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Showing 301 to 320 of 1288 Records
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2014 (9) TMI 993
Classification of semi-finished ‘spectacle lens’ and eligibility for exemption Notification providing for exemption to ‘spectacle lens’ - Held that:- issue has been elaborately dealt in Final Order [2007 (12) TMI 115 - CESTAT BANGALORE] and Final Order [2009 (5) TMI 895 - CESTAT BANGALORE] and since we find that the issue is similar and ratio of the above decisions is squarely applicable to the present appeals also - Decided against assessee.
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2014 (9) TMI 992
Allotment of coal blocks made by the Screening Committee of the Government of India - whether the allotments made through the Government dispensation route are arbitrary and illegal? - Held that:- As far as the first category of coal block allotments is concerned, they must be cancelled (except those mentioned in the judgment). There is no reason to “save” them from cancellation. The allocations are illegal and arbitrary; the allottees have not yet entered into any mining lease and they have not yet commenced production. Whether they are 95% ready or 92% ready or 90% ready for production (as argued by some learned counsel) is wholly irrelevant. Their allocation was illegal and arbitrary, as already held, and therefore we quash all these allotments.
The allocation of the Pakri Barwadih coal block (allotted to National Thermal Power Corporation (NTPC), being a Central Government public sector undertaking not having any joint venture) is not liable to be cancelled.
Except the above two allocations made to the UMPP and the two allocations made to the Central Government public sector undertaking not having any joint venture mentioned above, all other allocations mentioned in Annexure 1 and Annexure 2 are cancelled.
In view of the submissions made, although we have quashed the allotment of 42 out of these 46 coal blocks, we make it clear that the cancellation will take effect only after six months from today, which is with effect from 31st March, 2015. This period of six months is being given since the learned Attorney General submitted that the Central Government and CIL would need some time to adjust to the changed situation and move forward. This period will also give adequate time to the coal block allottees to adjust and manage their affairs. That the CIL is inefficient and incapable of accepting the challenge, as submitted by learned counsel, is not an issue at all. The Central Government is confident, as submitted by the learned Attorney General, that the CIL can fill the void and take things forward.
In addition to the request for deferment of cancellation, we also accept the submission of the learned Attorney General that the allottees of the coal blocks other than those covered by the judgment and the four coal blocks covered by this order must pay an amount of ₹ 295/- per metric ton of coal extracted as an additional levy. This compensatory amount is based on the assessment made by the CAG. It may well be that the cost of extraction of coal from an underground mine has not been taken into consideration by the CAG, but in matters of this nature it is difficult to arrive at any mathematically acceptable figure quantifying the loss sustained. The estimated loss of ₹ 295/- per metric ton of coal is, therefore, accepted for the purposes of these cases. The compensatory payment on this basis should be made within a period of three months and in any case on or before 31st December, 2014. The coal extracted hereafter till 31st March, 2015 will also attract the additional levy of ₹ 295/- per metric ton. It is made clear that the scrutiny by the CBI in respect of the allotment of 12 coal blocks out of 46 identified by the learned Attorney General (and for that matter against any other allottee) will continue and be taken to its logical conclusion
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2014 (9) TMI 991
Mis-declaration of Value of imported goods – Adjudicating authority confirmed customs duty demand along with interest thereon apart from imposing equivalent amount of penalty, as importer grossly mis-declared value of imports – Held that:- Commission Agent has admitted that data contained in computer printouts reflect correct transaction values in respect of imports made by appellant – These statements have not been retracted at any point of time – Transaction values admitted in confessional statements of importer and commission agent can straightaway be adopted for determination of value which escaped assessment and for demand of differential duty liability – Therefore, no fault can be found if assessable value is redetermined on basis of values declared in export declarations and duty liability determined accordingly – Thus differential duty liability in respect of B/Es is clearly sustainable in law.
As appellant has indulged in misdeclaration of values in respect of number of consignments making goods liable to confiscation under Section 111(m), provisions of Section 114A are attracted and therefore, imposition of equivalent amount of penalty is justified – Considering significant amount of duty evaded, imposition of penalty is justified and amount of penalty imposed cannot be said to be excessive – In view of factual and legal analysis, no infirmity in impugned order – Decided against Assesse.
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2014 (9) TMI 990
Validity of reassessment under section 147 - inclusion of increase in CENVAT credit to closing stock of raw materials - Held that:- On the basis of the reply of the Assessee filed before A.O it is thus seen that the A.O was aware of the method of accounting followed by the Assessee for valuation of closing stock and after having examined the issue and on being satisfied with the material produced and the explanation of the Assessee, the A.O did not make any addition on account of unutilized CENVAT credit. Similarly the submission of the Assessee with respect to prior period expenses was also accepted by the A.O without making any addition during the course of original assessment proceedings and it can thus be said that A.O had formed an opinion during the scrutiny assessment. Thus in the present case and on considering the aforesaid facts, we are of the view that the impugned notice for reassessing the assessment year 2008-09 is issued merely on change of opinion and seeks to review the assessment which is already completed and the same in not permissible as per law. We thus set aside the notice of reopening the assessment dated 28.03.2011 and also all consequential orders. Since the ground of Assessee has been allowed and the re-assessment is held to be not valid.- Decided in favour of assessee.
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2014 (9) TMI 989
Denial of CENVAT Credit - Imposition of penalty - Delayed payment of service tax - Held that:- Regarding waiver of penalty on the deposit of Service Tax before the issue of show cause notice, it is observed that appellants have clearly admitted in their submissions that amount was paid as pointed out by the audit. This fact itself does not prove their bona fide that they have deposited the amount before the issue of show cause notice suo motu. In view of these circumstances, I agree with the findings recorded by the Commissioner (Appeals) that penalties are rightly leviable on the appellants.
Regarding the second issue of availment of Cenvat credit on furniture items, I have gone through the Order-in-Original passed by the Commissioner (Appeals) as recorded in Para 7 of his order wherein he has elaborately analyzed the issue and rightly concluded that table, chair, stool, cot, etc., were of the same genre and were in the nature of office furniture and were not eligible for availment of Cenvat credit. - No substance in the ground taken by the appellants - Decided against assessee.
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2014 (9) TMI 988
Inclusion of royalty amount in assessable value – Vide impugned order, appellate authority set aside order passed by assessing officer, by holding that royalty and licensing fee paid by appellant, to related foreign supplier SI Group, USA is includible in assessable value of goods imported under provisions of Customs Valuation Rules, 2007 – Held that:- reading of rule makes it abundantly clear that to include royalties or licence fees or any other payments in assessable value of goods imported, such payments should relate to goods and should be condition for sale of goods – Only if these conditions are satisfied, question of inclusion of these elements of cost in assessable value of goods imported would arise – Tribunal had considered more or less identical facts in case of ABB Ltd. [2012 (11) TMI 571 - CESTAT MUMBAI] and held that royalty payment cannot be said to have nexus with imported goods if agreement grants licensee a non-exclusive, non-permissible licence technology to manufacture and sell licensed products making use of licence technology – In factual and legal analysis, court hold that royalty/technical know-how fee and service charges fee paid by appellant to foreign collaborators are not includible in assessable value of goods imported by appellant – Accordingly court set aside impugned order – Decided in favour of assesse.
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2014 (9) TMI 987
Refund of differential duty – Duty not paid under protest – Appellant imported consignment of mobile accessories which was inspected by SIIB and it was doubted that consignment was highly under-invoiced – Based on market enquiry value of goods were assessed and penalty and redemption fine was levied – Appellant paid differential duty and got consignment cleared – Commissioner (A) observed that it is accepted position that duty was not paid under protest and as such in absence of proof, sanction of refund was held to be bad and time barred – Held that:- Appellant have immediately protested assessment i.e. valuation assessed by Revenue by filing appeal is sufficient proof that duty was paid under protest and accordingly appellant is entitled for refund of duty and there is no question of time-bar involved – In this view of matter appeal allowed with consequential relief – Decided in favour of Assesse.
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2014 (9) TMI 986
Suspension of Licence – Delayed issuance of notice – Commissioner issued order under Regulation 20(2) of Customs House Agents Licensing Regulations, 2004, suspended licence on ground that appellant failed to exercise supervision to ensure proper conduct of his employees in transaction of business and accordingly is responsible for misconduct of his employees – Held that:- In terms of Regulation 20(1) Commissioner shall issue notice in writing to Customs Broker within 90 days from date of receipt of office report, stating ground on which it is proposed to revoke licence or impose penalty on him and Customs broker is required to submit his reply within 30 days – Where licence of Customs broker has been suspended and it has been decided to continue suspension, issue of notice within 90 days from date of receipt of offence report is mandatory – Admittedly offence report mentioning alleged misconduct of appellant had been received from DGRI, but required notice in terms of Regulation 20(1) was not issued within 90 days from date of receipt of offence report – In view of this, there is no justification for continued suspension – Suspension order passed by Commissioner, therefore set aside – Appeal allowed.
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2014 (9) TMI 985
Mis-declaration of goods – Goods found in SKD condition – Both appellants-units were located in SEZ and have LOP issued by Development Commissioner for manufacture of consumer electronic goods for export – Both units imported consignments declared to be containing Chinese Mobile Phones in SKD condition – Both consignments were examined by preventive officers and out of total sets, only some pieces of mobile phones were found in SKD condition – Only mis-declaration alleged is that while in both cases consignments were declared to be of mobile phones in SKD condition, on examination, bulk of quantity were found to be in fully assembled condition – Therefore confiscation, redemption fines and penalty was imposed – Held that:- appellant contented that even sets which were found in assembled condition, were to be subjected to certain further processes like feeding IMEI number, checking bluetooth, checking and adjusting parameters of phones, etc., before same could be exported and these processes amount to manufacture in terms of definition of ‘manufacture’ in SEZ Act – Also, in terms of Section 53(1) of SEZ Act, 2005, SEZ is deemed to be territory outside Customs Territory of India, and goods imported were meant for unit in SEZ Noida – Commissioner had no jurisdiction to confiscate these goods and impose penalty on appellant and it is only Joint Commissioner, who had jurisdiction to take necessary action – Therefore impugned orders are not sustainable – Decided in favour of appellant.
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2014 (9) TMI 984
Implementation of order - refund claim - Refund granted to appellant with consequential relief [2013 (11) TMI 387 - CESTAT MUMBAI] - Held that:- As the appeal has been allowed in appellant’s favour with consequential relief, it was incumbent upon the Revenue to refund the amount deposited during the investigation. It appears that the Revenue has not refunded the amount on the ground that the appellant has to file a refund application. As per the C.B.E. & C. Circular in this regard, if the refund is due to the appellant of a pre-deposit made, there is no need to file any refund claim; only a simple letter would suffice. - appellant has written a letter dated 8-7-2013 seeking refund of the amount which has been acknowledged by the department on 16-7-2013. Therefore, on the strength of the said letter alone, the department should have refunded the amount to the appellant - Decided in favour of assessee.
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2014 (9) TMI 983
Denial of refund claim - Demand of interest - Held that:- Tribunal instead of deciding the question whether the order of refund is valid or not has proceeded to decide the appeal regarding entitlement to interest on the said amount ordered to be refunded. That procedure is inappropriate. Therefore, the proper course would be to set aside the impugned order and remand the matter to the Tribunal so that the Tribunal would decide both the appeals together on merits as well as on the question of payment of interest as it would be in the nature of consequential order. - Decided in favour of Revenue.
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2014 (9) TMI 982
Levy of duty - Clandestine manufacture and removal of goods - Whether the Revenue was justified in determining the duty on the ground of clandestine removal of goods - Held that:- The said determination to be done by this Court falls squarely within the phrase among other things to the determination of any question having relation to the value of goods for the purpose of assessment. The said question is outside the purview of the provisions of Section 35H of the Central Excise Act, 1944 it falls squarely within the ambit of Section 35L of the Act which is to be determined by the Apex Court. - Decided against Revenue.
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2014 (9) TMI 981
Recovery of irregular duty drawback - discrepancy in the show cause notice - period of limitation - allegation that the duty drawback claimed and paid for export of readymade garments of cotton was irregular/fraudulent - 100% EOU of Gemini Textile industries - Held that:- for recovery of duty draw back, statute has not prescribed any limitation. In the facts and circumstances of the case, proceedings could be initiated within a reasonable time. Therefore, it cannot be said that proceedings are barred by limitation. Insofar as the other ground is concerned, as rightly held by the learned Single Judge, substantially the allegation in the show cause notice and the addendum are identical except few corrections. In fact, addendum is in the nature of amendment to the show cause notice. Therefore, the appellants were fully conscious of the allegations against them which are based on documentary evidence and therefore, it cannot be said either they are taken by surprise or any prejudice is caused by that addendum. Therefore, the learned single Judge was justified in dismissing the writ petition. - Decided against assessee.
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2014 (9) TMI 980
Maintainability of appeal - Whether the Tribunal was justified in holding the demand of duty of ₹ 90,444/- being the duty forgone in respect of 4.1111 Kgs of primary gold imported under a licence issued under DEEC Scheme and found short in the export goods - Held that:- question that arise for consideration in this appeal relates to levy of duty. The said issue has to be decided by the Apex Court in appeal under Section 130E of the Customs Act, 1962 (for short ‘the Act’) and not by the High Court under Section 130 of the Act. Therefore, this appeal is not maintainable. Reserving liberty to the appellant to prefer an appeal under Section 130E of the Act, this appeal is dismissed. - Decided against Revenue.
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2014 (9) TMI 979
Denial of CENVAT Credit - Credit on scrap - Prima facie, the Tribunal has proceeded on the footing that even if scrap has been brought in by the appellants that has specific identity and description. It ought to tally with description of the same in the invoices and then alone the credit was admissible. Apart therefrom, the Tribunal found that there were 26 heaps of goods received at site but it is the Revenue’s case, that 8 heaps were inspected and this inspection revealed that what is at site does not match with the description given in the invoices. - Appeal admitted on the following substantial question of law :
Whether in the facts and circumstances of the case, the conclusion of the impugned order of the Appellate Tribunal that the goods covered by the invoices have not been received by the appellants, is sustainable in law?
Whether in the facts and circumstances of the case, the Appellate Tribunal is justified in holding that Cenvat credit on the invoices issued by the dealers is not available in spite of the admitted fact that the scrap were received by the appellants in their factory?
Whether on the facts and circumstance of the case, the Appellate Tribunal is correct in holding that the extended period of limitation is correctly invoked where the appellants have taken credit on the bona fide belief and also paid the excise duty to the dealer?
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2014 (9) TMI 978
Denial of CENVAT Credit - whether the excise duty paid on explosives can be given credit to under the scheme - Held that:- Supreme Court in J.K. Udaipur Udyog Limited’s case (2004 (9) TMI 101 - SUPREME COURT OF INDIA) held that the excise duty paid on explosives used for the manufacture of cement in the mines, cannot be given credit under the CENVAT scheme. However, recently, in Vikram Cement v. Commissioner of Central Excise, Indore [2006 (1) TMI 130 - SUPREME COURT OF INDIA], the Supreme Court overruled the judgment in J.K. Udaipur Udyog Limited’s case (supra). It was held that the duty paid on explosives that are used in the mines in the course of manufacture of cement, can be given credit under the scheme. - Decided in favour of assessee.
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2014 (9) TMI 977
Penalty u/s 76, 77 and 78 - Site Formation and Clearance, Excavation and Earth Moving and Demolition Services - Held that:- As the appellant has admitted the Service Tax liability and the same is not in dispute, therefore, we are considering only the issue of penalties imposed on the appellant under Sections 76, 77 and 78 of the Finance Act, 1994. We find the C.B.E. & C. vide Circular dated 27-7-2005 clearly clarifies that the activity undertaken by the appellant falls under Site Formation and Clearance, Excavation and Earth Moving and Demolition Services. The appellant has also not approached the department for clarification whether their activity falls under taxable service or not. In the circumstance, we hold that the appellant are not entitled for the benefit of Section 80 of the Finance Act, 1994.
As the appellant has paid the entire amount of Service Tax along with interest, therefore, penalty is reduced to 25% of the Service Tax confirmed under Section 78 of the Finance Act against them. The appellant is directed to pay the reduced amount of penalty within a period of 30 days of the communication of this order failing which the appellant shall be liable to pay 100% of the Service Tax payable. Penalty under Section 77 is confirmed. - Decided against assessee.
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2014 (9) TMI 976
Denial of refund claim - Management Consultancy Service - Unjust enrichment - Held that:- Certificate issued by the CA does not reflect true and correct picture on basis of which documents Commissioner had come to the conclusion that the bar of unjust enrichment has been passed. We do not agree with the contention of the learned Counsel that the provisions of Section 11B of the Central Excise Act, 1944 are not applicable to the facts of this case as it is a pre-deposit, as they have paid the Service Tax under the Head of Management Consultancy Service and thereafter sought change of classification. As Service Tax has been paid by the respondent during the course of investigation therefore, test of bar of unjust enrichment is required to be passed on by the respondent. - Matter remanded back - Decided in favour of Revenue.
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2014 (9) TMI 975
Condonation of delay in filing an appeal - Period of limitation - Whether the time spent in prosecuting litigation diligently and bona fide before the Commissioner (Appeals) under the 1962 Act is to be excluded under Section 14 of the 1963 Act while determining whether the appeal was within limitation or not? - Whether the Commissioner (Appeals) under the 1962 Act could be considered as ‘Court’ within the meaning of Section 14 of 1963 Act. - mis-declaration of goods - short payment of duty - Import of Zinc ash and Zinc Skimming for manufacture of fertilizer used by the farmers for agriculture purposes.
Held that:- The Commissioner (Appeals) hears appeals against the order of the authority lower in rank than him and is empowered to decide whether the order was valid or not. He is required to follow principles of natural justice before deciding the lis. The order passed by him is binding on the parties. The Commissioner (Appeals) may not be a civil Court within the meaning of Civil Procedure Code but has trapping of a Court and would be a Court, within the meaning of Section 14 of the 1963 Act.
Section 14 of the 1963 Act is applicable to the proceedings under the 1962 Act in respect of an appeal provided under Section 128 and the time spent in the High Court in the abortive attempt to invoke its jurisdiction under Articles 226/227 of the Constitution will have to be excluded. After excluding the time in pursuing the litigation, the appeal filed before the Commissioner (Appeals) would be within the period of limitation. The bona fides of the petitioner in pursuing the remedy under Articles 226/227 of the Constitution was never in dispute. Accordingly, the writ petition is allowed and the impugned order dated 27-11-2013 (Annexure P-14) is set aside. - Decided in favor of assessee.
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2014 (9) TMI 974
Denial of CENVAT Credit - Whether Cenvat credit on inputs can be allowed to be availed and further passed on to the buyers despite activity of slitting and pickling of CR coils undertaken does not amount to manufacture - Difference of opinion - Majority order - Held that:- The appellant’s main raw material is duty paid H.R. Coils, which are used by them for manufacture of C.R. Coils/strips, G.P. coil/sheet, PPGI Coated Coils, G.C. Sheets, etc. Some quantity of H.R. Coils in respect of Cenvat credit has been taken, are subjected to the process of slitting and pickling and such slitted and pickled sheets are sold. There is no dispute that the appellant had cleared such slitted and pickled sheets on payment of duty at the applicable rate on the transaction value, and as such duty paid on the slitted/pickled H.R. Sheets is ₹ 43,43,87,669/- as against the Cenvat credit of ₹ 37,03,91,917/- taken in respect of the H.R. Coils used.
Moreover, when the Department’s case is that the process undertaken by the appellant does not amount to manufacture, it amounts to saying that the appellant have cleared the Cenvat credit availed inputs as such and this is something which is not prohibited, if at the time of removal of Cenvat credit availed inputs, in terms of the provisions of Rule 3(5) of the Cenvat Credit Rules, 2004, an amount equal to the Cenvat credit availed is paid under an invoice issued under Rule 9 of the Central Excise Rules, 2002. There is no dispute that the amount paid by the appellant is more than the Cenvat credit availed. In my view, therefore, the assessee should not be penalized for paying more amount than their actual duty liability. Since Rule 3(5) itself requires that removal of cenvated inputs as such on payment of an amount equal to the Cenvat credit availed has to be under an invoice issued under Rule 9 of the Central Excise Rules, 2002 and since in terms of the Rule 9(1) of the Cenvat Credit Rules, 2004, an invoice issued by a manufacturer under Rule 9 even for removal of cenvated inputs/capital goods as such is a valid document for availing Cenvat credit, the appellant’s customer could avail Cenvat credit on the basis of the invoices for pickled sheets issued by the appellant and as such, there is no illegality in the appellant’s passing on the Cenvat credit.
Since the amount paid on the clearance of pickled H.R. sheets is more than the Cenvat credit availed, the Cenvat credit availed stands more than reversed and there is no need to recover the same again. It is also seen that this issue stands decided in favour of the appellant by the Tribunal in the case of Ajinkya Enterprises (2013 (6) TMI 610 - CESTAT MUMBAI) and this judgment of the Tribunal has been upheld by the Bombay High Court vide judgment reported in [2012 (7) TMI 141 - BOMBAY HIGH COURT]. - impugned order is set aside - Decided in favour of assessee.
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