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Showing 301 to 320 of 1903 Records
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2015 (12) TMI 1609
Revision u/s 263 - erroneous computation of Book Profit u/s. 115JB - undisclosed claim of donation - whether order passed by the AO as not only erroneous but also prejudicial to the interest of the Revenue? - Held that:- We find that vide letter dated 7th December, 2012, the assessee has furnished (a) ledger account of donation u/s. 80G alongwith donation receipts (b) copy of acknowledgement of return of income and balance sheet and profit and loss account of M/s. Shantilal Shanghvi Foundation alongwith all its schedule. This reply is placed at page-20 of the Paper Book and from pages 23 to 38, we find the receipts of donation to M/s. Shantilal Shanghvi Foundation.
Thus, it can be seen that in response to a specific query, the assessee has filed all the related details alongwith supporting evidences. Therefore, it cannot be said that the AO has not examined this issue during the course of assessment proceedings. The decisions relied upon by the Ld. DR are altogether on different set of facts. The AO has thoroughly examined the claim and most importantly the ratio laid down by the Hon’ble Supreme Court in the case of Apollo Tyres Ltd [2002 (5) TMI 5 - SUPREME Court ] squarely apply on the facts of the case. We, therefore, set aside the order of the Principal CIT and restored that of the AO made u/s. 143(3) of the Act. - Decided in favour of assessee
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2015 (12) TMI 1608
Demand - Contravention of Rule 8 (1), 8(3) and 8(3A) of Central Excise Rules, 2002 and Rule 3 (4) of CCR 2004 - appellants defaulted payment of duty on consignment basis through PLA and the duty paid through cenvat credit should be treated as improper duty payment - Held that: - reliance placed on the decision of the case of M/s. Malladi Drugs & Pharmaceuticals Ltd. Versus The Union of India, The Commissioner of Central Excise [2015 (5) TMI 603 - MADRAS HIGH COURT], where it was held that duty payment through cenvat credit is treated as proper duty payment - the orders of the adjudicating authority demanding duty along with interest and penalty are set aside and the appeals are allowed - decided in favor of assessee.
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2015 (12) TMI 1607
CENVAT credit - Non-maintenance of separate accounts with regard to input and input services - Held that: - For dropping the show cause notice proceedings, the adjudicating authority in the order dated 11.4.2012 has held that the assessee is required to maintain proper records for taking and utilization of Cenvat credit in compliance of the provisions of Rule 9(2) of the said Rules, which do not prescribe any separate record in respect of dutiable goods and taxable services. The only provision for maintenance of separate records under the Cenvat Credit Rules, 2004, I could not find under Rule 6(2) for the said rules, which provides separate records for the dutiable goods or taxable service and the exempted goods/services. This was not the situation in this case as the goods manufactured and services provided by the assessee were not exempted. Thus, I do not see any violation in maintenance of common record for Cenvat credit taken & utilized by the assessee.
Since the adjudicating authority on proper analysis of the facts involved in this case has arrived at the above conclusion, I am of the opinion that the views taken by the authorities below cannot be interfered at this juncture since the issue involved is factual in nature - appeal dismissed - decided against Revenue.
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2015 (12) TMI 1606
Compliance with the order of the Settlement Commission - The petition seeks a mandamus to the respondent no.1 Union of India (UOI), respondent no.2 Commissioner of Customs (Import), respondent no.3 Directorate of Revenue Intelligence (DRI) and respondent no.4 Commissioner of Customs (Export) to release the Bank Guarantees/Bonds and cash payments in terms of the order dated 23rd September, 2015 of the Settlement Commission - The Settlement Commission had vide the aforesaid order directed for such release within 15 days of its order - Held that: - The respondent no.1 UOI which has no role in the matter should not be seeking time for filing counter affidavit without any cause and application of mind - In view of the aforesaid, the petition is disposed of by directing the respondents no.2 & 4 Customs Authorities to comply with the order of the Settlement Commission on or before 30th December, 2015 - The person occupying the Office of the Commissioner of Customs (Import) is made personally responsible for compliance of the order.
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2015 (12) TMI 1605
Area based exemption - the decision in the case of UNION OF INDIA Versus KAMAKHYA COSMETICS AND PHARMACEUTICALS [2014 (11) TMI 1187 - GAUHATI HIGH COURT] referred - Held that: - Pending further orders, we direct that subject to the petitioners releasing 50% of the amount due to the respondent in terms of the impugned judgment on the respondents' furnishing solvent surety to the satisfaction of the jurisdictional commissioner, the operation of the impugned judgment shall remain stayed - We further direct that contempt proceedings initiated against the petitioners shall subject to their releasing 50% of the amount as stated above remain stayed.
The needful shall be done within four weeks from today - appeal allowed.
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2015 (12) TMI 1604
Levy of service tax - transportation of sugarcane from the cane collection centre to the sugar mill, initially paid by the appellant sugar mill but deducted from the price of the sugarcane payable to the farmer on the basis of an average rate - Held that: - The issue herein has been squarely decided in favour of the appellant in earlier appeal between the parties in the case M/s. Nandganj Sihori Sugar Co. Versus CCE. Lucknow [2014 (5) TMI 138 - CESTAT NEW DELHI], wherein under same facts and circumstances deciding in favour of the appellant, this Tribunal held when the transporter did not issue consignment notes or GRs or challans or any documents containing the particulars, in Explanation to Rule 4B of Service Tax Rules, 1994, the transporters cannot be called Goods Transport Agency and, hence, in the appellant’s case the service of transportation of sugarcane provided by the transporter would not be covered by Section 65(105)(zzp). Accordingly, this Tribunal held that there will be no service tax liability on the appellant sugar mill as they have not received the service from a Goods Transport Agency. In view of this, Tribunal set aside the orders in the earlier appeal allowing the appeal. We also take notice of the fact that under the purchase agreement and the relevant State Act, the price fixed by the State Government of Uttar Pradesh to the farmers for the purchase of sugarcane includes the cost for delivery of sugarcane by the farmer to the sugar mill. Thus, we hold that the actual recipient of the transportation service is the farmer and not the sugar mill, when admittedly transport cost has been recovered from the price of the sugarcane payable to the farmer. In view of this matter, we allow the appeal and set aside the impugned order - decided in favor of appellant-assessee.
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2015 (12) TMI 1603
Validity of assessment order - principles of natural justice - Held that: - It is not the case of the petitioner herein that he was not put on notice or that the authority, who passed the order of assessment, is not having the jurisdiction. On the other hand, the competent authority has passed the order of assessment, after giving due opportunity of hearing to the petitioner which he failed to utilise. Therefore, when the present assessment order having been passed by the competent authority, after giving opportunity of hearing to the petitioner, the same cannot be questioned under Article 226 of the Constitution of India, as the petitioner has to raise all those grounds only before the appellate authority who is also a fact finding authority - Writ Petition is not maintainable.
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2015 (12) TMI 1602
Entitlement to deduction under Section 80IA - Held that:- In a batch of cases, in CIT Vs. Eastman Exports Global Clothing (P) Ltd. [2015 (1) TMI 830 - MADRAS HIGH COURT] this Court had followed the decision rendered in Velayudhaswamy Spinning Mills (P) Ltd. Vs. Assistant Commissioner of Income Tax, [2010 (3) TMI 860 - Madras High Court] held that the provisions of section 80-IA(5) treating undertaking as a separate sole source of income cannot be applied to a year prior to the year in which the assessee opted to claim relief under section 80-IA for the first time. Depreciation and carry forward loss relief to the unit which claims deduction under section 80-IA, cannot be notionally carried forward and set off against the income from the year in which the assessee started claiming deduction under section 80-IA - Decided in favour of the assessee and against the Revenue
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2015 (12) TMI 1601
Bail application - nature of offence - Prevention of Money Laundering - Held that:- As far as the allegations levelled against the present applicant are concerned, I have gone through the statement of the applicant himself. It appears that he was assisting his brother who was dealing with the cricket betting though he might be deciding or circulating the bhav (rate). The investigation is almost over and on completion of investigation, the present complaint has been filed by the authority. I have also considered the fact that the maximum punishment is of 7 years and, therefore, the case of the applicant can be considered by imposing certain conditions.
The application is allowed and the applicant is ordered to be released on bail registered at the instance of the respondent No.2, on executing a bond of ₹ 1,00,000/- (Rupees One Lac only) with two local sureties of ₹ 50,000/- each to the satisfaction of the trial Court and subject to the conditions that he shall;
[a] not take undue advantage of liberty or misuse liberty;
[b] not act in a manner injuries to the interest of the prosecution;
[c] surrender passport, if any, to the lower court within a week;
[d] not leave State of Gujarat and Union territory of Delhi without prior permission of the Sessions Judge concerned;
[e] mark presence with the respondent No.2 every Monday for a period of three months and thereafter on any day of the first week of each English Calendar month for a period of one year;
[f] furnish the present address of residence to the I.O. and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of this Court;
The Authorities will release the applicant only if he is not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter. Bail bond to be executed before the lower court having jurisdiction to try the case. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions in accordance with law. At the trial, the trial court shall not be influenced by the observations of preliminary nature, qua the evidence at this stage, made by this Court while enlarging the applicant on bail.
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2015 (12) TMI 1600
Levy of interest on delayed payment of service tax under Section 75 of the Finance Act, 1994 - imposition of penalties under Sections 76, 77 and 78 of the Finance Act, 1994 - Security Services - appellant had not filed ST-3 returns for the period from October 2004 to March 2005 and April 2005 to September 2005 and they have also not paid the service tax dues pertaining to the said period. On the same being pointed out by the audit party, the appellants paid the service tax of ₹ 22,87,217/- and interest amounting to ₹ 43,350/- on different dates - Held that: - there is no dispute regarding tax liability, which is upheld. The appellant had paid almost the entire amount of service tax due, except a small portion before issuance of show cause notice. It is also observed that the remaining amount was paid immediately after the adjudication order. We find force in the arguments of the learned counsel that the penalty equivalent to service tax, under Section 78 of the Finance Act, 1994 is not warranted in view of the facts of the case. Therefore, penalty imposed under Section 78 of the Finance Act, 1994 is set-aside. However, we find force in the arguments of the learned Authorized Representative that the appellants had not filed ST-3 returns and had not paid the service tax dues though they were aware of their liability. Hence, we uphold the penalties imposed under Section 76 and 77 by the adjudicating authority. As the amount of penalty is not quantified in the order-in-original, we direct the adjudicating authority to quantify the same in accordance with the impugned order-in-original - appeal allowed by way of remand.
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2015 (12) TMI 1599
Demand - port services - storage and warehousing services - Held that: - Ports are statutorily required to handle goods and vessels; to that extent they provide a safe harbour for ships with berths for holding them fast. These are generally presented as pilotage and berth hire. In relation to goods, ports provide space for storage - either in the open or in covered godowns - and ports collect wharfage. Handling of cargo is not a part of the core activities of the port. Even if the port authority in a major port does handle it, it is performed through the Dock Labour Board which is an official stevedore - It would, therefore, appear that ports licence entities to interact with them and with others in relation to vessels and cargo, steamer agents, stevedores, ship chandlers, etc., which are not in the nature of authorisation to perform such activities that the port otherwise undertakes.
Storage and warehousing service - Held that: - the definition of ‘storage and warehousing’ in Section 65(102) of Finance Act, 1994, we find, that it specifically excludes service in relation to agriculture produce. On this count, too, the demand of tax on the service rendered by the appellant is untenable - The appellant handles cargo which involves loading, unloading and transporting. Moreover, such handlers are often required to provide space for aggregation and security of cargo till they are ready to be moved to the vessels carrying these. The ‘storage and warehousing’ that is intended to be taxed is a specialised field that has for long held a vital position in commodity logistics. Such warehousekeepers are recognised in law as transit custodians with enacted responsibility and rights over the goods. Even to the extent of according the right of transfer of ownership through the transfer of warehouse receipt. The storage space provided by the appellant does not fall within that category but is one of renting of space. The demand of tax, therefore, is not sustainable.
Appeal allowed.
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2015 (12) TMI 1598
Manufacture - various types of scrap/waste of packing material remaining after removal of inputs therefrom and the scrap of grinding sludge and used/mixed oil and effluent water - as all the waste and scrap are excisable, the duty was sought to be demanded on the value of waste other than the scrap of grinding sludge - Held that: - the scrap of packing material is nothing but scrap/waste of packing material in which the appellants have received various inputs required for manufacture of final products. These scrap/waste have not been manufactured by the appellant and have not been arisen during the course of manufacturing of their final products. Therefore the said scrap/waste have not passed the test of manufacture. In the circumstances, the duty is not payable as held by the Apex Court in the case of West Coast Industrial Gases Ltd. (supra). As the waste and scrap does not pass the test of manufacture, therefore, no duty is payable by the appellants.
Demand - Emergence of scrap of grinding sludge and used/mixed scrap of effluent water - Held that: - the entire quantity of duty paid inputs have been used in relation to the manufacture of dutiable final product. For manufacture of required quantity of final product, the appellants used predetermined quantities of the inputs resulting in the emergence of the dutiable final product. Therefore, it is not possible for the appellant to manufacture the desired dutiable final product by using a lesser quantity of the inputs, so as to avoid the generation of the waste. Therefore the entire quantity of the duty paid inputs was used in the manufacture of final products and not in relation to the manufacture of the waste/scrap. Therefore, the emergence cannot be waste part of the goods have been used to manufacture such waste.
THE waste is not on account of manufacture, therefore, the appellants are not liable to pay duty. - appeal allowed.
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2015 (12) TMI 1597
Disallowance of CENVAT credit - penalty imposed - Held that:- Proceedings against the appellant were initiated much after the disputed amount was fully paid. It would appear the payment under protest has prompted such proceedings. In any case, the appellant never disputed the issue on merits from the beginning except to the fact that the reversal was made under protest. This is also a fact that the credit availed was reflected in the statutory records and the eligibility was examined by the audit from such records only. The Original Authority considered the facts of the case and did not impose penalty. The Appellate Authority imposed equal penalty on the ground that the demand covered extended period. As already noted when the need for issue of demand itself is not properly justified, there is no ground to impose equal penalty in the present case.
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2015 (12) TMI 1596
Refund claims hit by the bar of unjust enrichment in terms of Section 12B - Held that:- We find that the Assistant Director (Cost) of the department indicated in his report dated 23-12-2005 that in the year 2003-04 a sum of ₹ 30,35,826/- was deposited as duty under protest. The said amount was shown as ‘loans and advances’ in the balance sheet. The AD (Cost) further indicated that the costing of some varieties also shows that the cost did not include 15%. In his further report dated 23-2-2006 he stated that the respondent have not passed on incidence of said duty to their customer. We also notice that in this case the respondent is a job worker and showing the excise duty separately in the Excise invoice. Further, the respondent had also submitted a certificate of Chartered Accountants to state that they (respondents) had not recovered excise duty on additional 15% cost of grey fabrics from the customers.
There is no legal basis to interfere with the impugned order. No valid ground has been made out in the appeal filed by the Revenue.
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2015 (12) TMI 1595
Value determination for cenvat credit - payment of duty at the rate applicable at the time of clearance in terms of Rule 3(4) of Cenvat Credit Rules, 2002 - whether word used in Rule 3(4) of Cenvat Credit Rules, 2002 is “such goods” and not “said goods” - Held that:- We find the provision of sub-rule (4) of Rule 3 and the subsequent clarifications of the Board are very clear. The amount of duty on the goods cleared as such on which Cenvat credit was availed earlier by the manufacturer will be governed by the said Rules. We do not find any reason to interpret “such goods” or “said goods” in this situation. The goods on which credit has been availed has been cleared as such and duty applicable on the date of such clearance has been paid. We find no ground to interfere with the impugned order. Accordingly the appeal filed by the Revenue is dismissed.
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2015 (12) TMI 1594
Remission of duty on raw materials, finished goods and work in progress - loss by fire - Held that: - the ld. Commissioner have erred in rejecting the claim on extraneous considerations, in view of the consent to operate granted by the ‘Fire Department’. Further, the Fire Department (Competent Authority) have certified that there is no foul play, and fire is due to reasons beyond control. In this view of the matter, we set aside the impugned order so far remission have been denied on semi-finished goods or work in progress and the finished goods. The appellant, it is held, is entitled to remission on loss of finished goods and semi-finished goods - appeal disposed off - decided partly in favor of appellant.
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2015 (12) TMI 1593
Clandestine removal of goods - manufacture of Industrial Valve - descriptions of the goods are not tallying between the invoice and the purchase order - Held that: - I find that both the lower authorities rejected the refund claim only on the ground that some of the reference and description of goods are not tallying between the invoice and the purchase order issued by the customer. However, the facts that the price was charged on higher side and excess duty paid thereupon is not under dispute. I find that to avoid any doubt or confusion on the fact that whether the price was charged wrongly on higher side and accordingly excess duty was paid, the customer M/s. BPCL issued a letter where it was mentioned that the actual unit price for the item is ₹ 36495 but the appellant has wrongly invoiced at ₹ 3,64,495/-. Accordingly, corresponding value and the duty was also charged on the higher side. However, the customer have corrected the invoice and the payment towards that invoice No. 439 dt. 30.4.2009 was made as per the reduced/corrected amount. I have also observed that in the payment advice issued by M/s. BPCL, it is clearly mentioned therein that against the invoice No. 439 dt. 30.4.2009 the payment of only ₹ 6,76,732/- was made, as against the value shown in the invoice i.e. ₹ 14,15,748/-.
All the doubt stands cleared that the appellant has charged higher amount inadvertently and accordingly the excess duty was also paid. With the above factual position, I do not find any reason why the refund should not be granted to the appellant for the excess paid duty. As per my above discussion, I am of the considered view that the appellant is entitled for the refund in respect of excess paid duty. I therefore set aside the impugned order and allow the appeal.
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2015 (12) TMI 1592
Penalty u/s 271(1)(c) - no return of income was submitted by the assessee for the assessment year under consideration - Held that:- Concealment of particulars of income, if any, has to be seen with reference to the return and not in any other manner and as that where no return is filed, it cannot be said that assessee had concealed the particulars of income. The context in which language used by the Legislature showed that it is the act of commission of default which is subject to penalty and not the act of omission. Explanation 3 to section 271(1)(c) of the Act, is not applicable to the existing assessee. See Yeshwant B. Chigteri Versus Assistant Commissioner Of Income-Tax [1999 (12) TMI 137 - ITAT PUNE] - Decided in favour of assessee
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2015 (12) TMI 1591
Implementation of Order of the CEGAT dated 26-7-1993 - Held that: - the ground on which the application for implementation of the order dated 26-7-1993 was rejected does not survive. Hence, there can be no alternative before this Court than to direct for release of the seized gold ornaments to the petitioner after observing necessary formalities within a period of three months from the date of this order - writ petition disposed off.
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2015 (12) TMI 1590
Whether pulses seized from a godown within two kms of the Indo-Nepal border were attempted to be exported to Nepal - Held that: - It has also been observed by the first appellate authority that the factors of improper transactions in procuring of seized goods can best indicate some lacuna in the functioning of trading activity and cannot be termed as attempt to export - In the present appeal pulses are not specified goods under Chapter-IV of the Customs Act, 1962 to infer that bringing into specified area could be with an intention to export the same out of India - Appeal dismissed.
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