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Case Laws
Showing 341 to 360 of 1442 Records
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2014 (2) TMI 1104
Valuation of goods - Rejection of transaction value - Whether there can be two prices for import of the same goods for manufacture or as spare parts - Held that:- When undervaluation is alleged, the department has to prove it by evidence or information about comparable imports. For proving undervaluation, if the department relies on declaration made in the exporting country, it has to show how such declaration was procured. We may clarify that strict rules of evidence do not apply to adjudication proceedings. They apply strictly to the courts proceedings. However, even in adjudication proceedings, the AO has to examine the probative value of the documents on which reliance is placed by the department in support of its allegation of undervaluation. Once the department discharges the burden of proof to the above extent by producing evidence of contemporaneous imports at higher price, the onus shifts to the importer to establish that the invoice relied on by him is valid. Therefore, the charge of under-invoicing has to be supported by evidence of prices of contemporaneous imports of like goods. Section 14(1) speaks of “deemed value”. Therefore, invoice price can be disputed. However, it is for the department to prove that the invoice price is incorrect.
Revenue has failed to prove otherwise apart from import of spare parts the value of the imported goods has been influenced being related person. Therefore, the impugned order is bad in the eyes of law. Accordingly, the same is set aside - Decided in favour of assessee.
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2014 (2) TMI 1103
Suspension of CHALR License - Retirement of partner - whether Shri Anil Sharma who was qualified to be a licensee under CHALR, 1984 shall cease to be so upon retirement of the partner Shri Harinder Pratap Singh w.e.f. 7-10-2010 - Held that:- Perusal of Regulation 3 of CHALR, 2004 throws light that a natural person who is qualified to be a licensee appearing the examination in that behalf and qualifying therein is considered to be a CHA Licensee in terms of Regulation 9 of CHALR, 2004. Such a legal proposition does not oust the appellant from the purview of law to be recognised as CHA licensee who was recognised by 1984 Regulations aforesaid. In fact under Regulation 15, the appellant is specifically allowed to continue his business.
There is nothing contrary on record to show that Shri Anil Sharma is incompetent under law of CHALR, 2004. Record also does not reveal as to issuance of any show cause notice questioning his eligibility. Therefore, we do not find any incompetency of the present appellant to continue to be a CHA licensee. Once the eligibility or competency to be a licensee is not found to be contrary to law, the appellant continues to be a licensee as CHA - Decided in favour of appellant.
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2014 (2) TMI 1102
Recall of order - Regulation of Caveat filings - writ petition for directions to be sought, inter alia, to the Company Law Board to frame regulations in respect of lodging caveats before that CLB as well as to this Court, to regulate filing of caveats, under Section 148-A of the Code of Civil Procedure - Held that:- Court without giving a notice to the caveator cannot be treated as a nullity. If a statute intends to demolish the ordinary powers of a Civil Court, it is well settled proposition of law that it can only be done by a direct piece of legislation enacted for that purpose and not by the effect of an indirect legislation as if it were by a side wind. The powers of a Civil Court are too sacrosanct to be allowed to be diluted or to be curtailed by a mere remote implication. I, therefore, hold that as there is no specific provision declaring any action taken by the Court contrary to its mandatory duty under Sub-section (3) to give a notice would be void, the order passed by the Court below on 30-10-1980 is not a nullity. In other words, il appears to me that the mere lodgement of a caveat would not deprive the Court of its power to pass an order even if the caveator was not informed of the dale of hearing of the matter. As the lodgement of a caveat is merely a right to be informed of the hearing date and it has no effect by way of curtailing the powers of a Civil Court to pass an appropriate order on the merits of the case - no reason to review or recall judgment dated 01.10.2013 - Decided against Petitioner.
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2014 (2) TMI 1101
Denial of refund claim of predeposit - Clearance of goods in excess of the limit prescribed - Exemption Notification No.08/2003-CE dated 01.03.2003 - Section 11A(2B) - exteneded period of limitation - Held that:- revenue department’s argument stems from its understanding that the refund claim was not tenable in view of Section 11A(2B) and that the demand could have been made during the extended period by virtue of Section 11A without issuing a notice. However, a careful reading of the appeal grounds would indicate that the plea of the assessee was that the facts found were not such so as to indicate fraud or misrepresentation as to attract the main provisions of Section 11A. Viewed from that perspective, there is no infirmity with the findings of the orders of the Tribunal. No substantial question of law arises - Decided against Revenue.
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2014 (2) TMI 1100
Waiver of pre-deposit of duty and penalty - Held that:- since the Additional Commissioner Central Excise has adjudicated upon the issue of liability, at this stage there is no occasion to doubt it particularly by this Court where the issue is not for decision on merit. Therefore, in safeguard of the interest of the Revenue, we are of the view that the learned Tribunal has rightly exercised its discretionary power which does not require interference of this Court - Petitioner is permitted to make pre deposit in installments - Decided partly in favour of assessee.
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2014 (2) TMI 1099
Cenvat Credit - Use of capital goods to manufacture exempted goods - Demand u/s 11A - Extended period of limitation - Held that:- Machine which was installed in the factory was used both for manufacture of exempted goods as well as dutiable goods. Dutiable goods were manufactured since October, 2006 which fact has been noted in Paragraph No. 8 of the judgment of the Tribunal. The Tribunal had denied the benefit on the pretext that " the certificate of the manufacturer relied upon by the appellant also confirms that the plant is usable for manufacture of aerated waters only after modification" - The manufacture had certified that machine is designed to handle carbonated/aerated soft drinks by software changes and minor adjustments. The certificate never said that the object can be achieved only after modification. The certificate did not use the word 'modification' which has crept in the order of the Tribunal. More so, before us now the appellant has filed certificate dated 25.09.2009 which indicates that no modification in the machine can be done in India since it is manufactured at Germany and imported in India - Thus, the appeal is allowed by setting aside the judgment of the Tribunal dated 01.05.2008 and the matter is remitted back to the Tribunal to decide the appeal afresh in accordance with law taking into consideration the certificate dated 25.09.2009 - Decided in favour of assessee
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2014 (2) TMI 1098
Penalty u/s 11AC read with Rule 25(1) - Suppression of facts - Willful misstatement or fraud or evasion of duty - Held that:- The Commissioner came to the finding that there was no willful misstatement or fraud or any contravention or any evasion of duty nor was there any suppression of fact. The aforesaid view of the Commissioner was upheld by the learned Tribunal. The question whether there has been any willful misstatement or fraud or any contravention or any evasion of duty or there is any suppression of fact are essentially questions of fact. These questions are concluded by the views expressed by the learned Tribunal. There is no question of law involved in this appeal - Decided against Revenue.
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2014 (2) TMI 1097
Whether in the facts and circumstances of the case there can be a deemed service of the order on the appellant merely because it was sent under registered cover and no acknowledgment was received more so than there was a specific rebuttal in the form of affidavit filed by the appellant - Denial of CENVAT Credit - Held that:- since the appellant was heard through its representative by the Commissioner (Appeals) after which the appellate order was passed on 23 November 2009, the appellant ought to have checked up with the office of the Commissioner (Appeals), if the order was not received. This in our view, begs the question of when the order of the Commissioner (Appeals) was communicated. Once the legislature has stipulated that the period of limitation under Section 35B (3) commences only upon the communication of the order which is sought to be appealed against, the Tribunal ought to have applied its mind to precisely when the order under appeal was communicated.
Tribunal was not justified in dismissing the appeal. Moreover, if an appeal is not filed within the period of three months, the Tribunal has the power to condone the delay under Sub section 5 of Section 35B if sufficient cause is shown. The question of condonation would of course, arise only, when the Tribunal comes to the conclusion that the appeal was not filed within three months from the date of communication of the order. - appropriate order to pass in the appeal is to quash and set aside the order of the Tribunal dated 24 September 2013 and to restore the proceedings back to the Tribunal for consideration afresh - Decided in favour of assessee.
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2014 (2) TMI 1096
Denial of CENVAT Credit - Supplier of input has wrongly paid duty - Whether activity of appellant amounts to manufacture - Held that:- credit cannot be denied on the ground that activity undertaken by the supplier of input did not amount to manufacture. In these circumstances, as the supplier of input is not party to the present proceeding and the assessment cannot be reopened at the recipient end - Following decision of C.C.E., Delhi-III v. Neel Metal Products Ltd. [2009 (1) TMI 155 - PUNJAB & HARYANA HIGH COURT] - Decided in favour of assessee.
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2014 (2) TMI 1094
SSI Exemption - Clubbing of clearance - two units held by husband and wife separately - Clandestine Removal - Held that:- Held that:- adjudicating authority has nowhere referred to any mutuality of interest between the units of husband and units owned by wife. He has observed that lack of mutuality of interest or financial flow back can be only one of the important consideration but cannot be made sole basis for arriving at the decision. Merely because the two owners of the units were husband and wife and the profits earned by them came into same household, does not mean that clearances of all the units is required to be clubbed.
All the units were separately registered with income tax as also sales tax authorities. Their locations of business were at separate places. In fact one of the unit was located in Delhi itself. There was no financial inter-twining and all the units were working with their own independent financial resources. There is no evidence on record to show that there was any mutuality of interest between the units except for the fact that Shri Pradeep Khanna was sometimes looking after the affairs of the units belonging to his wife which, as already discussed by us, cannot be made the basis for clubbing the clearances of the units owned by husband and wife. - Benefit of SSI exemption allowed - Decided in favor of assessee.
Clandestine Removal - Air-Conditioners / Compressors - sale through dealers - accounting entries of the dealers considered - realizations of unaccounted money - Held that:- When there are dealers appointed by the manufacturers with appropriate price margins who are engaged in such trading activity, an OEM could not have indulged in parallel sales of such large number of compressors because of the market forces and if they indulge in such activity it would have come to the notice of the manufacturer and the representative of the manufacturer testifies that no such trading had come to their notice. So this claim of trading in compressors is a very weak defence.
Contention of the appellant that the case is made on assumptions and surmises is not acceptable. Every case is to be decided based on inference to be drawn by a prudent judge from the evidence available. - In a clandestine activity, it is not possible to unearth every piece of evidence and such standard of proof is not required for proving evasion of tax. - Revenue has proved their case in respect of 606 air-conditioners held to be cleared without payment of duty by the appellant - demand of duty and penalty confirmed - Decided against the assessee.
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2014 (2) TMI 1093
Duty demand - Availment of Cenvat credit on “RAILS” falling under Chapter 73 of CETA - Held that:- appellant availed Cenvat credit on Rails as capital goods. The appellants are engaged in the manufacture of Fish Plates, etc. They have to send the material in the furnace and hot rolled fish plates come after moving on the Rails. Therefore the rolls are the components of the capital goods and they rightly fall under the purview of capital goods. The Department could not produce any evidence that these rolls are used for structural or for installation purposes. Therefore, they are eligible for Cenvat credit. The appellant have paid the interest on the 50% of the Cenvat credit availed by them as they were not entitled for full 100% of Cenvat credit - Decided in favour of assessee.
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2014 (2) TMI 1092
Collection of Excise duty from the customers, on account of fluctuation in rates of the petroleum products on the stocks lying at various depots - Demand u/s 11D - assessee being only a “dealer” and not a “manufacturer” - Held That:- It is clear that the petroleum products being marketed by the appellant depot had been manufactured by various oil companies. We also find that the provisions of Section 11D are applicable only to the person liable to pay the duty who in respect of any goods sold has collected from his customers an amount in excess of duty assessed and paid on the goods. This provision obviously would not be applicable to a dealer who sells the duty paid goods purchased from other manufacturers. The appellant, a HPCL Depot were admittedly selling duty paid petroleum products purchased from different oil companies. Therefore, the provisions of Section 11D are not applicable to the appellant - Decided in favour of assessee.
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2014 (2) TMI 1091
Use of Form -C and Form 31 to import the chemicals and machinery without permission - Permission was only for hides and skins - Penalty u/s 10A of the Central Sales Tax Act - First Appellate Authority has reduced the penalty and the Tribunal has confirmed the same - Held that:- assessee has imported the goods without having the proper sanction. The permission was only for the hides and skins but Form C and Form 31 were utilized for importing various chemicals and machinery. Thus, the the assessee has imported the goods without proper permission, wrongly by misrepresenting the facts - The assessee has imported the goods by knowing that the same are without any permission. The First Appellate Authority has already reduced the amount of penalty and at present, there is no further scope to reduce the same - impugned order passed by the appellate authorities appears reasonable and the same is hereby sustained along with the reasons mentioned therein for all the assessment years under consideration - Decided against assessee.
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2014 (2) TMI 1090
Cancelling the registration of the appellant under the Gujarat Value Added Tax, 2002 - Non consideration of documents - Held that:- appellant had produced the paper book containing several documents – one of them being return submitted on 8th June 2012. The said document contains the counter signature of its having received on 8th June 2012. We have no reason to discard such document. Under the circumstances, it cannot be stated that there was no representation on the part of the appellant on various dates fixed by the Deputy Commissioner of Commercial Tax for hearing. Atleast, the return submissions could have been taken into account which apparently was lost sight of. Under the circumstances, the order dated 16th August 2012 is set-aside. Resultantly, subsequent order of the Tribunal confirming such order is also rendered ineffective. The issue is placed back before the Deputy Commissioner of Commercial Tax, Bhavnagar for fresh hearing and disposal in accordance with law - Decided in favour of Assessee.
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2014 (2) TMI 1089
Demand of service tax - Penalty u/s 76, 77 & 78 - Recovery Agent for loans given by different Financial Institutions - Held that:- applicant has not disclosed full details of the value of the service provided by them and amounts collected as service tax from various clients. Instead the applicant has only asked for cross examination of representatives of the Financial Institutions. Since this case is based on records, cross examination of representatives of the banks is not that important. Going by figures admitted by the applicant itself there is substantial amount of tax to be paid. Under the circumstances, the applicants failed to make the case of total waiver of pre-deposit of dues arising from the impugned order - Conditional stay granted.
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2014 (2) TMI 1088
Waiver of pre-deposit - Cargo Handling Services - Imposition of interest and equivalent penalty - Held that:- at least demand for the period June 2007 to September 2010 seems to be hit by limitation as the earlier show cause notice culminated in an order which is in favour of the appellant - appellant needs to be put to some condition for hearing and disposing the appeal at least for the demands which are raised within the limitation period - Conditional stay granted.
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2014 (2) TMI 1087
Denial of refund/rebate claim - Bar of limitation - Time limit as per Notification 12/05 read with Rule 5 of the Excise Rules - Held that:- wherever no time limit is prescribed, the time limit prescribed under the Act will be applicable. Admittedly, in Section 11B of the Central Excise Act, 1944 time limit has been prescribed. Therefore, provisions of Section 11B of the Central Excise Act are attracted in this case and as per Section 11B of the Central Excise Act, the rebate claim filed are barred by limitation - Following decision of Emco Ltd. vs. CCE [2011 (6) TMI 567 - CESTAT, MUMBAI] - Decided in favour of Revenue.
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2014 (2) TMI 1086
Waiver of pre-deposit - Business Auxiliary Service - collection of fly ash - Job work - Held that:- To fall under Business Auxiliary Service, the activity undertaken should amount to producing or processing of goods on behalf of the client. In the present case, fly ash is produced by the Nasik Thermal Power Station. The appellant does not process or produce fly ash at all. They merely collect the fly ash from Nasik Thermal Power Station and delivers the same at the premises of his client M/s. Dirk India Ltd. in the vehicles given by M/s. Dirk India Ltd. Thus, the service is more appropriately classifiable under Cargo Handling Service and not under Business Auxiliary Service. In view of the above, the appellant has made out a strong prima facie case for waiver of pre-deposit of the dues adjudged. Accordingly, we grant waiver from pre-deposit of the adjudicated liabilities against the appellant and stay recovery thereof during the pendency of the appeal - Stay granted.
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2014 (2) TMI 1085
Demand of differential duty - Discrepancy in annual financial statements and ST-3 Returns - Suppression of value of services rendered - Held that:- Prima facie, it appears that the applicant was providing only security services and no proof of supply of man-power supply has been produced at lower levels and some feeble evidences have been produced before Tribunal as a fresh evidence - Conditional stay granted.
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2014 (2) TMI 1084
Issues:
1. Amendment of cause title
2. Stay application for waiver of predeposit of tax
Amendment of Cause Title:
The judgment pertains to a MISC application for the amendment of the cause title from 'National Maritime Academy' to 'Indian Maritime University.' The applicant submitted a relevant gazette notification supporting the name change. The Tribunal allowed the amendment, directing the registry to update the cause title accordingly.
Stay Application for Waiver of Predeposit of Tax:
The applicant, a Govt. of India Undertaking conducting training programs for port personnel, filed a stay application seeking waiver of predeposit of tax amounting to Rs.18,81,301/- along with interest and penalties. The demand was raised under the category of Commercial Training and Coaching for the period from 2003 to 2008. The applicant argued that post-2008, the institute was recognized as the Indian Maritime University. Reference was made to a similar case pending before the Tribunal. The Tribunal, after hearing both parties and examining the records, directed the applicant to make a predeposit of Rs.4,00,000/- within 6 weeks. Upon compliance with this deposit, the balance amount of tax, interest, and penalty was waived, and the recovery was stayed until the appeal's conclusion. The parties were instructed to report compliance on a specified date.
This judgment addresses the amendment of the cause title and the stay application for the waiver of predeposit of tax in a thorough and detailed manner, ensuring procedural fairness and compliance with legal requirements.
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