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Case Laws
Showing 281 to 300 of 1439 Records
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2015 (7) TMI 1164
Rejection of part of rebate claim and sanctioning of part of the claim - Held that: - as per the amendment to Section 86 of the Finance Act, 1994, appeal relating to grant of rebate of service tax on inputs or input services used for providing export services shall be dealt with the provision of Section 35EE of the Central Excise Act, 1944 if these appeals which were filed after Finance Act, 2012 came into statute. These appeals are filed by the appellant-assessee as well as Revenue against Order-in-Appeal in 2013 and 2014 hence as per proviso to Section 86 of the Finance Act, 1994 as amended, an appeal against Commissioner (Appeals) order on rebate of the amount paid on export of services needs to be filed with the Joint Secretary (RA), Department of Revenue, Ministry of Finance, Govt. of India, New Delhi. Accordingly, we transfer the appeals to the Joint Secretary (R), Department of Revenue, Ministry of Finance, Govt. of India, New Delhi. Cross Objection filed by appellant is also transferred.
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2015 (7) TMI 1163
Sponsorship of cricket match - delay of 569 days in filing the appeals - the decision in the case of M/s HERO MOTOCORP LTD Versus COMMISSIONER OF SERVICE TAX, DELHI [2013 (6) TMI 447 - CESTAT NEW DELHI] contested - Held that: - There is an inordinate delay of 569 days in filing the present appeals for which there is no satisfactory explanation. Even otherwise, having gone through the records of the case, we are of the considered opinion that the appeals, being devoid of any merit, deserves to be dismissed and are dismissed accordingly on the ground of delay as also on merits.
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2015 (7) TMI 1162
Addition on account of cessation of liabilities under section 41(1) - Held that:- Provisions of Section 41 (1) would not apply in the case of the assessee as it is clear that assessee had continued to show the admitted amounts as liability in its balance sheet. The liabilities reflected in the balance sheet could not be treated as cessation of liability. Therefore, addition was wholly unjustified. - Decided in favour of assessee
Disallowance of commodities loss - held that:- the enquiries from Ludhiana Stock Exchange revealed that claim of loss on account of commodity transaction was not a genuine claim. The assessee merely produced copy of notes from M/s Anand Commodity Services, would not prove that assessee suffered genuine loss. The evidences collected from Ludhiana Stock Exchange and confronted to the assessee clearly proved that the commodity transaction was not actually carried out but was merely accommodation entries. Earlier the Tribunal, while restoring the matter to the file of Assessing Officer directed the assessee to produce the requisite material and evidence to prove the genuineness of the loss in question. The assessee, however, failed to produce any requisite material and evidence before Assessing Officer in set aside proceedings to prove the genuineness of the loss in question. Therefore, authorities below were justified in maintaining the addition - Decided against assessee.
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2015 (7) TMI 1161
Violations of the terms and conditions of the contract of insurance - Held that:- The insured has to declare the shipments in terms of Clause 8(a) without omission and also pay the premium in terms of Clause 10. Premium of payment alone does not make the Corporation liable to indemnify the loss or fasten the liability on it. It is also required on the part of the insured for the purpose of sustaining the claim to show that there has been compliance as regards the declaration. To construe Clause 8(a) that the insured has a choice to declare which shipment he would cover and which ones he would leave, would run counter to the mandate of the policy. It has to be borne in mind that these are specific clauses relating to the obligations of the insured.
The attempt on the part of the appellant to inject concept of payment of premium and the risk covered to this realm would not be acceptable. The general clauses basically convey which risks are covered and which risks are not covered, how the premium is to be computed and paid. What eventually matters is where the liability of the insurer is exclusively excluded, the said clauses of the policy are absolutely clear, unequivocal and unambiguous. The insured after availing a policy in commercial transactions is to understand the policy in entirety. The construction of the policy in entirety and in a harmonious manner leaves no room for doubt that there is no equivocality or ambiguity warranting an interpretation in favour of the insured-appellant. Whatever the reasons the appellant may give, he having not declared as prescribed in Clause 8(a), which is again reiterated by way of reference in Clause 19(a), the exclusionary clause, it will be an anathema to the concept of interpretation of contract of insurance of such a nature, if liability is fastened on the insurer. The finding of the Commission that the appellant had not take steps to retrieve the goods is absolutely immaterial for the present purpose. The said finding though is flawed, the ultimate conclusion, which is based upon our independent analysis, is correct.
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2015 (7) TMI 1160
Stay for an unlimited period - Section 35G of the Central Excise Act, 1944 - interpretation of statute - Held that: - In the Commissioner of Central Excise v. M/s. Magnum Ventures Ltd. [2015 (8) TMI 1075 - ALLAHABAD HIGH COURT], this Court clarified that the interim order granted by the Tribunal will not continue beyond 365 days from the date it has been passed and has further clarified that after expiry of 365 days the assessee would be at liberty to make a fresh application for extension of the interim order - in view of the provisions of Section 35C(2A) of the Act the interim order passed by the Tribunal will have a limited life. Upon the expiry or immediately before the expiry, it would be open to the assessee to move a fresh stay application. If such an application is filed before the Tribunal, the Tribunal will consider and decide the same in accordance with law after hearing all the parties concerned - matter on remand.
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2015 (7) TMI 1159
Abatement under sub-section (3) of Section 3A of the Central Excise Act, 1944 - condition (e) under sub-rule (2) of Rule 96ZO - 5 MT furnace - shutting down for furnace for seven continuous days - Held that: - the manufacturer suppose not to produce during any continuous period of not less than seven days.
The appellant’s furnace had functioned upto 12. hours on 22-10-1999 and from 12.30 hours to 24 hours on 29-10-1999. Therefore, the original authority had rightly excluded both the dates as the furnace had functioned on those days. Excluding those days, it was found that the furnace was not shut down for a continuous period of seven days and therefore, the appellant does not fall within the meaning of sub-section (3) of Section 3A of the Central Excise Act, 1944 - appeal dismissed.
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2015 (7) TMI 1158
Maintainability of appeal - Section 130 of the Customs Act, 1962 - the decision in the case of RACAL SURVEY OVERSEAS LTD. Versus COMMISSIONER OF CUS. (IMPORT), MUMBAI [2005 (5) TMI 151 - CESTAT, MUMBAI] referred - Held that: - against the impugned order of the Customs, Excise and Service Tax Appellate Tribunal, appeal had to be filed to the High Court under Section 130 of the Act and the present appeal to this Court is not maintainable - appeal dismissed on this ground alone giving the appellant liberty to approach the High Court
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2015 (7) TMI 1157
Demand - Penalty - Notification No. 13/81-Cus dt. 9.2.1981 - 100% EOU - Held that: - The show cause notice demanded duty under proviso to Section 28(1) and the demand was clearly time barred Commissioner in his order, although referring to violation of Notification No. 13/81, does not mention that in terms of the Bond executed by 100% EOU there is no time limit for demand of duty.
Regarding Penalty - Held that: - once the goods are held not liable to confiscation, the question of penalty does not arise under Section 112 of the Act - Decided in favor of the assessee.
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2015 (7) TMI 1156
Taxing the profit arising from sale of plots of land - "Income from Capital gains" OR "Income from Business and Profession" - CIT(A) directing the AO to tax the profit under the head "Income from Capital gains'' - Held that:- We find from the records that the assessee since inception had disclosed the purchase of lands under the head 'Investment' and the assessee had also disclosed these plots under the same head upto date of sale of plots in the balance sheet. The assessee had also shown certain stocks in land under the head 'Inventories' during the year. It proves that assessee's intention was clear at the time of acquiring these plots for the purpose of investment. Therefore, we do not find any reason to interfere in the order of ld. CIT(A) which is sustained. Thus the solitary ground of the Revenue is dismissed.
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2015 (7) TMI 1155
Eligibility of exemption u/s 11 - claim denied as assessee society is directly hit by the amended proviso of section 2(15) - Object of Trust - charitable activity - Held that:- Consistent with the view taken in Divya Yog Mandir Trust Versus Joint Commissioner of Income-tax [2013 (10) TMI 211 - ITAT DELHI] wherein held that any form of educational activity involving imparting of systematic training in order to develop the knowledge, skill, mind and character of students, is to be regarded as 'education' covered u/s 2(15) of the Act, we hold that the assessee is in the field of education and hence entitled to exemption u/s 2(15) of the Act and is not hit by the proviso to section 2(15) of the Act. - Decided in favour of assessee
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2015 (7) TMI 1154
Cenvat credit - Rule 2(I) of CENVAT Credit Rules 2004 - Input Service Distributor - Held that: - The electricity so generated at the premises of JKWCW was transmitted to the premises of the appellant and used for manufacture of grey cement, without which the factory cannot run or operate - the conditions enumerated in Rule 7 of the said rules have been duly complied with by JKWCW in the capacity of ISD in-as-much-as the credit has been distributed against the valid documents referred to In Rule 9 and the credit distributed does not exceed the amount of service tax paid thereon - Since the final product manufactured by the appellant is not exempted from payment of duty credit distributed by JKWCW on the strength of valid documents, is available to the appellant as CENVAT credit, for payment of duty on removal of final product - Appeal allowed.
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2015 (7) TMI 1153
Service tax treated as part of the total receipts for the purpose of computing the ‘Presumptive income’ u/s 44B - Held that:- The amount of service tax cannot be included in the gross receipts for the purpose of computing the ‘Presumptive income’ of the assessee u/ s 44B.
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2015 (7) TMI 1152
Demand of service tax - section 73(1) read with Section 75 of the Finance Act, 1994 - Rent-A-Cab Scheme Operator - invocation of extended period of limitation - element of fraud, collision, suppression of facts, etc - Held that: - I find that since the Id. Commissioner (Appeals) has dropped the penalty holding that there is no wilful default in non-payment of service tax, it is not proper in upholding the demand on limitation ground in as much as the ingredients such as fraud, wilful mis-statement, suppression of facts, etc. are common in both the statutory provisions, i.e., proviso to Section 73 as also in Section 78 ibid.
The extended period of limitation cannot be invoked for confirmation of service tax liability and the liability should be confined to the period of one year from the date of issue of Show Cause Notice. Therefore, by setting aside the impugned order, the matter is remanded to the original adjudicating authority for ascertaining the normal limitation period and to confirm the service tax liability, if any, within such period of limitation - appeal disposed off - matter remanded.
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2015 (7) TMI 1151
Penalty under section 271(1)(c) - unexpalined deposits - Held that:- This is clearly not a case of false explanation as we have already pointed out that the explanation given by the assessee is a plausible one. Even in the order of the ITAT, said explanation given by the assessee has been quoted extensively. Once the explanation given by the assessee is found not to be false, to bring the case under the ambit of the Explanation to section 271(1)(c) of the Act, it has to be seen that, whether the same is substantiated or not. Section 68 is a deeming fiction, whereby an amount which though not proved to be the income of the assessee is deemed to be so. In the present case, the explanation of the assessee though was not accepted in its entirety, there is no material on the basis of which it would be held that the same was not bona fide.
The explanation given by the assessee has not been disproved. From the order of the AO in penalty, it is quite apparent that he has not been able to record any finding with regard to concealment or furnishing of inaccurate particulars of income of the assessee. He has not even considered explanation given by the assessee and merely on the basis of ITAT order, he levied the penalty. The A.O has not brought any evidence to conclude that the assessee had furnished inaccurate particulars of his income. In the quantum appeal, the Tribunal has accepted explanation of the assessee to the extent of deposit of ₹ 2,30,000/- as explained and partly confirmed the addition stating that explanation given by the assessee was not convincing. In the above circumstances, it cannot be said that the assessee has concealed his income or furnished any inaccurate particulars. - Decided in favour of assessee
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2015 (7) TMI 1150
Issues:
Condonation of delay in filing the appeal.
Analysis:
The appellant sought condonation of a 227-day delay in filing the appeal, citing the need to avoid legal or technical objections. However, the explanation provided was deemed insufficient by the court. The court referenced a recent Supreme Court decision highlighting the importance of diligently adhering to the law of limitation. Emphasizing that condonation of delay should not be an anticipated benefit for government departments, the court underscored the necessity for valid and acceptable reasons for any delay. The court noted that the appellant's explanation lacked justification for the significant delay, leading to the rejection of the condonation application and subsequent dismissal of the appeal.
Judges' Decision:
The judges found no sufficient cause to explain the 227-day delay in filing the appeal. Citing the lack of a valid reason for condonation, the court rejected the application seeking condonation of delay and consequently dismissed the appeal. The court aligned its decision with a previous order from 2014, emphasizing the similarity of issues with appeals decided earlier. Consequently, the court disposed of the present appeal in line with the previous order, ultimately dismissing the appeal due to the inadequate explanation for the delay.
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2015 (7) TMI 1149
Seizure of Foreign Currency - reducing the quantum of redemption fine and penalty - the decision in the case of Shri S. Pandithurai v. Commissioner of Customs [2009 (3) TMI 1046 - CESTAT CHENNAI] relied upon and order of reduced penalty passed - Held that: - Even a cursory perusal of the order passed by the Tribunal reveals that the Tribunal has relied on another decision of its own in Pandithurai’s case for reducing the redemption fine and penalty. However, from the order of the Tribunal it is evident, that the Tribunal has not discussed the applicability of Pandithurai’s case to the facts of the present case for it to reduce the redemption fine and penalty. It is also not clear under what circumstances and what set of facts, fine and penalty were reduced in Pandithurai’s case. Such a conduct of the Tribunal in passing an order mechanically without adverting to the facts of the said case but equating the same to the present case is highly deplorable. Equally deplorable is the conduct of the Department in not producing before us the decision of Pandithurai’s case.
We do not approve of the Tribunal reducing the penalty or fine on the ratio laid down in another decision. Each case will have to be decided on its own merits and the ratio, if any, to be followed on the legal plea and not otherwise. It may be so that a particular decision could be taken into consideration, but no straight jacket formula can be adopted, on the basis of one decision, to reduce the quantum of fine or penalty in another case. If the facts in Pandithurai’s case had been discussed by the Tribunal, probably it would have thrown much light, on the decision arrived at in that case which would have prompted the Tribunal to reduce the quantum. As already pointed out above, the department has not placed the decision in Pandithurai’s case before this Court and the Department counsel is also equally blank about the decision, which is staring on his face in the impugned order. In such circumstances, this Court is of the considered opinion that the matter has to be remanded to the Tribunal to consider the issue afresh and give a reasoned order insofar as fine and penalty is concerned.
Appeal disposed off - matter remanded.
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2015 (7) TMI 1148
Recovery of credit availed - moulds and dies - 50% of the credit availed - Rule 57AC(2)(b) - whether the denial of 50% credit as the capital goods in question were not in the possession of the assessee during the period in dispute, viz., 2001-2002 - Held that: - the capital goods should be in possession and use of the manufacturer of final products in such subsequent years. It is not in dispute that the moulds and dies were no longer in existence in subsequent years, as the same having been destroyed in the course of manufacture of the final product - Decided against the assessee
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2015 (7) TMI 1147
Plea of the mistake - Compounded levy scheme - Notification No. 32/97-C.E. (N.T.), dated 1-8-97 in which the ACP is fixed on the parameters of ‘d’ - Diameter 300 to below 350 and ‘W’ at 2.47 Kg./Mtr., whereas the correct Notification No. 45/97-C.E. (N.T.), dated 30-8-97, provides for fixing the ACP on the basis of ‘d’ - Diameter between 261 to 310 and the value of ‘W’ is taken as 1.200 Kg./Mtr - Held that:- Tribunal in the original order as also in the ROM application is on the wrong premise that no plea has been raised by the assessee with regard to change of parameters and the applicability of notification dated 30-8-97 - Decided in favor of the assessee.
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2015 (7) TMI 1146
Condonation of delay - delay caused due to Managing Director of the company was suffering from Hypertensive Heart Disease and was advised bed rest - whether delay in filing appeal due to ill health of Managing Director condonable, keeping in view of the fact that the cost accountant was authorized person to deal with the matter in question? - Held that: - It is well settled that the delay cannot be condoned on flimsy grounds and there has to be a reasonable sufficient cause for such a huge delay of 218 days to be condoned.
It is not the appellant’s case that due to ill health of the Managing Director, their entire business came to a stand still. It is also not the M.D., who had to take the steps for prepare the appeal and filing the same in the Tribunal. The medical certificate placed on records shows that the appellant was suffering from Hypertension with effect from 1.7.2013 whereas the impugned order was received by the appellant on 20.4.2013 and there was sufficient time to file an appeal there against. Further, the other affairs of the company were being taken care of and as such, the ill health of the Managing Director is only an excuse. Further, learned advocate himself submitted that M.D. was not regularly visiting factory but was handling the day-to-day affairs of the company on irregular basis and Cost Accountant, Shri N.C. Sitaramacharyulu was authorized person to deal with the matter in question - Delay not to be condoned on such flimsy grounds - appeal dismissed - decided against appellant.
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2015 (7) TMI 1145
Disallowance of cenvat credit - condition to be fulfilled for taking cenvat credit - Held that:- The only condition to be fulfilled for taking cenvat credit is that the central excise duty has been suffered on the input and that the input has been received in the factory for use in the intended purpose. No prohibitions have been contained in the said rules, providing for denial of cenvat credit, in the eventuality, where the jurisdictional Central Excise Authorities at the supplier's end have disputed the classification of the excisable goods.
In the present case, since the central excise authorities at the supplier's end have accepted the payment of duty on the finished product (input for the appellant), there is no justification on the part of the Central Excise Authorities having jurisdiction over the factory of the appellant to deny the cenvat benefit. Further, the Central Excise Authorities having jurisdiction over the factory of the appellant have no locus standi to discuss about the classification of the goods, on which cenvat credit has been taken. It is the responsibility of the jurisdictional authorities at the supplier's end to decide the issue of classification. Since the central excise duty has been paid by the supplier manufacturer and that has been accepted by the jurisdictional central excise authorities, the classification or otherwise of the goods at the recipient's end cannot be questioned, in view of the fact that there is no specific prohibition/ stipulations provided under the Cenvat Credit Rules for the said purpose. Thus denial of cenvat benefit to the appellant is not legal and proper - Decided in favour of assessee.
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