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Case Laws
Showing 301 to 320 of 1967 Records
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2014 (1) TMI 1669
Levy of CVD (countervailing duty) equal to duty of excise - Notification No. 30/2004-C.E., dated 9-7-2004 - Supreme Court dismissed the appeal filed by Revenue on the ground of delay filed against the decision of Tribunal [2011 (1) TMI 665 - CESTAT, MUMBAI]; wherein tribunal held that where the inputs contained in the imported commodity are shown to be not chargeable to duty of excise in India, there is no question of an Indian manufacturer of such commodity availing CENVAT credit and, consequently, there is no question of levy of countervailing duty on the imported commodity.
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2014 (1) TMI 1668
Confiscation of goods - Violation of Notification 13/81-Cus., dated 9-2-1981 - Held that:- The Assessee was 100% EOU and was granted exemption from excise duty under Notification 13/81-Cus., dated 9-2-1981. The Tribunal allowed the appeal of the Assessee on the ground that there is no allegation of violation of conditions of the notification. - Neither the notification has been produced before us nor it has been pointed out that which condition of the notification has been violated. - Decided against Revenue.
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2014 (1) TMI 1667
Condonation of delay - Demand of interest u/s 75 - Business Auxiliary Service - Held that:- adjudication order dated 27-9-2007 was challenged by the assessee by way of writ petition in 2012 after lapse of five years and withdrew the writ petition, obtaining liberty to pursue appropriate statutory remedies. Thereafter, the assessee filed an appropriate appeal against the order of demand and not the adjudication order. This appeal was dismissed as withdrawn on 19-3-2013. Thereafter is the present appeal filed on 3-4-2013 with a delay of nearly six years (1916 days). The adjudication order dated 27-9-2007 is to be nullity for patent lack of jurisdiction. It is a formal order passed by the authority exercising statutory powers authorizing assessment of Service Tax liability. Finance Act, 1994 clearly provides an appellate remedy to be pursued within three months from the date of order of which the assessee is aggrieved. - petitioner/assessee cannot gainfully contend that it had a reasonable or bona fide reason in not pursuing the appellate remedy, within limitation period of three months - Condonation denied.
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2014 (1) TMI 1666
Rejection of application under section 12AA - Held that:- In the present case, it is noticed that the main objects of the assessee were to run medical and educational institutions, provide education, medicine, food, clothing etc. Those objects are charitable in nature and the Ld. CIT(A) did not doubt those objects, he simply doubted the ancillary objects which were relating to the purchase, acquire the land and building. The said objects are correlated with the main objects and it is difficult to carryon with the main activities without constructing/ purchasing building. Therefore, Ld. CIT(A) was not justified in rejecting the application moved by the assessee for registration under section 12AA of the Act.See Jasoda Devi Charitable Trust Vs. CIT [2010 (4) TMI 789 - ITAT JAIPUR]. - Decided in favour of assessee.
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2014 (1) TMI 1665
Denial of CENVAT Credit - Construction service - Held that:- In view of the clarifications issued by the Circular No. 943/04/2011-CX, dated 29-4-2011 and in view of the fact that services had been rendered and billed prior to 1-4-2011 for which payment has also been paid prior to 1-4-2011. Such input Service Tax credit is allowable and otherwise also as clarified vide the above mentioned Circular. It is also held that the construction activity in the present case supports manufacture both directly and indirectly. - Decided in favour of assessee.
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2014 (1) TMI 1664
Additions made u/s 68 on unexplained corpus donations - CIT(A) deltd the addition - Held that:- The issue of addition u/s 68 of the Act on account of corpus donation is squarely covered by the order of the Tribunal pertaining to assessment year 2005-06 in which corpus donation was introduced under similar circumstances and the Tribunal has deleted the additions having observed that once a particular credit or donation is already declared by the assessee, the same cannot be added again. - Decided in favour of assessee.
Addition u/s 69 on unexplained investment in the institute building on D.V.O.'s report - CIT(A) deltd the addition - Held that:- Undisputedly the reference to D.V.O. was made without rejecting the books of account of the assessee, therefore, in the light of judgment of Hon'ble Apex Court in the case of Sargam Cinema (2009 (10) TMI 569 - Supreme Court of India ), the D.V.O.'s report cannot be relied for determining the cost of investment in the property. In the case of Sargam Cinema (supra), their Lordships have categorically held that the Assessing Authority could not have referred the matter to D.V.O. without rejecting the books of account and, therefore, reliance placed on the report of the D.V.O. was misconceived - Decided in favour of assessee.
ddition u/s 68 on account of unexplained corpus donation - the Revenue authorities have also applied the provision of section 115BBC of the Act - Held that:- As per sub section (3), unanimous donation are those donations for which no details of donors are maintained by the assessee. If the details are maintained, the donations cannot be called unanimous donation and provisions of section 115BBC cannot be invoked. In the instant case, undisputedly, the details were maintained by the assessee but the addition was made on account of non furnishing the confirmation letters. We are of the considered view that only those donations can be called unanimous for which details are not maintained. If it is properly maintained, it cannot be called unanimous donation. Since the assessee has maintained the details of donors, the donations cannot be called unanimous donation and provision of section 115BBC cannot be invoked in the given facts and circumstances of the case. If provision of section 115BBC cannot be invoked, the addition made u/s 68 are to be deleted in the light of the order of the Tribunal in assessee's case for assessment year 2005-06 - Decided in favour of assessee.
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2014 (1) TMI 1663
Chartered Accountant service - Whether the billing activity calculation undertaken at the behest of Chartered Accountant amounts to practicing of registered Chartered Accountancy in order to levy Service Tax - Held that:- Chartered Accountants themselves do not prepare bills or vouchers. This is done by ministerial staff and clerks and that is not part of the job of the Chartered Accountant. As such, we accept the findings of the Tribunal. - Decision in the case of COMMR. OF CUS., C. EX. & SERVICE TAX, TIRUPATI Versus MAGHAM PULLAIAH [2015 (1) TMI 1047 - ANDHRA PRADESH HIGH COURT] followed.
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2014 (1) TMI 1662
Denial of CENVAT Credit - Commission agent - whether in this case the agents have undertaken sales promotion activity or not - Held that:- Canvassing and procuring order were in relation to sales promotion and would fall under sales promotion activity. Further the Hon’ble High Court also upheld the view taken that these activities cannot be considered as post-removal activity and have to be treated as pre-removal activities. At this juncture it has to be noted that one of the main grounds taken for rejecting the claim of the appellant for CENVAT credit is that the activity of the commission agents is post-removal and if the activity is post-removal, credit is not admissible.
CA relied upon the letter written by one of the two agents namely Agnes Bruno Ltd. dated February 15th 2007. In this letter, Agnes Bruno Ltd. had informed the appellant that they lend a helping hand to the Business Houses to sell their products. They undertake canvassing of business not only to retain the existing clientele of the company but to find new customers as well. They also stated that the appellant could take the best advantage of their network available throughout the country to sell their bulk products viz., Liquid Gases on commission basis. They also gave details of Registration, Income Tax, Sales tax, Service Tax, Balance Sheet etc. This would show that even though the invoice which speaks particularly sales commission, taking note of the letter of the agent that they would help in selling the products, in canvassing business and make their network available for expanding the business, in my opinion this is nothing but sales promotion. In respect of another agent namely SPS Metal Cast & Alloys Ltd., the appellant could not show any letter or agreement. - in respect of both the agents, the appellants have been able to show that the agents not only act as commission agents but also undertake sales promotion. Therefore I consider that appellants have made out a case on merits in respect of the eligibility for CENVAT credit. - Decided in favour of assessee.
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2014 (1) TMI 1661
Deduction u/s 54F - Addition on account of undisclosed sources - Addition on account of non agricultural land - “audi alteram partem” - Breach of principles of natural justice - CIT(A) admitted the additional evidences - Held that:- In the present case, it appears that the AO had not provided due and adequate opportunity of being heard to the assessee that’s why Ld. CIT(A) admitted the additional evidences. It is also noticed that the Ld. CIT(A) while confirming the additions has not discussed whatwere the submissions of the assessee. It therefore, appears that an appropriate opportunity of being heard was not given to the assessee, which is against the principles of natural justice as embodied in the dictum “audi alteram partem”. We, therefore, deem it appropriate to set aside this case to the file of the AO to be adjudicated afresh in accordance with law after providing due and reasonable opportunity of being heard to the assessee. - Decided in favour of the assessee for statistical purpose.
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2014 (1) TMI 1660
Recovery of dues where period of filing of appeal has not expired - coercive measures - Held that:- Upon reading of the aforesaid judgments cited by the petitioner, the ratio which could be culled out therefrom is that the authorities should not have resorted to any coercive measures while the period to prefer appeal has not expired. To come out from the rigour of the ratio, Mr. Saraf tried to submit that the invocation of the bank guarantee does not amount to a coercive measures as the same was submitted for satisfying the claim of the authorities if subsequently crystalised.
The Division Bench of the Bombay High Court in the case of GKN Sinter Metals Pvt. Ltd. v. Union of India reported in [2009 (12) TMI 119 - HIGH COURT OF BOMBAY] laid down that any measure for recovery of the amount during the statutory period provided for an appeal is not justified and amounts to coercive collection of the entire customs duty. This court also does not propose to take any contrary view to the ratio laid down in the aforesaid judgments.
Since the customs authorities have already invoked the bank guarantee, they are directed to keep the said amount separately in a Fixed Deposit carrying interest with any nationalized bank until the further order that may be passed by the CESTAT, either on an application for stay or in an appeal itself. - Decided partly in favor of assessee.
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2014 (1) TMI 1659
Attachment of bank accounts - Challenge of SEBI's disgorgement order - whether appellants are liable to pay interest on disgorgement amount till ₹ 6 crore is paid by appellants - Held that:- Counsel for respondent, though objects to lifting attachment levied on various bank accounts, he does not dispute that value of shares in Demat A/c no. 40333429 are sufficient to cover demands raised against appellants. In these circumstances, since no prejudice is likely to be caused to respondent, we direct that shares in joint demat Account No. 40333429 of appellants shall stand attached forthwith and in lieu thereof attachment levied on all other bank accounts of appellants shall stand raised forthwith.
- Since appellants desire to file appeal against communication dated January 16, 2014, respondent shall not take coercive steps to enforce demand for a period of four weeks from today. - Appellants would like to make an application to SEBI for lifting additional debarment imposed, if such an application is made within a period of two weeks from today, SEBI shall consider the same and pass appropriate order within a period of six weeks thereafter.
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2014 (1) TMI 1658
Penalty under section 15H(ii) of SEBI Act, 1992 - Violation of the provisions of regulation 10 of the SEBI (Takeover Regulations), 1997 - Aspect of common objective - Held that:- The element of “common objective” is clearly established by the learned AO in the impugned order. It is evident from the records that the same person namely, Shri. Dhiren Shukla, sold shares to all the eight entities including the three appellants before us at the rate of ₹ 2 each in the off market. It is vividly brought on record that at that time the price of the scrip of AIL in the market was in the range of ₹ 67 to ₹ 70. Therefore, transfer of bulk shares, that too at the same rate of ₹ 2 per share and in almost equal numbers to all the eight entities within two days is a clear indicator of the appellants having acted in concert with each other to acquire the shares/voting rights of AIL. The factual details of commonality of management and control of these eight entities are convincingly proved by the learned AO.
Judgment of this Tribunal dated February 9, 2010 passed in Appeal No. 183 of 2009 in the case of Triumph International Finance India Ltd. vs SEBI [2010 (2) TMI 1127 - SECURITIES APPELLATE TRIBUNAL MUMBAI] is clearly distinguishable and does not advance the case of the appellants in any manner. - Decided against the appellants.
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2014 (1) TMI 1657
Infringement of trademarks - trade mark "Ultra Tuck" - territorial jurisdiction of this Court - accrual of cause of action - Held that:- In view thereof, the contentions raised by the Defendants that the cause of action can be said to have occurred only where the actual infraction of the Plaintiffs' right has taken place or that Clause XIV of the Letters Patent mandates that at least one cause of action should have arisen within the jurisdiction of this Court or Clause XIV specifically contemplates the accrual of cause of action within the jurisdiction of this Court or recourse to Clause XIV of the Letters Patent cannot be taken to in a case where the entire cause of action arises outside the jurisdiction of the concerned Court cannot be accepted. The case law relied upon by the Defendants in support of the above contentions is also not relevant in the facts and circumstances of the present case. There is no doubt that this Court has jurisdiction to grant relief of infringement and is therefore also empowered to grant leave under Clause XIV of the Letters Patent to the Plaintiff.
The contention of the Defendants that their mark consisting of the words "Ultra Tuck" is registered is, as submitted by the Plaintiffs, irrelevant inasmuch as it is a settled position of law that the suit for infringement is maintainable even in a case where the defendants' mark is registered.
In the present case to avoid multiplicity of proceedings, it would be appropriate to grant leave under Clause XIV of the Letters Patent and allow the Plaintiffs to combine the cause of action for passing off along with the cause of action for infringement.
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2014 (1) TMI 1656
Demand of service tax - Construction of Complex Services - Interest u/s 75 - Held that:- Affidavit filed in support of the application for condonation of delay is sketchy and does not give specific details as to when the papers were entrusted to their counsel and such other matters. - appellant has raised substantive issues for consideration before the Tribunal in the matter of demand of Service Tax and imposition of penalty equivalent to the demand. Further more, there is no allegation that the appellant with certain mala fide intention preferred the appeal belatedly. That apart, the delay is not inordinate; but it is only 92 days. Therefore, in the interest of justice, this Court is of the view that the delay in filing the appeal should be condoned and accordingly, it is condoned. The Tribunal is directed to consider the matter on merits and in accordance with law subject to the appellant complying with the other provisions relating to the appeal. - Decided in favour of assessee.
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2014 (1) TMI 1655
Demand of service tax - Baggage accompanying the passengers - exemption by Notification No. 29/2005-S.T., dated 15-7-2005 - Held that:- The decision in Jayaswals Neco Ltd. (supra) was rendered in the context of a previous decision by an order of the Tribunal accepting a particular contention. The Court held that decisions of coordinate Benches of the same Tribunal as in the present case (the CESTAT) would have to be honoured. In the present case this Court is of the opinion that the appellant is entitled to some relief. The Tribunal has no doubt recorded that the appellant has a prima facie good case but failed to notice that the previous adjudication order, which was set aside in appeal proceedings. Having regard to the conspectus of the circumstances, we are of the opinion that ends of justice would be met if the appellant deposits 25% of the total duty demand as assessed, with proportionate interest, before the Tribunal within 4 weeks - Decided conditionally in favour of assessee.
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2014 (1) TMI 1654
Attachment of bank account - Held that:- Since Revenue prays for time to file affidavit-in-reply. Affidavit-in-reply shall be filed by 11 February 2014, ad interim stay granted on 15 January 2014 to continue in the same terms i.e. the respondent shall permit the appellant to operate the bank account with specific instruction to the banker that the appellant shall maintain minimum credit balance of ₹ 70 lakhs in its Bank Account. Accordingly, attachment will continue to the extent of ₹ 70 lakhs in the appellant’s bank account.
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2014 (1) TMI 1653
Goods Transport service - Maintainability of appeal - Monetary limit - Held that:- The Tribunal has held that the rule imposing Service Tax on the receiver of the service of goods transport operators for the period of 16-11-1996 to 1-6-1998 was struck down by the court, however, it was validated with retrospective effect. Nonetheless, the Tribunal dismissed the appeal of the Department on the ground that no fresh notice was given. - There seems to be some merit in the argument of the counsel for the appellant. However, considering the amount of Service Tax involved in the matter i.e. 9918/-, we see no justification to admit the appeal. - Decided against Revenue.
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2014 (1) TMI 1652
Penalty for violation of various provisions of SEBI (Prohibition of Fraudulent and Unfair Trade Practices Relating to Securities Market) Regulations, 2003 - Off market transactions - Powers of SEBI - Held that:- During the enquiry, it has been categorically found that appellant nos. 1 to 6 have a common address and two common directors. In this backdrop, Shri Joby Mathew, learned counsel for appellant nos. 1 to 6 has admitted the connection among appellant nos. 1 to 6 and, rightly so. As far as remaining appellants and / or Noticees are concerned, it is not disputed that a large quantity of shares of the same company i.e. RUNL was received by way of off-market transactions by them from appellant nos. 1 to 6.
It is also borne out of the records that the remaining appellants and / or Noticees sold shares by way of synchronized trades to appellant nos. 1 to 6, mostly on the same day or immediately thereafter within a few days. Nobody has disputed these transactions either before us or before the learned AO. Such reversal of the off-market transactions in a quick succession through synchronized on-market transactions to the same set of entities in almost similar fashion within a very short span of time clearly points out that all the entities are connected to each other in some way.
We hold that the story advanced by the appellant nos. 1 to 6 regarding borrowing of loan from entities no. 7 to 21 is misconceived, untenable on facts and hence rejected.In view of the above discussion of law and facts, we do not find any merit in the case of the appellants and the appeals are liable to be dismissed.
Powers of SEBI - SEBI as Regulator has ample powers and discretion to take a subjective decision in respect of certain entities on the basis of availability of sufficient evidence against them. At the same time, SEBI is also empowered to take a subjective decision, in a given case, not to take or even drop action against certain other entities in the same case if it is satisfied, on the basis of material on record, that there is insufficient, weak or no evidence to finally bring such entities to the book. In such an eventuality, SEBI may decide not to take any action against such entities. - Decided against the appellants.
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2014 (1) TMI 1651
CENVAT Credit - Credit on Steel Plates, Sheets etc. used for repair and maintenance - Held that:- It is quite clear that when HR Steel Sheets, Plates etc. are used for repair and maintenance within the factory they would be eligible for credit. In this case there is an added factor to support the eligibility for the credit in the sense that the same have been used for repair and maintenance of storage tank which is specifically covered under the definition of 'capital goods'. - Decision in the case of Cement Corporation of India v. CCE [2014 (3) TMI 346 - CESTAT BANGALORE] - Decided in favour of assessee.
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2014 (1) TMI 1650
Penalty u/s 11AC - Option to pay 25% penalty - CENVAT Credit - Suppression of facts - Held that:- Since the appellant had availed the Cenvat credit even on the value of the inputs not received, therefore, they had reversed the proportionate credit, attributable to goods not received, on being pointed out by the visiting audit party. From the facts, I find that the appellant had received the insurance claim for short receipt of the goods in their factory, but availed Cenvat credit on the total quantity of the inputs, as shown in the Bill of Entry. So while availing the credit, there might not be irregularity, but continuation of the credit in their books of accounts after filing the insurance claim with the authorities, become irregular, as they knew that the entire quantity of the inputs were not received in their factory. Also, from the records, it is evident that the appellant had availed the insurance claim on the total value of shortage quantity including the CVD amount. Thus, there is an element of suppression in the continuation of credit in their books of accounts, after availing the insurance claim. - Consequently, the imposition of penalty under Section 11AC of the Central Excise Act, 1944 is thus sustainable. - impugned order is set aside to the extent of not allowing the appellant to exercise the option to pay 25% of penalty, as prescribed under Section 11AC of the Central Excise Act, 1944. - Decided partly in favour of assessee.
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