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Showing 341 to 360 of 888 Records
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2010 (12) TMI 1017
Refund - unjust enrichment - refund claim of an amount equal to CENVAT credit of CVD taken in their CENVAT account - Held that:- It appears from the text of the final order that there was no mention of any form of refund claim on behalf of the Revenue when the final order was passed. The original authority is, therefore, required to consider the pending refund claim dated 18-5-2004 in terms of the remand order. This requirement is very much clear from the text of the final order. The obvious need not be reiterated. Therefore, the application is rejected.
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2010 (12) TMI 1015
Undervaluation - Demand - Search and seizure - Rule 11 of Central Excise Valuation Rules, 2000 - principles of preponderance of probability - Held that:- Statements recorded from Shri L.S. Navin cannot be relied on unless it is established by the Revenue that his statement had not been obtained under duress. There is no evidence of coercion adduced by Shri L.S. Navin. Moreover, his initial statement was incriminating since he had paid excess amount towards purchase of plywood which had not suffered duty. He had thus abetted evasion by the BA group of firms. This deposition found corroboration in the slips recovered. Shri Manoj Kumar Amin and Shri J.M. Ashraf are not third parties. They are employees of the assessee. If they were forced to give incriminating statements against the assessee, they should have retracted the same without delay. In the absence of any retraction within a reasonable period of giving the statements, their retraction is not acceptable. Statements rendered under Section 14 are valid evidence and cannot be doubted in the normal course. It would appear that in respect of the invoices covered by the slips which were recovered, evasion to the extent of 67% as found by the Adjudicating Authority is sustainable.
Original Authority rightly (relied on the decision of the Larger Bench of the Tribunal in the case of Nizam Sugar Factory (1999 (10) TMI 123 - CEGAT, NEW DELHI) to hold that five year period is available from the relevant date for the Department to raise demand through a show-cause notice. The date of knowledge by the Department did not curtail this period. The Hon’ble High Court of Gujarat interpreted the provisions of Section 11A vide its judgment in the case of CCE v. Neminath Fabrics Pvt. Ltd. [2010 (4) TMI 631 - GUJARAT HIGH COURT]. Therefore find that the demand is not barred by limitation. The ld. Counsel for the Revenue had argued that the case of evasion of the Revenue is established by the fact that in the case of direct sales of goods to Tata Coffee Ltd., the assessee had raised invoices for the following three varieties of plywood at much higher prices compared to prices invoiced for such goods when sold to others.
As regards applying the finding of evasion in respect of clearances other than those covered by the documents recovered, the ld. Counsel for the Revenue sought to apply the principles of preponderance of probability. If we were to apply the above principle, we have to hold that the assessee had evaded duty to the extent of 63.18% in respect of all the clearances during the material period. Even if we were to hold that the assessee had willfully short paid duty on all clearances, the probability of the assessee short paying duty to the extent of 70% or 30% or any other amount in respect of any of these clearances cannot be ruled out. We are not in a position to confirm demand against any assessee ignoring such a probability. By following the preponderance of probability in the manner suggested by the Revenue, we would be passing orders which would contain a definite element of arbitrariness - set aside the impugned order and remand the dispute regarding duty liability of the assessee and its penal liability for a fresh decision by the Original Authority. The penal liability of the individuals shall also be decided in de novo proceedings following principles of natural justice
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2010 (12) TMI 1013
Penalty - Tribunal remanded the matter back to the Original Authority for causing a verification of the respondent’s claim that the furnace oil moved to its Nagapattinam Unit following the warehousing procedure has been process/cleared on payment of appropriate duty - Held that:- Tribunal set aside the penalty. The respondent did not challenge the liability of payment of duty though it was under the bona fide belief that it could move the furnace oil produced in the Manali Unit duty-free under the warehousing procedure to its Nagapattinam Unit, where it could be assessed to necessary duty liability. When such movement of furnace oil produced at Manali Unit to Nagapatiinam Unit was made, the same was not questioned by the Department, which weighed with the Tribunal while considering the scope of levy of penalty, such a perception weighed with the Tribunal for setting aside the penalty does not give any scope for any question to be considered in this appeal, especially when the Tribunal remitted the matter back to the Original Authority to assess the duty liability after giving an opportunity to the respondent, appeal, therefore, fails and the same is dismissed
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2010 (12) TMI 1007
Revision application - rebate claims rejected on the grounds of limitation as not filed within one year period from the date of let export order - Held that:- Para 2.4 of Chapter 9 of Central Excise Manual, the following lines are also mentioned that “In case any document is not available for which the Central Excise or Customs Department is solely accountable the claim may be received so that the claimant is not hit by limitation period, initial date of filing of the rebate claim i.e. 14-2-06 is the relevant date under Section 11B of the Central Excise Act, 1944. Hence, the rebate claims are not hit by limitation. Government observes that technical deviations or procedural lapses are to be condoned if there is sufficient evidence as the export of the duty paid goods. Government finds no infirmity in the impugned order-in-appeal and therefore upholds the same, Revision application is rejected being devoid of merit.
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2010 (12) TMI 1001
CENVAT credit on basic Customs Duty and Special Additional Duty - Demand of credit along with interest and penalties questioned on the ground of time-bar - case of the Revenue that credit was availed during the period June 2003 to March 2004 and Show Cause Notice was issued on 4-6-2008 demanding duty after denying credit and for imposition of penalty alleging suppression with intent to evade payment of duty - Respondent argument is that demand is time barred as held by the Commissioner (Appeals) on the ground that Audit memos were issued in the year 2006 and therefore after 2006 there is no suppression on the part of the Respondent - Held that:- Statements of merchant manufacturers who appeared indicate that they had agreed that they had sent the grey fabrics to the respondent and received the resultant processed fabrics, without cover of central excise invoices and without payment of central excise duty leviable thereon during the relevant period. Thus, in the facts of the present case suppression stands admitted by the respondent assessee and established by evidence on record and as a natural corollary, the proviso to sub-section (1) of Section 11A would stand attracted. In the circumstances, the impugned order of the Tribunal whereby it has been held that the show cause notice issued beyond the period of six months from the date of knowledge is barred by limitation is clearly contrary to the provisions of Section 11A of the Act and as such cannot be sustained.
No merit in the contention of the Respondents that the Revenue was aware of the irregularities in the year 2006 when Audit memos were issued hence the allegation of suppression is not sustainable. The impugned order is set aside and Appeal filed by the Revenue is allowed and order passed by the adjudicating authority is restored. Against assessee.
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2010 (12) TMI 997
Validity of Section 154 as introduced by the Finance Act, 2003 - levying interest on the amount recoverable from the petitioners on account of the excise duty in terms of Section 154 - Exemption to the new industrial units from payment of central excise duty - petitioners have contested against recovery of interest as there was no wilful default on its part - Held that:- The benefits which the petitioners sought to be enforced by challenging the constitutional validity of Section 154 of the Finance Act, 2003 was on the basis of the pre-existing benefit or one flowing from a pre-existing right. The difference between a pre-existing right or benefit on one hand and the right or benefit, which is considered just and fair on the other hand is vital. The former falls within the jurisdiction of court while later does not. It cannot be spelt out from the decision of the Apex Court in M/s. R.C. Tobacco (2005 (9) TMI 80 - SUPREME COURT OF INDIA) that such a right or benefit has accrued to the petitioners as the specific question of the issue involved was confined not only to the constitutional validity of Section 154 of the Act, but also to all relevant circumstances and incidental questions centering around the issue. Hence the present relief prayed for by the petitioners must be deemed to have been denied, for what is claimed but not granted necessarily get denied in judicial or quasi-judicial proceeding. Writ dismissed.
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2010 (12) TMI 996
Interest under the Sugar Export Promotion Act, 1958 - Held that:- As it is apparent that interest can be levied and charged on delayed payment of tax only if the statute that levies and charges the tax makes a substantive provision in this behalf - section 7 of the Sugar Export Promotion Act, 1958 does not make any provision for levy and charge of interest on the duty of excise payable under sub-section (1) thereof - Tribunal was justified in holding that there being no provision for interest in the Act, there was no justification or warrant to confirm the interest - Decided in favor of the assessee
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2010 (12) TMI 995
Voluntary payment made to avoid interest penalty - whether be treated as pre-deposit under Section 35-F of the Central Excise Act, 1944 and accordingly, the refund of the same not subjected to the test of unjust enrichment? - Held that:- The controversy involved in the present appeal is no longer res integra inasmuch as, this Court in the case of Commissioner of Customs (Preventive) v. Ghaziabad Ship Breakers Ltd. [2010 (10) TMI 151 - GUJARAT HIGH COURT] in the context of the provisions of Section 129E of the Customs Act, 1962 which are in pari materia with the provisions of Section 35F of the Central Excise Act, 1944, has held that any amount deposited during the pendency of an appeal would be by way of pre-deposit under Section 129E of the Customs Act and has to be treated accordingly. The controversy in issue in the present appeal, therefore, stands concluded against the revenue, by the said decision of this Court.
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2010 (12) TMI 994
Penalty on the Director - Tribunal set aside penalty levy - Held that:- Respondent is the active Director who is looking after the day to day working of the Unit and has admitted in his statements that the goods were cleared illicitly without payment of duty and was knowingly involved in the evasion of central excise duty.
The Tribunal has merely recorded that it does not find any justifiable reason to impose the penalty upon the Director. While holding so, what has weighed upon the Tribunal is that no provision, section or rule of law under which the penalty has been imposed upon the Director, has been specified in the impugned order of the Joint Commissioner. These observations of the Tribunal overlook the fact that in the body of the Order in-Original, and more specifically in paragraph 23 thereof, the Adjudicating Authority has in fact, while considering the case against the respondent, held that the respondent is liable to penalty under Rule 26 of the Central Excise Rules, 2002. In the circumstances, merely because there is no mention of Rule 26 in the operative part of the order, it cannot be understood to mean that the adjudicating authority has not specified the provisions under which the penalty has been imposed upon the Director.
It is settled legal position that an order has to be read as a whole. When the order made by the Adjudicating Authority is read as a whole, it becomes apparent that the penalty has been imposed on the respondent under Rule 26 of the Rules.Against assessee.
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2010 (12) TMI 993
Penalty - benefit of cum-duty price - Whether respondent eligible to avail the benefit of Notification No. 5/98 dated 2-6-1998 and also Modvat credit of inputs used for the goods simultaneously - allegations of wrongful availment of exemption under Notification No. 5/98 dated 2-6-1998 thus duty demanded under Section 11A of the Central Excise Act, 1944 - Tribunal allowed the claim - Held that:- No infirmity can be found in the approach adopted by the Tribunal inasmuch as if the assessee is not entitled to exemption under the notification in question, it would certainly be entitled to avail of Modvat credit in respect of the raw material used in the manufacture of the goods in question.
As regards the grant of benefit of cum-duty price, the Supreme Court in the case of Commissioner of Central Excise, Delhi v. Maruti Udyog Ltd., (2002 (2) TMI 101 - Supreme Court) has held that the wholesale price which is charged is deemed to be the value for the purpose of levy of excise duty, but the element of excise duty, sales tax or other taxes which is included in the wholesale price is to be excluded in arriving at the excisable value, order of the Tribunal being in consonance with the principle laid down in the aforesaid decision, it is not possible to state that the Tribunal has committed any legal error in directing that the sale price of the goods should be treated as cum-duty price for the purpose of valuation and determination of duty amount, no findings as regards suppression or mis-declaration. Tribunal was justified in setting aside the penalty, appeal is, accordingly, dismissed
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2010 (12) TMI 992
Penalty - denial of benefit of SSI exemption - as per CCE v. M.P.V. & Engg. Industries [2003 (3) TMI 107 - SUPREME COURT OF INDIA] the manufacturer is entitled for the benefit of the SSI exemption Notification from the date of application, in pursuance to which the registration has been granted - Held that:- Appellant produced a copy of the application which was filed in February, 1988, on which no date has been mentioned. Even second application was made sometime in February/March, 1988. The Certificate of Registration was granted on 31-3-88. Therefore, in absence of the date on which the application is submitted, it is difficult to say that the Appellant are entitled for the benefit of SSI exemption Notification from which date. As there is no evidence produced by appellant regarding date of second application, hence, the appellants are entitled for the benefit of Notification from the date of registration i.e. 31-3-88, Appellant failed to produce any evidence in support of their claim, penalty of Rs. 1.00 lakh has been imposed only on the ground that the Appellant had wrongly availed the benefit of the SSI exemption Notification. As held that the Appellant are entitled for the benefit of Notification with effect from 31-3-88, therefore no ground to interfere with the quantum of penalty imposed on the Appellant. Therefore, the Appeal is dismissed.
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2010 (12) TMI 989
Extended period of limitation - suppression, misstatement or misdeclaration - clasification of yarn manufactured by assesse - Chapter sub-heading No. 54.02 or Chapter 56 - Held that:- In the light of the facts noted it is apparent that the assessee, initially, was classifying the goods under Chapter sub-heading No. 54.02. However, upon noticing that the Customs authorities were clearing such yarn under Chapter 56, the assessee, sought clarification in this regard was advised that the yarn manufactured by it merits classification under Chapter No. 56 of the Tariff Act. Accordingly, the assessee, after giving intimation to the department, started effecting clearances under Chapter 5606.06 of the Tariff Act. In the light of the aforesaid facts it cannot be said that there was any suppression, misstatement or misdeclaration on the part of the assessee. It is not in dispute that the Customs authorities were clearing such goods under Chapter 56 of the Tariff Act. The assessee, therefore, was entitled to entertain a bona fide belief that the product manufactured by it would fall under the said sub-heading.
It is not possible to state that the Tribunal has committed any legal error in holding that the extended period of limitation could not have been invoked. In favour of assessee.
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2010 (12) TMI 986
Penalty - Waiver of pre-deposit - appellant paid the duty on the normal transaction value, that is transaction value of the goods to other independent buyers, while according to the Department, the duty should have been paid on the basis of 110% of the cost of production in terms of Rule 8 of the Central Excise Valuation Rules, 2000 - Held that:- Duty has been demanded by invoking proviso to Section 11A(1), but there does not appear to be any evidence indicating that the appellant had suppressed the relevant facts with intent to evade payment of duty - when the duty paid by the appellant in respect of the goods cleared from their factory was available as Cenvat credit to their factory located at Bahadurgarh, Haryana, there could not be any intention on the part of the appellant to evade the payment of duty. As the major part of duty demand is also hit by limitation, there is substance in the appellant’s plea for waiver from the requirement of pre-deposit of duty demand, interest and penalty. The stay petition is allowed.
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2010 (12) TMI 981
Outdoor catering service - disallowance of the availment of CENVAT credit of the service tax paid on the catering service wherein amount recovered from the employees against the subsidized food - Held that:- As decided in the case of CCE v. Ultratech Cement Ltd. [2010 (10) TMI 13 - BOMBAY HIGH COURT] the assessee is entitled to avail input service credit on outdoor catering service as the same are being used by them in their business of manufacturing but it was also held in the decision that if any amount recovered by the assessee from the employees providing subsidized food the assessee is not entitled to avail input service credit on this portion. Both the matters are remanded back to the original adjudicating authority to quantify the amount of reversal of input service credit.
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2010 (12) TMI 980
Pre-deposit - appellants availed outdoor catering service - CENVAT Credit denied - Held that:- As in the case of Ultratech Cements Ltd. (2010 (10) TMI 13 - BOMBAY HIGH COURT) it was held that the assessee is entitled to CENVAT credit of the service tax paid on outdoor catering service if they have borne the entire burden of the tax without passing on any part of it to the ultimate consumers of food (employees of the factory). If, on verification, it is found that any part of the service tax paid on outdoor catering service was passed on to the employees of the factory, the entitlement of the manufacturer to CENVAT credit would stand restricted accordingly - set aside the orders of the lower authorities and allow these appeals by way of remand with a direction to the original authority to pass fresh orders in view of the Hon'ble High Court's judgment.
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2010 (12) TMI 979
Cenvat credit denied on LPG used by assessee in their canteen for providing meal to the workers and staff members - duty demand, interest and penalty - Held that:- In the case of M.M.R. Khan (1990 (2) TMI 267 - SUPREME COURT) held that providing canteen is an integral part of manufacturing activity of the assessee and as per the decision of Maruti Suzuki Ltd. (2009 (8) TMI 14 - SUPREME COURT) is also any input which has gone into manufacturing of final product directly or indirectly is entitled for input credit, in this case also the respondent is entitled for the input credit on LPG which has gone to the canteen which is as per Factory Act is necessarily required to run their manufacturing activity, no infirmity with the impugned order and the same is upheld. Appeal filed by the Revenue is rejected.
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2010 (12) TMI 978
Clearing and forwarding agency service v/s business auxiliary services - Held that:- Perusal of the agreement and also the speaking order passed by the ld. first appellate authority, it is unable to find any reason to reverse the order of the first Appellate Authority who has not failed to examine the entire gamut of service provided by the respondent. Therefore he was correct to hold that the respondent had provided "business auxiliary service". revenue's appeal dismissed.
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2010 (12) TMI 977
Security services - appellant collecting service charge but not paying the service tax - actual amount received towards service tax had been suppressed - appellants produced evidence to show that they had received service amounts not only for providing security personnel but also providing labour for doing labour work & also submitted that even in the show-cause notice it was mentioned that the appellants have provided labour services apart from security services - Held that:- In the absence of agreements relating to the amounts payable and received and in the absence of supporting documents, mere submission of statement cannot be said to be sufficient. However since even the statement given by the appellant has not been got verified and even the show-cause notice also as mentioned above recognizes the fact that appellant was providing different types of services, this is a matter which is required to be verified since it has an implication in the quantum of service tax payable - order is set aside and the matter is remanded to the original adjudicating authority who shall give an opportunity to the appellant to present their case once again and pass a well reasoned order.
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2010 (12) TMI 976
Deductibility of interest - disallowance u/s 14A - Held that:- Remit the matter back to the file of the Assessing Officer, firstly, for recording a categorical finding as to whether or not the assessee is engaged in investment in shares for the purpose of holding and controlling interest, and thereafter, for deciding the claim for admissibility of deduction in accordance with law, inter alia, including the law laid down by the hon'ble jurisdictional High Court in the case of Srishti Securities (P.) Ltd. (2009 (1) TMI 408 - BOMBAY HIGH COURT).
As regards disallowance under section 14A - Held that:- AO's powers to make disallowance under section 14A are not fettered on that count, and except for this variation, the observations made by us while dealing with the assessment year 2001-02 will apply mutatis mutandis for these years as well. We may add that while deciding the issue regarding disallowance under section 14A, the Assessing Officer will, inter alia, bear in mind the principles laid down in the case of Godrej & Boyce Mfg. Co. Ltd. v. Dy. CIT [2010 (8) TMI 77 - BOMBAY HIGH COURT]. With these directions, the matters for the assessment years 2002-03 to 2004-05 are also remitted to the file of the Assessing Officer for fresh adjudication, and the appeals are, accordingly, allowed for statistical purposes.
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2010 (12) TMI 966
Search and seizure - Undisclosed income - Revenue contended that transaction recorded in seized diary had not been duly accounted for in the books of account of the assessee - Held that:- Tribunal rightly remanded back the file to AO on ground that merely on the ground that cheques were found entered in the diary, which was actually not received or recorded in regular book on subsequent date, cannot be made the basis for making the addition, unless some contrary material is found by the department.
ITAT had observed that each cheque number, date of clearing and the name of the party from whom cheque was received was noted in the diary were duly found to be entered in regular books. Merely because there was some difference in the date of actual realization of cheques or actual sending cheques by the customers as compared to the date on which customers have assured for sending such payment, cannot be made the reason for treating the same as unaccounted income of the assessee - Decided against the Revenue
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