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Showing 301 to 320 of 1251 Records
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2012 (12) TMI 953
Outstanding dues - attachment of immovable properties of another firm - non complying with Revenue Recovery Act
Held that:- Submission of the petitioner cannot be accepted for the reason that the Government has issued G.O.Ms.No.216 dated 11.07.1995 stating that the Government have decided to accept the offer for the waiver of arrears of surcharge, additional surcharge and turn over tax. But the assessee firm has applied for waiver of tax only on 16.05.2012 to waive the amount of additional tax i.e. after 17 years from the date of G.O. The said application is still pending and the Government has not passed any order. Till the Government passes the order by waiving the amount of ₹ 15,02,847/-, it is clear that as on date, there is tax arrears in respect of the firm also.
Apart from that, the arrears position letter submitted by the learned Additional Government Pleader would show that the petitioner has to pay another sum of ₹ 72,063/- towards penalty in respect of the assessee firm viz., Mappillai Vinayagar Flour Mills. In this situation, not inclined to accept the submission of the learned counsel for the petitioner that since waiver application is pending in respect of Manicka Vinayagar Roller Flour Mill, it has to be construed that as on date, there is no liability in respect of said flour mill. Therefore, as there is arrears for two private limited companies and also in respect of one partnership firm M/s.Mappillai Vinayagar Roller Flour Mills, impugned order passed by the 1st respondent attaching the property of another firm for arrears of tax cannot be said to be illegal.
As the order of attachment was published by the Commercial Tax Department in the District Gazette on 08.04.2009. Hence, at this juncture, not inclined to accept the submission of the petitioner that the 1st respondent has passed the impugned order without complying with the provisions of Revenue Recovery Act. Against assessee.
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2012 (12) TMI 952
Issues involved: Challenge to assessment order u/s Gujarat Value Added Tax Tribunal, applicability of sales tax on softy ice-cream business.
Issue 1: Challenge to assessment order
The appellant challenged the judgment of the Gujarat Value Added Tax Tribunal which confirmed an assessment order passed by the Sales Tax Officer and Assistant Sales Tax Commissioner. The appellant resisted the payment of sales tax on grounds of being a small industry and engaging in the business of selling softy ice-cream without carrying out any production but only reselling. The Tribunal noted that the appellant had not maintained proper records despite claiming to be a small business, leading to a refusal to believe that the turnover was below the threshold limit.
Issue 2: Applicability of sales tax on softy ice-cream business
The appellant relied on a previous case involving Quality Ice-cream where it was held that selling softy ice-cream after cooling and condensing pre-prepared sweetened milk did not attract sales tax. However, in the present case, the authorities found that the appellant had purchased raw materials and undergone a detailed process involving various ingredients, leading to the conclusion that it was not a simple process of cooling and condensing pre-prepared mixture. The Tribunal confirmed this observation, citing the definition of "manufacture" under section 2(16) of the Gujarat Sales Tax Act and rule 3 of the Gujarat Sales Tax Rules which did not exclude the appellant's case.
In conclusion, the High Court upheld the Tribunal's decision, stating that no error was committed, and dismissed the tax appeal.
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2012 (12) TMI 951
Whether activity of crushing of boulders into smaller sizes of stones amounts to "manufacturing" and, if not, whether the sales tax exemption already granted could be withdrawn?
Whether it is open to the Department to cancel the eligibility certificate already granted even if the same was given on erroneous understanding that conversion of stones into chips amounts to "manufacturing"?
Held that:- In the present case, the question being covered by the judgment of the honourable Supreme Court in State of Maharashtra v. Mahalaxmi Stores [2002 (11) TMI 112 - SUPREME COURT OF INDIA]on the same item, it is not open to this court to examine the matter any further and we have to hold that crushing of boulders into different sizes of stone did not involve any "manufacturing".
Unable to hold that proposed cancellation of eligibility certificate is based on mere change of opinion on a debatable issue. The Revenue authority in the present case is proceeding on the basis of a binding legal precedent and not merely on its own opinion. There can be estoppel against law. Even if eligibility certificate was issued, the Revenue authority can certainly act on established legal position.
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2012 (12) TMI 950
Penalty imposed under section 67 of the Kerala Value Added Tax Act, 2003 - Held that:- Reading of the Intelligence Officer's order shows that on facts he was satisfied that the request belatedly made by the petitioner was intended only for prolonging the proceedings. As far as the first contention is concerned, it should be stated that on both the previous occasions when the writ petitions were filed by him, the petitioner had not raised this plea that as per exhibits P1 and P1(a), the order could not have been passed by the sixth respondent. Further, the competence of the sixth respondent will depend upon whether he was the competent authority and the scope of the order constituting the team. Answer to the second contention also in my view will depend on the correctness of the finding of the sixth respondent on this aspect.
In any case the resolution of both these contentions raised by the senior counsel for the petitioner requires an adjudication of the factual aspects involved in the case and such an adjudication is possible only in a regular appeal, which the petitioner will have to file in terms of the provisions of the Act itself.
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2012 (12) TMI 949
Levy of duty on the single ply spun yarn manufactured - Notification No. 214/86-C.E. - Held that:- The Notification No. 214/86-C.E. exempts the goods specified in Col. 2 of the Table annexed to the notification manufactured in a factory as a job work and used in or in relation to the manufacture of final products specified in Col. 3 of the said Table, from the whole of the duty of excise, subject to certain conditions as specified in this notification. As per this notification, this exemption is available subject to the condition that the supplier of the raw materials (principal manufacturer) gives an undertaking to the jurisdictional Asstt. Commissioner having jurisdiction over the job work’s factory, that the said goods manufactured by the job worker shall be used in or in relation to the manufacture of the final products in his factory and duty liability in respect of the same shall be discharged by him. In this case, no such undertaking given by the principal manufacturer has been produced. Moreover, we also find that while the goods manufactured by the appellants are the goods of Chapters 54 and 55, the Col. 2 mentioning the goods manufactured as job work eligible for exemption, does not cover the goods of Chapters 54 and 55. In view of this, the exemption under Notification No. 214/86-C.E. was not available to the single ply yarn manufactured by the appellant out of the fibres supplied by the principal manufacturer - Decided against Assessee.
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2012 (12) TMI 948
Non compliance of pre deposit order - Extension of time for making pre deposit - Held that:- In the light of the foregoing and without burdening our order by giving any finding on any of the issues urged and at the same time upholding all the impugned orders by concurring with the reasoning contained therein we are inclined to allow this appeal in part and while modifying the impugned order dated 30-3-2012, extend the period originally granted by the Tribunal in order dated 18-1-2012 by further period of three months to be counted from the date of this order for deposit of ₹ 50 lakhs either in the Tribunal or with the Department as the case may be. In case if the appellant ensure compliance of order dated 18-1-2012 within three months from today by depositing the required amount of ₹ 50 lakhs and report the compliance report before the Tribunal as directed, then we request the Tribunal to decide the appeal filed by the assessee being Central Excise Nos. 228 to 2291 of 2010 on its merits in accordance with law. Decided partly in favour of assessee.
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2012 (12) TMI 947
jurisdiction of the Tribunal - Maintainability of appeal - Review of decision - Held that:- Present order sought to be amended by the appellant is not order passed under any of the provisions of Central Excise Act, 1944 because nowhere in the law authority is vested for passing such order. When no power is shown from the statute to exercise power of the kind referred in the order sought to be looked into which is neither decision nor order under any of the provision of law for remedial action, there is no appellate jurisdiction exercisable by Tribunal. Therefore, the order passed is correct holding that he being appointed by the Central Board of Excise and Customs which is a creature of the Central Board of Revenue Act, 1963 to implement the administrative direction, he acted as an Administrative Authority accordingly. He made it clear that supervision charges are collected under administrative mechanism and he has not committed any error. He has not exercised power of the adjudicating authority in this case - Decided against assessee.
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2012 (12) TMI 946
Denial of refund claim - Unjust enrichment - Burden of proof - Held that:- Lower authorities have held that assessee has failed to show that duty burden has not been passed on. I find that we are not really concerned with a refund claim of duty which was paid earlier, but claimed as refund subsequently in this case. Appellant had taken credit on capital goods and on objection raised by the Revenue, as a law abiding citizen, appellant reversed it without waiting for adjudication process, but challenged the same and ultimately succeeded at Tribunal level. In this case, therefore, if appellants were to wait for the decision after adjudication process, there may not be even any reversal at all since the appellant’s stand was upheld by the Commissioner (A). In these circumstances, there is no question of unjust enrichment since there was no need for a reversal in the first place. Therefore availment of credit subsequently could not have arisen. Further, after the Tribunal’s decision upholding the availability of credit, appellants could have taken suo motu credit. Since the Tribunal had passed the order in favour of the appellants, when decision of the L.B. was not available, appellants could have taken credit suo motu which also they did not do - Decided in favour of assessee.
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2012 (12) TMI 945
Refund - unjust enrichment - price variation clause - The Department’s stand that in the scheme of things when the goods are sold or cleared for sale on provisional basis at a higher price it has to be assumed that the burden has been passed on to the customer cannot be accepted. - first appellate authority has allowed the refund - Held that:- Ld. Appellate authority crystally found no evidence of unjust enrichment. - there is nothing further to dilate the matter for which Revenue’s appeal is dismissed. - decided in favor of assessee and against the revenue.
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2012 (12) TMI 944
CENVAT Credit - Held that:- Grounds of appeal were perused and nothing demonstrates as to how the appellant made further processing when the goods vanished at the supplier’s hand and not reached to the appellant. Mere paper credit was passed on to the appellant. Plea of cross-examination was modality to follow dilatory tactics to deprive revenue from getting its legitimate dues. - there is no question of admissibility of cenvat credit to the appellant because no goods reached to appellant for further processing at its end - Decided against assessee.
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2012 (12) TMI 943
CENVAT Credit - GTA Services - Held that:- it is not denied that glass cullets have been used in the manufacture of lead oxide and zinc oxide by the appellant. Since the glass cullets are used in manufacture of zinc oxide and lead oxide service tax in respect of GTA services used for transportation of the glass cullets cannot be denied. Therefore, the impugned order denying credit of ₹ 18,661/- in respect of GTA service availed by the appellant for transport of glass cullets is not sustainable and is liable to be set aside - Moreover, even if process undertaken is treated as not amounting to manufacture, since undisputedly the appellant have paid duty on 25 kg. pack, which is more than the cenvat credit availed the payment of duty has to be treated as reversed of cenvat credit as the Department cannot proceed to demand cenvat credit again in respect of input - Decided in favour of assessee.
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2012 (12) TMI 942
Duty demand - Goods cleared without payment under Notification No.6/2006 CE - Benefit of Notification No.67/95 CE dt. 16/03/1995 - Held that:- Notification No.67/95-CE ibid, it appears that the bar created therein is not applicable to the inputs used in or in relation to the manufacture of exempted final products cleared by a manufacturer of such exempted final products as well as dutiable final products. In other words, where the manufacturer manufactures both dutiable and exempted final products and uses the inputs in question in the manufacture of the exempted final products, he is entitled to the benefit of exemption from payment of duty on such inputs in terms of the opening paragraph of the Notification. This right is not hit by the opening portion of the proviso to the Notification as the manufacturer is squarely covered by the exception carved out of the proviso vide clause (vi) under the proviso.
The Department, it appears, would like to drive the assessee out of the purview of this exception on the ground that the latter had not discharged the obligation prescribed in Rule 6 of the CENVAT Credit Rules 2004. We have already held that the assessee did not have any liability under sub-rules (1) to (4) of Rule 6 inasmuch as these sub-rules were not applicable, by virtue of sub-rule (6), to the assessee who were clearing their exempted final products against international competitive bidding in terms of Notification No.6/2006-CE ibid. In other words, a conjoint reading of sub-rule (6) of Rule 6 of the CENVAT Credit Rules 2004 and clause (vi) under the proviso to Notification No.67/95-CE ibid would show that the assessee’s claim for exemption from payment of duty on copper wire under the Notification was not hit by the opening portion of the proviso to the Notification - assessee was not liable to pay CE duty on copper wire manufactured and captively used in the manufacture of insulated (power) cables in the factory during the material period - Decided in favour of assessee.
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2012 (12) TMI 941
CENVAT Credit - whether construction of residential colony near the factory as also of cleaning services obtained for the residential colony and guest house would be cenvatable input services or not - Held that:- Following decision of CCE vs. ITC [2011 (11) TMI 516 - ANDHRA PRADESH HIGH COURT] - Decided in favour of assessee.
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2012 (12) TMI 940
Denial of CENVAT Credit - Whether Ring Rim is eligible for Cenvat credit either as capital goods or as input - Held that:- Ring Rim which is a rubber item classifiable under Chapter 40 of the Central Excise Tariff, is an essential item for testing of the tyre and that it is also not disputed that every tyre prior to its clearance is required to be subjected to inflated dimension test for which Ring Rim is used. In view of this, I am of the prima facie view that Ring Rim is an item which is required in or in relation to the manufacture of rubber tyre, as a tyre without being tested cannot be marketed. In my prima facie view, the expression “in or in relation to the manufacture of final product, whether directly, or indirectly, whether contained in final product or not,” in the definition of ‘input’ is very wide and would cover, in addition to the items which are directly used in the manufacture of final product, the items which are indirectly used - impugned order denying the Cenvat credit in respect of this item is not correct and as such the appellant have prima facie case in their favour. The requirement of pre-deposit of Cenvat credit demand, interest and penalty is, therefore, waived for hearing of the appeal and recovery thereof is stayed till the disposal of the appeal - Stay granted.
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2012 (12) TMI 939
Availability of cenvat credit - Welding electrodes used in fabrication and installation of capital goods - Bar of limitation - Held that:- show cause notice stand issued on 13.8.08 in respect of credit availed during the period January, 2006 to October 2006. The credit was availed by the appellant by reflecting it in their statutory records and they were filing requisite quarterly returns. It is result of audit objection that show cause notice stand issued by invoking the longer period of limitation. In the absence of any malafide on the part of the appellant, such extended period of limitation cannot be invoked. As such, the demand is barred by limitation - Decided in favour of assessee.
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2012 (12) TMI 938
Refund claim - Denial of Refund claim - Held that:- I have found no challenge to any of the factual findings recorded by the Commissioner (Appeals). As the refund claim was allowed on the basis of the aforesaid findings of the Commissioner (Appeals), his decision has got to be sustained for want of challenge to the factual findings - Decided against Revenue.
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2012 (12) TMI 937
Denial of CENVAT Credit - Input received in the name of other company - Held that:- this is a case where Rule 9(2) of Cenvat Credit Rules could have been and should have been applied. In this case actually objection of the Revenue is that invoice was not in the name of the unit, but Head Office. It is not the name of the receiver of service, but address of the receiver should be there in the invoice, is one of the requirements which is compulsory under Rule 9(2). Since there is no dispute that services were received in the unit where credit has been utilized and the Commissioner (A) has satisfied by verifying the same and this is not under challenge by the Revenue, credit has been correctly taken. Even otherwise in the decision cited by the ld. Counsel, this Tribunal has taken the view that credit can be transferred by Head Office to the unit - Following decision of Tribunal in the case of Modern Petrofils [2010 (7) TMI 319 - CESTAT, AHMEDABAD] and Samita Conductors Ltd. [2012 (11) TMI 432 - CESTAT, AHMEDABAD] - Decided against Revenue.
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2012 (12) TMI 936
Denail of CENVAT Credit - Duty demand - Bar of limitation - Held that:- there were two views during the relevant period and therefore there is no ground for invocation of extended period for denying cenvat credit. Since in this case the entire period covered by show-cause notice is beyond one year, extended period cannot be invoked, and therefore, the appellants succeed on limitation - Decided in favour of assessee.
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2012 (12) TMI 935
Denial of refund claim - Adjustment of refund against demands due - Held that:- Proceedings against the show-cause notice dated 24-5-2010 are still pending and the demand confirmed against the appellant have not obtained finality. Further by an order dated 21-9-2011, the demands confirmed against the appellant in proceeding of the show-cause notice dated 24-5-2010 has been stayed on furnishing of Bank Guarantee of Rs. 2 Crores. In these circumstances, I am of the view that when the demands against the appellant has not attained finality, the Revenue cannot adjust the amount sanctioned against these demands - Decided in favour of assessee.
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2012 (12) TMI 934
Denial of CENVAT Credit - Revenue contends that appellant is a job worker and not paying duty at the time of clearance of their finished goods, therefore, they are not entitled for input credit on the procured inputs for the job work activity - Held that:- It has been clearly stated by the appellant that once the processed goods were cleared by the appellant to the manufacturer after following the procedure under Rule 4(5)(a) of CENVAT Credit Rules, 2004, the principal manufacturer carried out certain process on the job work goods and the same were cleared on payment of duty. This fact has not been controverted by the Revenue in the impugned orders. No enquiry has been made to principal manufacturer whether principal manufacturer has discharged the duty liability or not. Therefore, the impugned order is not sustainable and the same is set aside and the matter is remanded back to the adjudicating authority - If principal manufacturer has discharged the duty liability then the appellant is entitled for CENVAT credit - Decided in favour of assessee.
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