|
Advanced Search Options
Case Laws
Showing 321 to 340 of 1359 Records
-
2015 (4) TMI 1041
Deduction of expenses incurred at the head office directly in relation to Indian branches - expenses incurred for solicitation of deposits from NRI I.E. NRI marketing expenses - Non-resident banking company – assessee contended the same to be not covered by the provisions of section 44C – - Held that:- Held that:- Exclusive expenses incurred by the head office for Indian branch are outside the purview of sec. 44C and only common head office expenses are governed by this section. Once the amount is found to be incurred exclusively by H.O. towards the Indian branch, the same is required to be allowed in terms of section 37(1) without any reference to section 44C. See ADIT(I.T.) Vs. Bank of Bahrain & Kuwait (2011 (1) TMI 923 - ITAT, MUMBAI ), CIT v. Emirates Commercial Bank Limited (2003 (4) TMI 2 - SUPREME COURT) - Decided in favor of assessee
Income chargeable at special rate under section 115A - to be allowed on gross basis OR on net basis - Held that:-we find that the income chargeable at special rate under section 115A ought to be on gross basis and not on net basis did not really arise from the assessment or the assessment order. In that regard we find that the Tribunal in its order particularly at page 102 onwards has found that the said question and pertaining to the allowability of expenditure incurred in respect of earning dividend and interest income liable to tax at special rate under section 115A was, in any event, covered and against the Revenue.It has found that the assessee in the instant case is carrying on composite business earning incomes which are either not at all chargeable to tax or chargeable to tax at lower rate or chargeable to tax at regular rate. Section 14A has been referred by the Tribunal in that regard. The judgment of the Hon'ble Supreme Court in the case of Rajasthan State Warehousing Corporation vs. Commissioner of Income Tax (2000 (2) TMI 5 - SUPREME Court ) has been followed by the Tribunal. We do not find that such a course can, therefore, raise any substantial question of law. - Decided against revenue
-
2015 (4) TMI 1040
Revision u/s 263 - assessee challenged the jurisdiction of the ld. CIT in invoking section 263 on the doctrine of merger - non deduction of tds on interest payment to any member as provision contained u/s 194A(3)(v) - Held that:- As can be seen from the facts on record, in course of assessment proceeding, assessee defended itself by contending that tax was not deductible at source on interest payment to any member as provision contained u/s 194A(3)(v) employs the term 'member', therefore, no differentiation can be made between the members while applying the said provision. Though, AO did not accept this contention and held that exemption applies only in case of regular members, however, ld. CIT(A) accepted assessee's claim that exemption provision as contemplated u/s 194A(3)(v) would apply not only to regular members but also to other members like associate/nominal members. While doing so, ld. CIT(A) has followed the decision of the Hon'ble Bombay High Court in case of Jalgaon District Cooperative Society (2003 (9) TMI 56 - BOMBAY High Court ) wherein while quashing the CBDT Circular No. 09 of 2002 dt. 11/09/2002 in no uncertain terms held that exemption granted to a cooperative society u/s 194A(3)(v) cannot be taken away by creating a distinction between different categories of members. It is further evident, SLP filed by the department against the aforesaid judgment of the Hon'ble Bombay High Court was also dismissed by the Hon'ble Supreme Court. Thus, as per the decision of the Hon'ble Bombay High Court as aforesaid, which was also followed by ld. CIT(A), no differentiation can be made between the members of a cooperative society while applying the exemption provision of section 194A(3)(v) of the Act.
In fact, ld. CIT himself while issuing notice u/s 263 as well as in more than one place in the impugned order has held the assessment order passed to be erroneous and prejudicial to the interests of revenue on the reasoning that no differentiation between members can be made while applying TDS provision u/s 194A(3). Thus, applying the same logic, it is to be held that ld. CIT(A)'s order holding that interest payment to associate/nominal members is exempt from deduction of tax at source in view of section 194A(3)(v) would also impliedly apply to the regular members as she came to such conclusion on the principle that no differentiation can be made between members of the cooperative society. That being the case, order passed by ld. CIT(A) also covers the issue of application of section 194A(3)(v) to regular members also. Explanation 'c' to section 263(1) clearly spells out that ld. CIT can exercise his power u/s 263 to an issue which is not contested and decided in appeal proceeding. Therefore, as in the present case, the issue in dispute is clearly the subject matter of appeal before ld. CIT(A) and a decision has already been rendered by ld. CIT(A) much prior to the exercise of power u/s 263 of the Act, in our view, assessment order has merged with the order of ld. CIT(A), hence, could not have been revised by invoking the provisions of section 263. Therefore, the exercise of power u/s 263 is invalid. - Decided in favour of assessee
-
2015 (4) TMI 1039
Validity of revision order u/s 84 - Demand of Service tax - penalty under Sections 76, 77 and 78 - Benefit of Section 80 - Jurisdiction of revisional authority - Held that:- On the date of issue of show cause notice for revision, the assessee’s appeal against the same order-in-original dated 15.02.2007 was pending before the Commissioner (Appeals) and therefore as per Section 84(4) quoted above, the said order-in-original could not have been taken up for passing the revision order. Further, the Commissioner (Appeals) issued the order-in-appeal on 03.04.2008 and consequently the order-in-original dated 15.02.2007 got merged in the said order-in-appeal dated 03.04.2008 and so on the date of issue of the revisionary order dated 23.01.2009, there was no order-in-original in existence which could be thus revised in terms of Section 84 of the Finance Act, 1994. - it is evident that the order of revision has been issued without jurisdiction - Decided in favour of assessee.
-
2015 (4) TMI 1038
Denial of refund claim - services received for export of the goods under Notification No. 17/09 ST dated 7.7.09 - Held that:- Commissioner (Appeals) has given clear cut finding that on merits, respondent is entitled to refund claim and sent the matter back to the adjudicating authority for processing the claim. The contention of the revenue is that process of refund claim sent to the lower authority is a remand of the appeal is not correct. Infact the understanding of the remand order by the departmental officer is very unfortunate to understand that if the case has been decided on merits and same is sent to lower authority for processing the same and if it is remand option for deciding and the department would act to remand only. Therefore, understanding of the departmental officer as well as learned AR that if refund claim is allowed and send to the lower authority for processing the same amounts to remand is not correct. In these circumstances, I do not find any merit in the Revenue’s appeal - Decided against Revenue.
-
2015 (4) TMI 1037
Levy of penalty - Commission agent service - Reverse charge mechanism - Held that:- There is no case of active concealment or contumacious conduct made out against the appellant. Further the transactions were recorded in the books of account maintained in ordinary course of business. The cogent explanation given by appellant was not found untrue. The Commissioner (Appeals) have confirmed penalty on assumption & presumptions, which are not tenable. In this view of the matter the penalty imposed under Section 78 is set aside - Decided in favour of assessee.
-
2015 (4) TMI 1036
Denial of CENVAT Credit - Issue of invoices without actual receipt of goods - Held that:- as the respondent has made all the payments through account payee cheque to the first stage dealer who has accepted that they have delivered the goods along with invoices. Moreover, no statement of transporter have been recorded to ascertain the fact that respondent has not received the goods. In these circumstances, I do not find any infirmity with the impugned order on merits. Further, I find that in this case show cause notice has been issued in September 2011 whereas transaction involved the period August 2006 to September 2006. Therefore, I hold that show cause notice is barred by limitation also. In these circumstances, impugned order is upheld. - Decided against Revenue.
-
2015 (4) TMI 1035
Benefit of CENVAT Credit - exemption vide Notification No. 3/2005 dated 24.02.2005 - Held that:- What 57D provides is that where MODVAT input is used in the manufacture of dutiable final product and waste, refuse or by-product arise in the process, then, even if the MODVAT inputs are contained in the waste, refuse or by-product and whether or not Excise duty is payable on such waste, refuse or by-product, the manufacturer would not be denied full credit of duty paid on inputs used in the manufacture of dutiable final products. Rule 57CC applies only if the MODVAT inputs are used in manufacture of both dutiable final products and exempted final products and the manufacturer has not maintained separate accounts so as to ascertain the quantum of inputs used in the manufacture of the final products. Therefore the floor sweepings/waste and scrap/hydrogen arising in the manufacture of biscuits/iron-products/oxygen, respectively will be governed by Rule 57CC if they are exempted final products and would be governed by Rule 57D if they are merely waste, refuse or by-product arising in the manufacture of dutiable final products and accordingly the Hon ble Bombay High Court allowed the writ petition of Rallis India Limited (2006 (12) TMI 162 - CESTAT, MUMBAI) holding that no duty whatsoever is payable in the case of by-products, waste and scrap. - in the present case also sawdust generated is waste and not a final product of the appellant. Accordingly I hold that no duty is payable under the provisions of Rule 6(3)(b) of the CENVAT Credit Rules, 2004 or in the earlier provisions of rule 57CC of the Central Excise Rules, 1944. Accordingly, the appeal is allowed. The appellant will be entitled to consequential benefit if any. - Decided in favour of assessee.
-
2015 (4) TMI 1034
Wrongful availment of CENVAT Credit - Credit availed on full goods mentioned in invoice however, received less goods - Held that:- Goods involved in the present case are lubricating base oil. Ld. Counsel for the appellant has produced copy of supplement to the manual of departmental instruction on excisable manufacture product. In the said manual different limit has been prescribed for different goods and different method of transfer etc. In the case of lubricating base oil the permissible limit is 0.1 %. We also note that Larger Bench of this Tribunal in the case of Bhuwalka Steel Industries Ltd(2009 (11) TMI 177 - CESTAT, CHENNAI [LB]) has gone into details of various factors to be considered while permitting various losses on their receipt of the goods for purpose of availment of Cenvat credit under Rule 3(1) of Cenvat Credit Rules. We also note that the Commissioner in the impugned order has taken note of such factors and discussed in detail the relevance or irrelevance of each of the five factors enumerated in the larger bench decision. In nutshell, the conclusion is that Cenvat credit availed and utilized on short receipt of base oil in excess of 0.1% is not permissible. We do not find any thing wrong in the said findings. - However, penalty is set aside - Decided partly in favour of assessee.
-
2015 (4) TMI 1033
Denial of refund claim - Service tax amount paid on the commission to the agents - refund of unutilised credit of duty paid on input and input services - adjudicating authority rejected the refund claim on the ground that the services were not used in the manufacture of the final products which were exported - Held that:- issue is no more res integra. Honourable High Court of Gujarat in the case of Commissioner of Central Excise, Ahmedabad - II v. CEDILE Healthcare Ltd - [2013 (1) TMI 304 - GUJARAT HIGH COURT] has settled the issue - though the business activities mentioned in the definition are not exhaustive, the service rendered by the commission agents not being analogous to the activities mentioned in the definition, would not fall within the ambit of the expression activities relating to business. Consequently, CENVAT credit would not be admissible in respect of the commission paid to foreign agents - impugned order is not sustainable and is liable to be set aside - Decided in favour of Revenue.
-
2015 (4) TMI 1032
Denial of CENVAT Credit - return goods - defective goods or waste / scrap - Held that:- Allegation against the appellant is that they have not received the rejected goods and received only waste and scrap /ash on which they have taken Cenvat credit which is not permissible and said fact has been examined by the learned Commissioner (Appeals) - Commissioner (Appeals) has attained finality wherein it has been held that goods returned by the appellant are not waste and scrap/ash and they are rejected goods. Therefore, the show cause notice is not sustainable in the eyes of law. Whatever observations were made by the Commissioner after that are not part of the show cause notice. Therefore same is not required to be considered by me. In these circumstances, I hold that appellant has taken Cenvat credit correctly. Consequently the impugned order is set aside - Decided in favour of assessee.
-
2015 (4) TMI 1031
Duty demand - Valuation - appellant were issuing debit notes to their distributors/consignment agents for the said 2% margin of replacement - Revenue contented that since 2% margin was not claimed by the appellant in price declaration and since the debit note was raised towards the said margin the deduction is not admissible - Held that:- Appellant in the marketing policy explicitly declared to their wholesale buyer in all over India regarding the margin of 2% towards damage and replacement. It is also found that this 2% margin was allowed to each and every wholesale buyer. Therefore contention of the Revenue that this margin is not uniform is apparently not correct. As regard the variation of the price from one state to another state, we find that the retail sale price remain same in all over India, however the wholesale price/assessable value varied from one state to another state only for the reason that in different state Sales Tax and Octroi rates are different. Therefore the rate of margin indeed the same and uniform, the variation is only on account of Sales Tax/Octroi. As regard the debit notes, we find that this practice is not followed in each and every case as against the total sales. Only few debit notes were issued for an amount of ₹ 2,41,337/- therefore in our view merely because the debit note of ₹ 1,46,706/- was issued, entire sale cannot be weighed in the same manner.
2% margin which is margin of wholesale buyer towards sale of their goods to the retailer cannot from the part of whole sale price and accordingly the same cannot be included in the assessable value. Even in terms of Rule 6(a) of erstwhile Central Excise Valuation Rules, 1975 if the goods are sold in retail and wholesale price is not known reasonable margin has to be deducted to arrive at the wholesale price for charging of excise duty. In the present case the wholesale price is clearly known i.e. the price after deduction of Sales Tax, Octroi, 7.5% margin, 2% margin and excise duty from the retail sale price, therefore the wholesale price clearly known. Hence, excise duty is chargeable on the wholesale price and not on retail price. - Partial amount is recoverable - Decided partly in favour of assessee.
-
2015 (4) TMI 1030
Cenvat/Modvat Credit - Whether cenvat credit eligibility is to be determined with reference to dutiability of the final product on the date of receipt of the goods or the date of utilization of 50% credit - Held that:- CENVAT credit eligibility is to be determined with reference to the dutiability of the final product on the date of receipt of capital goods. - facts herein is squarely covered by the ruling of the Larger Bench of this Tribunal in the case of Spenta International Ltd. (2007 (8) TMI 25 - CESTAT, MUMBAI). Accordingly the impugned order is set aside - Decided in favour of Revenue.
-
2015 (4) TMI 1029
Levy of interest on Reversal of cenvat credit - Held that:- Adjudicating authority has demanded credit interest of ₹ 50,827/- and imposed penalty of ₹ 10,000/- which was set aside by the Commissioner (Appeals) in the impugned order. On perusal of the order, I find that the LAA by relying on the Tribunal s decisions against TATA Motors Ltd. Vs CCE Jamshedpur [2004 (8) TMI 276 - CESTAT, KOLKATA] and Gokulam Spinners Vs CCE [2004 (9) TMI 648 - CESTAT CHENNAI] and other decisions had allowed the appeal and set aside the interest and penalty. In this regard, I find that the Tribunal s Principal Bench at Delhi on identical issue in the case of Gurhmehar Construction Vs CCE Raipur (2014 (7) TMI 849 - CESTAT NEW DELHI) had allowed the appeal by relying Hon ble High Court s decision in the case of Commissioner Vs Bill Forge Pvt. Ltd. - [2011 (4) TMI 969 - KARNATAKA HIGH COURT] and also distinguished the Supreme Court in the case of UOI Vs Indo-Swift laboratories Ltd. - [2011 (2) TMI 6 - Supreme Court]. - ratio of the Tribunal’s decision and the Hon ble High Court decisions are squarely applicable to the present case. Therefore, I hold that respondents are not liable for interest on the credit already reversed. Accordingly, the impugned order is upheld - Decided against Revenue.
-
2015 (4) TMI 1028
Valuation of goods - Inclusion of overhead cost and profit margin - Held that:- Personal hearing was granted to the appellant on 28.12.2004 and the Commissioner has relied upon the reports of the AD (Cost), which are dated 23.2.2005 and 14.3.2005 and the order is passed on 31.3.2005. Under the circumstances, we find force in the contention of the counsel for the appellant that there has been serious breach of principles of natural justice inasmuch as the order has been passed without supplying the copy of the above mentioned reports. In view of the above position, we set aside the impugned order and allow the appeal by way of remand - Matter remanded back - Decided in favour of assessee.
-
2015 (4) TMI 1027
Waiver of pre deposit - exemption under notification no. 214/86-CE - Held that:- Appellant manufacture rubber compound on job work basis for M/s Birla Tyres, Haridwar, out of the raw materials received by them and were availing the exemption under notification no. 214/86-CE. This exemption notification is available to the job worker on the basis of a declaration made by him that the goods manufactured by him and cleared to the principal manufacture would be used by the principal manufacturer in the manufacture of finished product which would be cleared on payment of duty. In this case, there is no dispute that the principal manufacturer M/s Birla Tyres were availing of full duty exemption under notification no. 50/03-CE and accordingly, the final product manufactured by them by using the rubber compound were being cleared at nil rate of duty. In view of this, were are of the prima facie view that the appellant would not be eligible for exemption notification no. 214/86 and as such do not have prima facie case in their favour. - Partial stay granted.
-
2015 (4) TMI 1026
Valuation of the goods - Clearance of goods to another unit of same appellant - Determination of value u/r 8 - Held that:- Since the issue involved in this case stands decided in the respondents favour by Larger Bench judgment of the Tribunal in the case of Ispat Industries Ltd. (2007 (2) TMI 5 - CESTAT, MUMBAI) and in that judgment the other judgment of the Tribunal in the cases of BOC India Ltd. (2004 (4) TMI 125 - CESTAT, KOLKATA) and Steel Complex Ltd. (2003 (9) TMI 252 - CESTAT, BANGALORE) have also been considered, it is the Larger Bench judgment of the Tribunal which would be binding on this Bench. Hence, we do not find any infirmity in the impugned order. - Decided in favour of assessee.
-
2015 (4) TMI 1025
Denial of CENVAT CREDIT - Credit merely on the strength of the duty-paying documents i.e. Bill of Entry without using the scrap as inputs in the manufacture of final products - Held that:- Appellant indeed submitted a letter dated 23/08/2010 wherein they have requested the adjudicating authority to provide relied upon documents as listed in Annexure III to the show cause notice. However, the adjudicating authority has not dealt this request and even not stated anything in the order whether the relied upon documents were supplied along with the show cause notice. It is also observed that the request of the appellant made by appellants letter dated 23/08/2010 for supply of relied upon documents was also recorded by the learned Commissioner (Appeals) in his order in para 14. However, no finding was given. In view of the above factual matrix, the appellants submission that they were not supplied the relied upon documents and, therefore, they could not made their defence submission effectively found to be reasonable. - Matter remanded back - Decided in favour of assessee.
-
2015 (4) TMI 1024
Reversal of CENVAT Credit - Whether the appellant is required to reverse the credit in respect of the durable and returnable glass bottles and crates retained/ not returned by the buyer of the soft drinks - Held that:- On perusal of the issue before the learned Commissioner (Appeals) where the appellant is required to pay duty on the crates and glass bottles broken during the process of filing and packing of soft drinks or not whereas the learned Commissioner (Appeals) has decided the issue whether the respondent is required to reverse the credit in respect of durable and reuseable glass bottles and crates returned by the buyers of the soft drink. Learned Commissioner (Appeals) has erred in deciding the issue. Therefore, impugned order is set aside and I remand the matter to the adjudicating authority to decide the issue as prayed by the Revenue in their appeal. Accordingly, matter is remanded back - Decided in favour of assessee.
-
2015 (4) TMI 1023
Denial of SSI Exemption - Imposition of penalty - Clubbing of clearances - SCN was not issued to all the parties - Held that:- Units of M/s. Jai Hardware Pvt. Ltd., M/s.Door Devices Manufacturing Company, M/s. Deepak Hinges Pvt. Ltd., M/s.Monika Steels Pvt. Ltd. M/s.D.D. Hardware Pvt. Ltd. and M/s. D.P. Garg Exports Ltd. are the existing firms/companies having factories at different locations. Therefore, if the clearances of these units are sought to be clubbed with the clearances of the appellant unit, it was necessary to issue the show cause notices to these firms so as to enable them to put up their defene and without hearing the units, whose clearances are sought to be clubbed with the clearances of the appellant company, a unilateral decision cannot be taken that all the units are owned and controlled by one person only. For clubbing the different units for the purpose of SSI exemption, the only requirement is that the units should be owned by one person and for this purpose, it is absolutely necessary that if the clearances of a unit A are sought be clubbed with the clearances of the units, B, C and D and these units are owned by different persons, show cause notices must be issued to B, C and D, whose clearances are sought to be clubbed with the clearances of Unit A. We are supported in this view by the judgement of Calcutta High Court in the case of Diamond Scaffolding Company reported in [2011 (7) TMI 854 - CALCUTTA HIGH COURT] and the judgements of the Tribunal in the cases of Copier Force India Ltd. reported in [2008 (7) TMI 163 - CESTAT, CHENNAI], K. R. Balachandra reported in [2002 (8) TMI 197 - CEGAT, CHENNAI], Poly Resins reported in [2003 (8) TMI 132 - CESTAT, CHENNAI]; CCE, Bombay Vs. Supreme Electrical Appliances reported in [2001 (3) TMI 369 - CEGAT, NEW DELHI] and SKN Gas Appliances reported in [2000 (5) TMI 95 - CEGAT, COURT NO. II, NEW DELHI]. - Decided in favour of assessee.
-
2015 (4) TMI 1022
Waiver of pre deposit - valuation - captive consumption at different units - Duty on the basis of 110% of the cost of production in terms of Rule 8 of the Central Excise Valuation Rules - Held that:- The appellant in their Badli Unit manufacture sheet metal components for various car manufacturers including MUL, and the component are cleared by them to Manesar Unit and Greater Noida Unit of the same appellant company where the components are tested and packed and thereafter are cleared to car manufacturers on payment of duty. Prima facie, we find that even if the provisions of Rule 8 of the Central Excise valuation Rules are applicable and the appellant unit at Badli is required to pay the differential duty, the Manesar Unit and Greater Unit of the same appellant company would eligible for its cenvat credit and as such, it would be the Revenue neutral situation in respect of which the apex court judgment in the case of CCE Pune vs Coca Cola India (P) Ltd. reported in [2007 (4) TMI 17 - SUPREME COURT OF INDIA] would be applicable. The appellant, therefore, have prima facie case in their favour. - Stay granted.
............
|
9911796707
