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Showing 301 to 320 of 1180 Records
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2013 (8) TMI 883 - CESTAT MUMBAI
Penalty u/s 76, 77 and 78 - Exemption under Notification No. 59/98-S.T. - Held that:- appellants are not challenging the Service Tax liability but only challenging the imposition of penalties. We find as per the provisions of Section 80 of the Finance Act, 1994 which provides notwithstanding anything contained in Sections 76, 77 and 78 no penalty shall be imposable on the assessee for any failure referred to in said provisions, if the assessee proves that there was reasonable cause for the said failure. As per the provisions of Notification No. 59/98-S.T., dated 16-10-1998 the activity undertaken by practicing Chartered Accountant other than covered under the Notification are exempted from tax. The appellant produced a copy of the sample invoice whereby the amount is collected for the services rendered on Central Excise matters from M/s. Dover India Pvt. Ltd. In these circumstances, particularly taking into consideration as Mr. Sridhar Hegde now expired, we find that it is not a case for imposition of penalty, in view of the provisions Section 80 of the Finance Act, 1994. The penalties imposed under Sections 76 and 78 of the Finance Act, 1994 are set aside. - Appeal disposed of.
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2013 (8) TMI 882 - CESTAT CHENNAI
Condonation of delay - Delay of 246 days - Held that:- reasons for condoning the delay of 246 days. It is particularly noted that the applicant is a Customs House Clearing Agent, who is well aware of the procedure of filing of appeal. We are unable to accept the plea that the learned consultant withheld the back papers for a long time. The learned AR rightly pointed out that the affidavit is without any supporting material. The contention of the learned AR that the impugned order was issued in the month of August 2009, which is disputed by the learned Advocate, is not supported by any material. Even, if we proceed on the basis of the submission of the learned counsel then there is a delay of 246 days. There is a gross negligence and inaction on the part of the applicant. - Condonation denied.
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2013 (8) TMI 881 - CESTAT MUMBAI
Banking and other financial services - appellants are engaged in the manufacture of industrial gases - Held that:- As per the agreement, the vacuum insulated storage tank was supplied to their customers for a fixed term, i.e. for three years, and the appellants are charging ₹ 27,500/- per month. As per the agreement, the property, i.e. tank, always remains the property of the appellants and the same was only loaned for use to their customers. The customers are not entitled to sell or offer for sale, mortgage and pledge the tanks. - Board by the circular relied upon by the appellants, clarified in respect of the activity covered under banking and financial services. As the appellants are not a banking company or a financial institution including a non-banking financial company or any other body corporate or commercial concern in relation to banking and other financial services, therefore, we find merit in the contention of the appellants in this regard. Further, we find that the Tribunal in the case of G.E. India, Industries Ltd. (2008 (7) TMI 29 - CESTAT, AHMEDABAD) in a similar situation where extrusion material was given on lease to Jain Irrigation, the Tribunal after looking into the terms and conditions of the agreement which are similar to the present agreement, set aside the demand. - impugned order is set aside - Decided in favour of assessee.
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2013 (8) TMI 880 - SC ORDER
Recall of order - Constitutional validity of Rule 5 of the Hot-Rolling Steel Mills Annual Capacity Determination Rules, 1997 - Held that:- In terms of order in Devta Steel Rolling Mills Versus Com. of central Excise, Chandigarh [2015 (7) TMI 135 - SUPREME COURT], previous order in assessee's case [2015 (7) TMI 314 - SUPREME COURT] is recalled - Decided against assessee.
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2013 (8) TMI 879 - SUPREME COURT
Validity of High Court's order - Shifting of transmission towers - Held that:- Trial Court had granted an injunction, which was vacated by the lower appellate Court and the petition filed against the order of the lower appellate Court was dismissed by the High Court on the premise that respondent No.1 had purchased the land only in December, 2005 and the building was constructed in July, 2006 knowing fully well that negotiations with the officers of appellant No.1 had failed. The learned Single Judge further observed that it would be against public interest to pass an order which may necessitate dismantling of the entire line of numerous towers erected by spending public money. Even after dismissal of the petition filed under Article 227 of the Constitution and its failure to persuade the Court to sustain the order of injunction passed by the trial Court, respondent No.1 kept the suit pending and, at the same time, filed the second writ petition. This was a clear case of abuse of the process of the Court. It is a different thing that even in the second round, respondent No.1 could not persuade the learned Single Judge to entertain its prayer. The suit was withdrawn only after the writ appeal was entertained by the Division Bench of the High Court. This shows that respondent No.1 had availed parallel remedies and gave up its pursuit before the Civil Court only after the Division Bench of the High Court indicated its willingness to hear the writ appeal on merits.
Court will not allow a party to pursue two remedies simultaneously. The proposition laid down by this Court in State of Haryana v. Karnal Distillery Co. Ltd. [1976 (11) TMI 196 - Supreme Court Of India] does not help the cause of respondent No.1. Instead, the same can be relied upon for holding that the Division Bench of the High Court committed an error by setting aside the order of the learned Single Judge who had non-suited respondent No.1 on the ground that it had not only availed parallel remedies but pursued the same till the writ appeal filed against the order of the learned Single Judge was entertained. - explanation given for not incorporating full details of the scheme in the notifications should have been accepted by the High Court and there was no justification to direct re-routing of the transmission line on the specious ground of non-compliance of the two provisions. - Decided in favour of appellant.
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2013 (8) TMI 878 - PUNJAB AND HARYANA HIGH COURT
Validity of Tribunal's order - Whether the Tribunal is justified to reverse the findings of lower authorities regarding imposition of penalty on respondent(second-stage dealer) for passing Cenvat credit on the basis of invoices issued by first-stage dealer when the first stage dealer who supplied the goods to second-stage dealer himself admitted that he has done the paper transactions only - Held that:- Absence of enquiry against the respondent or further verification of statement made by Shri Sachin Aggarvanshi, the respondent has been wrongly penalised. The Tribunal has also held that the revenue did not conduct any further enquiry from any transporter or actual manufacturer of goods to verify whether goods were not received by the respondent or that Shri Sachin Aggarvanshi’s statement applies to the respondent’s goods. This apart, the learned Tribunal has also held that the respondent was not associated with the enquiry conducted against Shri Sachin Aggarvanshi. - findings recorded by the Tribunal do not suffer from any error of fact, jurisdiction or of law that would invite interference. The revenue was required to hold an independent enquiry against the respondent and only, thereafter, could an order be passed imposing penalty. The fundamental errors pointed out by the Tribunal are sufficient to hold against the revenue - Decided against Revenue.
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2013 (8) TMI 877 - CESTAT MUMBAI
Transfer of unutilized Cenvat credit - Demerger of companies - Held that:- If the factory is transferred on account of change in ownership or on account of sale, merger, amalgamation, lease or transfer of the factory with the specific provision for transfer of liabilities of such factory, then, the transferor will be allowed to transfer the Cenvat credit lying unutilized to the transferee company. - In the present case the factory has been transferred to appellant and if the factory is transferred on account of change in ownership or on account of sale, merger, amalgamation, lease or transfer of the factory with the specific provision for transfer of liabilities of such factory, then, the transferor will be allowed to transfer the Cenvat credit lying unutilized to the transferee company. there is a change in ownership and the appellant has taken over the liabilities of the transferor. From a plain reading of the provisions of the Cenvat Credit Rules, it is absolutely clear that the appellant is rightly entitled for the transfer of Cenvat credit as held by both the adjudicating and appellate authorities. - Tribunal held that the transferor can transfer the credit lying unutilized in its books of accounts to the transferee company on account of change in ownership of the factory. Therefore, we do not find any infirmity in the order passed by the lower authorities. - Decided against Revenue.
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2013 (8) TMI 876 - ITAT MUMBAI
Penalty under section 271(1)(c) - addition u/s 68 - Held that:- Imposition of penalty under section 271(1)(c) is not simply a consequence of an addition being made to the income of the appellant. Penalty under section 271(1)(c) irrespective of whether it is a civil liability or criminal liability can only be imposed when the scheme of the Act permits or requires so. It is not an automatic consequence of an addition being made to the income. An addition made during the course of assessment proceedings, by itself cannot be enough to initiate, leave aside conclude penalty proceedings. See Rupam Mercantile Ltd. v. Deputy CIT [2004 (7) TMI 274 - ITAT AHMEDABAD-A ] - Penalty deleted - Decided in favour of assessee.
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2013 (8) TMI 875 - ITAT AGRA
Corpus donation - whether is taxable as income or not even in the cases in which the trust is not registered under section 12AA ? - CIT(A) deleted the addition - Held that:- The corpus donation is in the nature of a capital receipt and are not taxable, irrespective of the fact whether the trust is registered under section 12AA or not. The facts of the case under consideration are identical to the facts of the case decided by the Income-tax Appellate Tribunal, Delhi Bench in the case of Smt. Basanti Devi and Shri Chakhan Lal Garg Education Trust and other [2011 (1) TMI 1320 - ITAT DELHI] orders of the Income-tax Appellate Tribunal. Since facts are identical, therefore, to maintain consistency, we follow the above orders of the Income-tax Appellate Tribunal and the light of facts we do not find any infirmity in the order of the Commissioner of Income-tax (Appeals). The order of the Commissioner of Income-tax (Appeals) is confirmed. - Decided against revenue.
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2013 (8) TMI 874 - CESTAT NEW DELHI
Denial of CENVAT Credit - whether the appellant are eligible for Cenvat credit of Central Excise duty paid on the steel balls & cylpebs used in grinding mill for grinding clinkers into cement and rods & hammer used in Hammer Mills - Held that:- As regards the grinding media balls and cylpebs, there is no dispute that the same are used as grinding media in grinding mill for grinding cement clincker into cement. In terms of the Board’s Circular dated 1-4-2010, the grinding media balls are to be considered as components of the capital goods for the purpose of Cenvat credit. In view of this, I hold that the grinding media balls and cylpebs, etc. used as grinding media in the grinding mills are capital goods and would be eligible for Cenvat credit.
As regards the rods and hammers, since undisputedly, the same are used in the hammer mills, where the limestones are crushed, the same have to be considered as part of the hammer mill and would be covered by the definition of capital goods and hence, would be eligible for Cenvat credit. - Decided in favour of assessee.
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2013 (8) TMI 873 - CESTAT AHMEDABAD
Condonation of delay - Delay of 128 days - Review of order - Change of heart - Held that:- As per Sec. 35B(5) of the Central Excise Act, 1944 CESTAT can condone the delay in admitting an appeal after the relevant period specified in sub-section (3) or (4) of Sec. 35B, if it is satisfied that there was a sufficient cause for not presenting the appeal within prescribed period. - appellant has not shown a sufficient cause for condonation of delay in filing the appeal. It has also been rightly observed by Hon’ble Gujarat High Court as per order dated 20-3-2013 in the present proceedings that the legal issues raised by the Revenue alone cannot form the sole basis for condonation of delay in the absence of any explanation whatsoever. A change in the opinion by the same Committee of Commissioners, on reconsideration, cannot be considered as a reasonable cause for seeking condonation, when such a reconsideration itself is not legally correct. Accordingly we find no reason to condone the delay of 128 days in filing the appeal - Condonation denied.
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2013 (8) TMI 872 - ITAT MUMBAI
Revision u/s 263 - Assessing Officer did not examine the status of the assessee in the course of assessment proceedings - taxation of Indian salary along with U.S.A. salary - global income rectification of the order to exclude double addition as the global income of ₹ 7,18,15,365 taken as income from the U.S.A. in fact includes the Indian salary already brought to tax at ₹ 3,24,45,350 - Held that:- If the proceedings under section 263 are on assessment order dated December 29, 2008, obviously there cannot be any prejudice caused to the Revenue, as the Assessing Officer not only brought to tax the Indian component but also the entire global component of the salary. Therefore, the proceedings under section 263 can only be considered to be against the order dated February 24, 2009 under section 154 in which the Assessing Officer by mistake excluded ₹ 7,18,15,365 instead of ₹ 3,24,45,350 included in the above amount.Since the proceedings are initiated against the order under section 154 dated February 24, 2009, question of considering amount of ₹ 53,19,253 does not arise at all, as issue of perquisite was originally concluded by the order dated January 24, 2006 and subsequent proceedings under section 263 did not make it as an issue. Therefore, CIT(A) raising an issue of taxability of perquisite out of the entire tax deducted at source does not arise at all, as this is not an issue considered in the order under section 154. Therefore to that extent the direction of the Commissioner of Income-tax to bring the amount to tax is beyond jurisdiction.
Even on the merits, the assessee, from the beginning has submitted before the Assessing Officer that the tax refund if any does not belong to him and belongs to employer. Based on the above submissions, the issue of perquisite would not have been raised by the Assessing Officer. Be that as it may, the assessee placed evidence on record that already refund to the extent of ₹ 40,41,172 was returned to the employer and balance refund, if any arising to the assessee, would also be returned to the employer. Therefore, in our opinion, there is no error in the order and certainly no prejudice to the Revenue.
Whether there is any prejudice caused to the Revenue in the order under section 154 - Held that:- The amendment to section 6(6)(a) has come with effect from April 1, 2004, therefore, the same is not applicable to the assessment year under consideration. In view of the interpretation given in the case of Pradip J. Mehta v. CIT [2008 (4) TMI 6 - Supreme Court]to the then existing law, in a way the Assessing Officer excluded the income earned outside India and ultimately the assessee was taxed in the income earned in India. Therefore, to that extent there is no prejudice caused to the Revenue on the basis of interpretation of law relevant for the assessment year 2003-04. Therefore, in our opinion the order under section 263 by the Commissioner of Income-tax is bad in law even though there was a mistake committed in the order under section 154 as stated earlier. - Decided in favour of assesse.
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2013 (8) TMI 871 - CESTAT MUMBAI
Clandestine removal of goods - Suppression of facts - Penalty u/s 11AC - Penalty on Directors of Company - Held that:- it is evident that the appellant had suppressed production of the plastic pipes manufactured by the appellant in their statutory accounts and had cleared these goods without payment of Central Excise duty and without issue of invoices. - the goods appearing in the private records were manufactured by the appellant-firm but were not accounted for in the RG-1 register - This statement of the sole distributor also corroborates the clandestine removal of the goods by the appellant-firm. Therefore, the argument of the appellant that there is no evidence to corroborate the suppression of production and clandestine removal of goods is not correct and has to be rejected - appellant has admitted clearly, suppression of production and clearance of excisable goods without payment of duty. Therefore, the onus shifts to the appellant to prove the contrary which the appellant has not discharged at all. The private records maintained by the appellant giving details of production and clearance of the goods is a corroborative evidence and entries made therein have been corroborated by the statements of Shri Vijay Makhija, Managing Director of the appellant-firm and by the statement of Shri Anil Budhawani, partner of the sole distributor-firm - finding of the adjudicating authority with respect to clandestine production and removal of goods cannot be faulted at all. Accordingly, we uphold the demand of duty of ₹ 18,57,661/- along with interest thereon. Since the appellant has resorted to suppression of facts, penalty under Section 11AC is clearly attracted. - Decided against assessee.
Penalty on Shri Vijay Makhija, Managing Director of the appellant-firm is reduced from ₹ 5 lakhs to ₹ 2 lakhs - However, Penalties on Smt. Hema Makhija and Shri Arjun Mulchandani are set aside - Decided partly in favour of appellant.
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2013 (8) TMI 870 - ITAT MUMBAI
Penalty u/s 271(1)(c) - advances of dormant contracts received - whether Commissioner of Income-tax (Appeals) is justified in law in deleting the penalty levied under section 271(1)(c) disregarding the fact that, the advances received by the assessee on dormant contracts was shown under the head 'current liabilities' and were only offered to tax in subsequent assessment years 2008-09 and 2009-10 after the objection was raised by the Assessing Officer - Held that:- first appellate authority has rightly deleted the penalty - assessee had offered the advances for taxation in subsequent assessment years before the Assessing Officer made any inquiry about them. The first appellate authority has given a categorical finding about the dates of inquiry initiated by the Assessing Officer and offering of advances for subsequent years and from his order it is clear that the assessee had on its own paid tax on the amounts-in-question. It is not a case where the assessee had concealed the facts of earning of income rather it is a case where the year of taxability of income was in dispute. The Assessing Officer and the assessee had different opinions about the year in which the same should be taxed. In our opinion, in such matters penalty under section 271(1)(c) cannot be levied. - Decided against Revenue.
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2013 (8) TMI 869 - PUNJAB HIGH COURT
Demand for payment of purchase tax on the purchase of paddy made by appellant - held that:- Notwithstanding the fact that the matter of levy of purchase tax on the purchase of paddy in case of exempted units was not decided and rather was left open to be decided in an appropriate case later by the honourable Supreme Court, no part of earlier judgments of the Tribunal (annexure A6) or of this court (annexure A7) would survive to be used as a precedent. Rather, after judgment of the honourable Supreme Court (annexure A9) neither judgment of the Tribunal (annexure A6) nor of this court (annexure A7) could be used as a precedent in the face of pronouncement of the honourable Supreme Court in Civil Appeal No. 8242 of 2010 (Jay Vee Rice and General Mills v. State of Haryana [2010 (9) TMI 881 - SUPREME COURT OF INDIA], leaving the matter to be decided in appellate proceedings.
When the impugned order of the Tribunal is glanced through, it transpires that path of making an independent adjudication remained unchartered. Rather, the Tribunal fell into an error in interpretation of the doctrine of merger and faltered consequently. Sequelly, the impugned order of the Tribunal not only lacks legal probity required of it, but also suffers from a factually non-existent and legally unacceptable interpretation of the doctrine of merger. - Leaving the real controversy untouched and undebated, as noticed earlier, the Tribunal fell prey to rendering an untenable explanation qua the doctrine of merger in turn rendering the impugned order to be no order in the eyes of law. - Sequelly, since the impugned order suffers from inherent incurable defect, the same is set aside - Decided in favour of assessee.
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2013 (8) TMI 868 - MADHYA PRADESH HIGH COURT
Whether the "Mediker" is to be classified under an item "drugs and medicine" under the M.P. Commercial Tax Act also and "starch" is not to be treated as the chemical under the E.T. Ac - Held that:- "Mediker" and "starch" admittedly having not been classified under the Entry Tax Act nor is it covered under Schedules I and II of the said Act. Then undoubtedly the charging section is to be taken into consideration and requires to be interpreted. The apex court held already directed that the goods may be charged under the charging section by exclusion or implication and in the present case it has to be considered on the touch stone of the charging section by implication. "Mediker" is basically a medicinal product but is used as shampoo, however, its period of treatment is four weeks and the shampoo is not used generally for washing hair and, therefore, the principle of ejusdem generis is not applicable (Grasim Industries Ltd. [2002 (4) TMI 52 - SUPREME COURT OF INDIA] relied on) and in this sense, it is not the cosmetic and, therefore, both respondents Nos. 2 and 3, Additional Commissioner of Commercial Taxes and Assistant Commercial Tax Officer have erred in charging Mediker and starch under the Entry Tax Act. Moreover it is also out of the purview Schedule III cannot be taxed since both "Mediker" as well as "starch" are used in the production of further products and not meant for sale as is being projected. - Interpretation of the charging section by implication also must be followed in the strict sense, if the article is not taxable goods under the statute then the provisions of the Entry Tax Act cannot be attracted - Decided in favour of assessee.
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2013 (8) TMI 867 - RAJASTHAN HIGH COURT
Violation of provision of rule 54 - Imposition of penalty - intention of tax evasion - Held that:- On going by the Guljag Industries [2007 (8) TMI 344 - SUPREME Court] rendered by the honourable apex court, what would be "material particulars" according to me, would be filling in columns where quality, weight, description on the goods and value is required to be clearly filled in and stated. In the said judgment, at one place, the honourable apex court has also mentioned about filling of value in the declaration as important so if all these are filled in the declaration form ST18C then according to me, all other particulars though may be important but will not be relevant for imposition of penalty in a case like this, in the present case, only invoice number and date was left to be filled in and according to me, in so far as the present case is concerned, it is distinguishable to the judgment rendered by the honourable apex court.
Had other material particulars not being filled in, possibly the argument advanced by the counsel for the petitioner-Department that the form could have been re-used but when all "material particulars" namely' quality, weight description of the goods, value, name of the transporter, name of the consignor and consignee had been duly filled in, apprehension of the Department that the form could have been re-used, is not sustainable, only because invoice number and date was left to be filled in, in my opinion, the form could not have been re-used. Therefore, in my view, judgment of the honourable apex court in Guljag Industries [2007 (8) TMI 344 - SUPREME Court] in so far as the present facts and circumstances are concerned, is not applicable and distinguishable. - Tax Board as well as the Deputy Commissioner (Appeals), were justified in arriving at the conclusion of deleting the penalty imposed against the respondent-assessee, therefore, the order passed by the Tax Board, is confirmed. - Decided against Revenue.
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2013 (8) TMI 866 - ANDHRA PRADESH HIGH COURT
Validity of assessment proceedings - notice for assessment not received - Violation of principle of natural justice - Held that:- Inasmuch as admittedly the service of notice is not being in conformity with the prescribed procedure, we are of the opinion that the impugned assessment order is unsustainable being violative of the procedure prescribed for making assessment after service of notice and giving opportunity of hearing. Further, the penalty and interest are being consequences of the assessment order, the same also are liable to be set aside. Considering the facts of the case, we direct the petitioner to submit his objections treating the show-cause notice dated November 20, 2010 as a show-cause notice and file his objections on or before August 31, 2013 and thereafter the respondents shall carry on the assessment proceedings in accordance with law. The petitioner is also at liberty to urge the aspect of limitation also in the said proceedings. - Decided in favour of assessee.
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2013 (8) TMI 865 - KARNATAKA HIGH COURT
Whether the Tribunal has power/jurisdiction to reduce the penalty leviable under section 53(12)(a)(ii) of the Act and whether sufficient cause was shown for not carrying the delivery note in form VAT505 with the consignment - Held that:- Appellate Tribunal though confirmed the findings of both the authorities below on the point of default committed by the respondent, reduced the penalty as aforementioned, and in this backdrop, the question, as framed by us, was raised by learned counsel for the petitioner. In support, she placed reliance upon the unreported judgment of this court [2012 (3) TMI 395 - KARNATAKA HIGH COURT] (State of Karnataka v. Camellia Clothing Ltd.). In this case, the Division Bench was considering the provisions of the Karnataka Sales Tax Act, in particular, section 28A(4) thereof. From bare perusal of the provisions contained in section 28A(4) of the said Act, to the extent it is necessary, it is clear that the provisions contained therein are pari materia with the provisions contained in section 53(12)(ii) of the Act. This court after considering the provisions contained therein are parimateria with the provisions contained in section 28A(4), observed that the Tribunal had no jurisdiction to reduce the penalty/tax overlooking the mandatory provisions contained therein. It is further observed that no discretion is vested with the authority and/or the Tribunal, so as to exercise discretion in imposing tax/penalty less than two times or more than three times the amount of tax leviable in respect of the goods under transport. - From bare perusal of the provisions contained in section 53(12)(a)(ii) of the Act, it is clear that no discretion is vested in the authority or the Appel late Tribunal to either impose less or reduce the penalty less than double the amount of tax leviable under this provision. Having regard to the language employed in this provision, it is clear that the provision is mandatory in nature and no discretion is vested in the Commercial Tax Officer or the Appellate Tribunal to levy less or reduce penalty under this provision. - Decided in favour of Revenue.
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2013 (8) TMI 864 - KERALA HIGH COURT
Does the purchase value of a vehicle, for the purpose of levy of tax under the Kerala Motor Vehicles Taxation Act, include the tax suffered under the Kerala Value Added Tax Act - Held that:- If the purchase value of any vehicle is not ascertainable on account of non-availability of the invoice, the purchase value shall be the value or price at which the vehicle of like kind or same specifications is already registered or available with the manufacturer, or as fixed by the Customs and Central Excise Department for the purpose of levying customs duty, as the case may be. This provision, incorporated as a proviso to section 2(e) provides abundant intrinsic statutory material to understand the term "purchase value" as defined in section 2(e), beyond any shadow of doubt. The purchase value can never be determined by adding on the VAT component or any customs duty or other charges, over and above the value or price of the vehicle. This is how the "purchase value" has to be determined for the purpose of levy of tax under the proviso to section 3(1) of the MVT Act, to the extent such levy is dependent on the Schedule to that Act, prescribing the rate of one time tax, on the basis of the purchase value of the vehicle. - tax that could be levied under the MVT Act for the vehicle covered by the invoice which is exhibit P2 in the writ petition from which this appeal arises shall be determined applying the rate applicable in terms of that Act, on ₹ 8,81,004.41, which is the purchase value of that vehicle - Decided in favour of assessee.
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