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Showing 321 to 340 of 1287 Records
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2014 (11) TMI 969
Intellectual Property Services - Trade marks and brand name - Supreme Court admitted the appeal of the assessee against the decision of Tribunal in [2012 (4) TMI 198 - CESTAT, NEW DELHI], wherein Tribunal held that permission to use the said trade mark to the oil companies is covered by the definition of Intellectual Property right and intellectual property services as appearing in the Finance Act.
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2014 (11) TMI 968
Cenvat Credit - Input Services - 2(l) of CCR - catering services - Supreme Court after condoning the delay granted leave to the Revenue in the appeal filed against the order of High Court [2010 (10) TMI 13 - BOMBAY HIGH COURT] wherein the High Court held that once the service tax is borne by the ultimate consumer of the service, namely the worker, the manufacturer cannot take credit of that part of the service tax which is borne by the consumer. - Proportionate credit to the extent embedded in the cost of food recovered from the employee/worker not allowed.
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2014 (11) TMI 967
Exemption in respect of receipts from labour contract - revenue denied the benefit of exemption to the person opting for compounded rate as per section 8(a)(i) of Kerala Value Added Tax - charging section 6 and concessional rate of tax payable under section 8(a)(i) - Held that:- one has to carefully analyse and understand the words used at section 6 and also at section 8(a) (i) of the Act. Section 8(a) (i) only refers to tax payable on the whole contract amount without referring to turnover. Once he chooses to seek benefit under section 8 to pay concessional rate of tax, it has to be on the whole contract amount which would mean value of entire contract done by him in respect of a particular contract or with respect to the work done in a year, without any bifurcation claiming exemption. But, in an instance where during an assessment year the assessee does only labour contract for one person and composite work for another person, there is no obligation to pay compounded tax for the said labour work, but in respect of the composite work, the compounded tax has to be paid.
The liability to pay compounded tax arises only if there is a liability to pay tax. If it is a composite contract involving a labour contract and supply of materials, the assessee will become liable to pay tax. If the labour contract is pure and simple there is no liability to pay tax and consequently there is no liability to pay compounded tax as well. Under these circumstances, we are of the view that the assessing officer has to verify the contract in question especially the contract with Indian Oil Corporation and verify whether it amounts to works contract or a pure and simple labour contract. - Decided partly in favor of assessee.
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2014 (11) TMI 966
Valuation - sale price in relation to sale of petrol and diesel by a retail outlet - Haryana Value Added Tax Act, 2003 - The petitioner-association has raised a plea that motor- spirit and high-speed diesel sold by the companies to them gets evaporated during storage, transit and sale of such products and thus these products to such an extent are not subjected to sale and sequelly the retail outlets are not able to get credit of input tax for loss in quantity of petrol/diesel because of evaporation, resulting in ever increasing gap between the input tax paid and credit taken thereof.
Held that:- The argument has no merit. It is a conceded fact that Ministry of Petroleum had allowed such losses to the extent of 0.6% in case of motor-spirit and 0.2% in case of high speed diesel. Vide separate instructions issued in this behalf to the assessing authorities, they were asked to ensure that the VAT payable at the hands of dealers, on this account, does not remain unassessed.
Whether tax is being levied on commission paid to dealers - held that:- Neither the price structure nor the taxation regime gets affected by the quantum of commission disbursed to the dealers because gross turn over in terms of Section 2(1)(u) after certain deductions in terms of Section 6 is computed to arrive at a figure of taxable turn over in terms of Section 2(1) (zn). Thus, there is no case of payment of tax on the amount of commission paid to the dealers by the oil companies.
The plea regarding notional or artificial sale value or price of the diesel/petrol on which pursuant to the explanation, tax is levied, is also incorrrect. Rather, the levy of tax is on the sale price of petrol/diesel price whereof is fixed by oil companies and is declared and predetermined by oil companies and VAT is charged on the said actual value and not on the notional/ artificial value.
The amendment brought about in the term "sale price" vide the impugned notification is in conformity with term 'sale' as is understood in the Sales of Goods Act, 1930. The evaporation loss is fully taken care of by the provisions of the Principal Act. The petrol outlets/dealers receive the commission as per quantity of petrol/diesel sold which aspect is also duly taken care of in the procedure for arriving at input as also output tax credit. - There is no merit in the petition - Decided against the assessee.
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2014 (11) TMI 965
Recovery of sales tax - illegal attachment and auction of property - plot belong to partner of the firm - suit is pending between the partners of the partnership firm - Held that:- it is apparent that an illegal procedure has been adopted by the officer of the State in attaching the property in question for recovery of sales tax and forcing its auction. Therefore, the proceeding of attachment and auction were not according to the law and such proceeding cannot be sustained. By such proceeding, no effect was caused on the ownership of the plaintiff on the suit property and therefore, a declaration may be given in favour of the plaintiff, relating to the suit property. Similarly, the officers of the State has created the third party interest (interest of respondent No. 5) on the property and the officers of the State as well as respondent Nos. 5 and 6 were interested to dispossess the plaintiff from the property by adopting illegal method and therefore, it is a case in which a perpetual injunction may also be issued in favour of the plaintiff.
However, as discussed above, the plaintiff cannot get any relief against the officer concerned because no sanction was received by the plaintiff under section 48(1) of the Act and therefore, no compensation can be granted to the plaintiff for illegality caused by respondent No. 3. Consequently, the appeal filed by the appellant is hereby partly allowed. It is declared that the suit property, i.e., plot No. 39, Punjab Bank Colony, Idgah Hills, Bhopal having area 38 X 68 square feet is of the plaintiff and its attachment and auction as done by respondent No. 3 was void and illegal, which makes no effect upon the title of the appellant. - Decided in favor of appellant.
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2014 (11) TMI 964
Waiver of pre deposit - manufacture of motor vehicles - body building activity on the duty paid chassis falling under CH 8706 - Exemption under benefit of Sl No. 39 of Notification No. 6/2006-CE dated 01.03.2006 and Sl. No. 276/2012 CE dated 01.03.2012 - Suppression of facts - Held that:- AB Volvo owns the technology relating to manufacture of Volvo Buses and the fact that both the parties supplying chassis and building chassis are subsidiaries of AB Volvo would result in a situation that there cannot be any sales transactions between two subsidiaries. No judicial decisions or provisions of Statute have been cited to come to the conclusion that two subsidiaries of one company are to be considered as one and there cannot be sale and purchase between the two. We are also unable to understand how the transactions between the two companies result in a situation that ownership of the chassis does not change hands. Even if it remains within the group, it does not mean that the supplier of chassis did not sell the busses to the appellants who built the chassis on the same. The Notification clearly provided exemption when the chassis is sold and body is built on it and no CENVAT credit is taken. The whole case is built on the premise that there cannot be a sale and purchase between two subsidiaries and transfer of ownership does not take place. It is not supported by any statutory provision. even if VBT and VIPL are related persons, that will be applicable only for valuation of the goods and the very fact that provisions of Section 4 recognizes sales to related persons and provided that value in such cases has to be arrived at on the basis of the price at which goods are sold by related persons itself would show that there can be transfer of ownership, transfer of possession and sale and purchase between two related persons. appellant has been able to make out a case on merits for complete waiver - Stay granted.
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2014 (11) TMI 963
Cenvat Credit of Service Tax - Availment of credit in respect of various services - Penalty under Rule 15 - Held that:- Insisting on quality control methods, is normal business practice in many products, but that does not mean that in all such cases the activity of business performed and used in the manufacture of products of the customers can be so interpreted to allow Cenvat Credit to appellant. - Similarly in the case of mango pulp testing service there is hardly any integral connection between manufacture of Concentrate and the testing of mango pulp supplied by a third party directly to the bottling plant. - Prima facie credit of service tax does not appear to be admissible in case of QMS Audit, inventory audit at bottlers' end, mango pulp testing at suppliers' end and verification of assets at retailers.
Credit of service tax towards maintenance, charges for coffee vending machines would be admissible because the machines are owned by the appellants and used for dispensing the tea/coffee for retailers. As it has nexus to their business activity.
The credit of service tax paid by an event management company for organizing events such as functions to honour employees at Bombay whereas the manufacturing activity is at Pune cannot be seen to any nexus connected with the business of the appellant. Reliance is placed of the judgment in the case of Manikgarh Cement (2010 (10) TMI 10 - BOMBAY HIGH COURT) wherein Hon'ble High Court held that rendering taxable services at the residential colony for the benefit of employees is not integrally linked to the business of the assessee.
The next service on which credit was denied is the security service at the Kondhwa godown. We note that the godown is outside the factory and no evidence was shown to prove that the godown was the place of removal. Input service under Rule 2(l) include service used in storage up to the place of removal. No evidence was produced as to show what was stored in the godown and whether it had any relation to the manufacturing activity of the appellant. The Cenvat credit is inadmissible. Cenvat credit is admissible for services used in the premises or precincts thereof for landscaping - Prima facie credit of service tax does not appear to be admissible in case of QMS Audit, inventory audit at bottlers' end, mango pulp testing at suppliers' end and verification of assets at retailers - Partial stay granted.
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2014 (11) TMI 962
Denial of rebate claim - Revenue contends that no duty was paid at the time of export as is clear from the ARE-1s. Further the duty shown to be payable in the ARE-1s is @ 16% and not at the rate of duties of customs at which the assessee had paid the duty at the time of debonding vide challans - Held that:- applicant, a 100% EOU, has exported the goods under bond without payment of duty in terms of Rule 19 of Central Excise Rules, 2002. Applicant has himself admitted that being 100% EOU they were not entitled to rebate claim under Rule 18 of Central Excise Rules, 2002. applicant has exported goods under bond without payment of duty. The duty paid during debonding of goods was for DTA clearance of goods and not for export of goods. Since goods were exported under bond under Rule 19, the applicant has become disentitled for the benefit under Rule 18 as no duty was paid on clearance of goods for export. The refund of custom duties paid at the time of de-bonding the goods by 100% EOU is not covered under the provisions of Rule 18 of Central Excise Rules, 2002. As such the contention of applicant for grant of rebate claim of such duty is not acceptable. Government finds support from the observations of Hon’ble Supreme Court in the case of M/s. ITC Ltd. v. CCE reported as [2004 (9) TMI 103 - SUPREME COURT OF INDIA], and M/s. Paper Products v. CCE reported as [1999 (8) TMI 70 - SUPREME COURT OF INDIA] that the simple and plain meaning of the wordings of statute are to be strictly adhered to - rebate claims have been rightly held inadmissible to the applicant by the Commissioner (Appeals). Government do not find any infirmity in the impugned orders-in-appeal and therefore upholds the same - Decided against assessee.
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2014 (11) TMI 961
Denial of rebate claim - Non following of the procedure for self removal and the conditions of Notification No. 19/2004-C.E., (N.T.), dated 6-9-2004 - goods are not directly exported from the factory of manufacturer - Date of approval of interest - Held that:- Regarding sanction of rebate clams applicant department has raised the same objection which were decided in the Revision Order No. 198/2011-CX, dated 24-2-2011. Department has challenged the said order dated 24-2-2011 before High Court. As per available record said order is neither stayed or set aside by Hon’ble High Court. In such a situation there is no infirmity in the sanction of rebate claims as upheld by Commissioner (Appeals). The revision application filed in second round is thus not maintainable in the eyes of law. Moreover this authority has become functus officio after passing the order and no pleadings against said order can be entertained. As such Commissioner (Appeals) has rightly rejected the appeal of department. Government do not find any infirmity in the said Order-in-Appeal No. 142/2011, dated 4-8-2011 and therefore upholds the same.
Whether interest liability under Section 11BB of Central Excise Act arise after three months of the order passed by Commissioner of Central Excise or after 3 months of the date of filing refund application - Held that:- once the rebate claim is held admissible under Section 11B of the Central Excise Act, 1944, interest liability starts after the expiry of three months of the date of receipt of application for rebate in the Divisional Office in terms of Section 11BB - as per Explanation to Section 11BB, where the refund/rebate claim is allowed consequent to the order of appellate authority or any Court against the order of the Asstt./Dy. Commissioner, Central Excise, the order of the appellate authority/Court shall be deemed as an order passed under sub-section (2) for the purposes of this Section - Following decision of of M/s. Ranbaxy Laboratories Ltd. v. UOI reported on [2011 (10) TMI 16 - Supreme Court of India] - Decided against Revenue.
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2014 (11) TMI 960
Validity of Tribunal's order - Whether in the facts and circumstances of the case, the Tribunal has committed substantial error of law by ignoring the High Court’s decision in case of Elson Packaging Industries Pvt. Ltd. [2004 (4) TMI 137 - CESTAT, MUMBAI] - Held that:- once High Court has directed the Tribunal to consider the decision in the case of M/s. Elson Packaging Industries Pvt. Ltd. and the Tribunal records this fact in Paragraph 1 of its judgment, but again fails to consider the said judgment, therefore, the impugned order of the Tribunal cannot be maintained. Under the circumstances, the impugned order of the Tribunal is set aside - Matter remanded back - Decided in favour of Revenue.
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2014 (11) TMI 959
Benefit of circular No. 306/22/97-CX, dated 20-3-2007 - Notification No. 214/86-C.E., dated 25-3-1986 - Held that:- There are findings of fact recorded by the authorities that there was no evidence to show that the job worked goods were used in manufactured duty paid goods. In the absence of any such evidence there was no possibility of extending the benefit of circular dated 25-3-1986 to the appellant. No substantive question of law warranting admission of the appeal would arise. - Decided against assessee.
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2014 (11) TMI 958
Manufacturer of spring and exporting the same against letter of undertaking - Non- submission of statement in Annexure 19 along with relevant documents in terms of para 13.2 of Chapter VII (Export without payment of duty) of the Supplementary Instructions, 2005 read with Rule 19 of Central Excise Rules 2002 and notification No. 42/2001 CE(NT) dated 26.6.01. - penalty imposed under Rule 27 – Delhi High Court after condoning the delay dismissed the appeal on account of low tax effect filed by the Revenue against the order of CESTAT New Delhi [2011 (11) TMI 336 - CESTAT, NEW DELHI].
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2014 (11) TMI 957
Constructions services provided by the appellant to the SEZ units - CENVAT Credit - Held that:- though these appeals have been listed for admission along with office objections, these appeals may be dismissed as not pressed in view of the subsequent development, particularly, in the light of the amendment of Rule 6 of CENVAT Credit Rules, 2004 and Validation Provisions in terms of the Finance Act, 2012 having put an end to the controversy, which had arisen between the revenue and the assessee in the context of Rule 6 of CENVAT Credit Rules, 2004 - Decided against Revenue.
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2014 (11) TMI 956
Valuation of goods - - Enhancement in value of goods - Held that:- Commissioner (Appeals) earlier remanded the matter to the adjudicating authority. It is seen that the adjudicating authority again accepted the value declared by the respondent - Decided against Revenue.
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2014 (11) TMI 955
Determination of assessable value of export goods - Held that:- Regarding determination of the assessable value of the export goods on the basis of bench mark price of CCCMMC without supplying the said evidence/ data to the Respondent, we had remanded the matter to the ld. Adjudicating Authority for re-determination of the assessable value, after supplying the necessary date to the Respondent, in the appellants own case [2014 (8) TMI 213 - CESTAT KOLKATA]. Accordingly, following the said precedent, for determination of the value, we remand the case to the ld. Adjudicating Authority for deciding the issue afresh after supplying the relevant data to the Respondent. Needless to mention a reasonable opportunity be allowed to the Appellant. This issue may be decided, preferably within three months from the date of communication of this Order - Decided in favour of Revenue.
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2014 (11) TMI 954
Denial of refund claim - CENVAT Credit - Held that:- Without a building, no manufacture can take place and therefore the service relating to building lease rent can be definitely said to be in or in relation to the manufacture. Similarly other services also are eligible. The observation of the original authority that fumigation charges has to be held as post-manufacturing expenses is not correct since without fumigation, the goods cannot be cleared and exported. In this case since the goods are exported, place of removal would be port and therefore the services upto the place of the removal would be covered. Overall, I find that all the services can be said to be in or in relation to the manufacture or are covered by the definition of input service - Decided against Revenue.
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2014 (11) TMI 953
Waiver of pre deposit - benefit of Notification No. 94/96-Cus - Held that:- If the assessee had paid Central Excise duty instead of fulfilling the obligation under Notification No. 158/95-Cus dated 12.11.1995, no further action is needed since the appellant can claim the benefit of Notification No. 94/96 as an alternative to Notification No. 158/95-Cus. The case before us is somewhat similar except for the fact that the appellant has not paid Central Excise duty but is seeking approval to do so. At this stage, since the issue is covered by precedent Tribunals decision [2007 (2) TMI 451 - CESTAT, BANGALORE], we consider that if the appellant deposits the amount of Central Excise duty payable by them in accordance with Notification No. 94/96-Cus with interest, that would be sufficient for the purpose of hearing the appeal. Accordingly, the appellant is directed to deposit the entire duty plus interest payable by them. - Partial stay granted.
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2014 (11) TMI 952
Grant of stay of demand – Stay petition rejected – Cardinal test for granting stay, prima facie case and balance of convenience - Whether the first respondent ignoring its earlier order in respect of the AYs 2009-10 to 2011-12 is required to pass an order on the Stay Petition to stay the demand - Held that:- A notice was issued to the assessee on 19.9.2014, calling upon the assessee to produce copies of Books of Accounts maintained by them, to verify the balances/fund available as on date - unless and until the assessee places materials before the first respondent, pleading financial incapacity or inability to pay the demand, pending decision of the Appeal, the authority who is consider the Stay Petition cannot be faulted for having taken a decision that the petitioner/applicant has not established a prima facie case - Section 220 of the act would treat an assessee to be an assessee in default when he does not meet the tax liability in respect of the demand raised by demand notice under section 156 of the Act - The discretion conferred on the AO u/s 220(6) is not an arbitrary power, but a power coupled with responsibility and the assessing officer concerned should take all the circumstances into account and all the considerations that could be urged by the assessee as to why he should not be treated as "not being in default" and then make an order as is provided to the facts of the case.
Though the reasoning of the first respondent while rejecting the Stay Petition cannot be faulted in its entirety, but the fact that on the date when the order was passed, the CIT(A) ought to have noted that the appeal arising out of the assessment orders for the years 2007-08 and 2008-09, has been entertained and interim order has also been granted - If the legal issue is now pending before the Hon'ble Division Bench of the Court and order of interim stay has been granted, subject to certain conditions, that should have been considered by the first respondent while passing the impugned order dated 17.10.2014 – certain questions of law admitted for consideration – Assessee is directed to deposit 50% of the entire demand in respect of all the three AYs viz. 2012-13, 2013-14 and 2014-15 and the remaining amount demanded shall remain stayed till the disposal of the appeal – partial stay granted.
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2014 (11) TMI 951
Scope and jurisdiction of CIT – Exercise of power u/s 264 – Held that:- In normal circumstances, the Commissioner, after condoning the delay in filing the revision petition, should take up the revision petition on merits and consider the claim of the assessee, in terms of Section 264 - the Commissioner did not examine, as to whether the claim of the petitioner that it has been taxed twice for the amount was bonafide, but the Commissioner proceeded with the aspect, as to whether the revised return for the AY 2002-03 filed by the petitioner on 24.3.2005 was valid - the Commissioner relied on Section 139(5) of the Act and observed that the revised return was filed beyond the time limit and the AO did not take any action on the revised return and the same was in confirmity with the law - the Commissioner should have gone into the factual aspect as to whether the assesssee was taxed twice for the amount - the Commissioner has wide power u/s 264 and in exercise of such power, the Commissioner ought to have considered the claim of the petitioner, as to whether it has been taxed twice for the amount of ₹ 11,41,607/- under the head installation charges relating to KG Hospital – thus, the matter is remitted back to the CIT for fresh consideration in exercise of power u/s 264 – Decided in favour of assessee.
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2014 (11) TMI 950
Validity of notice for reopening of assessment u/s 148 - Failure on the part of the assessee to disclose fully and truly all material facts necessary for its assessment or not – Held that:- The essential ingredient of there being a failure to disclose fully and truly all material facts necessary for assessment is conspicuous by its absence - there is not even an allegation or a whisper or suggestion with regard to this in the reasons recorded – in Haryana Acrylic Manufacturing Company v. CIT [2008 (11) TMI 2 - DELHI HIGH COURT] it has been held that the reasons must record that there was such a failure on the part of the assessee or, in the least, the reasons must lead to the clear and direct inference that there was a failure on the part of the assessee to fully and truly disclose all material facts necessary for assessment - the reasons must indicate which material fact was not fully and truly disclosed – in the reasons recorded, there is neither any allegation that the assessee had failed to truly and fully disclose material facts at the time of the assessment - one of the essential ingredients for re-opening an assessment beyond the period of four years has not been satisfied - The re-assessment proceedings are bad in law – the notice u/s 148 and the re-assessment order is set aside – Decided in favour of assessee.
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