|
Advanced Search Options
Case Laws
Showing 301 to 320 of 1510 Records
-
2015 (1) TMI 1214
Duty demand - Job work by SSI units - whether the non-fulfillment of conditions of Notification No. 214/1986-CE as also of Notification No. 83/1994-CE dated 11.04.94 can be held to be a procedural violation so as to extend the benefit of the Notification to the appellant - Invocation of extended period of limitation - Held that:- Benefit of Notification No. 121/1994, which prescribes a condition of following Chapter-x procedure for the purpose of claim of exemption, the Honble Supreme Court observed that the conditions prescribed therein are substantative and the procedures so envisaged in terms of Notifications are mandatory requirements to claim the benefit of exemption. The object of such prerequisites is to ensure that the goods are not diverted or utilized for some other purposes under the guise of exemption. While referring to the compliance of such condition, the Hon’ble Supreme Court observed that test for determining applicability of substantial compliance doctrine is to examine the fact as to whether requirement relates to ‘substance’ or ‘essence’ of the Statute and if so, strict adherence to such requirements, is a precondition to give effect to the doctrine. By differentiating between the ‘mandatory’ and ‘directory’ condition of the Notification, it was observed that provisions of substantive character are built in with certain specific policy objectives, have to be distinguished from the provisions which are merely procedural and technical nature.
Demand in the first case stands issued by invoking longer period of limitation. As during the relevant period there were some of the decisions laying down that the benefit of Notification in question can be extended even if the conditions were not satisfied, we hold that no specific suppression or mis-statement, with malafide intent can be, prima facie, attributed to the appellants so as to invoke the longer period of limitation. We are informed that an amount of around ₹ 6,00,000/- may fall within the limitation period. However, two demands to the extent of around ₹ 1.75 crores and ₹ 46 lakhs fall within the limitation period. - Partial stay granted.
-
2015 (1) TMI 1213
Duty demand - Suppression of value of goods - respondent M/s. TIPL and brand name owner M/s. PCTL are related person inasmuch as the respondent was supplying the branded goods at lower rate to brand name owner i.e. M/s. PCTL and said related person subsequently sell excisable goods manufactured by respondent on higher price - Held that:- Suppression of fact or any other ingredients of proviso to 11A is not established therefore the demand is time bar. As regard the contention of the Revenue that the respondent has not disclosed mutuality of interest, share holding pattern and sale price of M/s. PCTL to their customer, we observe that, it is admitted fact, that the respondent submitted the unit profile to the Superintendent Central Excise in charge of the unit. The respondents records had been audited in the year 1996-97, the respondent also submitted RT-12 returns regularly alongwith duty paying documents. From these documents and information the constitution of the company and valuation of the goods and shareholding patter can be clearly revealed from the profile of the company, dutiable documents and RT-12 returns - department has not made out case or produce any evidence that there is any financial flow back from each other company ie. M/s. TIPL to M/s. PCTL and vise-versa. The show cause notice for the period of Apr 1996 -Mar 2000 was issued on 1/5/2001 and Second Show cause notice for the period of Apr 2000-march 2001 was issued on 8/3/2002. In both the case the show cause notices were issued after one year form the completion of the each period. Therefore both the show cause notices are clearly time bar. However as regard confirmation of demand of ₹ 3,241/- and ₹ 31,927/-, since the same is not under challenge the same stand maintained - Decided partly against Revenue.
-
2015 (1) TMI 1212
Denial of CENVAT Credit - Capital goods - Commissioner held demand is time barred - Held that:- Respondents had filed ER-1 returns and has also given the details of the credit taken even though it was not a statutory requirement during the relevant time. Further learned counsel also submitted the statement which shows the materials received, supplier’s name and the usage of the same in the factory. Moreover I also find that the submission of the learned counsel that because of the views prevailing during the relevant time taken by different Benches of this Tribunal, the respondent could have entertained a bona fide belief regarding their eligibility. Under these circumstances for demanding the cenvat credit, extended period could not have been invoked even if a view is taken about non eligibility. There were contrary views finally settled by this Tribunal Larger Bench in the case of Vandana Global Ltd. Vs. CCE, Raipur [2010 (4) TMI 133 - CESTAT, NEW DELHI (LB) ] and hence extended period could not have been invoked - Since invocation of extended period in my opinion is not at all correct, I do not consider it appropriate that the matter should be remanded - Decided against Revenue.
-
2015 (1) TMI 1211
Addition on account of unexplained cash deposit - CIT(A) deleted the addition - Held that:- Assessing Officer has made addition on the basis AIR information. Though cash flow statement was furnished before him, but he has not looked into while making the addition; whereas the ld. CIT(A) has examined all the entries in the cash flow statement, which is available on record. In the cash flow statement, the movement of cash was disclosed and it is evident that on all dates whenever cash was deposited in the bank, the assessee was having sufficient cash balance. Nothing has been brought on record to demonstrate that the cash withdrawn by the assessee was exhausted or utilized for other purposes and the deposits were made out of undisclosed sources. In the light of these facts, we are of the considered opinion that the assessee has properly explained the source of deposits in the bank, which was properly appreciated by the ld. CIT(A). Accordingly, we find no infirmity in the order of the ld. CIT(A) and we confirm the same. - Decided against revenue.
-
2015 (1) TMI 1210
Penalty u/s 271(1)(c) - deduction u/s 80IC - whether merely claim of deduction U/s 80IC would not lead to the conclusion that assessee has filed incorrect particulars of income or concealed any particulars of income? - Held that:- The meaning of the word "particulars" used in section 271(1)(c) would embrace the details of the claim made. Where no information given in the return in found to be incorrect of inaccurate, the assessee can’t be the held guilty of furnishing inaccurate particulars. In order to expose the assessee to penalty, unless the case is strictly covered by the provision, the penalty provision can’t be invoked. By no stretch of imagination can making an incorrect claim tantamount to furnishing inaccurate particulars. There can be no dispute that everything would depend upon the return filed by the assessee, because that is the only document where the assessee can furnish the particulars of his income. When such particulars are found to be inaccurate, the liability would arise. To attract penalty, the details supplied in the return must not be accurate, nor exact or correct, no according to the truth or erroneous." Considering the facts of the case, therefore, it is noted that all the particular and primary facts are duly disclosed by the appellant. The books of accounts are audited and Auditor’s certificate u/s 80IC was submitted. Therefore, looking into the entirety of the facts and the case laws discussed above, in my opinion, there is no concealment of income or furnishing of inaccurate particulars in this case. The penalty imposed by the A.O. is, therefore deleted - Decided in favour of assessee.
-
2015 (1) TMI 1209
Misdeclaration of price - Imposition of redemption fine - Re-export of goods - Held that:- Although in the case of Central Marketing Agency this Tribunal held that when the re-export of goods is allowed, in that case the redemption fine and penalty is not imposable but in the said case the item was transistors and it was found that there was a mis declaration of price. I find that in the case of Bio-Chemical Pharmaceutical Ltd Vs. C.C. Mumbai-[2004 (9) TMI 275 - CESTAT, MUMBAI], wherein a case of import of drug this Tribunal held that in case of re-export of the goods redemption fine was imposed to the extent of 1% of CIF value. Therefore, as it is a case of food item and having concern with the health of the society, therefore I hold that redemption fine is imposable on the appellant but same is reduced to 1% of the CIF value. In that case although redemption fine and confiscation was upheld but penalty was set aside. Therefore I set aside the imposition of penalty on the appellant. - redemption fine is reduced to 1% of CIF value of the impugned goods and penalty is set aside - Decided partly in favour of assessee.
-
2015 (1) TMI 1208
Disallowance under S.40(a)(ia) - Held that:- We respectfully follow the decision of Special Bench in the case of Merylin Shipping and Transports (2012 (4) TMI 290 - ITAT VISAKHAPATNAM) and hold that the provisions of S.40(a)(ia) cannot be invoked where the payments were already made by the assessee. We direct the Assessing Officer accordingly. - Decided in favour of assessee.
-
2015 (1) TMI 1207
Confiscation of the goods - declaration made in the customs does not tally with the description of the goods from physical - Held that:- As there are contrary decisions produced by both the sides before me, therefore, it would be in the interest of the justice to refer the matter to the larger bench to resolve the following issue, whether the goods can be held liable for confiscation and consequently the redemption fine and penalty can be imposed on imports made through post parcel or not?
-
2015 (1) TMI 1206
Duty demand - enhancement of penalty imposed under Section 114 A - Held that:- Section is applicable to a person who is liable to pay the duty ‘OR' interest as the case may be, who shall be liable to penalty equal to the duty or interest so determined. The expression used is "or", which is disjunctive between duty or interest. Further use of expression "as the case may be" clearly suggests that the said section is referring to two different persons and situations. One which may be liable to duty and the other which may be liable to interest only and provides that in both the situations, the person liable to duty would be liable to penalty equal to duty and the person liable to interest would be liable to penalty equal to interest. There is no warrant to read "or' as "and". In view of the above I find no reasons to interfere with the impugned orders of Commissioner Appeals - Decided against Revenue.
-
2015 (1) TMI 1205
Disallowance u/s 14A - CIT(A) deleted the addition - Held that:- In the present case, the CIT(A) has deleted the disallowance out of interest expenditure by following the judgment of Hon'ble Karnataka High Court in the case of CCI Limited vs. JCIT (2012 (4) TMI 282 - KARNATAKA HIGH COURT ). We have seen that in the present case, this judgment of Hon'ble Karnataka High Court is not applicable because the assessee is not dealer in shares. This is not shown by the assessee before us or before any of the authorities below that the interest expenditure incurred by the assessee was directly relatable to taxable income and therefore, in the facts of the present case, Rule 8D is applicable with regard to such interest expenditure. The Assessing Officer has made disallowance as per Rule 8D and hence, we reverse the order of CIT(A) in both the years and restore that of the Assessing Officer. - Decided against assessee
-
2015 (1) TMI 1204
Disallowance u/s. 14A r.w. Rule 8D - Held that:- No borrowed funds were utilized for earning the exempt income by the assessee and further the dividend were directly credited in the bank account of the assessee and no expenditure was claimed. What it may be, we find that the assessee only received ₹ 1,82,362/- as dividend income, therefore, there is no question of disallowance of ₹ 14,58.412/- by invoking section 14A r.w. Rule 8D under the facts available on record. It was also explained by the ld. counsel for the assessee that on identical fact in earlier years, no disallowance was made. In the present assessment year also, no borrowed funds were invested by the assessee for making investment in shares or for earning dividend income. At best, if any disallowance could be made that can be restricted to ₹ 1,485/- which were claimed as demat charges. Disallowance u/s 14A r.w. Rule 8D cannot exceed the exempt income. In view of this fact, we find merit in the claim of the assessee. - Decided in favour of assessee.
-
2015 (1) TMI 1203
Addition u/s 69C - Held that:- In the present case, there being concurrent finding of fact holding that no amount of ₹ 2 crores or any part thereof was paid by the respondent-assessee to the Captain Satish Sharma. No occasion to invoke section 69C of the Act can arise.
-
2015 (1) TMI 1202
Registration as a charitable trust under section 12A - Held that:- The fact that the receipts from commercial activities are more compared to the overall receipts of the charitable organisation can neither lead to the conclusion that the activities of the trust or institution are not genuine nor can it be said that the activities of the trust or institution are not being carried out in accordance with the objects of the trust or institution and, therefore, the two conditions stipulated under the provisions of sub-section (3) of section 12AA of the Act, which empowers the authority to cancel the registration, do not exist in the present case. The registration granted is cancelled in view of the amendment of the first proviso to section 2(15) of the Act. That is not a ground specified in the statute for cancellation of the registration.
In fact, sub-section (8) of section 13 of the Act which is introduced by Finance Act, 2012, which came into effect from April 1, 2009, categorically provides that, nothing contained in section 11 or section 12 shall operate so as to exclude any income from the total income of the previous year or any receipt thereof. If the provisions of the first proviso to clause (15) of section 2 becomes applicable in the case of such person in the said previous year, the statute has protected the interests of the Revenue. Notwithstanding the fact that the assessee is conferred registration under the provisions of section 12A of the Act, unless the assessee falls within the provisions of section 2(15) of the Act, excluding the first proviso, the assessee would not be entitled to the benefit of exemption from the tax. If the case of the assessee falls in the first proviso to section 2(15) of the Act, the benefit of registration which flow from section 12A of the Act is not available. Anyhow, that is a matter to be considered by the assessing authority. But on that ground, the registration cannot be cancelled, which is precisely the Tribunal has held by allowing the appeal in the present impugned order. - Decided in favour of assessee.
-
2015 (1) TMI 1201
Correction of clerical mistake - dismissal of application for correction - Held that:- The perusal of application at Annex.3 reveals that various corrections have been sought in the complaint and in few paras, it is in regard to the dates and number and such minor corrections, which may be of the words used and is to be substituted by similar words to make it correct. At the same time, correction has been sought of the nature, which is substantially changing the complaint itself
So far as the corrections of clerical and typographical nature and of such similar mistakes, in Para Nos. 1 to 8, 10, 11 and 13 to 16 in the application at Annexure-3 are concerned, is should have been permitted looking to its nature but at the same time, correction in few other paras with changes either the nature or substance of the complaint, cannot be permitted. Accordingly, while accepting the application for correction in the complaint, as indicated in the Para Nos. 1 to 8, 10, 11 and 13 to 16 of application at Annexure - 3, the other correction in Para Nos. 9 and 12 are not accepted, as they are not found to be of clerical and typographical mistake.
Accordingly, while setting aside the impugned order, the application moved by the petitioner Union of India is allowed to the extent, indicated above. The corrections as permitted, may be made by the complainant leaving other corrections, which are not permitted. Criminal misc. petition allowed in part.
-
2015 (1) TMI 1200
Demand of Service Tax - convention services and mandap keeper service - benefit of abatement of 40% of the gross value of the amounts received from the service recipient - Held that:- tax liability needs to be confirmed under the category of convention centre services. It is mentioned that the appellant had discharged the Service Tax liability, interest liability will arise on the appellant which needs to be upheld. As regards the penalty imposed by the adjudicating authority and upheld by the first appellate authority, it is to be noted that for the period July, 2001 to September, 2003, the appellant may have had a bona fide assumption that the services would fall under mandap keeper services, we set aside the demand on the ground of limitation; hence, no penalty would arise on the portion of confirmed demand. As regards the demands confirmed, within the period of limitation, as we have held that the issue involved is an interpretation of classification and benefit of Notification No. 21/97-S.T., we hold that there is no reason that warrants, imposing the appellant with penalties. Upholding the tax liability for the period within limitation; and interest thereof, we set aside penalties imposed on appellants. - Decided partly in favour of assessee.
-
2015 (1) TMI 1199
CENVAT Credit - availment of the Cenvat Credit on the invoices received prior to service tax registration - Credit availed on housekeeping and hotel services charges paid - Revenue is of the view that the appellant is not entitled to take Cenvat Credit on service received prior to service Tax registration and the Housekeeping and hotel services charges are not related to their business of manufacturing as this services have been availed outside the factory premises and in residential colony - Invocation of extended period of limitation - Held that:- Following decision of MPortal India Wireless Solutions Pvt. Ltd Vs. CST reported in [2011 (9) TMI 450 - KARNATAKA HIGH COURT] - appellant is entitled to take Cenvat Credit on the invoices received prior to Service tax registration.
For availment of Cenvat Credit for housekeeping services and hotel service charges which has been availed by the appellant in residential colony or for individuals. Therefore, I hold that Cenvat Credit on these services is not available to the appellant. Further, I find that during the course of the audit it was pointed out that appellant has taken inadmissible Cenvat credit and appellant has not paid inadmissible Cenvat credit. In these circumstances, revenue has rightly invoked the extended period of limitation. In these circumstances, I confirm the demand of ₹ 47,182/- to be paid by the appellant along with interest. With regard the penalty as the services is new and appellant has taken the Cenvat Credit on House keeping services which may be utilized for the business purposes of the appellant. Therefore, on that part of the input services credit the penalty is not imposable. But for the hotel services availed by the appellant, the penalty is confirmed - Decided partly in favour of assessee.
-
2015 (1) TMI 1198
Management Consultancy Services - Activity of supervision of fabrication and erection of supporting structures and equipment from the client - Invocation of extended period of limitation - Held that:- In this case the activity undertaken by the appellant is only supervision of fabrication and erection of supporting structures and equipments. From the records it does not reveal that appellant is providing any other assistance to their clients or appellant is providing any kind of advice to their clients. In the factual matrix, it cannot be termed that appellant is providing technical assistance to their clients. Consequently, the activity of the appellant does not fall under the category of Management Consultancy Services. Further, we find that in the show cause notice there is no allegation of fraud, collusion, suppression, willful misstatement and suppression of fact by the appellant and it has not been alleged that appellant was having any malafide intentions not to pay any service tax. In these circumstances, extended period of limitation was also not invokable. - Decided in favour of assessee.
-
2015 (1) TMI 1197
Penalty u/s 76, 77 & 78 - service tax paid before issuance of show cause notice - outward goods transportation services - Held that:- As per the provisions of the section 73(3) of the Act, the show cause notice is not required to be issued when service tax along with interest has been paid by the assessee before issuance of show cause notice and there is no allegation against the assessee for fraud, collusion, willful misstatement, suppression of facts or having any malafide intention to not to pay any service tax. We have also gone through the show cause notice. In the show cause notice there is no specific allegations against the respondent that respondent had not paid by way of fraud, collusion, willful misstatement or suppress the material facts or was having any malafide intention of not to pay service tax. - although the Show cause notice was issued to the respondent which was not required to be issued as per section 73(3) of the Act. Therefore, we do not find any infirmity with the impugned order. Accordingly, the same is upheld and appeal filed by the revenue deserves no merit - Decided against Revenue.
-
2015 (1) TMI 1196
Waiver of pre deposit - Classification of service - Held that:- Considering that the issue is on the classification dispute of taxing entry involving interpretation of law, there shall be waiver of predeposit and stay of recovery thereof during pendency of appeal. - Stay granted.
-
2015 (1) TMI 1195
Condonation of delay - Held that:- The appellant is still casual to consciously pursue the remedy ad law relating to limitation before the Tribunal is given go bye by the appellant. - present case is not a case which justifies to keep the appeal pending with an application for condonation of appeal with no good reason - Condonation denied.
............
|
9911796707
