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2013 (10) TMI 1280 - MADRAS HIGH COURT
Whether, in the facts and circumstances of the case, the Tribunal is right in holding that the additional sales tax would be attracted for the assessment year 1996-97, since the taxable turnover did not exceed 100 Crores as per amended provision of section 2(1)(aa) as per amended Act 31 of 1996 with effect from August 1, 1996. - Held that:- The issue as regards the levy of additional sales tax in respect of the assessment year 1996-97 is covered by the decision of this court in the case of State of Tamil Nadu v. National Time Co. reported in [2010 (7) TMI 842 - MADRAS HIGH COURT] that after taking the taxable turnover for the entire year, the taxable turnover up to the date of amendment has to be assessed with reference to the relevant tax rate therein applicable to the period. - matter is remanded back to the assessing officer to work out the liability based on the decision of this court. Thus, taking the taxable turnover for the entire year, the taxable turnover up to the period July 31, 1996, has to be worked out to attract the liability at the rates specified therein and beyond that, the liability of the turnover has to be worked out based on the amended provision depending on the taxable turnover crossing rupees 100 crores for the whole year. - Decided in favour of Revenue.
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2013 (10) TMI 1279 - MADRAS HIGH COURT
Determination of turnover assessable to tax - Held that:- after introduction of section 3B and after amendment made to the definition of "sale" under section 2(n)(ii), the contention raised by the learned counsel for the assessee cannot be accepted, since by the operation of law, the transfer of goods involved in works contract would amount to "sale" taxable under section 3B. The assessee therein had purchased the dyes and chemicals from outsaid the State. Consequently, this court held that the entire turnover was assessable to tax. - Decided in favour of Revenue.
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2013 (10) TMI 1278 - CESTAT KOLKATA
Cenvat credit - proof of receipt of capital goods - duty paying document - responsibility of manufacturer to ensure about the existence of the supplier-factory - Waiver of pre-deposit of duty u/s 11A of the Central Excise Act, 1944 r.w. Rule 14 of Cenvat Credit Rules, 2004 - Penalty u/s 11AC of Central Excise Act, 1944 – Held that:- Department did not submit anything to controvert the contention of the applicant that they availed cenvat credit on the basis of invoices issued by the manufacturer having Central Excise Registration, that they have paid the amount by Account Payee Cheques and the machines are in existence in the factory of the applicant – The Tribunal in Sunvik Steels Ltd. Vs. Commr. of Central Excise, Bangalore [2011 (8) TMI 926 - CESTAT, BANGALORE] allowed the appeal of the assessee in respect of goods supplied by the same supplier -the applicants are able to make out a prima-facie case for total waiver of pre-deposit - the requirement of pre-deposit of all dues waived and recovery stayed till the disposal – Stay granted.
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2013 (10) TMI 1277 - ITAT MUMBAI
Business premises let out - Whether assessable as assets under section 2(ea) of Wealth tax or not - Held that:- The premises were not occupied by the assessee for the purpose of business or profession . The rental income from letting out of the properties had been offered by the assessee as income from house property - Letting out of properties cannot be considered as business of the assessee - The premises could also not be considered as commercial establishment or commercial complex - These premises were not covered by exclusions provided under section 2(ea)(i) – Decided against assessee.
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2013 (10) TMI 1276 - MADHYA PRADESH HIGH COURT
Rejection of application to set aside ex parte order - Petitioner could not appear in previous hearing due to ill health - Authority rejected case as time barred - Held that:- impugned order passed by the appellate authority cannot be sustained. Admittedly, the petitioner’s appeals were dismissed vide orders for want of prosecution - It was necessary for the appellate authority to have decided the said applications filed under Rule 61 (4) of the VAT Rules 2006, on merits. However the appellate authority has wrongly applied the time limit fixed under Section 46 (8A) of the VAT Act for deciding the appeals. In our considered view, the time limit fixed under Section 46 (8A) of the VAT Act, will not override or curtail the right of the appellant to invoke provisions of readmission/rehearing of the appeal which suffered dismissal for want of prosecution under Rule 61 (4) of the VAT Rules, 2006. On invocation of the provision of Rule 61 (4) the appellate authority is duty bound to consider the prayer made in it irrespective of the expiry of time fixed under Section 46 (8A) for deciding the appeal as the both the provisions operate in different spheres. The view taken by the appellate authority if allowed to stand, would render provisions of Rule 61 (4) of the VAT Rules, 2006, to be redundant, as in the cases when the appeal is dismissed for want of prosecution just before expiry of 12 months, the restoration application which will naturally be filed after 12 months would not become maintainable, which in our considered view cannot be the intention of the legislature - Decided in favour of assessee.
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2013 (10) TMI 1275 - ALLAHABAD HIGH COURT
Sales tax liability - Sale of rice - Held that:- units of Khadi Gram Udyog Board were entitled for exemption of trade tax on the sale of rice under the Government Order dated 31.01.1985 and Government Order dated 27.02.1997. Accordingly, the exemption from trade tax liability on the sale of rice claimed on the basis of Government Order dated 27.02.1997, was rightly given - sale of rice is not exempted Khadi and Gramodyog units from imposition of trade tax after 1.10.2004 - Decided against assessee.
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2013 (10) TMI 1274 - DELHI HIGH COURT
Invocation of Writ Jurisdiction - Held that:- The order on merits can be examined and decided in the appellate proceedings - it is not proper and correct for the petitioner to bypass the appellate remedy, which is adequate and prescribed by law - Writ petitions are not meant to examine and correct errors and mistakes made in the original adjudication as an alternative forum - Writ proceedings are extraordinary in nature and are invoked in extraordinary circumstances - there is no dispute in respect of inherent or subject matter jurisdiction – Decided against Petitioner.
Reliance placed by the petitioner on Kamlakshi Finance Corporation Ltd. (1991 (9) TMI 72 - SUPREME COURT OF INDIA) is misconceived. It is noticed that in the said case the assessee therein had exercised the appellate remedy and thereafter the matter had reached the Supreme Court. In paragraph 6 of the said decision observations have been made that the adjudicating authorities are bound and should follow the appellate orders.
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2013 (10) TMI 1273 - CESTAT CHENNAI
Penalty - option to pay reduced penalty of 25% - Service of consulting engineer - Service tax collected from clients but not deposited to the exchequer - ST-3 Returns not filed - Held that:- appellant had paid tax amount along with interest before issue of show cause notice, the adjudicating authority should have brought to the notice of the appellant the option available for payment of 25% of tax demand as penalty under section 78 of Finance Act 1994 for final closure of the matter. Since this was not done by the lower authorities I follow the decision of the Hon’ble Delhi High Court in the case of KP Pouches (P) Ltd. Vs UOI-[2008 (1) TMI 296 - HIGH COURT OF DELHI] - option given to the assessee to deposit 25% of penalty within 30 days from the date of order to avail the benefit of reduced penalty u/s 78. - Decided in favor of assessee partly.
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2013 (10) TMI 1272 - CESTAT NEW DELHI
Maintainability of appeal – Non application of mind - Held that:- No opinion is formed by the Committee of Commissioners about the illegality of the order as required under Section 35B of the Central Excise Act - There was no authorization by the Committee of Commissioners to file appeal on its behalf - record also does not disclose that these two officers applied their mind to the issue and recorded any opinion, as per the requirement of Section 35B of the Central Excise Act that the order of the Commissioner (A) was not legal or proper and warranted to be challenged by filing an appeal - there should be a meaningful consideration which should be reflected on the note sheets in order to comply with the requirement of Section 35(2) of the Act - file does not show any such satisfaction or opinion having been recorded by the Committee of Commissioners.
Mere signing on draft note mechanically does not constitute sufficient compliance with the requirement of application of mind by the Commissioners comprising the Committee, to the Twin requirements of the decision making process namely, due consideration of the material pertaining to the adjudication/appellate order and the appropriateness/desirability of preferring an appeal - Decided against Revenue.
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2013 (10) TMI 1271 - CESTAT BANGALORE
Business Support Service – Waiver of pre-deposit - The appellant is providing translation service to the customers – Held that:- Similar issue came up in [2013 (10) TMI 1239 - CESTAT BANGALORE] - From the definition, it can be seen that applying the principle of ejusdem generis, the transaction processing has to be considered along with the other terms used and when that is taken into account, translation work undertaken by the appellant cannot be covered by the definition - prima facie the demand was within normal period of limitation - the appellant is directed to deposit an amount of Rs.7,00,000 – upon such submission rest of the duty to be waived till the disposal – Partial stay granted.
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2013 (10) TMI 1270 - CESTAT NEW DELHI
CENVAT Credit – inputs used to provide output services - Waiver of Pre-deposit - Whether the excise duty paid on cement, angles, channels, CTD bars or TMT bar are eligible to enjoy Cenvat credit to provide the output service of erection, installation and commissioning by the appellant. – Held that:- CCE, Visakhapatnam - II vs. Sai Sahmita Storages (P) Ltd. [2011 (2) TMI 400 - ANDHRA PRADESH HIGH COURT] - All these goods were used to provide output service for which those are eligible to get Cenvat credit of the excise duty paid - Just because the Coke Oven Battery was installed on the foundation made using the above goods and that resulted in civil structure that does not disentitle the appellant to the Cenvat credit - the law existing prior to amendment, prima facie, it appears that calling for pre-deposit is unwarranted at this stage before hearing appeal in detail – Stay granted.
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2013 (10) TMI 1269 - CESTAT CHENNAI
Air Travel Agents service - Waiver of pre-deposit - The impugned interim order of the respondent, passed under Section 35F , directing the petitioner to pay the entire amount of service tax, as a pre-deposit, as a pre-condition for hearing the appeal filed by the petitioner, is onerous in nature - in view of the averments made in the affidavit filed in support of the writ petition and the impugned order of the respondent is modified directing the petitioner to deposit 30% of the amount of service tax On the petitioner complying with the said condition, the respondent shall hear and dispose of the appeal on merits and in accordance with law - Following decision of M/s. Asveen Air Travels (P) Limited, Versus The Commissioner of Central Excise (Appeals) [2011 (3) TMI 317 - MADRAS HIGH COURT] - Decided in favour of assessee.
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2013 (10) TMI 1268 - CESTAT BANGALORE
CENVAT credit - duty paying documents - Ineligible documents - Held that:- The learned advocate submits that the entire amount of CENVAT credit has been reversed with interest and the amount has been appropriated. However in appeal, the appellant is challenging the decision regarding reversal. Therefore, we consider that the reversal of CENVAT credit with interest is sufficient for the purpose of pre-deposit to hear the appeal - stay granted
Classification of service - aircrafts taken on lease from the foreign company - supply to tangible goods service or transportation of passenger by air service - taxability - period from 2006-07 to 2008-09 - held that:- While the appellant was receive certain minimum fixed monthly charges on account of certain minimum flying hours per calendar month, in addition to this, they also receive remuneration on per hour basis during the period when the helicopter had been operated for transportation - Prima facie the appellant's activity is transportation or persons within India by air and not supply of tangible goods and as such during the period of dispute the same was not taxable - Following decision of Mesco Airlines Ltd. Versus CST New Delhi [2013 (3) TMI 522 - CESTAT NEW DELHI] - stay grated.
Maintenance or repair of aircrafts for the period from 1.1.2008 to 7.10.2008 - Held that:- prior to this period up to March 2008, the appellant had produced evidence to show that M/s. Kingfisher had paid the service tax on these operations and for the subsequent period also M/s. Kingfisher airlines was liable to pay according to the agreement between the parties and moreover M/s. Deccan Charters Ltd. was not an independent entity and cannot be considered as an independent entity unless they receive a permit from DGCA. The issue requires detailed consideration of the provisions - stay granted.
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2013 (10) TMI 1267 - CESTAT BANGALORE
Financial difficulty in paying service tax dues - appellants are not disputing the service tax liability at all and she says that the appellants have not paid the amount on the ground that they are facing financial difficulties because M/s. Kingfisher Airlines have not paid their dues amounting to more than Rs.3 crores - Held that:- the service tax collected from other clients have been utilized to tide over the financial crisis arising as a result of non-payment of service charges by one of the clients. Under these circumstances, appellants cannot be said to have made out any case whatsoever for waiver of pre-deposit. Nevertheless, having regard to the difficulties pleaded, we consider it sufficient if the appellant deposits the entire amount of service tax with interest for the purpose of hearing the appeal which is the least they should do. - stay granted in respect to penalty only.
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2013 (10) TMI 1266 - CESTAT AHMEDABAD
Waiver of pre deposit - Port services - extended period of limitation - Held that:- during the relevant period, the issue whether stevedoring services would fall under the category of port services or not, different Benches of Tribunal i.e. in the case of Konkan Marine Agencies and Velji P. & Sons etc. were of the view that their services are not covered under port services, can be held as a bonafide belief. At the same time, we find that some portion of the demand of the tax is within limitation, which, on specific query when the Bench was informed of will be approximately Rs.5 lakhs and he also agreed to deposit the said amount within four weeks for prosecuting the appeal. The appellant is directed to deposit an amount of Rs.5 lakhs within a period of four weeks from today - stay granted partly.
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2013 (10) TMI 1265 - CESTAT BANGALORE
Demand - Utilization of more than 20% CENVAT Credit in payment of service tax - Held that:- demand of Rs. 58,30,168/- is on the ground that the appellant utilised CENVAT credit in excess of 20%. Extended period cannot be invoked since, in fact, appellant was filing ST-3 returns regularly which would show the CENVAT credit taken and utilised. In these circumstances, the appellant has made out a prima facie case in respect of this demand - Decided in favour of assessee.
Storage and warehousing services - Storage of soya bean meal as agricultural produce - Held that:- as per the definition of ‘agriculture produce’ in terms of the notification, storage of ‘soya bean meal’ in the appellants premises as ‘agricultural produce’, prima facie, cannot be accepted. - As regards limitation, we find that appellant simply claimed exemption without mentioning notification number or further details. Therefore, it would be appropriate to take a view that the appellant has exercised their own judgment to determine their eligibility for exemption - Mere collection of rent cannot be considered as ‘storage and warehousing’ charges. However, ongoing through the invoices, we find that what they charged is stock management charges for storing ‘soya bean meal’ and further, they charged in terms of quantity of ‘soya bean meal’. The invoice does not mention actual space provided at all. Therefore, we find that appellants do not have a case on merits - stay granted partly.
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2013 (10) TMI 1264 - CESTAT BANGALORE
Construction of Road - Levy of service tax on facilities constructed created alongside of toll plaza - works contract - Section 65(105)(zzzza) - Taking a view that except for cost of construction for laying of roads, service tax is required to be paid on other facilities, proceedings were initiated. - Waiver of pre deposit - Held that:- appellant has made out a prima facie case in their favour in view of the decisions of the Tribunal in MMK Toll Road Pvt. Ltd. Vs. CST-II, Mumbai [2013 (10) TMI 1263 - CESTAT MUMBAI] - A highway needs to have the kind of facilities which have been provided and we cannot read the definition of ‘works contract’ in an isolated manner. Moreover as submitted by the learned counsel, the toll plaza ultimately gets demolished after recovery of the cost of construction of road by the appellants. It is a temporary structure built for recovery of cost by the appellants. As regards rest rooms etc., they are required to maintain the road and also looking after the toll plaza staff. They may also be used by the drivers. Over all, we find that the appellants have made out a case that all these facilities are part of the highway and therefore prima facie case for waiver has been made out - Archistructural Constructions India Pvt. Ltd. Vs. CCE, Coimbatore [2010 (11) TMI 594 - CESTAT, CHENNAI] - Decided in favour of assessee.
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2013 (10) TMI 1263 - CESTAT MUMBAI
Construction of Road - contracts were on Build, Operate and Transfer (BOT) basis. The consideration for the services rendered under these contracts was recovered by collection of toll charges for a fixed tenure and appropriating the same towards the cost incurred. - The case of the Revenue is that collection of toll charges under the contracts comes within the purview of 'Business Auxiliary Services' - Held that:- The activity undertaken by the appellants herein is construction of roads. The same is excluded specifically from the scope of levy of service tax under the category of 'Commercial and Industrial Construction Service' under Section 65(105)(zzq) and 'Works Contract Service' under Section 65(105)(zzzzq). Further, under 'Maintenance and Repair Service' under Section 65(105)(zzg) the activity has also been exempted from levy of service tax and the same has been given retrospective effect from the date of inception of the levy. Thus, it is very clear that the construction and repair of roads have been specifically excluded from the scope of levy of service tax by the Government.
The appellants have been providing services of construction of roads. To finance/compensate the cost of construction, the contractors have been allowed to collect toll charges and the toll charges have been collected on their own behalf and for themselves. If that be so, they cannot be said to have rendered any 'Business Auxiliary Service' for someone else. - Prima facie case is in favor of assessee - stay granted.
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2013 (10) TMI 1262 - SUPREME COURT
Tenders for grant of leasehold rights - Held that:- It is not in dispute that the open spaces available at Doraisamy Reddiar Market is public property. Therefore, the same cannot be disposed of by private negotiations and the members of the appellant, who have unauthorisedly occupied the open spaces cannot be allowed to retain those spaces. Respondent No.2, which is an institution of self- Government (Article 243P(e) read with Article 243Q of the Constitution), is required to undertake and execute several schemes i.e. water-supply, lighting, drainage, sewerage, laying and maintaining of public streets etc. for the benefit of the residents of the municipal area. For fulfilling its obligation under the 1920 Act and carrying out the duties and functions which may be entrusted to it under Schedule XII of the Constitution, respondent No.2 requires substantial fund. The contribution made by the State Government to municipal bodies, like, respondent No.2 is negligible. Therefore, they are required to augment the sources by grant of lease etc. of their properties by auction or by adopting appropriate mechanism consistent with the doctrine of equality and no fault can be found with the exercise undertaken by respondent No.2 to invite tenders for holding auction for the open spaces available in Doraisamy Reddiar Market - there cannot be any policy, much less, a rational policy of allotting land on the basis of applications made by individuals, bodies, organisations or institutions dehors an invitation or advertisement by the State or its agency / instrumentality. By entertaining applications made by individuals, organisations or institutions for allotment of land or for grant of any other type of largesse the State cannot exclude other eligible persons from lodging competing claim. Any allotment of land or grant of other form of largesse by the State or its agencies/instrumentalities by treating the exercise as a private venture is liable to be treated as arbitrary, discriminatory and an act of favouritism and/or nepotism violating the soul of the equality clause embodied in Article 14 of the Constitution - respondent No.2 did not commit any illegality by inviting sealed tenders for conducting open auction for grant of lease of the spaces occupied by members of the appellant - Decided against Appellant.
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2013 (10) TMI 1261 - PUNJAB & HARYANA HIGH COURT
Confiscation - classification and valuation - conditions for release of goods - The petitioner filed seven bills of entry for clearing the said goods in 31 containers on different dates in January 2011 but the custom authorities did not allow clearance on the ground that the material so imported was not scrap but re-rollable metal attracting 5% basic custom duty - On furnishing a declaration in the form of an affidavit that the party will not challenge the value and identity of the seized goods during the course of adjudication or prosecution proceedings, if any
As the Department is already retaining a sum of Rs. 2 crores, the interest of the revenue stands protected. In the facts and circumstances, the conditions imposed in the present order under clauses No.2 to 5 providing furnishing of bank guarantees to the tune of the determined FOB value in the case of both the petitioners and for submission of solvency certificate and thirdly, the condition of furnishing of undertaking that the identity and quantity of the goods would not be disputed are onerous and are hereby quashed. The respondents are directed to release the goods to the petitioners within a period of 2 weeks from the date of receipt of a certified copy of this order after ignoring the conditions imposed in clauses No.2 to 5. - Following decision of AMIT ENTERPRISES Versus UNION OF INDIA [2011 (5) TMI 375 - PUNJAB & HARYANA HIGH COURT] and Era International Versus UOI and Ors. [2011 (8) TMI 885 - Punjab and Haryana High Court], decided in favor of assessee.
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