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Showing 321 to 340 of 1266 Records
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2012 (10) TMI 956
Constitutional validity of the amendment to entry 22 in Part S of the Second Schedule to the Karnataka Sales Tax Act, 1957, by section 2(24)(xxi) of Karnataka Act No. 18 of 1994 - Held that:- The argument that all taxes should be governed by article 301 whether or not their impact on trade is immediate or mediate, direct or remote, adopts, in our opinion, an extreme approach which cannot be upheld. If the said argument is accepted it would mean, for instance, that even a legislative enactment prescribing the minimum wages to industrial employees may fall under Part XIII because in an economic sense an additional wage bill may indirectly affect trade or commerce.
It cannot be said that levy of four per cent tax by the impugned amendment, on the sale of raw silk and silk yarn, imported from outside the country, could directly impede the free flow of trade and commerce in the aforesaid goods in the territory of India. Accordingly, the contention that the impugned amendment is violative of article 301 of the Constitution is devoid of merit.
The object of article 304(a) is to prevent discrimination against goods imported from other States within the territory of India by imposing on them a tax higher than that borne by goods produced in the State. A plain reading of article 304 would show that it does not impose any restrictions on the Legislature of a State to make any law to impose tax on the sale or purchase of goods imported from outside the country. Hence, the contention that the impugned amendment is violative of article 304 is also devoid of merit. W.P. dismissed.
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2012 (10) TMI 955
Issues involved:
The judgment involves the interpretation of the U.P. Value Added Tax Act, 2007, specifically concerning the applicability of entry tax on the value of goods including freight charges. The retrospective applicability of the Act and the inclusion of freight charges in the total turnover are key issues.
Interpretation of U.P. Value Added Tax Act, 2007:
The revisionist, an autonomous body of the U.P. Government, contested the inclusion of freight charges in the assessment of entry tax. The assessing officer considered both the cost of coal and freight charges for levying the entry tax, a decision upheld by the Tribunal. The revisionist argued that as the freight charges were paid directly by the consumer to the transporter, they should not be part of the total turnover. However, the court held that as per the Act, the value of goods includes various charges like transport and freight charges, making entry tax applicable on the composite cost of coal and freight charges.
Retrospective Applicability of the Act:
The court referenced a previous order affirming the retrospective applicability of the U.P. Entry Tax Act, 2007 from November 1, 1999. Since no contrary order was issued by the Supreme Court, the Act was deemed applicable for the assessment year 2003-04. This retrospective application was crucial in determining the entry tax liability for the revisionist.
Legal Precedents and Conclusion:
Citing legal precedents such as the case of India Meters Limited v. State of Tamil Nadu, the court emphasized that freight and insurance charges are to be included in the total turnover for taxation purposes. Similar decisions in past cases like State of Andhra Pradesh v. A.P. Paper Mills Ltd. supported the inclusion of transportation charges in turnover. Ultimately, the court found the Tribunal's decision reasonable and upheld it, dismissing the revision filed by the assessee. The judgment highlighted the importance of following legal precedents and the specific provisions of the U.P. Value Added Tax Act, 2007 in determining tax liabilities.
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2012 (10) TMI 954
SSI - Brand name - The demand has been confirmed on the ground that appellant was using the brand name "Sudhir Gensets" which was also used by another unit as "Sudhir Engineering Company". Plea that "Sudhir" a common name, cannot be considered as brand name at all and be connected to manufacturer. Held that - Following decision of SUDHIR GENSETS LTD. Versus COMMISSIONER OF CENTRAL EXCISE, VAPI [2010 (3) TMI 556 - CESTAT AHMEDABAD] - Decided against Revenue.
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2012 (10) TMI 953
Maintainability of appeal - Denial of refund claim - Refund previously allowed - Held that:- Court do not entertain the writ petition against the order-inoriginal, in view of the alternate remedy of appeal available under the Act. However, in the present case, on perusal of the adjudication order, it is seen that the adjudicating authority has not given any finding as to why the claims allowed in the past were erroneous. In this view of the matter, the impugned order-in-original dated September 28, 2012 is quashed and set aside and the Assistant Commissioner (Service Tax) is directed to pass fresh order on merits after giving an opportunity to the petitioner as to why he is differing from his earlier decision in the matter of granting refund to the petitioner - Decided against assessee.
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2012 (10) TMI 952
Benefit of cenvat credit - Penalty u/s 11AC - Held that:- during the relevant period, there was no restriction for utilisation of such credit without allocating proportionately to various units. The omission to take registration as an Input Service Distributor can at best be considered as procedural irregularity and in view of the decisions cited, has to be considered sympathetically. Further, it is also noticed that appellant has not got any extra benefit by doing this - In fact, proper distribution would have enabled them to utilise full credit. It would show that the exercise is totally Revenue neutral and no loss has been caused to the Revenue (infact Revenue has gained). In the absence of any legal requirement to avail credit based on the services received during the relevant time and the procedural irregularity has to be ignored and the demand confirmed has to be set-aside on this ground.
Since the credit has been availed which was not eligible and not admissible and which has been availed without knowledge of the department, extended period has been rightly invoked and the demand has been correctly confirmed - Decided partly in favour of assessee.
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2012 (10) TMI 951
Penalty - Held that:- In terms of the Rule 8(1) of Central Excise Rules, 2002, the electronic payment of central excise duty is mandatory for certain category of assessees and there is no dispute that the appellant’s unit falls in that category. There is no dispute that the appellant were required to file ER-I Return electronically. Hence, the failure to pay duty electronically and file return electronically would attract penalty under Rule 27. The Rule 27 however provides for penalty which may extend to Rs. 5,000/-. The penalty of Rs. 5,000/- is maximum penalty prescribed under this Rule. In the circumstances of the case, I am of the view that penalty of Rs. 5,000/- for each offence and each month is excessive. Accordingly, the total penalty is reduced to Rs. 5,000 - Decided partly in favour of assessee.
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2012 (10) TMI 950
Maintainability of appeal - Limitation period under Section 35 of the Central Excise Act, 1944 - Held that:- The first appellate authority has clearly recorded that appellant has filed appeal belatedly by one year and two months approximately. We find that the Hon'ble Supreme Court has time and again clearly laid down the law that first appellate authority i.e. Commissioner (Appeals) does not have any power to condone the delay in filing appeal beyond the specified period as indicated under Section 35 of the Central Excise Act, 1944 - first appellate authority was right in coming to the conclusion that the appellant has filed the appeal belatedly, which has been fortified by the acknowledgement produced the office of the Deputy Commissioner, Central Excise & Customs, Division-II, Silvassa - Decided against assessee.
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2012 (10) TMI 949
Waiver of pre deposit - Assessee exported their finished products under rebate claim under Rule 18 of the Central Excise Rules, 2002 read with Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004, after clearance on payment of duty - Held that:- Rebate of duty under Rule 18 of Central Excise Rules, 2002 provides for rebate of duty in respect of export of goods in terms of the conditions and limitations as prescribed under Notifications issued under this rule. Central Government has issued Notification No. 19/2004-C.E. (N.T.) which prescribes conditions subject to which rebate is to be granted in terms of Rule 18 of Central Excise Rules, 2002 and there is no dispute that the exports under rebate claim had been made in terms of the procedure prescribed in this notification. On going through this notification, we find that there is no absolutely no condition providing that grant of rebate is subject to realization of the export proceeds.
The allegation is that export proceeds are less than the exports value declared by the appellant for which explanation given by the Appellant is that this is due to exchange rate fluctuation, which prima facie appears to be correct. In view of this there is prima facie a case in favour of the appellant. Therefore, the requirement of per-deposit of duty demand, interest and penalty is waived for hearing of the appeal and recovery thereof is stayed till disposal of the appeal - Stay granted.
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2012 (10) TMI 948
CENVAT Credit - Whether the amount of duty shown in the inputs invoices is available as credit to the respondent in the event subsequently - Held that:- Receipt and use of inputs in or in relation to manufacture of final product has not been disputed. The amount of duty mentioned in the invoices had only been taken as credit by the respondent. The duty initially defaulted by the input supplier was discharged subsequently also not in dispute - Hence, in case of default in payment of duty shown in the respective input invoice, the recovery be made from the input supplier and credit cannot be denied to the respondent for the said reason. In these circumstances, I agree with the order of the ld. Commissioner (Appeals), which is upheld - Decided against Revenue.
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2012 (10) TMI 947
Duty demand - Annual Capacity Determination Rules - Penalty under Rule 96ZQ(5) of Central Excise Rule, 1944 - Held that:- According to the decision of the Hon’ble High Court of Gujarat in the case of Krishna Processors [2012 (11) TMI 954 - GUJARAT HIGH COURT] Rule 96ZQ(5)(ii) is ultra-virus and, therefore, no penalty can be imposed for default in payment. Therefore, penalties imposed on the Appellant for default during the period from May, 1999 to July, 1999 cannot be sustained and have to be set aside. Hence the impugned order is set aside resulting in setting aside the penalty imposed. As regards second appeal filed by the Appellants against appropriation of the amount sanctioned as refund towards penalty, appropriation of refund of penalty towards penalty is set aside - Decided in favour of assessee.
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2012 (10) TMI 946
Duty demand - Availment of irregular credit - Held that:- Undisputedly, the respondent availed credit on the invoices that was issued by the input suppliers for supply of the inputs viz. front cabinet and back cabinet received in packed condition and the value of packing is included in the value of the said inputs. The question of valuation and appropriate amount of duty paid on the input material cannot be raised at the end of the input receiver - issue of classification of the input/raw materials supplied by the input supplier cannot be questioned in the hands of input receiver while allowing Modvat/Cenvat credit - following decision of SARVESH REFRACTORIES (P) LTD. Versus COMMISSIONER OF C. EX. & CUSTOMS [2007 (11) TMI 23 - SUPREME COURT OF INDIA] - Decided against Revenue.
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2012 (10) TMI 945
Denial of CENVAT Credit - Services were utilised outside the factory and outside Ankleshwar - Held that:- credit is admissible even for the mobile phones installed outside the factory and utilisation can be outside the factory. Therefore, as submitted, the decision in the case of Excel Crop Care Limited [2008 (7) TMI 160 - HIGH COURT GUJARAT] clearly cover the issue before me. In the case of BASP Industries [2011 (6) TMI 389 - CESTAT, MUMBAI], the Tribunal took the view that credit is admissible in respect of service tax paid on telephone installed at the residence of one of the partners. The Tribunal held that department could not produce any evidence that telephone was not used for business purpose. This decision would show that it is for the department to show that service was not used for business purpose. In this case, neither there is any allegation in the show cause notice that telephone was not used nor there is any evidence put-forth - Decided in favour of assessee.
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2012 (10) TMI 944
Valuation - Valuation method to be adopted for physician samples manufactured and sold - Held that:- in view of the difference in facts existing in the case of Cadila Laboratories Limited [2008 (9) TMI 98 - CESTAT AHEMDABAD] and in the appellant’s own case, it was possible to entertain a belief that the case of the appellant could be differentiated. Therefore, I consider that mandatory penalty is not warranted in this case. Accordingly, the demand for duty and interest is upheld as not contested and penalty is set-aside - Decided partly in favour of assessee.
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2012 (10) TMI 943
CENVAT Credit - Credit availability in respect of LSHS used for generation of electricity - Interest and penalty - Held that:- Since on the very same issue, this Tribunal as well as Hon'ble High Court of Gujarat has taken a view that the assessee is eligible for credit, it becomes quite clear that the issue is one of interpretation of provisions of statute and interpretation of facts. When two views are possible and the Tribunal and Hon'ble High Court had taken a view in assessee’s favour in [2012 (11) TMI 32 - CESTAT, AHMEDABAD], it would be unfair to uphold the penalty imposed on the appellant in this case - Interest and demand upheld - Decided partly in favour of assessee
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2012 (10) TMI 942
Duty demand - Procurement and processing of sesame seeds indigenously first for removal of broken or undersized seeds and, thereafter, the good seeds are further processed for removal of their skin - rejected seeds and the skin of the seeds (chhilka) are cleared to DTA - Held that:- In this case there are two products which are being cleared by the appellant. First product is the rejected sesame seeds which are broken, or undersized seeds, which have been separated from the sesame seeds subjected by the appellant to the process of grading. In our view, the process of grading of seeds in which the broken, undersize or waste seeds get separated would not amount to manufacture and, as such, the reject seeds cannot be treated as excisable goods - As regards, the discarded skins of the seeds (chhilka), even though it may fetch some value, the same cannot be treated as excisable product, in view of the judgments of Apex Court in the case of Union of India v. Indian Aluminium Co. Ltd. reported in [1995 (4) TMI 62 - SUPREME COURT OF INDIA], Union of India v. Ahmedabad Electricity Co. Ltd. (2003 (10) TMI 47 - SUPREME COURT OF INDIA) and also a recent judgment of Hon’ble Allahabad High Court in the case of Balrampur Chini Mills Ltd. v. Union of India (2013 (1) TMI 525 - ALLAHABAD HIGH COURT). Therefore, the chhilka obtained in course of de-skinning of the sesame seeds is not an excisable product and its DTA clearances also would not attract any Central Excise duty - Decided in favour of assessee.
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2012 (10) TMI 941
Cenvat credit - Recovery of credit fraudulently taken - Penalty - Held that:- penalty could not have been imposed on the offence under consideration which took place prior to 1-3-2007 and is of the type covered by Rule 26(2) introduced from 1-3-2007 - Rule 25(1)(d) and Rule 26 as it stood prior to 1-3-2007 was good enough for imposing penalty on misdeeds of the type involved in this case. The observation in para 8 of the order is only the general principle that a penal provision introduced with effect from a particular date would not apply for acts on dates prior to such date - Following decision of Vee Kay Enterprises v. CCE [2011 (3) TMI 133 - PUNJAB AND HARYANA HIGH COURT] - Decided against assessee.
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2012 (10) TMI 940
Duty demand - Shortage in stock - Held that:- total stock of the appellant available in their factory on the date of visit of officer on 11-2-2009 was to the tune of Rs. 1037.059 MT. The shortages alleged by the Revenue are to the tune of 39.189 MT which are roughly around 3.7%. It is admitted case of the Revenue that no inventory were drawn by weighing the entire stock of the goods. The shortages were detected on the basis of a specific methodology (system of average weight) for weighment of finished goods and raw materials. I also find that Shri Shyam Sunder Trivedi, authorised signatory, in his on the spot statement agreed to such shortages as detected by the officers, who expressed his inability to advance any reason for the shortages. There is nothing in such statements to admit that such shortages were on account of any clandestine clearance of the final product. All these facts lead to only one conclusion that the shortages which may be made on the basis of average weight formula, were not the real but pseudo. Apart from that there is no evidence on record to allege any clandestine removal by the appellants. - there is no inculpatory statement of any person accepting such clandestine clearance nor is there any evidence on record to indicate upon clandestine removal, I find no reason to confirm the demand and imposition of penalty on the appellant - Decided in favour of assessee.
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2012 (10) TMI 939
Option given by the Commissioner (A) to pay 25% of the duty demanded as penalty if the duty, interest and penalty are paid within 30 days of his order - Jurisdiction of Tribunal - whether in a situation like this, the Tribunal can extend the benefit or not - Held that:- The fact remains that the Original Adjudicating Authority did not incorporate the provisions of Section 11AC providing for reduced penalty in his order. The Commissioner (Appeals) wrongly reduced the penalty instead of giving option which was the proper procedure to follow. In such a situation, the obvious conclusion is that reduction of penalty by the Commissioner in the impugned order is wrong and required to be set aside. At the same time, following earlier decision of the Tribunal in [2009 (7) TMI 1038 - CESTAT AHMEDABAD] wherein the Tribunal has extended benefit of payment of reduced penalty where such option was not given, in this case also such an option has to be extended. In the facts of this case wherein entire amount of wrong credit demanded with interest and penalty to the extent of 25% of wrong credit has already been paid, the same has to be held as discharge of full liability - Decided against Revenue.
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2012 (10) TMI 938
CENVAT Credit - Courier Services - Held that:- Following decision of CCE, Raipur vs. HEG ltd [2009 (7) TMI 562 - CESTAT, NEW DELHI], Rohit Surfuctants Pvt. Ltd. vs. CCE [2008 (12) TMI 202 - CESTAT, NEW DELHI], CCE vs. Deloitte Tax Services India Pvt. Ltd. [2008 (3) TMI 35 - CESTAT, BANGALORE] and Cadila Healthcare Ltd. vs. CCE [2009 (8) TMI 172 - CESTAT, AHMEDABAD] - assessee is eligible to take credit on the courier services - Decided against Revenue.
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2012 (10) TMI 937
CENVAT Credit - sales commission - Nexus with manufacture - Held that:- Commissioner in the impugned order has relied upon the decision of the Tribunal in the case of Lanco Industries [2009 (7) TMI 125 - CESTAT, BANGALORE] which is directly on the issue involved. Ld. A.R. fairly agrees that in the appeal memorandum filed by the Revenue there is no contrary decision cited nor he is able to cite any decision showing that credit is not admissible. The reliance of the Revenue on decision of Hon’ble Bombay High Court in the case of Ultra Tech Cement Ltd. [2010 (10) TMI 13 - BOMBAY HIGH COURT] misplaced because sales promotion as a service was not considered in the decision at all. In any case in my view, the commission paid for the selling activity is part of sales promotion and if service tax is leviable for that purpose, credit would be admissible under the broad category of sales promotion which is specifically covered in the definition of input service - Decided against Revenue.
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