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Showing 321 to 340 of 1235 Records
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2012 (8) TMI 920
Penalty - Rule 15 of the CCR, 2004 - Held that: - Admittedly, the liability to pay penalty for the wrongful availment of the credit of service tax has been inserted under Rule 15(2) with effect from 27th February 2010. Since the dispute in the present case relates to the period prior to 27th February 2010, no fault can be found with the decision of the CESTAT in deleting the penalty - Appeal dismissed.
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2012 (8) TMI 919
Capital gain - Long Term capital asset - Held that:- To substantiate, the Ld. Counsel drew our attention to exhibit page 37 to 41 of the Paper Book which are copy of the ledger account of the factory building and pointed out that the assessee is adding towards the cost of construction since F.Y. 1995-96 till the year under consideration. We find that at page-12 of the paper Book which is a copy of NOC dt. 6.3.1997 given by the Office of the Chief Fire Officer, Mumbai Fire Brigade granting the assessee to occupy and use the factory building. Referring to this, the Ld. Counsel has rightly stated that the factory building is more than 36 months old. At page-35 of the paper book, we find that there is a Municipal Corporation Tax receipt dt. 25th September, 1997 which also substantiate the claim of the assessee. It appears that the AO has wrongly taken the date as 1.10.2003 only because the assessee claimed depreciation for the first time during the year under consideration on the amount apportioned between the factory building (rented) and factory building (SOP). We have also considered the schedule of fixed assets since 1996 to March, 2004 exhibited from page 42 to 50 of the Paper Book. We find that in each of these years, the assessee has showed the factory building under the head “building account under consideration”. Considering all these facts in totality, we have no hesitation to hold that the factory building in dispute is more than 36 months old which make it as Long Term capital asset.
Exemption u/s. 54EC allowed. See CIT Vs ACE Builders Pvt. Ltd [2005 (3) TMI 36 - BOMBAY High Court]
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2012 (8) TMI 918
Issues involved: Interpretation of penalty provisions under u/s 20 of the Right to Information Act, 2005 by the Central Information Commission or State Information Commission.
The judgment addressed the issue of whether the Central Information Commission or the State Information Commission has the power to impose penalties other than those prescribed in Section 20 of the Right to Information Act, 2005. The State Chief Information Commissioner imposed a penalty of &8377; 1,500/- for a delay of 14 days in supplying information. However, the High Court clarified that under Section 20 of the Act, if the Commission concludes that information was not supplied within a reasonable time without cause, a penalty of &8377; 250/- per day can be imposed, not exceeding &8377; 25,000/-. The Court emphasized that the penalty must be imposed at the fixed rate and not arbitrarily. In this case, the penalty was enhanced to &8377; 3,500/- for a 14-day delay, with the respondent directed to deposit the increased amount in the Government treasury within two weeks.
The judgment highlighted the provisions of Section 20(1) of the Right to Information Act, 2005, which outlines the circumstances under which penalties can be imposed by the Central Information Commission or State Information Commission. It noted that penalties can be imposed if the Public Information Officer has unreasonably refused to receive an application, not furnished information within the specified time, denied a request for information in bad faith, provided incorrect or incomplete information, destroyed requested information, or obstructed the process. The Act specifies a penalty of &8377; 250/- per day, not exceeding &8377; 25,000/-, with the PIO given an opportunity to be heard before imposition. The burden of proof lies with the PIO to show reasonable and diligent action.
The judgment emphasized that once the Commission decides a penalty must be imposed, it should be at the fixed rate of &8377; 250/- per day as per Section 20 of the Act. The Commission does not have the authority to reduce or increase the penalty arbitrarily. If there are reasonable grounds for a delay or a satisfactory explanation provided by the PIO, no penalty should be imposed. However, if a penalty is warranted, it must be at the prescribed rate. In this case, the Court upheld the penalty of &8377; 3,500/- for a 14-day delay, emphasizing adherence to the statutory provisions.
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2012 (8) TMI 917
Issues:
The legality and correctness of the order passed by the learned Single Judge in W.P. No. 31887/2004 [2013 (292) E.L.T. 183 (Kar.)]
Summary:
Issue 1: Challenge to the order of withdrawal of benefit under Duty Entitlement Pass Book Scheme
The respondent, a partnership firm engaged in garment manufacturing, claimed duty-free benefit for exporting gents jackets prior to 1-4-1999 under Annexure-B. The benefit was initially granted but later withdrawn based on a general clarification issued on 1-4-1999. The respondent challenged the withdrawal through an appeal and subsequently a writ petition.
Judgment: The learned Single Judge found in favor of the respondent, stating that as per Annexure-B, the respondent was entitled to the benefit for exporting woollen jackets before 1-4-1999. The appellants had no grounds to withdraw the benefit based on the later clarification. The High Court upheld the Single Judge's decision, dismissing the appeal as the respondent was rightfully granted the benefit as per the scheme and timeline of events.
Key Points:
- The respondent claimed duty-free benefit for exporting gents jackets under Annexure-B.
- The benefit was withdrawn based on a general clarification issued on 1-4-1999.
- The Single Judge ruled in favor of the respondent, considering the timeline of events and entitlement u/s Annexure-B.
- The High Court upheld the decision, stating the appellants were not justified in withdrawing the benefit.
Conclusion:
The appeal challenging the withdrawal of duty-free benefit under the Duty Entitlement Pass Book Scheme was dismissed by the High Court, affirming the respondent's entitlement as per Annexure-B and the timeline of events.
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2012 (8) TMI 916
Dividend Stripping Transaction - Disallowance of loss claimed by the assessee on the ground that a dividend stripping transaction was not a business transaction and since such a transaction was primarily for the purpose of tax avoidance, the loss so called was an artificial loss created by a pre-designed set of transaction - Held that:- The issue involved in this civil appeal relates to dividend stripping which is squarely covered in favour of the assessee by the judgement of this court in the case of CIT v. Walfort Share and Stock Brokers P. Ltd. reported in [2010 (7) TMI 15 - SUPREME COURT] wherein held section 14A deals with disallowance of expenditure per se and not with a disallowance of a loss which arises at a point of time subsequent to the purchase of units and the receipt of exempt income and occurring only when there is a sale of the purchased units. - Under Section 94(7) the dividend goes to reduce the loss. It applies to cases where the loss is more than the dividend - Section 14A comes in when there is claim for deduction of an expenditure whereas Section 94(7) comes in when there is claim for allowance for the business loss. HC case confirmed [2009 (2) TMI 801 - DELHI HIGH COURT] - Decided in favor of assessee.
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2012 (8) TMI 915
Issues: Jurisdiction of High Court to entertain writ petitions against orders of National Consumer Disputes Redressal Commission, Delay in filing petitions, Condonation of delay
Jurisdiction Issue:
The Supreme Court addressed the issue of jurisdiction regarding the High Court's authority to entertain writ petitions against the orders of the National Consumer Disputes Redressal Commission. It was contended that the High Court lacked jurisdiction to deal with such matters, as the National Consumer Protection Act, 1986, stipulates that challenges to the Commission's orders should be brought before the Supreme Court. The Court referenced a previous case to emphasize that while technical breaches may occur, the High Court can still set aside orders if deemed invalid under Article 226 of the Constitution. However, the Supreme Court clarified that High Courts should not entertain writ petitions against Commission orders when a statutory appeal lies with the Supreme Court. The Court highlighted that bypassing the statutory appeal process is an improper exercise of jurisdiction by the High Courts.
Delay Issue:
The Supreme Court noted an unexplained delay of 1314 days in filing a petition against a specific order and 851 days against another. The petitioner cited health reasons for the delay, but the Court deemed the explanation insufficient, emphasizing that personal appearance was not necessary. Referring to a previous case, the Court outlined that condoning delays in cases involving special courts or tribunals, like those under the Consumer Protection Act, must consider the special limitation periods set by the statutes. In this instance, the Court found no valid reason to condone the significant delays, stating that doing so would effectively replace the statutory limitation period with its own discretion.
Conclusion:
Ultimately, the Supreme Court dismissed the petitions on the grounds of the substantial delays in filing them. The Court highlighted that the High Courts should not question the orders of the Commission under their writ jurisdiction, as a statutory appeal route exists to the Supreme Court. The Court issued a cautionary directive to High Courts against entertaining writ petitions challenging Commission orders and instructed the dissemination of this directive to all High Courts.
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2012 (8) TMI 914
Whether the prosecution against an accused, notwithstanding his exoneration on the identical charge in the departmental proceeding could continue or not?
Whether exoneration in the departmental proceeding ipso facto would not result into the quashing of the criminal prosecution?
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2012 (8) TMI 913
The case involved a dispute over interest on delayed sanctioning of rebate. The appellate tribunal transferred the file to the Joint Secretary of the Government of India for further action as per Section 35B of the Central Excise Act, 1944.
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2012 (8) TMI 912
Issues involved: Classification of goods and eligibility for benefit under Notification No. 12/94-C.E.
Upon perusal of the questions framed in the appeal, it is evident that the primary issue revolves around the classification of goods and the eligibility of the appellant for the benefit under Notification No. 12/94-C.E. The questions specifically address the interpretation of Heading No. 34.03 of the Central Excise Tariff Act, 1985 and the denial of the said benefit by the Appellate Tribunal.
The judgment clarifies the jurisdiction for appeals in such matters. According to Section 35L of the Central Excise Act, 1944, orders related to the determination of questions regarding excise duty or the value of goods for assessment are to be appealed before the Supreme Court. On the other hand, Section 35G allows appeals to the High Court for orders not concerning the rate of duty or value of goods. Therefore, in cases where the question pertains to the rate of duty or value of goods, the appeal lies exclusively before the Supreme Court, rendering it non-maintainable before the High Court.
Consequently, the High Court dismissed the present appeal as not maintainable, while affirming the appellant's right to seek recourse through the appropriate legal remedy available under the law.
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2012 (8) TMI 911
Issues:
The judgment involves issues related to the payment of value-added tax (VAT) on masala powder by a trader in food products in the State of Karnataka. The primary contention is whether masala powder falls under entry No. 89 of the Third Schedule, attracting a tax rate of four percent, or if it should be taxed at a higher rate of 12.5 percent.
Issue 1 - Interpretation of VAT Rate for Masala Powder:
The appellant, a trader in food products including masala powder, disputed the assessment of VAT from April 2005 to September 2005. The Division Bench of the court clarified that masala powder does not fall under entry 89, which attracts a 12.5 percent tax rate. Instead, it falls under the residuary clause, subject to a four percent tax rate for the specified period.
Issue 2 - Substantial Questions of Law:
The appeal was admitted based on substantial questions of law regarding the justification of reassessment proceedings under section 39(1), penalty under section 72(2), and interest under section 36(1). The appellate authority's decision, the revisional authority's actions under section 64(1), and the assessing authority's role were all scrutinized in the context of the pre-existing material on record.
Issue 3 - Commercial Character of Masala Powder:
Citing a Supreme Court judgment, the court emphasized that masala powder, created by grinding and mixing various spices, constitutes a distinct commercial commodity subject to taxation. The court held that the production of masala powder results in a new product with a separate commercial identity, making it liable for taxation as a distinct entity.
In conclusion, the court dismissed the appellant's appeal based on the authoritative interpretations of the law regarding the taxation of masala powder. The judgment reaffirmed the tax treatment of masala powder as per the relevant provisions and established legal principles.
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2012 (8) TMI 910
Disallowance of provision for encashment of leave - Held that:- Tribunal allowed the claim of provision for leave encashment on the basis of decision of Hon’ble apex Court in the case of Bharat Earth Movers (2000 (8) TMI 4 - SUPREME Court ) as the Hon’ble Calcutta High Court in the case of Exide Industries (2007 (6) TMI 175 - CALCUTTA High Court ) struck down the provision of section 43B(f) being arbitrary, unconscionable. Further, the department filed SLP before Hon’ble apex Court against the decision of Hon’ble Calcutta High Court in the case of Exide Industries Ltd (2008 (9) TMI 921 - SUPREME COURT) by its order has stayed the operation of judgment of Hon’ble Calcutta High Court.
At the time of hearing, ld A.R. submitted that the said appeal is yet to be disposed of. In view of above and respectfully following the earlier decisions (supra), we set aside the orders of authorities below and restore the matter back to the file of AO for adjudication afresh as per the decision of Hon’ble apex Court in the case of Exide Industries Ltd (supra). - Decided in favor of assessee for statistical purposes.
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2012 (8) TMI 909
Benefit under Notification No. 14 of 1997, dated 3rd May, 1997 - Whether the duty payable with regard to Residual Fuel Oil (RFO) and Low Sulphur Heavy Stock (LSHS) shall be the same or not - Held that:- From the plain reading of the aforesaid notification it appears that RFO does not fall within the six items which have been included under the separated, with regard to Modvat credit. The Tribunal had relied upon the notification dated 3rd May, 1997 and reversed the findings of adjudicating authority. The findings recorded by Tribunal seems to be based on the consideration of notification dated 3rd May, 1997, proviso to which includes only naphtha, furnace oil, low sulphur heavy stock, light diesel oil, bitumen and paraffin wax. These six items had been taken out under Chapter 27 of the Schedule to the Central Excise Tariff Act, 1985 giving them different status with regard to different restricted Modvat tariffs. RFO is not covered under the proviso in question. - no substantial question of law involved, which may call for any interference under Section 35H of the Central Excise Act - Decided in favour of assessee.
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2012 (8) TMI 908
Validity of assessment completed u/s. 158BD and u/s. 158 BC - CIT(A) quashed the assessment proceedings - Held that:- As relying on case of CIT vs. Lekshmi Traders [2010 (11) TMI 467 - KERALA HIGH COURT ] we agree with the contentions of the department that the assessment cannot be held as void ab initio, if the Assessing Officer did not mention the relevant section correctly in the assessment order. Accordingly, we set aside the orders of the Ld. CIT(A) on this point.
Since the Ld. CIT(A) did not adjudicate the appeals on merits, we set aside both the appeals to his file for adjudicating the grounds raised on merits. In the case of Shri V.H.Yahia, the Ld CIT(A) has also held that the assessment is barred by limitation. Since the decision of Ld CIT(A) in respect of the jurisdiction of the Assessing Officer is set aside, we set aside the issue relating to the limitation also to his file with the direction to examine the same afresh in the set aside proceedings. - Decided in favour of revenue for statistical purposes.
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2012 (8) TMI 907
Waiver of Pre-deposit - Commercial training or coaching centre - Tribunal declined to waive pre-deposit by relying upon a decision of the Authority for Advance Ruling (AAR) in the case of CAE Flight Training (India) Ltd., [2012 (7) TMI 669 - CESTAT, MUMBAI] - Appellant wants full waiver relying upon the decision in the case of Gujarat Flying Club [2014 (1) TMI 1449 - CESTAT AHMEDABAD] - Held that:- once the Co-ordinate Bench of the CESTAT in a similar case has granted total waiver of pre-deposit much after the decision of AAR, in the absence of any valid reasons ought not to have declined to following the decision of the Co-ordinate Bench. In these circumstances, the order of CESTAT dated 7-6-2012 is quashed and set aside and the Tribunal is directed to hear the appeal on merits against the Order-in-Original dated 30-11-2011 without insisting for pre-deposit. - stay granted.
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2012 (8) TMI 906
Benefit of Small Scale Exemption - Clandestine removal of goods - Supreme Court dismissed the appeal of assessee filed against the decision of High Court [2012 (5) TMI 577 - PUNJAB AND HARYANA HIGH COURT], finding no ground to interfere in the decision of the high court wherein high court upheld the Tribunal's findings. However, Supreme Court directed that if the petitioner complies with the previous order of Tribunal, the order of stay as well as petitioner’s appeal shall be revived and disposed of on merits.
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2012 (8) TMI 905
Demand of tax - Applicability of Entry 69(i) - Held that:- Entry 69(i) of the III Schedule covers the papers of all kinds including Ammonia paper, blotting paper and straw box, triplex boards, and like other, but excluding photographic paper. - Entry 69(i) is the inclusive definition and it includes all kinds of paper "and the like". However, it excluded the photographic paper. In the instant case, the appellant is importing papers, the Customs Authorities have also treated it as paper with adhesive. The appellant cuts the papers into pieces and prepares 'post-it-paper' with adhesive on one side. It is generally used as a flag or used for writing purpose. Entry 69(i) clearly mentions the papers of all kind. The said entry covers 'post-it-paper' manufactured by the appellant. Entry 69(i) includes all kinds of papers without stipulating use or utility to which the said papers are put to. - Since Entry 69(i) covers the papers of all kinds "and the like", the 'post-it-paper' falls under Entry 69(i). It attracts tax at the rate of 4% and it will not fall under the unscheduled goods under sub-Section 1(b) of Section 4 of the Act. - Decided in favour of assessee.
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2012 (8) TMI 904
Duty demand - Penalty u/s 11AC - Disallowance of CENVAT Credit - Held that:- Commissioner (Appeals) has fallen in error disallowing the Cenvat credit availed by the assessee company in respect of the excise duty paid on the blades and imposing penalty on the assessee company as well as its Prop. Sh. Govind Singh. - Decision in the case of CCEC & ST, Daman v. Prime Health Care Products reported in [2010 (10) TMI 881 - GUJARAT HIGH COURT] - Decided in favour of assessee.
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2012 (8) TMI 903
Penalty u/s 11AC - exemption under Notification No. 9/1998-C.E., dated 2-6-1998 - appellants were clearing the goods with the brand name of others - Held that:- As the appellants were clearing the goods under the brand name of M/s. Kothari Industries, therefore, in view of the decision of the Hon’ble Supreme Court in the case of CCE v. Rukmani Pakkwell (2004 (2) TMI 69 - SUPREME COURT OF INDIA), the appellants are not entitled for the benefit of SSI Notification. - As the appellant itself claiming the benefit of Notification No. 9/98-C.E. in the declaration filed in the year 2000. We find that the Revenue denied the SSI notification on the ground that the appellants were clearing the goods in the brand name which does not belong to them and registered in the name of M/s. Kothari Industries. The provisions of Notification No. 9/99-C.E. are also the same. - appellants are entitled for cum-duty price. - Decided partly in favour of assessee.
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2012 (8) TMI 902
Clandestine removal of goods - Imposition of penalty - Held that:- By the first appellate order, there is a concurrent finding of escapement of recording of the aforesaid quantity of filters which caused prejudice to Revenue. Once no satisfactory explanation came to record as to why the goods escaped accounting that makes no difference to law whether sold in domestic market or sent for export. For no further explanation today to explain the reason why the aforesaid quantity remained unexplained before the audit, adjudication or at first appellate stage, there is no scope to intervene to the appellate order - Decided against assessee.
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2012 (8) TMI 901
Penalty u/s 11AC - Whether the factual findings recorded by the Customs, Excise and Service Tax Appellate Tribunal, that the assesse has not made out a prima facie case or undue hardship to waive the pre-deposit under Section 35F of the Central Excise Act, 1944, could be set aside by way of judicial review without demonstrating that such a finding was perverse - Supreme Court did not find any ground for interference with the impugned order and dimissed the petition filed by the assessee against the decision of High Court [2014 (2) TMI 357 - MADRAS HIGH COURT]. However, Supreme Court granted extention of time for complying the CESTAT Order [2012 (11) TMI 598 - CESTAT, CHENNAI].
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