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Showing 281 to 300 of 1760 Records
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2015 (9) TMI 1488
Benefit of N/N. 138/1986-C.E., dated 1-3-1986 - concessional rate of duty - pulp made from waste paper as also from imported wood pulp - Held that: - the Revenue, for denial of the benefit of the said notification, has to first allege and prove that more than 50% of pulp used by an assessee has been made out of these listed materials. Admittedly this is not the Revenue’s case at all. Nowhere it stands alleged in the show cause notice that the appellant had used the pulp, more than 50% by weight, made out of the said bamboo, hard woods, soft woods, reeds or rags. The second type of pulp, apart from the waste pulp, used by the appellant is imported wood pulp. Nobody knows about the constitution of the imported wood pulp or materials used therein.
In the absence of any evidence on record that the imported wood pulp used by the assessee was made out of the materials to which exception stands made in proviso (ii), we find no merits in the Revenue’s stand. Even at the cost of repetition we would like to observe that the Revenue has neither alleged nor proved that the balance pulp used by the assessee was made out of bamboo, hard woods, soft woods, reeds or rags so as to deny the benefit of the exemption notification to the appellant - Held in favour of the assessee on the point of interpretation of the said proviso, we do not feel the need of going into the use of percentage of both the types of pulp in the manufacture of the appellant’s final product. Accordingly the assessee’s appeal is allowed and Revenue’s appeal is rejected.
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2015 (9) TMI 1487
100% EOU - debonding of unit - irregular credit by way of transfer of credit from EOU unit lying unutilized in the accounts of EOU unit at the time of de-bonding and exit from the EOU - whether the contention of Department that an EOU when it is converted from EOU to DTA unit, it (successor DTA unit) cannot get the credit of balance in Cenvat account of EOU on date of its conversion to DTA unit, by way of transfer, is justified? - imposition of penalty u/r 15 of Cenvat Credit Rules, 2004 - reliance placed on the decision of the case GTN Exports Ltd. v. CCE [2008 (7) TMI 377 - CESTAT, CHENNAI] - Held that: - In this case CESTAT allowed an EOU to take the credit of its predecessor domestic tariff area unit (DTA unit) citing that Rule 10 of Cenvat Credit Rules did not prohibit availment of such credit at the time of conversion of DTA to EOU. By applying the same rational we are unable to understand how the department would prohibit an EOU, when it is converting itself to a DTA scheme, to take the credit of the balance credit lying with the predecessor EOU. There is no logic and rational in` the department’s contention that Rule 10 of Cenvat Credit Rules, 2004 does not cover such a situation. The CESTAT Chennai’s decision in GTN Exports is very clear that Rule 10 of Cenvat Credit Rules did not prohibit availment of balance credit by an EOU at the time of its conversion to EOU from the DTA; by the same logic an EOU when it is converted to DTA unit would be entitled to take the balance credit lying in the Cenvat account of EOU at the time of its conversion to DTA unit. In other words a successor DTA unit can get the transfer credit of the unutilized credit lying with its predecessor unit, which is an EOU in the present case - the appeal is allowed with consequential benefits and when appeal succeeds in above terms penalty is also not sustainable.
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2015 (9) TMI 1486
Fire occurrence non intimation - removal of goods from factory - demand of Central Excise duty along with interest and penalties - Held that:- It is an admitted fact that the fire took place in the factory of the appellant on 23rd and 24th June, 2012, which is evident from the certificate issued by the Delhi Fire Service and also the claim lodged by the appellant before the Insurance Surveyors. However, due to inadvertence, on occurrence of such incidence, immediate action was not taken by the appellant in intimating the Department regarding such incidence, and the jurisdictional Range Superintendent was belatedly intimated on 2-11-2012. The document enclosed to the said letter proves the fact regarding occurrence of the fire incidence in the factory of the appellant. Since the excisable goods have been destroyed in fire and the same have not been removed from the factory, it is of the view that payment of Central Excise duty cannot be fastened on such destroyed goods. The penalty imposed under Rule 25 of the Central Excise Rules, 2002 is also not justified in view of the fact that goods have not been removed from the factory. However, since the appellant had not informed the Central Excise Authorities regarding the fire incidence took place in the factory, there is violation of the statutory provisions, for which imposition of penalty under Rule 27 of the said Rules is justified.
In view of the foregoing, the impugned order so far as confirming the duty demand along with interest and imposition of penalty under Rule 25 of the Rules is concerned, the same is set aside. However, the penalty imposed under Rule 27 of the Rules is confirmed, which the appellant is liable to pay for contravention of the Central Excise Rules.
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2015 (9) TMI 1485
CENVAT credit - inputs - MS angle, channel, joist, HR coil, chequered plates and flat, etc - whether the denial of CENVAT credit on the ground that the disputed goods are neither inputs, nor capital goods, justified? - Held that: - The issue, regarding eligibility of CENVAT credit on the disputed goods, has already been settled by this Tribunal in various cases, case of CCE&CE Vs. APP Mills Ltd [2013 (7) TMI 494 - CESTAT BANGALORE], this Tribunal has held that MS angles plates and rounds used for fabricating structural support to plant and machinery used for manufacturing of excisable goods are integral part of machinery and hence covered under the definition of capital goods. Further, the Tribunal in the case of Shriram Hi-tech Steel & Power Ltd. vs. CCE, Raipur [2014 (10) TMI 57 - CESTAT NEW DELHI] has held that that MS rounds, MS sheets and CR coils used for making of various machines shall be eligible for CENVAT benefit. In the case of CCE, Raipur Vs. Hi-Tech Power & Steel Ltd. [2015 (9) TMI 1374 - CESTAT NEW DELHI] the Tribunal has held that the steel items used in fabrication of coal ground hopper, iron ore ground hopper, coal crusher house, conveyer system, stock house, after burning chamber, kiln coller transformer house, etc. are eligible for CENVAT benefit under the head input definition in Rule 2(k) of CENVAT Credit Rules, 2004.
The disputed goods during the material point of time were not covered under the exclusion clause contained in the definition of input. Since the disputed goods are used for erection/fabrication of capital goods only in the plant, the same have the nexus with the manufacture of final product in the factory of the respondent. The definition of input is broad enough to take within its ambit, the goods which are used for or in relation to manufacture of final product either directly or indirectly - credit allowed - appeal dismissed - decided against Revenue.
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2015 (9) TMI 1484
CENVAT credit - Rule 4(2a) and 4(2b) of CENVAT Credit Rules, 2004 read with CBEC Circular No.942/03/2011-cx, dated 1403.2011 - Penalty - Held that: - in the absence of manufacture of final products, there was no scope for removal of the same from the factory on payment of central excise duty. Hence, in such an eventuality, taking of CENVAT credit in the register maintained by the appellant will be considered as a mere book entry - In the absence of any loss of revenue to the Govt. exchequer, the demand of interest cannot be sustained against the appellant since the interest liability is compensatory in character - Decided in favor of the assessee.
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2015 (9) TMI 1483
Denial of CENVAT credit - coal - N/N. 65.95-CE, dated 16.03.1995 - prior to 24.03.2011, no central excise duty was payable on coal produced in mine - whether the denial of CENVAT credit on the coal the ground that the inputs are not eligible, even though central excise duty has been paid on the same, justified? - Held that: - It is an admitted fact that CENVAT credit has been taken by the appellant on the basis of the invoices issued by the supplier of coal, reflecting therein the excise duty charged and paid into the Govt. account. The supplier of goods was duly registered with the Central Excise Department and payment of duty on coal was not disputed by the excise authorities having jurisdiction over the factory of the respondent. Further, the classification of goods is the responsibility of the excise authority, having jurisdiction over the factory of the manufacturer or supplier. Thus, the assessment made at the supplier’s end cannot be re-opened at the recipient’s end, and therefore, credit taken by the respondent on the basis of valid and prescribed document, is in conformity with the CENVAT scheme. Further, receipt and utilisation of the disputed goods in the factory of the respondent has not been disputed by the original authority. Hence, in my considered view, taking of CENVAT credit of central excise duty, paid by the supplier, is in conformity with the statutory provisions - appeal dismissed - decided against Revenue.
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2015 (9) TMI 1482
Denial of CENVAT credit - job work - whether the denial of CENVAT credit on the ground that the service tax was not liable to be charged on the job work in terms of Notification No.8/2005-ST, dated 01.03.2005 justified? - Held that: - the Notification No.8/2005-ST, dated 01.03.2005 provides option to the job worker either to avail the exemption or to pay the service tax on the job work activities. In the present case, the job worker has opted to pay the service tax and upon payment of service tax, the same was passed on to the respondent through valid documents prescribed under CENVAT credit scheme. Since on the basis of the proper documents, the respondent has taken the CENVAT credit, the same cannot be denied on the ground that the job work activities were exempted from payment of service tax in terms of the above Notification - denial of credit not justified - appeal dismissed - decided against Revenue.
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2015 (9) TMI 1481
Payment of Privilege fees paid to the State Government - - Nature of expenditure - Held that:- As decided in Rajasthan State Beverages Corporation Ltd [2013 (9) TMI 557 - ITAT JAIPUR ] there is no contravention in paying the privilege fee as the fee is paid under section 24 of the Excise and the provisions of section 28, 29 are not applicable as they are on separate aspect - held as business expenditure - Decided in favour of assessee.
Addition in respect of depositing the ESI and PF - Held that:- As the assessee deposited the payment of PF and ESI before the due date of filing of return for the impugned assessment year which is in accordance with the provisions of section 43B of the Act addition need to be deleted. See CIT Versus Vinay Cement Ltd.[2007 (3) TMI 346 - Supreme Court of India ] - Decided in favour of assessee.
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2015 (9) TMI 1480
Scope of exemption notification No.13/2010-Cus - Appeal devoid of merits is dismissed - the decision in the case of M/s GL LITMUS EVENTS PVT LTD. Versus COMMISSIONER OF CUSTOMS, NEW DELHI [2014 (11) TMI 529 - CESTAT NEW DELHI] confirmed.
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2015 (9) TMI 1479
Receipt of interest on loans land deposits given to various parties - income from "Income profits and gains of business and profession" OR "income from other sources" - Held that:- Issue is covered against the assessee in assessee's own case for the Assessment Year 1990-1991 reported in [2004 (9) TMI 37 - ALLAHABAD High Court ]
Claim in respect of rent in "Transit Guest House" - Held that:- Issue is covered against the assessee in the assessee's own case by judgment for the Assessment Year 1993-94 reported in [2013 (12) TMI 832 - ALLAHABAD HIGH COURT ]. Consequently, the issue is decided against the assessee and in favour of the Department.
Depreciation on tube well at a higher rate of 25%? - Tribunal holding that claim of depreciation on assets in respect of Radico Textile Unit which had not yet commenced during the year under consideration? - Held that:- Issues which were allowed in favour of the assessee for the year 1993-94, in which order of the Tribunal was accepted by the Department as the same was not challenged in a higher forum. Since no distinguishing features have been pointed out and the principle of consistency is required to be maintained inter se between the parties, we are of the opinion that the Department cannot be permitted to question these issues when it was accepted by them in the previous years. Our view is supported by decisions of the Supreme Court in Radhasoami Satsang Vs. Commissioner of Income Tax, (1991 (11) TMI 2 - SUPREME Court ), Berger Paints India Ltd Vs. Commissioner of Income Tax, (2004 (2) TMI 4 - SUPREME Court ) and Commissioner of Central Excise Vs. Bal Pharma Limited, Bangalore and others (2010 (9) TMI 307 - SUPREME COURT OF INDIA ). In view of the aforesaid, the issue is decided in favour of the assessee and against the Department.
Treatment to various capital expenses as revenue expenses - Held that:- The similar issue arose for consideration before this Court in the assessee's own case for the Assessment Year 1993-94, wherein the Court in its judgment held that the issue did not arise for consideration. On the facts and circumstances of the case, we find that the said issue also does not arise for consideration. Consequently, the issues is decided against the Department and in favour of the Assessee.
Deduction for loss on goods in transit - Held that:- Tribunal had directed the Assessing Officer to allow the said loss in the year 1993-94 under consideration provided the assessee's company gives up its claim for deduction in respect of the same for the Assessment Year 1993-94.We are of the opinion that no prejudice has been caused to the interest of the Revenue in allowing the claim of the assessee in the present Assessment Year subject to assessee's giving up its claim in the previous Assessment Year i.e. 1993-94. In the light of the aforesaid, the issue is decided against the Department and in favour of the assessee.
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2015 (9) TMI 1478
Condonation of delay - 301 days - delay in filing of appeal was due to mental disturbance as Proprietor’s daughter committed suicide in 2012 and the applicant closed on the business in 2013. Unfortunately, in the same year, the proprietor met serious accident - Held that:- the unfortunate incidence of suicide of the daughter of proprietor and the closure of the business were in the year 2012 and 2013. On 08.05.2014, the applicant received the impugned order and also partly paid the dues and the appeal was filed on 06.03.2015. There is no explanation for long delay of the filing of the appeal in 2014 and 2015. Therefore, we agree with the submission of the Revenue that the applicant had not stated the reasons in detail for delay during the material period. Thus, we do not find any sufficient reason for condonation of delay of filing appeal. - Decided against the appellant
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2015 (9) TMI 1477
Demand alongwith interest and penalties - Clearing & Forwarding Agents (C&FA) Service - service tax not paid - appellant contended that it was not providing C&FA service, but was providing Cargo Handling Service (CHS) and that the reimbursements of expenses towards loading/unloading/transportation should not have been included in the assessable value and the service tax is leviable only on the commission it received @ Re. 1/- PMT. It also stated that it had bona fide belief about its non-liability to service tax.
Held that:- from the definition of C&F Agent and terms and conditions of C&F contract signed by the appellant with M/s. Grasim Industries Ltd., it is evident that the service rendered by the appellant is covered under C&F Agent service. Indeed, it is such a good fit that it hardly leaves any room for ambiguity or confusion or doubt. Therefore, it could not have been the bona fide belief of the appellant that the service rendered was not taxable. It is seen that the appellant itself took registration only in the year 2003 as provider of C&FA service and still did not pay the impugned service tax pertaining to the subsequent period. In the present case, to reiterate, there was no scope for confusion or ambiguity or doubt. As regards the contention that the reimbursement of expenses by the service recipient should be deducted from the assessable value, we find that the service rendered by the appellant as seen from the terms and conditions of the C&F contract is entirely covered within the scope of C&FA service and the payment in the name of reimbursements was not of the actual expenses; the so called reimbursements were on PMT basis as was the commission. In these circumstances, we do not find any merit in the appeal as far as the demand of service tax and interest is concerned. However, penalty under Section 76 ibid is set aside and penalty under Section 78 ibid is reduced to 25% - Decided partly in favour of appellant
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2015 (9) TMI 1476
Transfer pricing adjustment - selection of comparable CG–Vak Software and Exports Ltd. - Held that:- No reason to sustain the order of the DRP in rejecting CG–Vak Software and Exports Ltd. as a comparable. Accordingly, we direct the Transfer Pricing Officer to include this company as comparable and determine the arm's length price. In the course of hearing, learned Counsel for the assessee submitted a working indicating the margin of comparables finally selected after including CG–Vak Software and Exports Ltd. as comparable. It was submitted, if CG–Vak Software and Exports Ltd. is included as a comparable, then the arithmetic mean of comparable companies would be 17.60% compared to assessee’s 13.50%. Hence, there would be no need for further adjustment to the arm's length price, as assessee’s margin would be within the tolerance band of ± 5%. Thus, he submitted, there will be no need to adjudicate other grounds on T.P. adjustment. On a perusal of the working submitted before us by the learned Counsel, we find the aforesaid submissions of learned Counsel for the assessee to be correct. In view of the aforesaid, as we have directed the Transfer Pricing Officer to include CG–Vak Software and Exports Ltd. as a comparable, by virtue of which assessee’s margin comes within the range of 5% of average arithmetic mean of comparables requiring no further adjustment, there is no need to adjudicate the other grounds relating to selection / rejection of comparables as well as risk and working capital adjustment raised by the assessee as they are of mere academic interest. However, we leave the issue raised in these grounds open for adjudication if they arise in future in any other assessment year.
Short credit of TDS while computing the tax liability - Held that:- We cannot direct the Assessing Officer to give tax credits to the assessee without verifying the factual details. However, considering the fact that assessee has filed petition under section 154 of the Act before the Assessing Officer raising the aforesaid issues which is still pending, we direct the Assessing Officer to consider assessee’s petition under section 154 of the Act on merits and in accordance with law.
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2015 (9) TMI 1475
Imposition of penalty under Rule 25 of the Central Excise Rules, 2002 - second stage dealer - brass pipes - copper ingots - Held that: - there was no movement of goods in the chain of supply from the manufacture to the ultimate buyer, who availed the fraudulent cenvat credit of Central Excise duty indicated in the invoices. The appellant has also not specifically provided any evidence to counter the allegation of the Central Excise Department that the disputed goods have been received by it and supplied to the buyers, entitling them to take cenvat credit - imposition of penalty justified - appeal dismissed - decided against appellant.
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2015 (9) TMI 1474
Valuation - inclusion of selling cost, marketing cost, administrative expenses and advertisement expenses in the value adopted for cost of production - appellant referred to the provisons of CAS-4 which has been accepted by the Revenue - Demand of differential duty and imposition of penalty - utilization of CENVAT Credit in case of excisable semi-finished goods - condition is revenue neutral and the assessee has paid the amount demanded prior to show-cause notice - Held that:- the penalty amount is set aside, as the issue is interpretational in nature. The demand of differential duty is also set aside and the matter is remanded for re-determination of duty by the learned Commissioner, who shall re-determine the duty liability as per CAS-4 costing standards.
Valuation - manufacture of ADV tyres and captively consumed - not entitled for exemption under Notification No. 67/95-CX dated 16.3.1995 - ADV tyres are cleared at Nil rate of duty under Notification No. 6/2000 dated 1.3.2000 - whether valuation had to be in accordance with Rule 8 of the Valuation Rules, 2000 - duty paid under protest - Demand of differential duty and imposition of penalty - Held that:- the whole issue is interpretational and the matter can be considered in view of the similar earlier decisions of the Tribunal and the Hon'ble Supreme Court in the case of Commissioner of Central Excise Vs. Cadbury India Ltd. [2006 (8) TMI 2 - SUPREME COURT OF INDIA]. The penalty amount is set aside as the issue is revenue neutral and also in view of the fact that the appellant has deposited the amount of duty before issue of show-cause notice. - Appeal allowed by way of remand
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2015 (9) TMI 1473
Confiscation of consignments under Section 11(d) and (m) of the Customs Act, 1962 - option to pay redemption fine under section 125 of the Customs Act, 1962 - imposition of penalty Section 112 ibid - classification of export consignment - pet bottle scrap waste falling under Chapter 39 of the Customs Tariff Act, 1985 - Hazardous Waste like plastic scrap containing bottles, wrappers, plastic etc - permission of Ministry of Environment and Forests was required to import the waste as per Hazardous Waste (Management, Handling and Transboundary) Rules, 2008.
Held that: - on examination, the goods were found different from the description of goods declared in the Bill of Entry. Thus, there is a mis-declaration of goods and confiscation U/S 111(d) and (m) of the Customs Act, 1962 is justified.
Regarding the quantum of redemption fine and penalty it was found that that the appellant purchased the goods on high seas sale basis from M/s Jay Disha Impex Pvt. Ltd. on the basis of contract entered into between them. It is noted that the appellant is a user of pet bottles scrap and had been importing such goods regularly. There is no case of mis-declaration regarding import of the said goods. Further, there is no material available on record that the appellant had any knowledge of mis-declaration of goods. Also, appellant themselves noticed the discrepancy regarding declaration of goods on the Bill of Lading and requested for first check vide letter dated 22.02.2013 - imposition of penalty not warranted - redemption fine reduced to ₹ 25,000/-.
Appeal allowed - decided partly in favor of appellant.
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2015 (9) TMI 1472
Cenvat credit - renting service - rent paid for separate premises - connection with the manufacturing activity of the respondent - motor vehicles manufactured by the respondent are sold to its buyer through the Depot situated outside the factory premises - Held that:- since the duty paid vehicles were removed to the depot, from where the same were sold to the customers, such activity squarely falls under the definition of “input service” under the category of “storage upto the place of removal”, itemised therein. In view of the decision of this Tribunal in the case of DSCL Sugar vs. Commissioner of Central Excise, Lucknow [2012 (12) TMI 830 - CESTAT NEW DELHI] and Lumax Automotive Systems Ltd. vs. CCE, Delhi-IV [2013 (1) TMI 471 - CESTAT New Delhi] where the Tribunal has allowed the services availed for the Go-down / Depot by holding that the services have nexus with the ultimate manufacturer of final product, there is no infirmity in the impugned order passed by the Commissioner (Appeals). - Decided against the Revenue
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2015 (9) TMI 1471
Valuation - Whether the value of the free materials supplied by the service recipient to the service providers is to form part of the assessable value of the services being provided by them or not - Held that:- by following the various decisions of Tribunal, the value of free materials supplied by the service recipient to the service providers do not form part of the assessable value of the site formation and mining service etc. being provided by them. Hence, the impugned order is set aside. - Decided in favour of appellant with consequential relief
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2015 (9) TMI 1470
Demand alongwith interest and penalty - appellant providing comprehensive on train services in specified trains, including catering, supply of bed rolls, supply of cleaning staff for cleaning coaches and persons for miscellaneous works including supervising staff for ensuring effective rendition of the agreed services - period involved is May, 2006 to March, 2008 - classification of service done different which was not alleged in the show cause notice - Held that:- the principle is well settled that a classification of taxable service which is not alleged in the show cause notice cannot be concluded to support levy of tax. The determination of classification of services provided by the appellant to IRCTC is not an academic exercise. The lower appellate authority was discharging an appellate jurisdiction. Due discharge of such jurisdiction warrants recording a finding as to classification only on the basis of what was alleged in the show cause notice. Therefore, the impugned order is unsustainable and is accordingly quashed. - Decided in favour of appellant
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2015 (9) TMI 1469
Penalty u/s 271(1)(c) - Addition u/s 68 - Held that:- Failure of M/s G.R. Overseas to appear before the Assessing Officer after denying the payment had a most crucial angle which the Assessing Officer simplistically ignored’. The above recording amply proves that the assessee did require the cross examination of M/s G.R. Overseas, which has eventually not taken place. As regards the other two parties, the assessee contended that they were small parties, whose whereabouts were not ascertainable. This has again not been demolished by the AO. These circumstances need to be seen in the backdrop of the fact that the amounts were in fact, receivable from these trade debtors. The above discussion divulges that the explanation given by the assessee for receipt of the amount from its old debtors has not been disproved by the AO.
Though the assessee could not satisfactorily explain the receipt of cash from these three parties, the fact that this amount was actually receivable, which was claimed to have been received during the year, goes to show that the explanation of the assessee about the receipt of such amount was a possible one albeit not satisfactory. The Tribunal has also noticed in the quantum order that: ‘it was obligatory on its part to produce the parties or give their proper addresses to the Department.’ It further observed that: ‘it failed to discharge its burden cast by section 68.’ The above observations of the Tribunal along with the position as discussed above, makes it clear that though the addition u/s 68 was properly made as has also been confirmed by the Tribunal because of unsatisfactory explanation given by the assessee in support of the receipt of the amounts, but, it is not a good case for imposition of penalty because it relates to lack of tendering explanation to the satisfaction of the AO and not disproving the contention of the assessee about the genuineness of receipts. We, therefore, order for the deletion of penalty. - Decided in favour of assessee.
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