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Showing 301 to 320 of 1903 Records
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2015 (11) TMI 1604
Recovery of interest under Section 75 of the Finance Act - imposition of penalty under Rule 7(C) of the Service Tax Rules, 1994 - payment of interest for delayed reversal of cenvat credit - Held that: - the credit taken inadvertently has not been utilized by the appellant for payment of service tax on the output services. In absence of non utilization of the irregularly availed cenvat credit, the same will be construed as a mere book entry, for which there is no loss of Revenue to the Government Exchequer. Interest is compensatory in character and the same is required to be paid when there is delay in payment of the principal amount. In the present case, since admittedly there is no delay in payment of service tax, I am of the view that provisions of Rule 14 of the Cenvat Credit Rules, cannot be invoked for payment of interest. I find force in the submissions of the Ld. DR for the Revenue with regard to imposition of penalty under Rule 7(C) of the Service Tax Rules, 1994 to the effect that filing of revised return should be considered as the date of filing of return for determination of the quantum of penalty. Considering the fact that penalty has been levied under Rule 7(C), I am of the view that imposition of penalty amount again under Section 77 of the Act is not proper and justified.
Appeal allowed - decided partly in favor of appellant.
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2015 (11) TMI 1603
Bail application u/s 439 read with Section 482 of the Code of Criminal Procedure, 1973 - appellant was assisting the other co-accused in procuring red-sanders in trucks from South India, storing in their godown at Village Bakhtawarpur, New Delhi and further illicitly exporting from Delhi Port to Dubai and it was found that the illicit export of red sanders was attempted in the guise of genuine exports of ‘Acrylic Bath Tubs and Bath Tub Accessories’ - forged documents - Held that: - this Court is of the opinion that the petitioner does not deserve for grant of concession of bail at this stage, as The petitioner is involved in stealing and smuggling of 54.7 Metric Ton Red Sander Wood valued at ₹ 23.3 crores, which is a very precious and scarce natural resource of the country - other reasons also presented - It goes without saying that any observation made in the aforesaid order shall not affect the merits of the case at trial - this Court is of the considered opinion that the petitioner does not deserve the concession of bail in this case, at this stage - bail not granted - application dismissed.
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2015 (11) TMI 1602
Levy of tax - members’ subscription - “Club or Association service” - Held that: - On going through the factual matrix of the constitution of the association and the activities carried out by the association and also the relationship of the members of association, we find that the association was formed by the members only for the purpose of mutual benefit of the members in regard to the mining/trade of the minerals. In view of this position, we find that there is a mutuality of interest of the members and the associations, therefore the service provider and service recipient concept does not exist.
The issue of judgments of the case of Sports Club of Gujarat Ltd. v. Union of India [2013 (7) TMI 510 - GUJARAT HIGH COURT] are squarely applicable in the facts of the present case, where it was held that Section 65(25a), Section 65(105) (zzze) and Section 66 as incorporated / amended to the extent that the said provisions purport to levy service tax in respect of services purportedly provided by the petitioner club to its members, to be ultra vires
The demand for the period 1-7-2012 to 31-3-2013 confirmed in the impugned order is not sustainable and the same deserves to be deducted from the total demand confirmed in the impugned order, subject to verification by the Commissioner the correctness of claim of the appellant. In view of our above discussion, we hold that the demand of service tax for the period 2008-09 to June, 2012 is not sustainable in the light of the above cited judgments. Similarly the interest and penalties are also dropped. Needless to say that the service tax admittedly paid by the appellant for the period 1-7-2012 to 31-3-2013 stand maintained as the appellant is not contesting the taxability during that period. The appeal is allowed in above terms.
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2015 (11) TMI 1601
Addition on cash deposits in undisclosed bank balance - Held that:- The discretion has been conferred on the Income tax Officer u/s 69 of the Act to treat the source of investment as the income of the assessee if the explanation offered by the assessee is not found satisfactory and the said discretion has to be exercised keeping in view the facts and circumstances of the particular case. The Income Tax Officer is not obliged to treat the value of investment as income in every case where the explanation offered by the assessee is found to be unsatisfactory.
Hence it would be unreasonable to tax all the deposits in the bank account of the assessee. To this extent, we do not appreciate the action of the ld. AO in taxing the entire credits of ₹ 6,30,89,413/- as undisclosed income of the assessee for A.Y.2006-07. To put this ongoing dispute to rest, in the interest of justice and fair play, we direct the ld. AO to assess the peak credit in this case in respect of both cash as well as cheque transaction contained in the said bank account by verifying the veracity of the figures worked out by the assesse and bring to tax the same.
Thus we direct the AO to assess the peak credit being a sum of ₹ 1,01,40,000/- as computed by assessee on the basis of deposits made in these six bank accounts with Axis Bank Ltd. in lieu of cash deposits added by the AO at ₹ 83,48,16,130/-. Accordingly, the AO will verify the peak and will make addition of the peak amount only. Accordingly, this issue of assessee’s appeal is partly allowed for statistical purposes.
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2015 (11) TMI 1600
Jurisdiction of enforcement wing authorities to assess the petitioner and collect the tax from the petitioner during the course of inspection - Held that: - This Court time and again held that there is no power vested with the enforcement wing authorities to compel the petitioner to handover the cheques and despite the same, they are collecting cheques - reliance placed on the decision of the case of M/s.Astek Electricals and Controls Vs. The Assistant Commissioner (CT), The Commercial Tax Officer Enforcement and The Branch Manager, Canara Bank [2013 (5) TMI 757 - MADRAS HIGH COURT] - the respondents directed to return the cheques bearing Nos. 001074, 001075 and 001076 respectively to the petitioner forthwith - petition allowed.
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2015 (11) TMI 1599
Refund claim for refund of duty paid on goods cleared for in-house testing for the period 1998 onwards - Held that:- In the monthly returns, the respondents have indicated the duty payment made by them on account of testing of tyres and tubes in the test area (of their factory) in each month and from this it can be inferred that no documents have been issued for clearance of such tyres. That therefore, testing has been carried out within the factory premises only. There is no allegation that respondents made clearances without payment of duty for testing. In the impugned order the Commissioner (Appeals) has allowed only the amount which is not barred by limitation. In such score, taking into consideration the facts, evidence and submissions made, we are of the view that there is no infirmity in the order passed by the Commissioner (Appeals).
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2015 (11) TMI 1598
Invocation of Section 130 of the Customs Act, 1962 - the jurisdiction of the High Court in terms of Section 35G of the Central Excise Act - Held that: - The provision in Section 130(1) of the Customs Act, as it stood before Section 130 was omitted is in pari materia with Section 35G of the Central Excise Act. So much so, the ratio of decision in Rajan Beedi Company v. Commissioner of Central Excise [2015 (9) TMI 407 - KERALA HIGH COURT] applies clearly to the case in hand because the question raised in these appeals is as to whether the value of the goods determined by applying a particular value of equivalence between Hoppus Ton and Cubic Meter is acceptable or not. Hence, the appeals in hand relate to questions entirely referable to the valuation of the goods which is subjected to assessment proceedings. These appeals are, therefore, not maintainable - appeals are dismissed without prejudice to appeals in appropriate jurisdiction, in accordance with law
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2015 (11) TMI 1597
Anti-Dumping Duty - evasion - Held that: - As evidenced by the checklist, the bill of entry was finally assessed by the appraiser without levy of anti-dumping duty. The appellant paid such duty as per this assessment and had no reason to doubt that any further duty was payable. On intimating that anti-dumping duty was also payable, the appellant has immediately made the payment of ADD, of not only of this consignment but also of the earlier consignment imported in January, 2015. He also paid the applicable interest. This immediate response of paying entire duty demand along with interest along with the fact that the bill of entry assessed by the appraising officer did not contain element of anti-dumping duty persuades us to hold that the failure on the part of the appellant was only a bona fide omission. Further, sub-Section (2) of Section 28 provides that if a person is chargeable to duty or interest and the duty along with interest as ascertained by the proper officer is paid, then no show cause notice shall be served and no penalties to be imposed. In such circumstances we are of the considered view, that the confiscation of goods and imposition of redemption fine and penalty is totally unjustified. The impugned order is therefore not sustainable - appeal allowed - decided in favor of appellant.
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2015 (11) TMI 1596
Denial of Notification No. 17/2001-Cus - Held that: - only 3 mirror lens was eligible for exemption, the impugned goods are clearly not covered within the scope of Sr. No. 9 of List 30 of the said exemption notification - Appeal dismissed - Decided against the assessee.
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2015 (11) TMI 1595
Shortages in the physical stock of the finished goods/raw materials - imposition of penalty - Held that: - the appellant company are entitled to pay 25% of the penalty imposed under section 11AC of CEA,1944 subject to fulfilment of condition laid down there in. I also find force in the contention of the ld.Advocate that there is no direct evidence against the Director Shri Vijay Kumar Jalan, on his involvement relating to the discrepancies in the stock noticed, and no finding against him discussing his role in the said shortages in stock had been recorded by the authorities below. Accordingly, the personal penalty imposed on the Director deserves to be set aside. In view of above, the impugned Order is modified and the appellant company s appeal is partly allowed to the above extent and the appeal filed by the Director Shri Vijay Kumar Jalan is allowed. Appeals disposed off.
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2015 (11) TMI 1594
Refund claim - N/N. 17/2011 dated 1/3/2011 - Held that: - appellant could not file reply and also not attended the hearing. However, appellant produced all the records before the Commissioner(Appeals). The Commissioner(Appeals) has refused to accept the said documents on the ground that these are the additional documents produced first time, therefore the same cannot be taken on record under Rule 5 - Since, Adjudicating authority had no occasion to go through the documents, it is in the interest of justice that the matter should be remanded back to the Original Adjudicating authority - appeal disposed off - matter remanded back.
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2015 (11) TMI 1593
Differential duty along with interest and for imposition of penalty - duty on the transaction value - Held that:- It is the admitted fact that respondent is not a manufacturer of the inputs. Consequently, the respondent is not liable to pay duty on the transaction value. As per Cenvat Credit Rules, 2004 the respondent is required to reverse the Cenvat credit availed on the inputs at the time of clearance of such inputs as such. Admittedly, in this case, the respondent has cleared the inputs as such. Therefore, the only liability of the respondent is that whatever credit they have availed on these inputs, the respondent is required to reverse the same. The respondent has already reversed the said Cenvat credit. Therefore, the impugned proceedings against the respondent were not warranted. In these circumstances, we do not find any infirmity in the impugned order, the same is upheld. - Decided in favour of assessee
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2015 (11) TMI 1592
Transfer pricing adjustment - Comparability - Held that:- eClerx Services Ltd. - company is not comparable with BPO company which are engaged only in low end services of data processing. Accordingly, we direct the AO/TPO to exclude Eclerx Services Ltd. from the list of comparables for the purposes of determining ALP.
HCL Comnet Systems & Services Ltd.(seg.)company is not comparable with BPO company which are engaged only in low end services of data processing. Accordingly, we direct the AO/TPO to exclude Eclerx Services Ltd. from the list of comparables for the purposes of determining ALP.
Infosys BPO Ltd. company is engaged in a different nature of activity to that of the assessee provided to its AE. Accordingly, we direct the AO/TPO to exclude this company from the list of comparables
Maple eSolutions Ltd. excluded from the list of comparables.
Mold-Tek Technologies Ltd. is not compared with the low end ITES service provider Co. we hold that this Co. is functionally not comparable with that of the assessee. Accordingly, we direct the AO/TPO to exclude Mold Tek from the list of comparables.
Triton Corp. Ltd. company has merged with Mold-Tek Technologies Ltd. during the year under consideration. In view of the findings in respect of Mold-Tek Technologies Ltd., we are of the opinion that this company cannot be considered as a good comparable company.
Vishal Information Technologies Ltd.(Coral Hub Ltd.)
Wipro Ltd. (seg.)excluded from the list of comparables.
Accordingly, we direct the AO/TPO to re-compute the ALP after exclusion of the above companies from the list of comparables.
We direct the TPO to consider the claim of the assessee of granting the benefit of tolerance range +/-5% as raised in ground of the concise grounds.
Allowance of deduction u/s 10A without setting off the domestic losses.
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2015 (11) TMI 1591
Demand - Penalty - Renewal of LUT - Notification No. 42/2001-C.E. (N.T.), dated 26.06.2001 - Held that: - the said notification, it has been specified that the manufacturer-exporter may furnish the letter of undertaking in the form specified in Annexure-II in lieu bond. Nowhere in said notification, there is any mention that the LUT has to be renewed every year by the manufacturer-exporter - the instructions contained in the Excise Manual of Supplementary Instructions cannot over right the provisions of the said notification - Decided in favor of the assessee.
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2015 (11) TMI 1590
Reduction of the amount that was directed to be deposited vide order dated 27-3-2015 as well as for extension of time - Held that: - we are not inclined either to reduce the amount or extend the time - the decision in the case of M/s GIVO LTD AND SHRI MK DHIR Versus COMMISSIONER OF CUSTOMS [2014 (8) TMI 396 - CESTAT NEW DELHI] relied upon - application dismissed - Revenue at liberty to proceed against the assessee as per law - decided against applicant.
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2015 (11) TMI 1589
Reduction in value of goods in subsequent MoA – Demand of differential duty - decision in the case of M/s International Steel Corporation Versus Commissioner of Customs-Jamnagar (PREV) [2015 (10) TMI 602 - CESTAT AHMEDABAD] relied upon - appeal devoid of any merits - appeal dismissed - decided against appellant.
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2015 (11) TMI 1588
Denial of CENVAT credit - job worker/ service provider on crossing charges of iron ore undertaken in its factory - whether the denial justified on the ground that the quantity of iron ore actually sent from the factory to the job worker were not received after its crossing by the job worker - Held that: - Sub-rule (1) of Rule 3 is enabling provision, which entitles a manufacturer to take cenvat credit on input, capital goods and input services received by the manufacturer of final product. In case of input service, the requirement is that the same has to be received by the manufacturer of final product. Since, with regard to the taxable service, no provisions exist in the statute that the services have to be received in the factory of the manufacturer, I am of the opinion that cenvat credit can only be taken on the actual amount of service tax paid by the service provider, which in the present case is the job worker.
The service being not tangible, it is not ascertainable as to how much service is attributable to the goods actually received in the factory after completion of the job work process.
Service tax paid on the job charges is available to the appellant and the cenvat credit is not required to be reversed, in the eventuality, where lesser quantity of goods received in the factory after completion of the job work activity - appeal allowed - decided in favor of appellant.
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2015 (11) TMI 1587
Classification of goods - rubber blined hose pipes and flexible hose piping - classification under CSH-4001.00 of Central Excise Tariff Act 1985 or under CH 40.05 - Held that:- issue of classification is squarely settled against the appellant by the judgment of the Apex Court their own case. The appeal which contested the classification of the product rubber solution was rejected to that extent and it was held that the product in question “rubber solution” is classifiable under chapter no. 40.05, hence there is no question of deciding the classification issue.
Eligibility of benefit of N/N. 377/86-CE - any product which is falling under chapter no. 40.05 is to be extended the benefit of concessional rate of duty i.e. 15% - for the period October, 1986 to February 1987, the appellant are eligible for notification no. 377/86-CE, in respect of the product “rubber solution” of CTH-40.05. The duty liability for the period needs to be recalculated and appellant is directed to discharge the duty liability.
Duty liability on appellant for the period March, 1987 to May, 1988 - rubber solution consumed in the manufacture of the final products in the same factory of the appellant, which classified under the said chapter no. 59, was added as eligible for the goods N/N. 217/86-CE & no. 82/87-CE dated 1/3/1987. since captive consumption is exempted, no duty liability arises for the period from March 1987 to May 1988.
Appeal disposed off - decided partly in favor of appellant.
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2015 (11) TMI 1586
Denial of CENVAT credit - repair and maintenance of residential colony - input service - whether denial justified on the ground that the said service has no nexus with the final product manufacture by the appellant? - Held that: - the appellant had made specific submissions before the authorities below that the cost towards repair and maintenance of residential colony including the service tax component thereon have been considered in arriving at the assessable value for determination of the Central Excise duty liability. For the period April 2010 to 31st March, 2011, the appellant should be eligible for cenvat benefit on the service tax paid on repair and maintenance of residential colony in view of the un-amended definition of 'input service', where the phrase “activity relating to business” was finding a place for the purpose of getting the cenvat benefit.
Extended period of limitation - Held that: - the show cause notice was issued beyond the normal period of limitation of one year, which is barred by the limitation of time, in as much as, there is no element of suppression, fraud, wilful mis-statement etc., wherein Cenvat credit was allowed on input service used for construction of residential colony near the factory.
The certificate issued to the appellant clearly states that cenvat credit can be taken on the disputed invoice. Since the service tax has been paid on the disputed service and the same has been taken by the appellant and there is no specific allegation that cenvat benefit on account of the said invoice has been fraudulently taken by the other unit, denial of cenvat credit especially upon regularization of the matter by the Jurisdictional Central Excise Authorities, will not be detrimental to the interest of the appellant.
The embargo created in Rule 9 of the Cenvat Credit Rules should not be applicable for denial of the cenvat benefit.
CENAVT credit allowed - appeal allowed - decided in favor of appellant.
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2015 (11) TMI 1585
Service Tax under the category of Intellectual Property Right service - Assessee are the Brand Owner of IFML and M/s. Pilkhani is a job worker manufacturing IMFL on behalf of the assessee and the amount retained by the assessee is the business profit not liable to be taxed under the Finance Act, 1994 under the category of Intellectual Property service
Apex Court dismissed the revenue appeal against the order of tribunal [2015 (6) TMI 586 - CESTAT NEW DELHI] as devoid of any merit, dismissed - decided in favor of assessee.
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9911796707
