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Case Laws
Showing 301 to 320 of 1167 Records
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2012 (7) TMI 875
Denial of rebate claim - non-submission of certain documents - unjust enrichment - certain supplies were made only to contractor and Bill of Exports were not filed - Held that:- Concept of unjust enrichment is not applicable in the matters of exports, as stands specified in the first proviso to sub-section (2) of Section 11(b) of Central Excise Act, 1944. - there are some differences in the stated factual details such as non-availabilities of relevant required documents and also details contained in submitted documents - Since the supplies are made to SEZ developer/Co-developer and contractors the Central Excise Invoices are issued on the name of buyers. It is observed that in case contactors, invoices were to be issued on the name both contactors and co-developers/developers as required under SEZ Rules. The rebate claim will be admissible if the duty paying document are valid and there is no discrepancy in such document.
Case matter involves provisions of implementation of Special Economic Zone Act, 2005 and Special Economic Zone Rules, 2006 which has an overall overriding effect - excisable goods manufactured by the registered factory and cleared on payment of Central Excise Duty as per the invoices/ARE-1s/Bill of Export which clearly indicates the consignee’s place as an SEZ. The goods are received in full in SEZ as per certification of Customs Officers recorded on the relevant ARE-1s/Shipping Bills/Bill of Exports. The receipt of said goods in SEZ is not disputed in these cases. - Since the verification of requisite documents as observed in foregoing para is required to be done by original authority to determine the admissible rebate claim amount, the case is required to be remanded back for fresh consideration. - Matter remanded back - Decided in favour of assessee.
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2012 (7) TMI 874
Denial of rebate claim - Payment of duty from unutilized CENVAT Credit - whether the rebate of “duties” actually paid out of the unutilized cenvat credit lying in balance with 100% EOU at the time of conversion to DTA Unit, on the goods exported by applicant, can be granted under Rule 18 of Central Excise Rules, 2002 read with Notification No. 19/04-C.E. (N.T.), dated 6-9-2004 - Held that:- When statutory provisions of Rule 18 of the Central Excise Rules, 2002 read with Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 are read in proper perspective along with Instructions contained in Chapter 8 (Rule 8.4) of C. B. E. & C.’s Excise Manual of Supplementary Instructions then it becomes clear that rebate of duty paid at the time of clearance of export goods, is admissible. All the rebate claims under reference stands filed within the ambit and scope of above said provisions of law. In this case payment of duty is disputed as the same was paid from lapsed cenvat credit.
The clarification by C.B.E. & C. Circular No. 77/99-Cus., dated 18-11-1999 (F. No. 305/128/99-FTT) is also applicable to instant case where 100% EOUs were converted into DTA Units. The CBEC Circular categorically states that cenvat credit lying in balance on the date of conversion would lapse and cannot be utilized after such conversion. Moreover, the Rule 10 of Cenvat Credit Rules, 2004 stipulates the situations where a manufacturer can transfer the unutilized cenvat credit to another unit. The said Rule does not permit transfer of unutilized cenvat credit lying in balance in case of conversion of an 100% EOU to DTA Unit. There is no statutory provision to allow transfer of such credit from 100% EOU to DTA Unit. As such it is rightly held by original authority that such credit has lapsed and cannot be utilized for payment of duty on goods exported by DTA Unit. - Decided in favour of Revenue.
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2012 (7) TMI 873
Levy of penalty u/s 45[2][c] & 45 [6] of Gujarat Sales Tax Act, 1969 - Intention to evade tax - Held that:- The appellant has exported under Duty Entitlement Pass Book (for short DEPV) which was not taxable as goods at the time of filing the return, though the sales were recorded in the books of account as tax free. DEPV was same as REP licenses. They were treated as goods in view of decision in Yasha Overseas (2008 (5) TMI 43 - SUPREME COURT ). In either of the scheme, the licenses are known as DEPB. The Hon'ble Apex Court has held that the nomenclature may be different in different schemes but they are one and the same scheme considered within the definition of goods. - Prior to the decision in the case of Yasha Overseas V/s. Commissioner of Sales Tax and Others (2008 (5) TMI 43 - SUPREME COURT ) these goods were non-taxable but after the Hon'ble the Apex Court clarified the liability, they have become taxable. Therefore, there was no intention of the assessee to avoid payment of tax deliberately.
Appellant was litigating under the bonafide belief that the goods exported were exempted from payment of Sales Tax and for the first time, the goods become taxable after the decision of the Hon'ble the Apex Court in the case of Yasha Overseas V/s. Commissioner of Sales Tax and Others (2008 (5) TMI 43 - SUPREME COURT ) and thereafter, the appellant deposited the tax interest and penalty - penalty could not have been imposed on the appellant and that there was no intention of the appellant to evade the payment of Sales Tax - Decided in favour of assessee.
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2012 (7) TMI 872
Denial of refund claim - Cenvat credit - maintainability of appeal - Held that:- Since in the instant appeal the amount involved is ₹ 50,904/- only, in view of the circular dated 20-10-2010, the appeal could not have been preferred by the Central Excise and Customs Department before this Court. It cannot be gainsaid that the Department is bound by its own circulars. Though the appeal has been admitted, we did not go into the substantial question of law formulated by this Court. As we have recorded in our order in Tax Appeal No. 1294 of 2011 on being informed from the side of the Department, it may be stated that after circular dated 17-8-2011 no other circular has been issued by the Ministry of Finance, Department of Revenue Central Board of Excise and Customs, Government of India, New Delhi, authorizing the Department to file appeals where the amount is less than ₹ 10 lacs. - Decided against Revenue.
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2012 (7) TMI 871
Suo-motu exercise of revisional powers by CCT u/s 22A of the Karnataka Sales Tax Act, 1957 - Mode of availing the concession - Held that:- The requirement of sub-section (4) of section 8 of the CST Act in itself is for the purpose of claiming the benefit of the lower rate of tax as indicated in subsection (1) of section 8 of the CST Act - on a proper and harmonious reading of section 8(5) of the CST Act after the amendment and even after inserting of the reference to the requirement of section 8(4) of the CST Act by a dealer requirement in sub-section (4) of the CST Act is one which is confined and restricted to a situation covered by the provisions of sub-section (1) of section 8 of the CST Act and it cannot in any way affect or control the exemptions granted vis-a-vis tax liability and the rate of tax as indicated in section 8(2) of the CST Act, i.e., the amendment cannot have any bearing or effect in respect of exemptions granted to inter State sales turnover either the class of dealers with reference to the goods or otherwise who are not registered dealers and not Government - restriction brought about by the amendment cannot regulate or effect an exemption if has been granted or is to be given in respect of inter State sales turnover effected in favour of non-registered dealers and other Governments - this is the only proper way of understanding of the amendment as we find that sub-section (5) of section 8 of the CST Act is an enabling provision to grant exemptions in situations where it is a case of levy of tax under the CST Act.
On a reading of the plenary legislation and the notification issued being only to effectuate that, there was no conflict in the view expressed by the division Bench earlier upholding the notification - this is the only possible way of giving full effect to the exemption provision u/s 8(5) of the CST Act and at the same time effectuating the restrictions imposed therein insofar as inter State sales turnover effected in favour of registered dealers and the Governments, are concerned, while the benefit of exemption is claimed – thus, the order of the revisional authority is set aside – Decided in favour of petitioner.
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2012 (7) TMI 870
Solveny v/s insolvency - cancellation of registration - Held that:- The very fact that a registered dealer had himself sought to be declared as an insolvent would disable that dealer from carrying on any further business which would necessarily involve money transaction and applying liquid and other assets of the dealer to the transactions in the business. That, according to us, is good and sufficient reason for cancellation of registration. The question of law regarding whether the filing of an insolvency petition by the debtor/dealer himself would disentitle the debtor/dealer from carrying on the business and having continued registration; has to be answered against the dealer and in favour of the Revenue.
At this stage the petitioner has withdrawn the application to be adjudged as insolvent. It is for the petitioner to work out his remedies and apply for fresh registration or renewal of registration in accordance with law. Revision petition rejected.
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2012 (7) TMI 869
Whether an aggrieved dealer, who appeals to the Tribunal constituted under the Delhi Sales Tax Act (order of which ought to be now considered by the VAT Tribunal under section 76 of the Delhi VAT Act), is to deposit as pre-condition for hearing the entire amount of tax as determined as well as interest for the relevant period?
Held that:- A combined reading of sections 11B, 11D and section 20 of the Act shows that amount of tax and penalty as well as interest payable under the Act can be recovered as arrears of land revenue. The amount of interest is payable by the dealer who fails to pay the amount of tax due from him as required by section 10(4). Section 11D(2) speaks of the rate of interest for different periods and section 11D(3) speaks of the mode of calculation of the interest. Sub-clauses (ii) and (iii) of section 11D(3) makes it further clear that amount of interest payable under section 11D shall be in addition to the penalty imposed under the Act and for the purpose of collection and recovery it shall be deemed to be tax. By applying the principles of interpretation of statute, we find that the omission of the expression 'or interest payable' from section 20(5) and proviso thereto is not accidental but is deliberate and the Legislature never intended that the appellant must pay the amount of interest before an appeal filed under section 20 can be entertained by the appellate authority.
We, therefore, set aside the majority order of the Tribunal and direct the appellant to comply with the order of the Chairman in the dissenting opinion, and deposit the amount indicated. Upon satisfying itself that the appellant has complied with the said direction, the Tribunal shall proceed to hear this case on the merits.
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2012 (7) TMI 868
Purchase of goods from exempted dealer - unjust enrichment - Held that:- The fact remains that a purchasing dealer will only be entitled to input-tax credit when he adds value to the input and then sells the same. While purchasing the input, he is required to pay tax thereon. While selling the value added input he is also required to pay tax thereon. Suppose, the input worth ₹ 100 was to be taxed at the rate of 10 per cent, the value of the input purchased would be ₹ 110 and suppose on that input a value addition to the tune of ₹ 10 has been made, the value of the product available for sale would be ₹ 120. Suppose the product is also sold at ₹ 120 and suppose the same will also attract tax at the rate of 10 per cent, then the tax liability of the seller would be ₹ 12. Because the dealer has paid tax of ₹ 10 on the input, he will be entitled to input-tax credit of ₹ 10 and, accordingly, would be liable to pay tax of ₹ 2.
In the instant case, the dealer, from whom purchase has been made, did not pay any tax, as he was exempted from paying the same. The amount of tax payable, which has been exempted, would also be ₹ 10 and the same would also be reduced from ₹ 12 exposing the liability of the seller to ₹ 12. The fact remains, the exemption has been given to the seller, from whom the purchase has been made. That is a conscious action; by reason thereof the purchase value of the input has been permitted to be reduced. In the circumstances, there is no unjust enrichment on the part of the purchaser of input from the exempted dealer, while he is permitted input tax credit to the extent, as certified by the exempted dealer in the invoice. Appeal dismissed.
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2012 (7) TMI 867
Issues involved: Challenge to assessment order on grounds of natural justice violation.
Summary:
The appellant, the proprietor of a closed industrial unit, challenged the assessment order issued by the first respondent in violation of natural justice. The appellant's counsel pointed out discrepancies in the tax amount credited and paid, urging the assessing officer to verify and credit the actual amount paid. The court noted the lack of proper communication with the appellant regarding pre-assessment notices due to the closed business address. The court allowed the writ appeal, directing the appellant to produce the judgment before the assessing officer for re-assessment. The assessment should be completed afresh within two months, with a stay on recovery based on the previous order. The appellant must cooperate in the process, or recovery can proceed based on the previous order. The court emphasized the need for better communication between the Department and taxpayers to avoid such issues in the future. A direction was given to the Commissioner of Commercial Tax to maintain current contact details of all taxpayers for effective communication and coordination among departmental officers.
The judgment highlights the importance of ensuring proper communication and adherence to natural justice principles in assessment proceedings to prevent unnecessary litigation and delays.
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2012 (7) TMI 866
Whether, on the facts and in the circumstances of the case, the honourable Tribunal was justified in dismissing the application for restoration of appeal?
Whether, on the facts and in the circumstances of the case, the honourable Tribunal was justified in not condoning the delay caused by mistake of the counsel for the appellant?
Held that:- In the present case after appreciating the matter it cannot be said that there was sufficient cause for condonation of delay. The Tribunal had decided the matter on August 1, 2008, and a communication was sent to the counsel on September 10, 2008. The Tribunal has noticed that order dated August 1, 2008 was passed after affording fourteen opportunities to the appellant who was avoiding proceedings on one pretext or the other.
There has been an inordinate delay of 549 days in filing the appeal. The learned counsel for the appellant was unable to demonstrate any steps taken against the counsel for his negligence. Such a plea without there being any material to substantiate cannot be accepted as such pleas invariably can be taken in all cases as a general defense. Appeal dismissed.
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2012 (7) TMI 865
Application for sales tax registration rejected - Held that:- the second respondent without considering the scope of relevant provision relating to form A, rejected the registration stating that the objections raised in the letter dated May 16, 2012 were not satisfactory and the place of business is not sufficient to do business. How ever, the learned Government Advocate (Taxes) is unable to point out any specific provision under the Act and Rules regarding the requirement of space for carrying on the business. There is no such condition prescribed under the Act specifying such required area for conducting business.
It is pertinent to note that there is no dispute with regard to genuinity of the business that is going to be carried on at the place of business. Further, it is not for the Revenue to suggest the extent of land that is necessary to carry on the business. It is for the businessman to decide the same. The Revenue should not obstruct the assessee from carrying on the business at every stage with the tax collectors point of view, but would deal with the matter at the point of view of assessee. In such circumstances, the reason given by the respondent is not in accordance with law and against the provisions of the Act and Rules. W.P. allowed. This court directs the petitioner to re-submit the application for registration as contemplated under the Act within one week from toda
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2012 (7) TMI 864
Whether after the Tribunal held that the proceedings were bad for want of proper notice to the consignee-respondent, the matter was required to be remanded to the appropriate authority for fresh proceedings after complying with the legal requirements under the statute.
Held that:- The penalty imposed by the Department had been paid by the consignee and thereafter the appeal had also been filed by the respondent-consignee. Once that was so, we are of the opinion that the issuance of notice to the respondent was mandatory. The failure to issue notice rendered the order imposing penalty unsustainable.
In such circumstances, it was appropriate for the Tribunal to have remanded the matter to the assessing authority and has erred in not remitting the same to the assessing authority.The substantial questions are answered accordingly and it is held that the Tribunal ought to have remitted the matter to the appropriate authority for fresh decision in accordance with law.
Matter is remanded to the Deputy Excise and Taxation Commissioner-cum-Joint Director (Investigation), Patiala Division, Patiala.
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2012 (7) TMI 863
Optional service/warranty charges - whether be not included in the price of the goods sold (refrigerators) as they do not constitute a part of the sale price? - Held that:- There was enough material before the Tax Board to hold that the charge levied by the assessee towards service/ warranty charges at the time of the sale was not universal but optional. Following this finding the legal consequences would be inexorable and entail exclusion of such charges from the ambit of sale price of the goods sold exigible to tax in view of the judgments of this court in the case of Commercial Taxes Officer v. Godrej G.E. Appliances Limited [2011 (3) TMI 1548 - RAJASTHAN HIGH COURT] as also Commercial Taxes Officer v. Weston Electroniks Ltd. reported in [1991 (11) TMI 225 - RAJASTHAN HIGH COURT].
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2012 (7) TMI 862
Period of limitation - whether in view of incorporation of sub-section (4A) to section 29 of the Act, the appropriate authority under the Act had the power to extend period of limitation for framing assessment for the assessment year 2005-06 beyond November 20, 2009?
Held that:- The answer to the abovesaid question is in the negative. On looking the matter in the backdrop of the observations, it can be unmistakably held that the 'non obstante clause' engrafted in sub-section (4A) of section 29 ibid. fetters the Commissioner from granting extension of time for framing assessment for the year 2005-06. Thus, the extension granted by him has become non est in the eyes of law.
The said observations of the Tribunal have not been shown to be erroneous or perverse in any manner. No question of law much less a substantial question of law arises in this appeal for consideration of this court. Accordingly, finding no merit in the appeal, the same is hereby dismissed.
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2012 (7) TMI 861
Entry tax on purchase of plant and machinery for the purpose of expansion of unit - Held that:- The petitioner is not liable to purchase tax and certainly it is not liable for entry tax because purchase of materials for expansion of business could not be said to be an activity in the course of business. Hence, the order passed by the authority is contrary to law. In favour of assessee.
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2012 (7) TMI 860
Revision of assessment - Non genuine C forms - Held that:- It is clear from the material on record that the petitioner had enclosed the letter dated June 3, 2010 issued by the Commercial Tax Officer, Circle V, Bhopal, to his reply dated December 26, 2011 addressed to the first respondent in response to the show-cause notice dated April 18, 2011 issued by the first respondent specifically referring to the letter dated June 3, 2010 of the Commercial Tax Officer, Circle V, Bhopal, and states that it was annexed as annexure P1 to the said reply.
At page 5 of the impugned order, the first respondent extracted para 4 of the reply dated December 26, 2011 given by the petitioner to his show-cause notice dated April 18, 2011 but he did not meet the contention of the petitioner that the said letter dated June 3, 2010 of the Commercial Tax Officer, Circle V, Bhopal, would show that the C forms filed by it are genuine. The three C forms mentioned in the said letter were alleged by the first respondent to be not genuine in his show-cause notice. It is unfortunate that the first respondent has not considered the letter dated June 3, 2010 filed by the petitioner along with its reply dated December 26, 2011 to the show-cause notice dated April 18, 2011 issued by him. This vitiates the order passed by the first respondent. Therefore the impugned order passed by the first respondent is set aside. The matter is remanded to the first respondent to consider afresh. W.P. allowed.
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2012 (7) TMI 859
Refund of the tax deducted from the amounts due from APGENCO to the petitioner and deposited to the Revenue by way of TDS - Held that:- We are of the considered view in the circumstances that the impugned orders are passed by the first respondent not only in disregard of the order of the Appellate Deputy Commissioner but also in careless exercise of jurisdiction and without due consideration of the findings recorded by the appellate authority vide his order dated October 27, 2011.
In the circumstances, the writ petitions are allowed with costs. The impugned orders of the first respondent, all dated January 23, 2012 are quashed and the Revenue-Commercial Tax Department is directed to refund the amount of tax deposited by the APGENCO by way of TDS, deducted from the bills payable by the APGENCO to the petitioner, in respect of the assessment years 2007-08, 2008-09 and 2009-10, within four weeks from the date of receipt of a copy of this order. Costs of ₹ 10,000 (ten thousands) in each of the writ petitions are awarded, payable by the State to the petitioner, also within four weeks from the date of receipt of a copy of this order. Writ petitions allowed
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2012 (7) TMI 858
Whether a dealer can file revised return under section 42(2) of the Act, after proceedings have been initiated under section 25 of the KVAT Act and after assessment of escaped turnover ?
Held that:- Section 25 is an independent provision enabling assessment of escaped turnover wherein the Assessing Authority initiating action under the above section has been granted the powers to make best judgment assessment.When action is proposed under section 25, revised return can be filed only in the manner provided therein and in the situation provided thereon. Even going by the facts of the instant case, the revised assessment under section 42(2) assumed by Tribunal to have been filed by Assessee is not by way of rectifying a mistake or omission in the annual return with reference to the audited figures. Actual suppression of purchase was detected by Assessing Officer and proceedings initiated. The findings of the Tribunal with respect to OTRV No.22/12 section 25 and section 42(2) of the KVAT Act hence cannot be sustained. The question of law hence is answered in favour of the Revenue and against the assessee.The order of remand with respect to the input tax credit is sustained but the setting aside of the best judgment assessment by the Tribunal is overruled.
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2012 (7) TMI 857
Whether the petitioner is entitled for input-tax rebate under section 10 of the Act and has made out a case for interference with the order passed by the authorities below?
Held that:- It is clear from the records that the petitioner-firm has not produced any materials to show that the dealers with whom the petitioner has made transaction have remitted the tax collected from him though the petitioner has been making transaction with the said firms for the last more than three years. In order to gain the input tax rebate, the petitioner has produced the bogus tax invoices.
Petitioner-firm has not furnished reliable and proper information about the existence of the six dealers. The whereabouts of the said dealers were also not made known to the Department. Under section 70 of the Act, the duty is cast upon the petitioner to prove that the said dealers have remitted the said amount to the State Government. Hence it is clear that the petitioner-firm has purchased the jungle wood from the bogus dealers who had TIN number without authority of law. The purchase was effected by the petitioner after the date of de-registration under the KVAT Act, hence the petitioner is not entitled to claim input-tax rebate. Hence, the petitioner is liable to pay the penalty as provided under section 72(2) of the Act and interest under section 36 of the Act. Thus revision petitions is answered against the petitioner.
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2012 (7) TMI 856
Tax levied of transfer of property - whether contract involves only pure labour in the sense that since the tiles are brought in by the customers themselves, the appellant only prints the design on the tiles so brought and there is no transfer of property involved?
Held that:- From the material on record it is clear that the assessee has maintained accounts of works contract and accordingly he has paid composition tax on the total turnover of the works contract under section 17(6) of the Act. Similarly the authorities have not claimed any tax for similar works done within the State. They are claiming tax only in respect of works done for customers outside the State on the ground that the printing and design itself constitutes a property which is sold. As rightly pointed out by the Tribunal, the material used by the assessee for painting and design on the glazed tiles supplied by the customers outside the State do not constitute sale of goods, they are consumables used in execution of works contract. Therefore when section 5B is not attracted, section 17(6) is not attracted. Even otherwise it would be a case of inter-State sale. Thus KST is excluded. Revision dismissed.
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