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Case Laws
Showing 301 to 320 of 1255 Records
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2015 (5) TMI 961
Denial of refund claim - Unjust enrichment - Held that:- First appellate authority has totally misdirected himself in recording a finding in respect of an Order-in-Original which was not in appeal before him nor aggrieved party in that case had filed an appeal. In our view, the first appellant authority should have disposed of this appeal on its merit. Be that as it may, since the issue involved in this case needs to be factually verified from the records as to the claim of the appellant that they have borne the incidence of duty, we set aside the impugned orders and remand the matter back to the adjudicating authority to reconsider the refund application afresh. We direct the adjudicating authority to restore the refund applications back to their original number and dispose of on merits, after following the principles of natural justice. - Appeal disposed of.
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2015 (5) TMI 960
Imposition of redemption fine - appellant imported vessels, ships for breaking purpose only and not for trading - Held that:- Tribunal in the case of RK Industries and Others Vs. CEC., Jamnagar [2015 (9) TMI 369 - CESTAT AHMEDABAD] set aside redemption fine and penalty. The Tribunal followed the earlier decision in the case of AG Enterprises and Others VS. CC (Preventive), Jamnagar, [2014 (8) TMI 44 - CESTAT AHMEDABAD] - Redemption fine and penalty is set aside - Decided in favour of assessee.
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2015 (5) TMI 959
Valuation - additions - Difference in moisture content of the consignments of M.T. Copper concentrate imported by the assessee, at the time of loading the consignment at the port of shipment and at the time of importation - Held that:- Revenue has tried to make a distinction on facts which we are not inclined to appreciate. It does not make any difference whether the present case is one of the High Sea Sales which was not the fact before the Apex Court. Hon'ble Apext Court has held that once freight is included in the assessable value up to the port of unloading then no further expenses on account of lightrage and stevedoring can be added to the cost of transportation. We find that there is no difference on facts and the law laid down by Apex Court in the case of Ispat Industries Limited vs. CC, Mumbai (2006 (9) TMI 181 - SUPREME COURT OF INDIA) will be squarely applicable.
Once a consignment has been imported under one invoice, the same will represent the transaction value of the imported goods as no contrary evidence of extra repatriation to seller is available on record - there could be a difference in the moisture content of the copper concentrate of the port of loading and port of discharge, depending upon the climatic conditions and the method of sampling. However, to our mind, such a variation will not have any bearing on the valuation for an agreed price which has been paid. The ratio of the case law laid in the case of CC (Prev.), Jamnagar vs. Gujarat Ambuja Limited, Jamnagar (2012 (6) TMI 177 - CESTAT, AHMEDABAD) is squarely applicable to the issue - Decided against Revenue.
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2015 (5) TMI 958
Confiscation of goods - whether or not Zinc Scrub imported by the appellant at the Port not authorised for the import of Zinc Scrub is liable to confiscation - Held that:- The appellant was aware that the import of Zinc Scrub was not permissible through ICD Sanand and ignorance cannot be pleaded. Before filing of bill of entry, appellant had not requested for transhipment of imported consignment through ICD Khodiyar by which the bonafide of the appellant would have become cleare. Instead of asking for any such transhipment, appellant preferred to file Bill of Entry for Zinc Scrub at ICD Sanand which was not permissible ICD for clearance of Zinc Scrub. It is well settled proposition of law that ignorance of law is no excuse especially in the present proceedings when the appellant was a regular importer of Zinc Scrub imported through ICD Khodiyar. Accordingly, the imported goods Zinc Scrub through ICD Sanand have been correctly held to be liable to confiscation/redemption fine and imposition of penalty. The Commissioner (Appeals) has already extended sufficient benefits to the appellant by reducing the redemption fine from ₹ 4.5 lacs, imposed by the Adjudicating Authority to ₹ 2.5 lacs. Penalty imposed upon the appellant under section 12 of the Customs Act 1962 has also been substantially reduced from ₹ 2.5 lacs to ₹ 1 lac by the First Appellate Authority. In view of the above observations and the case laws relied upon by the Learned Authorised Representative, there is no reason to interfere with the order passed by the First Appellate Authority which is required to be upheld. - Decided against assessee.
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2015 (5) TMI 957
Confiscation of goods - Imposition of penalty on CHA - Redemption fine - Tribunal held that the appellant-exporter and CHA have completed all formalities and as the goods were handed over to the shipping agent, there is no control over the goods and therefore, in the circumstances, the appellant and CHA cannot be penalized - Held that:- Commissioner of Customs (Export) is directed to implement the order of this Tribunal within a period of three weeks and file the status report of such compliance having been made. Even in case of any difficulty therein in compliance of the order, the status report be filed within three weeks before this Tribunal giving the time frame within which the order will be implemented. - Decided in favour of appellant.
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2015 (5) TMI 956
Confiscation of goods - appellant could not explain the proper importation of the bike and took a view that he did not have valid documents - Held that:- It was given to him by a film producer because his dues could not be paid. Even then I have to take note that the vehicle had been duly registered and therefore it cannot be said that appellant had knowledge of the vehicle having been illegally imported even if it is so. Further the reply given by the Transport authorities also supports the case of the appellant. Under these circumstances, it cannot be said that appellant has smuggled the vehicle and therefore is liable to penalty. In view of the above, appeal is allowed and impugned orders are set aside. - Decided in favour of assessee.
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2015 (5) TMI 955
Seizure of goods - Discrepancy in stock - Imposition of penalty - Held that:- There is a clear admission statement about diversion of goods to the local market from the duty free shop. Seizure of goods have not been questioned. In such a situation, it is quite clear that the appellants are involved in diversion of duty free goods to the local market. Nevertheless, however, the entire quantity of goods have been confiscated and not allowed to be redeemed on payment of fine also. This would show that appellants have already lost the amount involved as far as the value of goods is concerned. Having regard to the fact that appellants are employees of the company and there is no evidence to show how much money they have earned by such activities, I consider that some reduction in penalty is warranted - Decided partly in favour of assessee.
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2015 (5) TMI 954
Denial of refund claim - service tax paid in respect of CHA service - Claim was rejected on the ground that invoices of the CHA did not contain the Shipping Bill number & date, description of goods exported and number & date of invoice issued by exporter - Held that:- ervice should have been received in respect of the Shipping Bill and the exporter should be able to show it to be so. In this case, the only ground on which benefit of refund has been rejected is invoice issued by CHA did not have the necessary details. This ground cannot be sustained. Accordingly, the benefit of refund of service tax paid in respect of CHA service has to be allowed.
GTA Service - Held that:- appellants have admitted before the Commissioner that they have no evidence to show link of GTA service with export documents. However, the appellants have sought another opportunity to produce the documents and evidence before the original authority. In any case, the matter has to be remanded to the original adjudicating authority and therefore, there is no harm in allowing the appellants to make another attempt to convince the original adjudicating authority. Accordingly, the impugned order is set aside - Decided in favour of assessee.
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2015 (5) TMI 953
Transfer pricing adjustment - selection of comparable - Held that:- Job profile of MOIAPL was different as compared to the activities undertaken by the assessee.It was rendering investment advisory services, specifically related with real estate business whereas MOIPAL is a merchant banker.So,we hold that MOIAPL is liable to be excluded from the final set of comparables.
It is further found that the TPO selected two more comparables, besides MOIAPL, while determining the TP adjustments. We find that the assessee had objected to the inclusion of those two comparables before the DRP. The DRP has not given any direction in that regard. The DRP had passed order about MOIAPL only and has not mentioned anything in favour or against the inclusion of the remaining two comparable. In our opinion, the DRP, being a appellate forum, is supposed to decide the issue raised before it by the assessee. Not only the DRP failed to pass a speaking order about those two comparable,but it also did not pass a rectification order with regard to the application filed by the assessee,u/s.154 0f the Act.
Therefore, we are of the opinion, that in the interest of justice matter should be restored back to the file of the DRP who would give a clear direction about the remaining two comparables selected by TPO and objected by the assessee. The DRP would afford a reasonable opportunity of hearing to the assessee before deciding the appeal. Additional ground of appeal raised by the assessee,before the DRP was not adjudicated upon. We direct the DRP to decide the same.
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2015 (5) TMI 952
Waiver of pre deposit - Penalty u/s 114A - imposition of penalty jointly and severally - Held that:- Appellant has not appeared before the Adjudicating authority or before the lower appellate authority inspite of personal hearing was granted by both the authorities below. Upon a perusal of the Order-in-Original, it was found that the Adjudicating authority demanded Customs duty and also confiscated the goods and imposed penalty on the importer M/s. Narayan Impex and also imposed penalty on the appellant and others. The appellant’s prayer before the Commissioner (Appeals) is against the penalty of ₹ 52,56,555/-. Since it is clearly established the entire advance licence has been obtained fraudulently, as has been clearly brought out in the Order-in-Original at P.23, prima facie, as the role of Shri Ram Gopal Kudal has been established. - Partial stay granted.
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2015 (5) TMI 951
Depreciation at 100 per cent. on the leasehold improvements - Held that:- Expenditure incurred by the assessee for design, layout and material construction, fabrication works in leased premises are deductible as revenue expenditure. High Court in the case of Thiru Arooran Sugars Ltd. v. Deputy CIT in Tax Case (2013 (2) TMI 450 - Madras High Court ) held that Explanation 1 to section 32(1) of the Income-tax Act, 1961, which was inserted with effect from April 1, 1988, is an exceptional one which permits depreciation in cases where the assessee does not own a building in respect of which, the assessee incurs capital expenditure on the construction of any structure or doing of any work, in or in relation to, and by way of renovation or extension of, or improvement to the building. Further, it was held that the temporary structure by means of false ceiling and office renovation had not resulted in any capital expenditure. The benefit of the above decision, applies to the facts of the present case - Decided against revenue
Disallowance under section 14A - CIT(A) restricted addition to 2 per cent. instead of 5 per cent. added by the Assessing Officer - Held that:- After considering the totality of facts and circumstances of the case and placing reliance on the co-ordinate Bench in the case of Celebrity Fashions Ltd. [2012 (4) TMI 602 - ITAT CHENNAI], wherein it was held that disallowance of 5 per cent. of the dividend/exempted income is reasonable expenditure. Accordingly, we reverse the order of the Commissioner of Income-tax (Appeals) and restore the order of the Assessing Officer. - Decided against assessee
Exclusion of telecommunication charges from the total turnover for the purpose of computation of deduction under section 10A - Held that:- Tribunal in the case of ITO v. Sak Soft Ltd. [2009 (3) TMI 243 - ITAT MADRAS-D] wherein it was held that for the purpose of applying formula under sub- section (4) of section 10B, the freight, telecom charges and insurance attributable to the delivery of articles or things, or computer software outside India or the expenses, if any, incurred in foreign exchange in providing technical services outside India are to be excluded, both from the export turnover and from the total turnover, which are the numerator and the denominator, respectively, in the formula. Respectfully following the aforesaid decision of the Tribunal, we are inclined to direct the Assessing Officer to exclude the telecommunication charges both from the export turnover as well as from the total turnover while computing the deduction under section 10B of the Act.
Gain on account of delay in realisation of export proceeds or on account of EEFC account - Held that:- We direct the Assessing Officer to verify the exchange gain, as to whether the fluctuation is on account of delayed realization of export proceeds or not, and if it is on account of delayed realization of export proceeds, it is to be considered as business income eligible for deduction under section 10A of the Act.
Depreciation on software expenses - 60% OR 25% - Held that:- Appendix I, Rule 5 as entry No. (5) from the assessment year 2006-07 onwards, suggests that computers including computer software is entitled for depreciation at 60 per cent. and being so, we do not find any infirmity in granting depreciation at 60 per cent. on software expenses
Set off of the brought forward unabsorbed depreciation of earlier years against the profits of the undertaking before allowing the deduction under section 10A - Held that:- While computing deduction under section 10A, brought forward unabsorbed depreciation of earlier years to be set off against the profits of the undertaking. See case of Himatsingka Seide Ltd. v. CIT [2013 (10) TMI 823 - SUPREME COURT]
Set off the unabsorbed depreciation against the short term capital gains disallowed while computing the income chargeable under head "Capital gains" - Held that:- It is seen that the entire unabsorbed depreciation was set off against the business income of the assessee. Therefore, no unabsorbed depreciation was available for the purpose of set off against the income from any other head. Hence, we do not find any merit in the plea of the assessee to set off the unabsorbed depreciation against the short term capital gain
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2015 (5) TMI 950
Reopening of assessment - capital gains earned by the assessee should be assessed as such or as business income - Held that:- The legal position has been summarised that the capital gains earned by the assessee should be assessed as such and not as business income. Thus, each of the queries which have been raised came to be replied and, then, there is a further communication on December 11, 2009, under which the petitioner furnished the details of profits on share credit and calculated in the manner set out in this communication. The share transactions on which the short-term capital gains and long-term capital gains were computed were thus available. We find reference being made to the membership of the petitioner of the stock exchange and the gains which have been declared so also the total income. There is further reference to all the communications from the petitioner.
We find that the issues and which are the subject matter of the impugned notice have been examined and duly considered. The issue of disallowance under section 40(a)(ia) of the Income-tax Act has been dealt with from paragraph 6.1 onwards. In the circumstances, we do not find as to on what basis the assessment could have been reopened. If not only the main contention and stand of the assessee has been dealt with but even the alternate contention and there is a reference to all the details which were supplied, then there was no reason at all for reopening the assessment. We have also been shown the details in the books of account. The break-up of income is extensively referred even in the assessment order. Thus, the present one is a clear case of reopening of the assessment on a mere change of opinion and that such a course is impermissible in law is by now well settled.
We do not, therefore, find that the reasons which have been recorded for reopening the assessment meet and satisfy the statutory pre-conditions. Those having not being satisfied, there is no alternative but to quash and set aside the impugned notice and the assessment order following the same. - Decided in favour of assessee.
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2015 (5) TMI 949
Commercial Training & Coaching - Benefit of Notification 24/04-ST dated 10.09.2004 as amended by Notification 3/10 dated 27.02.2010 - Scope of Section 65(27) of the Finance Act, 1994 - Held that:- In the absence of any evidence which would indicate that the training imparted by the respondent does not enable the trainee to 'seek employment or undertake self employment, findings of the first appellate authority as factual matrix are uncontested and are to be held as correct. - training imparted by the respondent herein and as recorded by the first appellate authority would definitely get covered under the category of Finance Executive in Non-engineering trades as notified by the Apprentices (Amendment) Act. Accordingly, we hold that in fact the judgment of the Tribunal in the case of Sadhana Educational & People Dev. Services Ltd. (2013 (12) TMI 735 - CESTAT MUMBAI) supports the case of the respondent. - Decided against Revenue.
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2015 (5) TMI 948
Interest u/s 75 - delayed payment of service tax - Equivalent penalty for non-payment of interest - Held that:- Jurisdictional authority has worked out the actual number of days delayed for payment of service tax for each amount received from August, 2004 to December, 2004 and he has also worked out the number of days of delay which varies from 150 to 28 days and the total interest amount payable was quantified as ₹ 73,369 - amount re-quantified by the department is the correct interest amount payable for the delayed payment of service tax. Therefore, there is no infirmity in the impugned order directing the adjudicating authority to re-quantify the interest. Further, I do not find any valid ground put forth by the Revenue against dropping of penalty by the Commissioner (Appeals). The lower appellate authority has waived the penalty taking into consideration of the fact that the respondent has already paid the service tax. Considering the interest amount itself is reduced from ₹ 1,33,004/- to ₹ 73,369/-, I do not find any infirmity in the impugned order in so far as setting aside the penalty. Accordingly, revised interest amount of ₹ 73,369/- worked out by the department as per the direction of the Commissioner (Appeals) is upheld and waiver of penalty is upheld - Decided against Revenue.
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2015 (5) TMI 947
Waiver of pre deposit - consulting engineering services - Service provided in SEZ - Held that:- It is the case of export of service outside India as the applicants has provided services to the service recipient located outside India. Further for the project of Debhol Restart, they have discharged the service tax liability. For the project namely, JERP, the unit is located in SEZ and for the project KG-D 6 the unit is located outside the territory of India. In these circumstances, applicant has made out a case for complete waiver of requirement of pre-deposit. Consequently amount already deposited by the appellant is sufficient for compliance with the provisions of Section 35 F of Central Excise Act, 1944 read with Section 83 of Finance Act, 1994, for waiver of requirement of pre-deposit of service tax, interest and penalties. Consequently, we waive the requirement of pre-deposit of balance amount of Service Tax, interest and penalties and stay recovery thereof during pendency of the appeals. - Stay granted.
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2015 (5) TMI 946
Waiver of pre deposit - Validity of order passed by Tribunal - Tribunal directed the first appellate authority to disposed of the matter in the light of decision in the case of ONGC within 3 months - Held that:- State of Gujarat brought it to the notice of the learned Tribunal that the decision of the learned Tribunal in the case of ONGC is challenged before the High Court and the High Court has admitted the appeals and the appeals are pending for final disposal and therefore, the High Court is seized with the matter. Despite the aforesaid brought to the notice of the learned Tribunal, the learned Tribunal not only dismissed the said applications by not removing the outer time limit fixed by it directing the first appellate authority to decide the appeals within a period of three months after following its earlier decision in the case of ONGC Limited, reiterated again and directed the first appellate authority to decide the appeals within stipulated time after following its decision in the case of ONGC Limited.
Once it was brought to the notice of the learned Tribunal that the appeals against its decision in the case of ONGC Limited are pending before this Court and this Court is seized with the matter, even to avoid any further multiplicity of proceedings, the learned Tribunal could not have insisted for disposing of the appeals by the first appellate authority following its earlier decision in the case of ONGC Limited, which are the subject matter of appeals before this Court and that too within stipulated period - respondent - original appellant has stated at bar that he has no objection, if that part of the order, by which the learned Tribunal has directed the first appellate authority to decide the appeals within three months and that too after following the decision of the Tribunal in the case of ONGC Limited is quashed and set aside.
If the respondent - original appellant is permitted to withdraw the amount, which the respondent - original appellant deposited pursuant to the interim order dated 25.6.2013 passed by the learned Tribunal in First Appeal Nos.11 and 12 of 2013 i.e. ₹ 18,69,75,730/- on furnishing unconditional and irrevocable Bank Guarantee of the like amount in the name of the Commissioner of Commercial Tax, it will make the ends of justice and it will protect the interest of both the parties. - Decided partly in favour of Revenue.
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2015 (5) TMI 945
Claim of interest on refund with refund - Refund not granted inspite of order of High Court - Levy of sales tax – turnover - shame transactions for obtaining loan from bank - Held that:- From a cursory reading of Rule 34, it is evident that the said rule mandates that the assessing authority shall give effect to the order of the High Court (Special Tribunal) within three months from the date of communication of the order. It is clear from the above provisions that there appears to be no other option except to comply with the order of the High Court (Special Tribunal), except where the order in issue is challenged in a higher forum and the order has been stayed. - Supreme Court in SCBA - Vs - B.D. Kaushik (2012 (9) TMI 560 - SUPREME COURT), while considering the scope of the Court to entertain miscellaneous petitions after delivery of judgment in the main petition, held that to do complete and substantial justice to the parties in the proceedings, when the miscellaneous petition filed is curative in nature and not used for supplanting substantive law, in exercise of inherent powers, shall entertain such petitions for implementing the orders of the Court.
Power of the Court does not end with the passing of the order, but more so, in seeing that the order is implemented in letter and spirit, howsoever difficult it may be. In case where the orders passed by the Court are not implemented, the Court, in exercise of the inherent powers, should see to it that the orders passed by the Court are implemented. - Insofar as the interest for the delayed payment is concerned, Rule 34 mandates that the assessing authority shall refund without interest within three months from the date of communication of the order, any excess tax found to have been collected. A reading of Rule 34 makes it abundantly clear that beyond the period of three months from the date of communication of the authorisation (order of the High Court), any delay in refund of excess tax is liable to attract interest and the department is bound to pay the same. In the present case, inspite of the order being despatched by this Court on 15.4.2014, almost a year having passed, the department has not refunded the amount back to the petitioner. Therefore, invoking Rule 34, the petitioner is entitled to interest on delayed payment beyond the period of three months from the date of communication of the order. Therefore, this Court is of the considered view that the department is liable to pay interest on the amount deposited by the petitioner pursuant to the order of this Court dated 3.8.2010, as provided under Rule 34 of the Rules. - Decided in favour of assessee.
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2015 (5) TMI 944
Remission of duty - Whether the remission of duty involved on storage loss of molasses be allowed even without filing of remission application though prescribed specifically in the statute under Rule 21 of Central Excise Rules, 2002 - Held that:- Notification only prescribes outer limit up to which excisable goods can be said to have been lost in natural course, with reference to the particular good. Such prescription of the outer limit will not mean that the statutory provision for claiming such remission are to be given a go by. It is not open to the assessee to himself determine the remission because of alleged loss even if it is within the permissible limits. - even if in the facts of the case, the assessee claims remission from excise duty of goods said to have been lost in natural course, within the permissible limit, as per the circulars, he has to follow the procedure prescribed under Rule 21 of the Rules. Only after an order is made granting remission in respect of the goods so lost due to natural circumstances, he could be exempted from payment of excise duty. - Since Tribunal did not consider this aspect, Matter remanded back - Decided in favour of Revenue.
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2015 (5) TMI 943
100% EOU - Exemption under 136/94-CE - Double jeopardy - Non fulfillment of export obligation - Import of goods before 2003 - Confiscation of goods - Imposition of penalty - whether the duty foregone at the time of procurement of impugned goods is recoverable or not - Held that:- there cannot be any doubt/dispute that for the goods procured prior to 31.3.2003, the conditions of Notification No. 52/2003-Cus dated 31.3.2003 and 22/2003-CE dated 31.3.203 would be of no avail.
Whether the duty foregone at the time of procurement of impugned goods is recoverable or not - Held that:- Impugned goods imported duty free were clearly rendered liable to confiscation as they were cleared duty free under Notification No. 126/94-Cus. but the condition of exemption was not fulfilled by them. - No disability in the Rule 173Q which makes it inapplicable to 100% EOU. - Rule contains Sub-Rule (1) and Sub-Rule (2) and Sub-Rule (2) only states that An order Sub-Rule (1) shall be issued by Central Excise officer following the principles of natural justice . Thus non intention of Sub Rule of Rule 25 ibid has in no way prejudiced the appellants.
Appellants contention of double jeopardy on the ground that they have already been penalised under the FTDR Act, 1992 is totally invalid as the ingredients of offences under the FTDR Act and the Customs Act, 1962/Central Excise Act, 1944 are different.
It needs to be appreciated that this case does not involve clandestine removal of goods or any wilful mis-statement or suppression of facts and even the appellate body of the DGFT in the given circumstances had taken a lenient view with regard to imposition of penalty for the violation of the provisions of the Foreign Trade Development and Regulation Act. In these circumstances the penalties imposed deserve to be substantially attenuated. - Decided partly in favour of assessee.
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2015 (5) TMI 942
Imposition of penalty - Non furnishment of documents - Change in penalty section from section 117 to Regulation 5 of the Customs Regulations 2011 - Held that:- There is no mala fide intention on the part of the importer to evade any duty and was following a practice. Appellant in reply to the show cause notices asked for extension of time which the Adjudicating Authority should have allowed - Adjudicating authority imposed penalties under Section 117 of the Customs Act 1962 by penalties so imposed were held to be imposable only under Regulation 5 of the Customs (Provisional Duty Assessment) Regulations 2011. This was not the subject matter of the show cause notices. Therefore, above findings arrived at by the First Appellate Authority are required to be rejected, as he cannot go beyond the scope of show cause notices when the same is not agitated by the Revenue. - Decided in favour of assessee.
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