and that fuel was removed from barge for loading into the tanker lorry for the purpose of moving outside the Customs area. That brought Shri Tomy Corera into the fold of law to explain the reason why there was removal of fuel. When his explanation was unsatisfactory and without any logical reason, it was held that there was smuggling activity. Therefore, Shri Tomy Corera has to face penalty of ₹ 2,25,000 without any intervention to the order of the authority below - It is he who connected barge as well as the tanker to effect removal of the fuel from the barge. He could not detach himself from the offence alleged. Therefore, it is difficult to grant him any concession in penalty. - Appeal dismissed of.
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2015 (5) TMI 964
Refund of SAD - whether refund of SAD claimed by the assessee-respondent relating to the period prior to the date of issue of amending Notification No. 93/2008 dated 1.8.2008, time limit of one year prescribed for availing refund claimed under Notification No. 93/2008-Cus would be applicable or not - Held that:- Issue is squarely covered by the decision of the Hon’ble High Court of Delhi in the case of Sony India Pvt. Ltd. (2014 (4) TMI 870 - DELHI HIGH COURT ). In such a situation, I do not consider it necessary to discuss various submissions made by learned A.R. on behalf of the Revenue-appellant. - Since the Hon’ble Delhi High Court has already taken a view and no contrary decision has been produced before me, following the precedent decision - Decided against Revenue.
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2015 (5) TMI 963
Extension of stay order - Held that:- Power to grant stay has not been expressly provided in the Statute. However power to grant stay is an inherent power as has been held in the case of Shri Ram Narayan Dyg. & Ptg. Mills Vs. CCE, Surat-I [2009 (11) TMI 784 - CESTAT AHMEDABAD]. This inherent power to grant stay has been expressly recognised even by the Hon'ble Supreme Court as is evident from para 6 of the judgement in the case of CCE, Chandigarh Vs. Baldev Raj Ram Murthi [2005 (4) TMI 377 - CESTAT, NEW DELHI] - sub section did not grant any power to grant stay; it only sought to put fetters on the power of the Tribunal to grant stay beyond a certain period. Consequently its abolition can only have an effect that fetters which the said sub-section sought to place on the Tribunal with regard to the duration beyond which CESTAT could not grant stay no longer exist. In other words, with the abolition of Section 35C(2A) ibid with effect from 06.08.2014, the power of the Tribunal with regard to grant of stay in no way got attenuated. - having regard to the fact that the delay in taking up these appeals is not attributable to the appellants, extend the stay granted to operate during the pendency thereof. - Stay granted.
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2015 (5) TMI 962
Confiscation of goods - Enhancement of value - Penalty u/s 112 - Held that:- One of the persons whose opinion was sought gave the value which was even lower than the value declared by the appellant. The transaction value was sought to be rejected as per the Show Cause Notice essentially because the goods were alleged to be mis-declared in description thereof. Once the goods were held to have been correctly described by the appellant, the very basis of rejecting the transaction value disappeared, even more so in the wake of the Commissioner ordering mutation of the goods. In the circumstances, we do not find any basis for rejecting the transaction value and also for arriving at the revised value as per the requirement of the said Rules. Indeed in the impugned order there is not even a whisper as to how and on what basis the transaction value was rejected even after accepting the appellants description of goods as correct. It is a settled law that resort to the said Rules for revising the value of the imported goods can be had only after the assessing officer rejects the transaction value in terms of Rule 12 of the said Rules on account of having reasonable doubt about the truth or accuracy of the declared value. The impugned order does not disclose any basis for any such reasonable doubt after having accepted the description of the goods to be correct. Thus, we do not find the upward revision of value sustainable and as a consequence there remains no ground to order confiscation of the impugned goods under Section 111(m) ibid leading to redemption fine and penalty. - Decided in favour of assessee.
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