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Showing 281 to 300 of 1167 Records
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2012 (7) TMI 895
Issues Involved:
Transportation of goods without producing delivery note, levy of penalty u/s 53(2) read with rule 157 of KVAT Act.
Issue 1: Transportation of goods without producing delivery note
The respondent was transporting rewinding wires from Davanagere to Bangalore when the vehicle was checked at Tumkur Road check-post. The driver failed to produce the delivery note, only providing a sale bill. This led to a notice for non-compliance of section 53(2) read with rule 157 of the KVAT Act and subsequent penalty imposition by check-post authorities, which was upheld by the Joint Commissioner of Appeals. However, the Appellate Tribunal overturned the decision citing the non-production of the delivery note as a minor infraction not warranting a penalty.
Comprehensive Details:
The issue revolved around whether the non-production of a delivery note necessitates a penalty under section 53(2) of the KVAT Act. The Act mandates the carrying and production of specified documents during transportation of goods. The petitioner argued that the non-production of the delivery note for rewinding wires, a specified good, constituted a violation of a mandatory provision, thus requiring a penalty. However, the Tribunal found that the driver's inadvertent failure to bring the delivery note, coupled with the presence of the consignee's name in the sale bill, did not indicate any tax evasion intent. The Tribunal's decision was deemed appropriate as penalty imposition hinges on the absence of a valid explanation, which was not the case here.
Legal Terminology:
The provision of section 53(2) of the KVAT Act outlines the obligations of the owner or person in charge of a goods vehicle, emphasizing the necessity of carrying and producing relevant documents at check-posts. The Act specifies that penalty imposition is contingent upon the absence of a sufficient cause, indicating that penalties are not automatic but dependent on the circumstances of each case. In this instance, the driver's explanation, supported by the sale bill, did not demonstrate any tax evasion motive, leading to the dismissal of the petitioner's claim and upholding the Tribunal's decision.
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2012 (7) TMI 894
Furnishing of bank guarantee - short paid tax - stay on recovery was granted - whether the petitioner is required to furnish bank guarantee, pending the appeal, when stay was granted on recovery? - Held that: - respondent could not controvert the factual aspect of the submissions made by the petitioner detailing the gross arbitrariness and discriminatory treatment by the Tax Board in dealing with the interim application of the petitioner and requiring bank guarantee vis-a-vis the approach of the Board in other similar matter wherein the Board required only solvent security u/r 77 of Rules, 2006 to cover the interest of the Revenue in the event the appeals were dismissed by the Tribunal - petitioner to furnish a solvent security instead of bank guarantee - petition allowed - decided in favor of petitioner.
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2012 (7) TMI 893
The Supreme Court condoned the delay and dismissed the appeals as the revenue effect was small (around Rs. 2 Lakhs) and the earlier decision had not been challenged by the Revenue. The question of law raised in the appeals remains open.
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2012 (7) TMI 892
Issues Involved:
1. Validity and interpretation of the Civil List as a Seniority List.
2. Impact of the relaxation order dated 31st August 2001 on the Quota and Rota Rules.
3. Correctness of the law laid down in the cases of "Prabhakant Ayodhya Prasad" and "Sanjay Punglia".
4. Implementation of the Departmental Promotion Committee (DPC) recommendations.
Summary:
1. Validity and Interpretation of the Civil List as a Seniority List:
The High Court held that the Civil List, which has been in operation since 1981, is indeed the Seniority List for the Indian Revenue Service (IRS) officers. The Tribunal's conclusion that the Civil List is not a seniority list was found to be erroneous. The Court emphasized that the Civil List contains all the necessary details and characteristics of a seniority list, including the names, serial numbers, posts, and other relevant details of the officers, and is prepared in accordance with the Rota-Quota Rules stipulated in the Recruitment Rules. The disclaimer in the Civil List was deemed to be a measure of abundant caution and did not negate its functionality as a seniority list.
2. Impact of the Relaxation Order Dated 31st August 2001 on the Quota and Rota Rules:
The relaxation order dated 31st August 2001, which diverted the quota of Direct Recruits to Promotees, was not challenged and hence had attained finality. The High Court noted that the Tribunal failed to address whether the relaxation of the Quota Rule under Rule 7(2) of the IRS Rules, 1988 also implied the relaxation of the Rota Rule under Rule 9(iii). The Court held that this question needed to be specifically determined by the Tribunal before directing the petitioners to draft a new seniority list.
3. Correctness of the Law Laid Down in the Cases of "Prabhakant Ayodhya Prasad" and "Sanjay Punglia":
The Tribunal was required to determine the correctness of the law laid down in the cases of "Prabhakant Ayodhya Prasad" and "Sanjay Punglia" as they provided contrary interpretations regarding the relaxation of Quota and Rota Rules. The High Court found that the Tribunal did not address this reference and instead directed the petitioners to draft a seniority list, which was outside the scope of the reference. The Court directed the Tribunal to decide the reference made to it as expeditiously as possible.
4. Implementation of the Departmental Promotion Committee (DPC) Recommendations:
The High Court set aside the Tribunal's direction to stay the promotions recommended by the DPC held on 23rd September 2010. The Court noted that the work of the IRS Department had suffered due to the restraint on promotions and that there were still vacancies available even after the promotions were effected. The Court allowed the petitioners to implement the DPC recommendations subject to the outcome of the reference to be decided by the Tribunal.
Conclusion:
The High Court set aside the Tribunal's order dated 2nd November 2010 and held that the Civil List is the seniority list for IRS officers. The Court directed the Tribunal to decide the reference regarding the relaxation of Quota and Rota Rules and allowed the implementation of the DPC recommendations subject to the Tribunal's decision.
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2012 (7) TMI 891
Issues involved:
The issue involved in this case is whether the CESTAT, while allowing the appeals and restoring the matter for fresh adjudication, was justified in directing the appellants to deposit a part of the duty confirmed by the Orders-in-Original.
Summary:
The appellants claimed to have received duty paid grey fabrics as inputs and used them in the manufacture of processed fabrics for export. They took credit of the duty paid on grey fabrics based on invoices issued by various parties. The Commissioner disallowed the credit to a certain extent and confirmed the duty demand with interest and penalty. The Tribunal directed the appellants to deposit part of the demand confirmed by the adjudicating authority. The Tribunal's reasons for directing pre-deposit were found to be contradictory. While the Tribunal noted the appellants' failure to produce evidence regarding the existence of the supplying firms, it also acknowledged that the appellants had no opportunity to present their case before the adjudicating authority. Consequently, the Tribunal's decision to require a deposit was deemed inappropriate. The impugned orders directing the appellants to deposit part of the demand were quashed, and the adjudicating authority was instructed to conduct a fresh adjudication without insisting on any pre-deposit. Both appeals were allowed with no order as to costs.
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2012 (7) TMI 890
The Gujarat High Court heard a case regarding Cenvat credit rules and the use of inputs in manufacturing dutiable and exempted goods. The court formulated substantial questions of law related to the case and issued notice to the respondent for further proceedings.
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2012 (7) TMI 889
Issues involved: Condonation of delay in filing appeals before the Appellate Tribunal u/s 35B of the Central Excise Act, 1944.
Summary:
The two Miscellaneous Applications were filed for condonation of a 170-day delay in filing appeals before the Tribunal u/s 35B of the Central Excise Act. The appellant claimed that due to certain circumstances, they were unable to file the appeals within the prescribed time limit. The Advocate for the appellant cited various judgments to support their case. On the other hand, the Revenue argued that the appellant failed to provide a plausible explanation for the delay and questioned the bonafides of their approach.
Upon hearing both sides and examining the records, the Tribunal found the appellant's approach to be contradictory. The appellant claimed they only became aware of the orders-in-appeal in April 2010, despite someone from the company receiving them in October 2009. The Tribunal noted discrepancies in the appellant's statements regarding the timeline of events and expressed doubts about their bonafides. The Tribunal emphasized the need for applicants to demonstrate sufficient cause for condonation of delay, as established by Supreme Court judgments.
Ultimately, the Tribunal concluded that the appellant's explanations were not convincing and lacked bona fides. They failed to adequately justify the delay in filing the appeals, leading to the dismissal of the applications and the appeals. The principle that delay can only be condoned with sufficient cause was reiterated, based on the case laws cited by the Advocate. Consequently, the appeals were dismissed, and the stay petitions were disposed of accordingly.
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2012 (7) TMI 888
Issues involved:
The appeal against the order of Customs, Excise and Service Tax Appellate Tribunal (CESTAT) raises the substantial question of law regarding the amendment of 191 shipping bills by deletion of the EPCG licence number and issuing FMS scripts to the exporter.
Amendment of Shipping Bills:
The appellant argued that a positive direction to amend the shipping bills by deleting the EPCG licence number was ordered while remitting the matter to the adjudicating authority. The appeal was filed on the grounds that if this direction is allowed to stand, the question of considering whether the amendment is necessary may not arise for the authorities below.
Satisfaction for Amendment:
The learned counsel for the first respondent acknowledged that the amendment should only be made if the authorities are satisfied that the 191 shipping bills have not been used to fulfill the export obligation under the EPCG licence number prior to the deletion.
Decision and Clarification:
The High Court disposed of the civil miscellaneous appeal by clarifying that the adjudicating authority, in reconsidering the matter as directed by CESTAT, must first ensure that the 191 shipping bills were not utilized for meeting the export obligation under the EPCG licence number before deletion. Only upon satisfaction, the authority can proceed with the amendment and the case. No costs were awarded, and the connected M.P. was closed.
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2012 (7) TMI 887
Whether the first appellate court as well as the High Court committed grave error in shifting the burden of proof on the Union of India, appellant/defendant No.1, though it could have been exclusively on the plaintiff/respondent No.1 to prove his case?
Whether there is nothing on record to prove the grant/gift by the Maratha Government in favour of ancestors of plaintiff/respondent No.1 in the year 1800 ?
Whether Plaintiff/Respondent No. 1 miserably failed to prove the pedigree produced by him?
Whether the alleged partition in the year 1819 among the ancestors of plaintiff/respondent No.1 even if had taken place, cannot be a proof of title of the plaintiff/respondent No.1 over the suit property as the pedigree has not been proved?
Whether the rent note produced by the appellant/defendant No.1 before the court below does not prove anything in favour of the plaintiff/respondent?
Whether the application under Order XLI Rule 27 CPC was liable to be rejected?
Whether the court cannot travel beyond the pleadings as no party can lead the evidence on an issue/point not raised in the pleadings and in case, such evidence has been adduced or a finding of fact has been recorded by the Court, it is just to be ignored?
Whether the first appellate court committed a grave error in deciding the application under Order XLI Rule 27 CPC much prior to the hearing of the appeal?
Whether the documents produced by the Union of India have not been properly appreciated by the first appellate court and the High Court?
Whether the courts below further committed an error holding that in case the document is taken on record, the document as well as the content thereof would be deemed to have been proved?
Whether the appellate courts have also wrongly rejected the certified copies of the documents prepared by the Cantonment Board which were admissible in evidence?
Whether the High Court committed a grave error in not addressing itself to the substantial questions of law framed at the time of admission of the appeal and it ought to have decided the same or after discussing the same a finding could have been recorded that none of them was substantial question of law?
Whether the suit was barred by the proviso to Section 34 of the Specific Relief Act, for the reason that plaintiff/respondent No.1, admittedly, had not been in possession and he did not ask for restoration of possession or any other consequential relief?
Whether the first appellate court as well as the High Court recorded a finding that the Union of India failed to prove its title over the suit land. The said courts did not realise that this was not the issue to be determined, rather the issue had been as to whether the plaintiff/respondent No.1 was the owner of the suit land?
Whether the first appellate court has not decided the issue of admission of documents in correct perspective and recorded a perverse finding?
Whether the Question of filing a document in rebuttal of a Will could not arise?
Whether the courts below had wrongly drawn adverse inference against the appellant/defendant No.1 for not producing the documents as there was no direction of the court to produce the same?
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2012 (7) TMI 886
Waiver of pre deposit - Held that:- petitioner had made submissions before the appellate authority and the CESTAT about the financial difficulties faced by it. Having regard to these circumstances, this Court is of the opinion that the Tribunal’s direction that the petitioner should deposit the entire amount is not justified. The said direction is modified and instead the petitioner shall be directed to deposit the entire duty amount in three equal monthly installments. The condition to deposit the interest on the duty amount is hereby set-aside. - Decided in favour of assessee.
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2012 (7) TMI 885
Bail Application - Held that:- after rejection order was passed, Hon’ble the Supreme Court [2011 (9) TMI 65 - SUPREME COURT OF INDIA] has given a verdict holding the offences under the Customs Act, 1962 to be bailable. - it a fit case for releasing the applicant on bail. - Appellant to furnish bond - Decided conditionally in favour of assessee.
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2012 (7) TMI 884
Issues involved: Appeal against monetary penalty imposed by National Stock Exchange for irregularities in maintaining client ledger, sending contract notes, and displaying notice board.
Irregularity 1 - Client Ledger Maintenance:
The appellant, a stock broker, was penalized for maintaining one ledger account for clients who also acted as sub-brokers. The Securities Appellate Tribunal found ambiguity in the regulation requiring separate ledger accounts for each client's transactions on the stock exchange. The appellant complied with the directive to maintain separate accounts for clients acting as sub-brokers. The Tribunal deemed the penalty of Rs. 25,000 unjustified due to the regulation's lack of clarity.
Irregularity 2 - Contract Notes Dispatch:
The appellant faced a penalty for not sending contract notes directly to clients within 24 hours, instead routing them through sub-brokers. The Tribunal noted that the appellant issued contract notes promptly, within the prescribed time frame, and sent them to clients through sub-brokers as per regulations. It found no violation in this practice and overturned the penalty of Rs. 10,000.
Irregularity 3 - Notice Board Display:
The penalty imposed for not displaying the trading member's notice board at the sub-broker's office was dropped by the Internal Committee for Minor Actions of NSE. This issue was not challenged in the appeal.
Conclusion:
After considering arguments from both parties, the Securities Appellate Tribunal allowed the appeal, setting aside the impugned order and ruling in favor of the appellant. No costs were awarded in this decision.
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2012 (7) TMI 883
Detention of goods - Import of flat bed/circular knitting machines - mis-declaration of value and other particulars - arbitration conditions imposed by the department to release the goods - Held that:- Mere dispute of classification or valuation could not justify power of confiscation and imposing of condition of furnishing of bank guarantee equal to 25% of the value of the goods.
Revenue directed to immediate provisional release of goods on conditions mentioned in the order of provisional release except the requirement of declaration that the petitioner will not dispute the value of goods and will furnish bank guarantee.
The submission made by the counsel for the respondents that an appeal would lie to the Commissioner (Appeals) against the said orders and this Court should not exercise its jurisdiction under Articles 226 & 227 of the Constitution of India, is not acceptable in view of the fact that the detention of the goods has been made since 1-7-2011 onwards and the conditions imposed by the Joint Commissioner are in violation of the directions issued by this Court in Amit Enterprises [2011 (5) TMI 375 - PUNJAB & HARYANA HIGH COURT] & Era International [2011 (8) TMI 885 - Punjab and Haryana High Court]. Therefore, in our opinion, the alternative remedy is not an efficacious remedy to which the petitioner can be relegated to.
Decided in favor of assessee.
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2012 (7) TMI 882
Refund of accumulated Cenvat credit - held that:- No other circular has been issued by the Ministry of Finance, Department of Revenue, Central Board of Excise & Customs, authorizing the Department to file appeal where the amount is less than ₹ 10 lacs - appellant was not in position to dispute the instructions of the aforementioned circulars and the monetary limit prescribed therein. While it is true that the present appeal was filed and notice was issued prior to the circular dated 20-10-2010, when it comes up for consideration and hearing before us, the contents of the circular and the limits prescribed therein apply. In that light, it is not being disputed that the issues involved and the questions formulated in this appeal need not be decided. - It cannot be gainsaid that the Department is bound by its own circulars and the instructions thereof. - Decided against Revenue.
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2012 (7) TMI 881
Refund of accumulated Cenvat credit - held that:- No other circular has been issued by the Ministry of Finance, Department of Revenue, Central Board of Excise & Customs, authorizing the Department to file appeal where the amount is less than ₹ 10 lacs - appellant was not in position to dispute the instructions of the aforementioned circulars and the monetary limit prescribed therein. While it is true that the present appeal was filed and notice was issued prior to the circular dated 20-10-2010, when it comes up for consideration and hearing before us, the contents of the circular and the limits prescribed therein apply. In that light, it is not being disputed that the issues involved and the questions formulated in this appeal need not be decided. - It cannot be gainsaid that the Department is bound by its own circulars and the instructions thereof. - Decided against Revenue.
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2012 (7) TMI 880
Duty demand - Valuation - Non maintenance of separate accounts - Held that:- demand is confirmed by invoking the provisions of Rule 6 of CENVAT Credit Rules, 2004 which provides that in case of manufactured products, both dutiable as well as exempted goods, availing credits in respect of common inputs, the manufacturer has to maintain separate account for the manufacture of exempted goods. The case of the Revenue is that bagasse, press mud and boiler ash are excisable goods, and the manufacturer of sugar and molasses are not maintaining separate records hence, as per the provisions of Rule 6 of the CENVAT Credit Rules, 2004, the manufacturer has to pay 5%-10% of the price of the exempted goods i.e. bagasse, press mud and boiler ash. - Decision in the case of Union of India vs. Ahmedabad Electricity Co. Ltd. [2003 (10) TMI 47 - SUPREME COURT OF INDIA] - impugned order is set aside - Decided in favour of assessee.
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2012 (7) TMI 879
Denial of refund claim - Unjust enrichment - Held that:- The appellant during the period of dispute had manufactured processed fabrics on job work basis and the duty liability in respect of those fabrics had been discharged under the Compounded Levy Scheme at the monthly rate based on the length of the stenters fixed by the Commissioner. Though initially, the duty liability had been fixed by the Commissioner on the basis of the length of the stenter which included the length of the galleries, subsequently, the Apex Court held that the length of galleries is not to be included in the length of stenter and on this basis, the actual duty liability of the appellant became lower than the amount of duty paid by them. This has given rise to this refund claim. It is not disputed that the duty liability had been discharged by the appellant at the monthly rate determined on the basis of length of stenter which included the length of galleries and it is this duty which obviously has been recovered by the appellant from the principal manufacturers. There is no evidence produced to show that the appellant while paying duty at higher rate, had been recovering lower amount from their customers the principal manufacturers. - Decied against assessee.
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2012 (7) TMI 878
Waiver of pre deposit - CENVAT Credit - credit on the excise duty paid in respect of the inputs for printed laminated sheets. - Held that:- The Department has all through been accepting the excise duty without protest. Therefore prima facie after accepting the excise duty the department now cannot be allowed to take a plea that the appellant has wrongly availed Cenvat credit as inputs on final product is not acceptable. Otherwise also since the appellant has paid excise duty on final product which is much more than the Cenvat credit availed entire excise duty is revenue neutral. Hon’ble Gujarat High Court in case of C.C.E. v. Creative Enterprises, reported in [2008 (7) TMI 311 - GUJARAT HIGH COURT] has held that if duty has been collected by the Department on a final product manufactured by an assessee, the Cenvat credit has to be allowed and the same cannot be subsequently denied on the ground that the process does not amount to manufacture. This judgment has been upheld by the Apex Court vide judgment reported in [2009 (7) TMI 1206 - SUPREME COURT]. That being the case, prima facie, we do not find any merit in the plea of the department, that since the process undertaken by the appellant does not amount to manufacture, the Cenvat credit availed by the appellant is liable to be recovered from them. Thus, we find it is a fit case in favour of the appellant to justify the waiver of condition of pre-deposit of duty demand. - Decided in favour of assessee.
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2012 (7) TMI 877
Denial of duty drawback claim - Drawback @ 1.7% of FOB value of exports or @ 5.3% under Chapter Heading No. 9401 - Wrong classification of goods - Classification under CTH 9401 or 9403 - Held that:- 9403 covers only those goods, which are not covered in above Tariff Headings viz, under CTH 9401 & 9402. Further, 9401 covers all seats. Further, as evident from HSN to Tariff Heading 9401 that such seat covers various kinds of chairs. Once, the goods find classification under CTH 9401, it cannot be classified under 9403, as 9403 covers only those furniture and parts thereof, which are not covered by the previous Heading. - Board vide Circular, categorically held that all chairs will be classified under 9401 and not under 9403. As in the instant case, only chairs as stand alone have been exported, their classification is more appropriate under CTH 9401 than 9403, applicant has also stated that for their subsequent exports, department is allowing classification under Heading 9401 and sanctioning drawback a higher rate. - impugned goods by Sorav Dining Chairs are classifiable under CTH 9401 and hence, the applicant is entitled for drawback at higher rate as claimed by them. - Decided in favour of assessee.
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2012 (7) TMI 876
Denial of rebate claim - Applicant being 100% EOU enjoyed unconditional exemption under Notifi. No. 24/03-C.E., dated 31-3-2003 - Held that:- There is no condition for availing exemption from payment of duty on goods cleared for exports. Normally the 100% EOU has to clear all the goods manufactured by them for exports as per the EOU scheme. Such units can clear the goods in DTA with prior permission of Development Commissioner. Since there is no condition in the notification for availing exemption to goods manufactured by 100% EOU and cleared for export, the provisions of sub-section (1A) of Section 5A are applicable and no duty was required to be paid on such exported goods. As such rebate claim is not admissible in terms of Rule 18 of Central Excise Rule, 2002 read with Notification No. 19/2004-C.E.(N.T.), dated 6-9-2004. - erroneous refund/rebate sanctioned under an order can be recovered by invoking provisions of Section 11A of Central Excise Act, 1944, without taking recourse to provisions of Section 35E ibid and filing appeal against the order under which refund was initially sanctioned. - Decided in favour of Revenue.
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