|
Advanced Search Options
Case Laws
Showing 301 to 320 of 1389 Records
-
2014 (7) TMI 1091
Validity of impugned order - Violation of principle of natural justice - Opportunity of hearing not provided - Order passed before the expiry of time granted for personal hearing - Held that:- On a perusal of the records, it appears that before passing the order impugned in this Writ Petition, no opportunity whatsoever has been granted to the petitioner to give his explanation for the show cause notice dated 21.5.2014 which was received by the petitioner on 27.5.2014 only. - petitioner is prepared to deposit 10% of the Tax amount and the matter may be remanded back to the respondent for passing a fresh order after hearing the petitioner. - Decided conditionally in favour of assessee.
-
2014 (7) TMI 1090
Rejection of applications filed under Section 5 of the Tamil Nadu Sales Tax [Settlement of Arrears] Act, 2011 - petitioner paid the lesser interest amount, than the amount originally payable - Held that:- if the first respondent had any grievance over the payment of interest on the part of the petitioner, he would have intimated the same to the petitioner within ten days from the date of receipt of such application and if the defects could have been pointed out by the first respondent in time, the petitioner can have a chance to rectify the same. However, the first respondent had failed to do so. Hence, this Court is of the view that the impugned orders cannot be sustained in the eye of law. - Decided in favour of assessee.
-
2014 (7) TMI 1089
Classification of goods - Whether Tribunal was justified in holding that the product “Cement Bonded Board” sold by the respondent fits in to the description similar board of other ligneous material covered by the said schedule entry or it falls in the residual entry - Held that:- Original Order as also order on the Reference Application indicates that the Tribunal had in mind such of the products which are timber, bamboo, plywood, hard board, particle board and similar board of wood or other ligneous materials. Even by the common parlance and ordinary meaning of the term as understood in the commercial world is taken, we do not find that the Tribunal has in any way misdirected itself. The interpretation, therefore, is in consonance with the product and goods which have been mentioned in the entry. We are of the opinion that the Tribunal's order and in the given facts and circumstances does not give rise to any substantial question of law and which needs to be determined by this Court. - Decided against Revenue.
-
2014 (7) TMI 1088
Denial of reference to High Court - revenue contended that when the Tribunal does not indicate as to how in the facts and circumstances of the present case, the judgment of this Court in the case of Commissioner of Sales Tax, Maharashtra State, Mumbai V/s. M.R. F. Limited [2010 (2) TMI 1090 - BOMBAY HIGH COURT] would apply, that this application deserves to be granted - Held that:- The Division Bench in the impugned case has held that the section as amended (section 41) makes it clear that if the dealer was not entitled to issue the declaration, then, he would be liable to pay the tax. The express language of section 41(2) puts the burden on the purchaser and hence the seller could not be cast with the duty to pay the tax or satisfy the authorities that the goods qualify and are eligible for the exemption. - In the light of the clear pronouncement of this Court in the above judgment and nothing contrary being brought to our notice or the Tribunal that we are of the opinion that the order passed in the Reference Application does not suffer from any error of law apparent on the face of the record or perversity warranting our interference therewith - Decided against Revenue.
-
2014 (7) TMI 1087
Penalty under Section 27(3) of TNVAT Act - Delay of 2 days in filing appeal - petitioner has paid the 25% of the disputed tax in time - Held that:- The petitioner herein is directed to pay the balance arrears of tax, within a period of four weeks from the date of receipt of a copy of this order. On making such payment, the petitioner is at liberty to file the appeals before the Appellate Authority within a period of one week from the date of making such payment, and if the papers are in order, the Appellate Authority shall entertain the appeals without insisting upon limitation point and dispose the same on merits and in accordance with law, as expeditiously as possible. - Decided conditionally in favour of assessee.
-
2014 (7) TMI 1086
Deduction u/s 80HHC - Business profits Computation - 90% reduction of gross hire charges or net hire charges as per Explanation (baa) to section 80HHC – Held that:- Following the decision in ACG Associated Capsules Pvt. Ltd. V/s. Commissioner of Income-tax [2012 (2) TMI 101 - SUPREME COURT OF INDIA] - ninety percent of not the gross interest but only the net interest is liable to be included in the profits of the business of the assessee as computed under the heads "Profits and gains of business or profession" while making the computation under Section 80HHC – no substantial question of law arises for consideration – Decided against Revenue.
Onetime payment made to forest department – Capital or revenue expenses – Held that:- Following the decision in Commissioner of Income Tax V/s. Dr. Prafulla R. Hede and Anr. [2014 (7) TMI 1085 - BOMBAY HIGH COURT] - The assessee was directed to pay the net present value for diversion of forest land for the purpose of mining - the expenditure so incurred to be for commercial expediency and that it should therefore not be treated as expenditure of capital nature – Decided against Revenue.
-
2014 (7) TMI 1085
Revision u/s 263 - Compensation paid as afforestation charges claimed as deduction – nature of expenditure - Held that:- The Tribunal rightly concluded that the payment is towards the loss of forestry on the forest land that has been diverted and no forest asset for the assessee is created by making payment of net profit value – The assumption on which the Commissioner of Income Tax proceeded is wholly erroneous. The Tribunal concluded that the order of the Assessing Officer was a possible view of the matter and in the given facts and circumstances, could not have been said to be erroneous and prejudicial to the interest of the revenue, requiring interference under Section 143(3)
The expenditure incurred is to be for commercial expediency and that it should therefore not be treated as expenditure of capital nature – no substantial question of law arises for consideration – Decided against revenue.
-
2014 (7) TMI 1084
Claim of deduction on expenses incurred for education of daughter – Daughter joined assessee's firm and went abroad for higher education - Held that:- Assessee has not been able to bring on record anything and particularly the scheme so as to provide higher education abroad to the employees or associates – CIT(A) has observed that in the firm of the assessee, there were at least 14 associate advocates and none were given an opportunity to go abroad prior for higher education - not only she was allowed to continue and stay abroad, but permitted to join any firm after completing the higher education - Thus, this was not the decision taken in the interest of the activities and profession of the firm of Advocates but for furthering the career prospects of the child/ daughter - neither of the Authorities committed any error or perversity in disallowing the deduction – both the judgments relied by the assessee could not be taken into consideration as they operate in different facts and circumstances – Thus, no substantial question of law arises for consideration – Decided against Assessee.
-
2014 (7) TMI 1083
Goods Transport Agency Service - abatement of 75% of the gross amount charged from the customer under Notification No. 32/2004-S.T., dated 3-12-2004 - denial of abatement claim based on ‘general declarations’ given by the GTA - discharge of the Service Tax liability on an amount of 25% of the freight paid - department did not verify the declarations - Held that:- service recipient who discharges the Service Tax liability under Goods Transport Agency services, is eligible to claim abatement of 75% of the amount of freight paid by him - assessee is engaged in manufacture of P&P medicaments and is also engaged in providing taxable service under the category of ‘Technical Inspection & Certification Service’ and in the capacity of service receiver, the respondents was liable to pay the service tax on ‘Goods Transport Service’. Tribunal considered the Notification No. 32/2004-S.T., dated 3-12-2004 which provided for abatement of 75% of the gross amount charged from the customer for the purpose of calculating the liability of service tax subject to the condition that the no CENVAT Credit had been availed and benefit of Notification No. 12/2003-S.T., dated 20-6-2003 also had not been availed - requirements prescribed by the Board’s Circular was not mandatory and it was working out modality for implementing provisions of law for denial of substantive rights, use of the same cannot be made - Following decision of COMMR. OF SERVICE TAX, AHMEDABAD Versus CADILA PHARMACEUTICALS LTD. [2013 (1) TMI 353 - GUJARAT HIGH COURT] - Decided in favour of assessee.
-
2014 (7) TMI 1082
CENVAT Credit - cargo handling services, advertising agency service/sale of space or time for advertisement, business auxiliary service/business support service, management maintenance or repairs service for maintenance and repair of plant and machinery, general insurance services, manpower recruitment and supply agency services, technical testing and analysis service and scientific or technical consultancy services and in respect of C & F Agent’s service - Held that:- Services like advertisement or sales promotion, repair and maintenance, quality control, recruitment are specifically covered within the inclusive portion of the definition of input service. However, while the C & F agency service would be covered by the main definition clause - “services used by the manufacturer in or in relation to clearance of the final product from the place of removal” for the period upto 31-3-2008, during the period w.e.f. 1-4-2008, the C & F agency service for clearance of the goods “from the place of removal” would not be covered by the definition of ‘input service’, when by amendment to Rule 2(l), the scope of clearance related services for the purpose of Cenvat credit has been restricted to the services availed upto “the place of removal”, we are of prima facie view that the C & F services availed “from the place of removal” would neither be covered by the main definition part of the definition of ‘input service’ nor by the inclusive part of the definition.
As regards the cargo handling service, it has been explained by the appellant that this service, is required for handling the cement manufactured by them at the factory’s railway siding and at various depots and the same is an important input for them. In our view, this service would be covered by the expression - “activities relating to business” in the inclusive portion of the definition. Similarly, general insurance service for insurance of plant and machinery is also an activity integrally connected with the manufacturing business.
Appellant would be eligible for Cenvat credit in respect of cargo handling services, advertising agency service/sale of space or time for advertisement, business auxiliary service/business support service, management maintenance or repairs service for maintenance and repair of plant and machinery, general insurance services, manpower recruitment and supply agency services, technical testing and analysis service and scientific or technical consultancy services and in respect of C & F Agent’s service upto 31-3-2008. - Conditional stay granted.
-
2014 (7) TMI 1081
Cargo Handling service - Violation of principle of natural justice - Non consideration of case laws cited - Held that:- Commissioner (Appeals), after relying on para 3.08 of the subsequent Work Order of BVFCL dated 12.11.2005, which provided for reimbursement of service tax at the rate of 10.20% adv. of the actual executed work by BVFCL, has arrived at a conclusion that service rendered by the Appellant, is taxable as Cargo Handling Services without examining the nature of the services rendered by the Appellant under various contracts vis-as-vis classification of the said services - Commissioner (Appeals) has not considered any of the case laws cited before him. We, therefore, find that the Order of the ld. Commissioner (Appeals) is non-speaking and accordingly, the same is set aside - Matter remanded back - Decided in favour of assessee.
-
2014 (7) TMI 1080
Waiver of pre deposit - manufacture of goods on Job work basis - Post Job work activity being transportation of goods - Business Support Services - revenue contended raised the demand under the category of “Support Services of Business or Commerce” (BSS) as the Applicant had handled the goods manufactured on job-work basis in the capacity of a "Marketing and Consignment Agent ” of M/s TSL - Held that:- Prima facie the case has been built against the Applicant, as is clear from the impugned notices that the Applicant had received service charges, for rendering post removal activities, from M/s. Tata Steel Ltd., but failed to discharge Service Tax as required, under the category of “Business Support Services”.
There is no merit in the argument of the Revenue that in the said conversion charges, the post removal service charges are already included therefore, the Applicant are required to discharge Service Tax, in addition to the excise duty paid on such converted material, including freight charges. - Spl. Counsel also could not place any evidence to show that the Applicants were though re-imbursed with the freight amount in addition to the conversion charges by M/s TSL, but the same is attributable towards rendering of other post removal service and not transporting of the goods from their factory to the stock yards of M/s TSL. In the result, prima facie, it could be said that the Applicant had not received any service charges in addition to conversion charges and freight charges, at actuals towards the services relating to post removal activities of the job-worked goods manufactured in the factory. Applicant could able to make out a prima facie case for total waiver of pre-deposit of dues adjudged - Stay granted
-
2014 (7) TMI 1079
Classification of service - C and F service or Business Auxiliary service - Held that:- there is an agreement dated April 11, 2001 between assessee and NICL for appointment as depot operator for organizing and promoting sale of their CLP for the year 2001-02. There is no agreement between NICL and assessee for the period 2004-05. Commissioner in the order in original has observed that since show-cause notice nowhere mentions that payment was received under head of freight, loading/unloading, general expenses and incentive, services provided by assessee to NICL is business auxiliary service (BAS) with effect from July 1, 2003. For the period prior to July 1, 2003 there was no specific category of commission agent's service. Commissioner applies section 65A for determination of classification of service.
When prior to July 1, 2003 BAS was not in existence, there is no reason to apply section 65A in this case. Commissioner classifies the service as C and F service for 2001-02 and under BAS with effect from July 1, 2002 though there was no proposal classifying the service under BAS in the show-cause notice and he has confirmed the entire demand. - matter remanded back - Decided in favour of assessee.
-
2014 (7) TMI 1078
Waiver of penalty - Delay in filing reports - Held that:- The learned President, while reversing the concurrent orders imposing penalty, found that the dealer had paid the tax. He could not file the audit report and the reason assigned was that he was a sole proprietor, he is having disabled son, he was attending his disability and that is how immediately he could not comply with the requirement. It is in these circumstances the learned President of the Tribunal found that there is no deliberate or intentional act, much less the conduct of the Assessee cannot be said to be lacking in bonafides calling for imposition of penalty. In these circumstances, the discretion was exercised in favour of the Assessee in reversing the order of imposition of penalty. Such an order and which is consistent with the facts of the case, does not give rise to any substantial question of law - Decided against Revenue.
-
2014 (7) TMI 1077
Estimation based on the D3 proposal - AO adopted the sales turnover as found in D3 proposal - Even though the petitioners filed their objection to the said proposal, they have not been provided an opportunity of being heard - Held that:- When the higher officer has directed the assessing officer to complete the assessment on the basis of the proposal in D3 form, the assessing officer, who is lower in rank in the hierarchy of officers, is bound by the said direction, has not independently applied his mind, but adopted the sales turnover as found in D3 proposal and also levied the penalty in the manner indicated in D3 proposal. It is well settled that the assessing officer is a quasi judicial authority and in exercising his quasi judicial function of completing the assessment, he is not bound by the instructions or directions of the higher authorities. - impugned order has been passed totally relying upon D3 proposal forwarded by the enforcement wing. Since the assessing officer acted on the basis of the direction, the impugned order is liable to be quashed. Decided in favour of assessee.
-
2014 (7) TMI 1076
Penalty under Section 78(5) - Time barred declaration form found in the enclosed documents - Held that:- After analyzing the facts of the case and the arguments made by the learned counsel for the petitioner, in my view, no case is made out for any interference by this Court. In so far as issue relating to carrying out the time barred declaration form is concerned, it was simply a technical and human error on account of inadvertence and on such technicality, it cannot be said that the goods were being carried with the intention of tax evasion particularly when all other documents have been found to be proper, genuine and acceptable by the AO himself and no adverse comment was made by the AO on such supporting material. On expiry of the date, the declaration form does not become non-est but the same form can be revalidated by the learned AO and can be used for further period. Therefore, when the declaration form is complete in all respect and other documents have been found to be in order, in my opinion, no case is made out for imposition of penalty or call for any interference by this Court - Following decision of Assistant Commercial Taxes Officer vs. Mahaveer Chand Jain [2000 (3) TMI 1050 - RAJASTHAN HIGH COURT] - Decided against Revenue.
-
2014 (7) TMI 1075
Penalty u/s 78(5) - tax Board deleted penalty - Held that:- in the light of the judgment of the honourable apex court in the case of State of Rajasthan v. D.P. Metals [2001 (10) TMI 881 - SUPREME COURT OF INDIA] wherein it has been held that when the declaration form and other documents were found to be in order and bill vouchers have been held to be genuine therefore, no case is made out for deviating from such findings of facts. Even otherwise, I do not find any illegality or error or perversity in the orders impugned and concurrent finding and, as such, the revision petition is liable to be dismissed. No question of law arises - Decided against Revenue.
-
2014 (7) TMI 1074
100% EOU - procuring duty free raw materials from other 100% EOUs by following CT-3 procedure - manufacturers of texturised yarn, grey fabrics and MMF - allegation that texturised yarn rejects were cleared in DTA without obtaining permission from the Development Commissioner - eligibility of Notification No.8/97-CE and whether the goods received from other 100% EOU shall be treated as imports - Held that:- Simply by procuring such indigenously manufactured raw materials from another 100% EOU will not make them imported goods as suggested by Revenue. Relevant provisions of the EXIM Policy, considering transfer of goods from one 100% EOU to another 100% EOU as imports, are serving altogether a different purpose and will not make the goods manufactured in India as imported goods. - Decided against the revenue.
Requantification of differential duty - Held that:- Revenue is right in agitating that though value of the raw material used in the manufacture of ‘Rejects’ has been taken for requantification of duty on rejects but such a requantification does not represent duty demand on the raw materials. The appeal of the Revenue to the extent of requantification allowed - matter remanded back - Decided partly in favor of revenue.
-
2014 (7) TMI 1073
Reversal of cenvat credit - ‘furnace oil’ used to generate electricity - supply of electricity to another 100% EOU - it is argued that goods supplied to the 100% EOU cannot be treated as exempted goods for denying CENVAT Credit by virtue of Rule 6(6)(ii) of the CENVAT Credit Rules, 2004 - Held that:- The issue involved in this appeal has already been decided in favour of the assessees by this very Bench in the case of Sanghi Industries Ltd Vs CCE Rajkot (2014 (2) TMI 278 - CESTAT AHMEDABAD) - supplies made to a 100% EOU cannot be considered as exempted goods - Decided in favor of assessee.
-
2014 (7) TMI 1072
Clandestine removal - Benefit of cum duty assessable value of illicit clearance - reduction in mandatory penalty u/s 11AC - Held that:- there are various entries in the worksheet attached to the show cause notice which are either overlapping or appearing twice in the said worksheet - The entire worksheet of the Revenue indicate that the productions were done in the month of May, barring few entries, they were done from 11.05.2001 which would fall under the application filed by the appellant on 18.05.2001 indicating to operate under compounded levy scheme. There is no dispute that the main appellant had discharged the Central Excise duty liability after 18.05.2001 under compounded levy scheme and paid the duty liability through PLA. - the charge of illicit removal cannot be confirmed against the appellant on this factual matrix, which indicate that the appellant to his subsequent application made on 18.05.2001 has paid the duty under the compounded levy scheme. - Decided in favor of assessee.
As regards demand of duty on illicit removal of 26,534 L.Mtrs, wherein an amount of ₹ 80,663/- has been confirmed - Held that:- the purchasers of the materials M/s DCM Fabrics have clearly recorded a statement which clearly indicate that they have received this quantity of fabrics from the appellant without any duty paying documents or under cover of any invoice. - demand of duty confirmed alongwith interest and penalty - Decided partly in favor of assessee.
............
|
9911796707
