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Case Laws
Showing 321 to 340 of 770 Records
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2012 (4) TMI 509 - CESTAT AHMEDABAD
Reduction in penalty u/s 11AC - benefit of payment of 25% of Central Excise duty - Held that:- Since the assessee has not filed any appeal and is not disputing the order in appeal imposing penalty under Section 11AC, the order of the first appellate authority has to be upheld, as there is no dispute as to the fact that the amount of Central Excise duty which has been confirmed by the adjudicating authority was under the first proviso to Section 11A of Central Excise Act, 1944. At the same time I agree with the learned counsel’s submission that even if Section 11AC penalty is imposed, the benefit of payment of 25% of Central Excise duty which has been confirmed by the adjudicating authority, as provided under Section 11AC, should be extended to the appellant - Following decision of M/s. Akash Fashion Prints Pvt. Limited [2009 (1) TMI 113 - GUJARAT HIGH COURT] - Decided partly against Revenue.
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2012 (4) TMI 508 - CESTAT NEW DELHI
Waiver of pre deposit - Benefit of Modvat credit - Burden of proof - Held that:- It is well settled that the onus of establishing that the assessee is liable to pay excise duty is on the Department. Perusal of the adjudication order would show that it is not based upon a concrete evidence but on the assumption that the appellant must have taken Modvat credit in respect of the capital goods corresponding to the waste and scrap. There is nothing on record to indicate if the modvat credit account of the appellant was scrutinized before coming to the conclusion that the waste and scrap which are the subject matter of this appeal correspond to investment in capital goods i.e. plant and machinery relating to which modvat credit had been taken. In the absence of any such evidence, we find that the appellant has been able to make out a strong prima facie case for waiver of the condition of pre-deposit of the duty, interest and penalty. - Stay granted.
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2012 (4) TMI 507 - CESTAT AHMEDABAD
Duty demand - Insurance charges collected from purchasers - Held that:- goods were sold by the appellants from the factory gate, which is the place of removal and delivery took place at the buyers end as per Section 4 of the Central Excise Act, 1944. In this connection I have perused the case laws of M/s. Escorts JCB Limited v. CCE, Delhi-II [2002 (10) TMI 96 - SUPREME COURT OF INDIA] cited by the appellants. I find that ratio thereof is squarely applicable looking to the facts and circumstances of the case. Moreover, Board vide its Circular No. 59/1/2003-CX., dated 3-3-2003 also clarified that insurance charges will not be includible in the light of the Hon’ble Supreme Court’s judgment. Therefore, the demand of Rs. 1,07,581.00 is not sustainable and same is set aside - Decided against Revenue.
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2012 (4) TMI 506 - CESTAT AHMEDABAD
Waiver of pre deposit - Duty demand - Incorrect valuation of final products - Held that:- valuation is sought to be enhanced by the authorities, on the ground that the goods which are cleared by the appellants to their ICUs are sold by them on higher price. Learned adjudicating authority has proceeded on the ground that Rule 10 of Valuation Rules will apply. On perusal of the said Rule 10, we find that prima facie this Rule will not apply, as the said Rule talks about the arrangement of an assessee for sale of excisable goods, except to or through ICUs. In this case, we find that and it is undisputed that the appellant had sold their finished goods to independent buyers also and to their ICUs - valuation of the goods done by the appellants, even if Rule 11 of the Valuation Rules has to be applied, would lead to, prima facie, to the transaction value of the goods sold by the appellants to the independent buyers. In sum, we find that the appellants have made out a prima facie case for the waiver of pre-deposit of amounts involved - Stay granted.
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2012 (4) TMI 505 - CESTAT NEW DELHI
CENVAT Credit - Printing of bags - Held that:- The case of the department is that the process undertaken by the appellant unit i.e. printing of polypropylene woven bags does not amount to manufacture and hence they are not eligible for Cenvat credit. However, Rule 3(5) of the Cenvat Credit Rules, 2004 provides that when the Cenvat credit availed inputs are cleared as such, an amount equal to the Cenvat credit required to be paid. Then even if the department’s stand that process undertaken by the appellant does not amount to manufacture is accepted, this would have to be treated as clearance of Cenvat credit availed input as such. Since the appellant have paid duty on the printed P.P. bags the Cenvat credit availed would have to be treated as reversed. In view of this, impugned order demanding the Cenvat credit along with interest and imposed penalty on the appellant is set aside - Decided in favour of assessee.
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2012 (4) TMI 504 - CESTAT NEW DELHI
Quantum of penalty under Rule 25 - Held that:- The show cause notice does not specify the nature of breach of law alleged whether was covered by any of the clauses appearing under Rule 25 of Central Excise Rules, 2001. In absence of specific charge for levy of penalty, it is difficult to appreciate the levy itself. When the show cause notice did not provide foundation levelling appropriate charge to impose penalty which is independent of scheme of levy of duty, the assessee has right to know the charge to defend. But no circumstance was provided by the show cause notice to appellant to lead evidence and defend - Without prejudging the matter, in all fairness, it can be said that the appellant should get relief against imposition of penalty only. Insofar as levy of penalty is concerned, the impugned order to that extent is set aside - Decided partly in favour of assessee.
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2012 (4) TMI 503 - CESTAT, NEW DELHI
Penalty u/s 78 - Loading and unloading of washed coal as well as rejected coal - Business Auxilliary service - Held that:- Rajasthan High Court in S.B. Construction Corporation v. CCE - [2006 (8) TMI 28 - HIGH COURT OF JUDICATURE FOR RAJASTHAN (JODHPUR)] ruling that goods when moved within a factory cannot be considered as cargo. This is applicable for shifting of goods within mines also. Further the scope of the entry for cargo handling service was under dispute in the case of many assessees and there was bona fide reason for the Respondent to believe that such tax was not payable. A large number of decisions of the Tribunal in favour of assessees similarly situated as the present Respondent also supports the case of Respondent. At this stage the Respondent is not challenging the tax amount confirmed. The appeal filed by Revenue praying for imposition of penalty, only is under consideration - this is a fit case for waiver of penalty invoking provisions under Section 80 of the Finance Act, 1994 - Decided against Revenue.
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2012 (4) TMI 502 - CESTAT, MUMBAI
CENVAT Credit - Denial of refund claim - Held that:- There is confusion about the product involved in the instant case. Both in the order of the adjudicating authority and the appellate authority, they have referred to the goods as potable alcohol (rectified spirit) as an exempted item. Chapter Note 4 to Chapter 22 states “This Chapter does not cover alcoholic liquors that for human consumption”. Further entry 84 of List 1 (Union List) the Seventh Schedule to the Constitution itself makes it clear that alcoholic liquors for human consumption is outside the purview of Central Excise levy. Thus, potable alcohol is not an excisable item at all. Thus the reference to potable alcohol as an exempted item by the lower adjudicating and appellate authorities is totally incorrect. Consequently, no Cenvat credit of duly paid on molasses can be taken under the Cenvat Credit Rules, 2004, in respect of molasses used in the manufacture of potable alcohol, as the Central Excise Act, 1944 and the Cenvat Credit Rules apply to excisable goods and not to non-excisable goods. Availment of Cenvat credit was void ab initio. - Unless all the relevant facts mentioned above are ascertained, the quantum of eligible refund can not be determined. Therefore, the matter is remanded back to the original adjudicating authority for fresh consideration after ascertaining all the relevant facts and thereafter, pass an appropriate order in accordance with law - Decided in favour of assessee.
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2012 (4) TMI 501 - CESTAT, MUMBAI
Waiver of pre-deposit of duty - Denial of CENVAT Credit - denial the credit in present proceedings on the ground that the circular, dated 1-2-2007 is prospective nature and in view of the provisions of Rule 4 of the Cenvat Credit Rules which provides that the Cenvat Credit in respect of inputs may be taken immediately on receipt of the inputs in the factory of the manufacturer of output service - Held that:- proviso to notification No. 30/2004-C.E., dated 9-7-2004 states that ‘nothing contained in this notification shall apply to the goods in respect of which the credit of duty on inputs has been taken under the provisions of the CENVAT Credit Rules, 2004’. Therefore, it is clarified that non-availment of credit on inputs is a precondition for availing exemption under this notification and if manufacturers avail input tax credit, they would be ineligible for exemption under this notification.
Textile manufacturer/processors have to use common inputs, which are used in a continuous manner, and it may not be practically possible to segregate and store inputs like dyes and chemicals separately or maintain separate accounts. In such cases, in order to facilitate simultaneous availment of the two notifications, such manufacturers may be advised not to take credit initially and instead take only proportionate input credit on inputs used in the manufacture of finished goods cleared by him on payment of duty. Such proportionate credit should be taken at the end of the month only. At the time of audit of records, or at any other time if the department requires, the assessee should support of such credit availment with the relevant records maintained by them showing input quantity used for the goods manufactured and cleared on payment of duty. In case any subsequent verification reveals that such proportionate credit taken is incorrect, the penal provisions as prescribed under the law will be taken against such assessees - prima facie the applicants has made out a strong case, therefore the pre-deposit of dues are waived and recovery of the same is stayed during the pendency of the appeal - Stay granted.
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2012 (4) TMI 500 - CESTAT, MUMBAI
CENVAT Credit - Malafide intention to evade duty - Rule 57S - Held that:- A plain reading of the Rule 57S indicate that the assessee needs to take prior permission before removal of the capital goods and if the capital goods are not brought back within a period of three months or within such extended period, they are liable to pay duty equivalent to the credit taken. In the instant case it is an admitted fact that the assessee did not take any permission from the department nor did they bring back the moulds and dies within the stipulated period. Hence, they are liable to pay duty equivalent to the credit taken - the appellant did not have any mala fide intention and the goods were still available with the job worker and, accordingly - Penalties are waived - Decided against Revenue.
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2012 (4) TMI 499 - CESTAT, MUMBAI
Eligibility of Cenvat credit - Tour operator service, garden maintenance service, waste management service and repair of fan service - Rejection on the ground that services are not integrally connected to the manufacture of final product - Held that:- input services on which Cenvat Credit has been availed by the appellant in the instant case qualifies as input service. In respect of many of these services, there are a large number of decisions passed by this Tribunal allowing such credit. In respect of photographic services, the learned, Advocate submits that the services were used for taking photograph of the machines to be submitted to the insurance company for obtaining insurance and, therefore it is related to the business of the manufacture. Similarly, in respect of dry cleaning services, the same was used for dry cleaning the uniform of their staff and therefore, forms part of business of manufacturing. With regard to construction, the same is undertaken for construction of premises for the manufacturing activity and it is directly connected with the business of manufacturing and similarly in respect of brokerage, the same is connected with commission paid to the brokers for selling products of the company which amounts to sales promotion - Decided against Revenue.
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2012 (4) TMI 498 - CESTAT, MUMBAI
Duty demand - Discrepancy in description of goods given in the ARE-1 and the shipping bills - Held that:- examination and export sealing has been done at the factory gate by the jurisdictional Excise authorities and the ARE- 1 gives the description of the goods, which are covered by the export consignments. The ARE-1 number and date are indicated in the corresponding shipping bills under which the goods have been exported. The Customs have not examined the goods but based on the Central Excise examination, they have allowed the goods to be exported. The shipping bills contain the endorsement that the goods exported are covered by the ARE-1 number and date indicated therein. Thus, there is a clear correlation and evidence that the goods covered by the ARE-1s have in fact been exported - Decided in favour of assessee.
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2012 (4) TMI 497 - CESTAT, BANGALORE
Interest on refund claim - Section 11BB - Held that:- refund claim was held admissible by the Commissioner (Appeals) and accordingly the refund was effected on the dates aforementioned. As per the explanation, the appellate Commissioner’s order sanctioning refund should be deemed to be an order passed under sub-section (2) of Section 11B, which would mean that the date on which the original authority first rejected the refund claim (8-5-1998) should be deemed to be the date of grant of refund claim. This legal position which was overlooked by the original authority in the subsequent proceedings was correctly understood by the learned Commissioner (Appeals) and accordingly interest was ordered to be paid. In the result, the order passed by the learned Commissioner (Appeals) for payment of interest under Section 11BB of the Act to the respondent on the amount of duty refunded to them is liable to be sustained - Decided against Revenue.
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2012 (4) TMI 496 - ITAT KOLKATA
Deletion of penalty u/s 271(1)(c) – LTCG on sale of factory land and building at Siliguri - deduction u/s 54G denied and penalty imposed on ground that area where assessee's undertaking was located was not declared to be 'urban area' – Held that:- Claim is declined on the ground that the place where assessee's industrial undertaking is located has not been declared to be an 'urban area' - something which is highly technical and it cannot be against the preponderance of probabilities, particularly in the light of legal advice rendered to the assessee, that the assessee made the error bona fide. As long as there is a reasonable explanation for the conduct of the assessee, the onus of the assessee stands discharged. CIT(A) was justified in deleting the penalty – Decided against the Revenue.
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2012 (4) TMI 495 - ITAT, KOLKATA
Assessee firm of solicitors and advocates- in reassessment proceedings AO noted that the assessee has made payments to various lawyers for their professional services, but has not deducted tax at source under section 194J such payments are to be disallowed under section 40(a)(ia) - assessee's contention that the amounts paid to the lawyers were reimbursed by assessee's clients, and, therefore, the amounts paid to the lawyers were never claimed as a deduction in the first place - It was then contended that when deduction is not claimed in respect of these amounts, there cannot be any occasion to invoke section 40(a)(ia)- It appears from the copy of TDS certificates that the appellant had raised the composite bills for entire work on its clients and was accordingly paid after deduction of tax – Held that:- As a corollary to this position, unless a deduction is claimed in respect of the said amount, under sections 30 to 38, the disallowance under section 40(a)(ia) cannot come into play at all - the manner in which taxes have been deducted by the end user of the legal services cannot be determinative of whether the assessee has claimed it as reimbursement or no - restored to the file of the Assessing Officer for necessary verifications on this factual aspect.
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2012 (4) TMI 494 - MADRAS HIGH COURT
Exercise of extraordinary jurisdiction conferred by Article 226 of the Constitution Of India- Petitioner is engaged in the business of turn key projects - a warranty clause providing for warranty of performance - a notice u/s 143(2) of the Act issued in respect of the assessment years 1995-96 and 1996-97 stating that there were reasons to believe that the petitioner s income, chargeable to income tax, as estimated assessment for the aforesaid assessment years, within the meaning of Section 147 of IT Act - petitioner submitted that the said notices had been issued beyond the period of four years and the present assessment proceedings are based only on a change of opinion – Writ was filed - Held that:- the assessing authority had issued the impugned notices on the ground that there were reasons to believe that certain income chargeable to tax had escaped assessment within the meaning of section 147 - It is for the petitioner to raise its objections, if any, in respect of the impugned notices - Even assessing authorities concerned had accepted the methods of accounting for past years, it is for the assessee to substantiate its claim by furnishing the relevant pursuant to the impugned notices issued u/s 148 - when an efficacious alternative remedy is available under a statute, this Court would not exercise its extraordinary jurisdiction, under article 226 of the constitution of India - the writ petitions stand dismissed - open to the petitioner in the above writ petitions to raise its objections within a period of four weeks from date of Order.
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2012 (4) TMI 493 - MADRAS HIGH COURT
Direction for release the goods - issues involved in this writ petition is covered by the order of this Court, wherein, this Court had directed the respondent therein to release the goods concerned subject to certain conditions – Held that:- Release of goods is directed subject to conditions namely:(i)The petitioner shall pay the entire amount of duty, as per the declared value, which may be based on the contract or price etc.(ii)the petitioner shall provide sufficient bank guarantee in respect of 50% of the difference in duty, in favour of the Department,(iii)the remaining 50% of the difference in duty, the petitioner shall furnish personal bond to the satisfaction of the respondent(iv)adjudication process to be completed by respondents
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2012 (4) TMI 492 - CESTAT, MUMBAI
Demand - Classification - erection commission and installation or works contract service - Held that: the activity undertaken by the applicant have been clarified by Board vide Circular no. B1/16/2007-TRU dated 22.5.2007 as covered under works contract services. - Decided in favor of the assessee
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2012 (4) TMI 491 - AUTHORITY FOR ADVANCE RULINGS
Maintainability of application filed u/s 96(C) of the Finance Act, 1994 – whether subsidiary of a subsidiary of a Government company, could invoke the jurisdiction of Authority for advance ruling - questions, identical to the ones sought to be raised by the applicants, are pending before the CESTAT at the instance of the holding company – Held that:- If ruling is given in this case, it will bind only the applicants, this would mean CESTAT is free to render a ruling ignoring what is being ruled by this Authority. Such a situation should be avoided.
Also, once the existence of the conditions specified by any one of the clauses barring the jurisdiction of the Authority is established, the Authority was bound to reject the application. No necessity is felt for adjudication on first contention. We, thus, reject these applications in exercise of our discretion – Decided against the appellant.
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2012 (4) TMI 490 - MADRAS HIGH COURT
Interim stay of demand – assessee engaged in real estate business following completed contract method – addition of Rs 1.94 crores made under scrutiny assessment – stay petition filed before CIT got rejected – during hearing of writ petition, petitioner submitted to pay Rs 40 lacs for disposal of the appeal – Held that:- Petitioner is directed to deposit said sum within a period of 4 weeks from the date of receipt of a copy of this order. Thereon, third respondent shall hear and dispose of the appeal on merits within a period of four months.
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