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Showing 341 to 360 of 1235 Records
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2012 (8) TMI 900
Recovery of fraudulently availed drawback of duty - applicants are claiming duty drawback (Drawback of Central Excise Portion) by providing wrong and incorrect information - Held that:- Applicants claimed drawback of Central Excise portion in respect of goods exported vide various Shipping Bills detailed in the impugned Orders-in-Appeal. The admissibility of such drawback to merchant exporters is determined as per C.B.E. & C. Circular No. 54/2001-Cus., dated 19-10-2001. - During investigation, the veracity of said declaration furnished by applicants for availing drawback at higher rate could not be verified. The applicants did not submit the relevant annexures containing the requisite certificate despite issuance of summons. They neither appeared before Customs nor submitted the requisite documents. Rather they asked the Customs to procure said documents from their CHA. The printout of the Shipping Bills were retrieved from the EDI data. The investigation carried out could not verify the veracity of said certificates. Therefore the drawback claim were rightly denied.
After investigation it has been conclusively proved that the applicant did not furnish details of supplier/manufacturer/job-worker and as such violated provisions of Circular No. 54/2001-Cus., dated 19-10-2001. Since, the violation is conclusively established, Government do not find any reason to consider applicant’s contention regarding cross-examination as the same will not yield any substantial benefit in favour of the applicant - Decided against assessee.
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2012 (8) TMI 899
Confiscation of goods - Penalty u/s 112 - violation of provisions of Sections 77, 79 and 11 of Customs Act, 1962 read with provisions of Foreign Trade Policy 2009-2014 and Section 3(3) of Foreign Trade (Development & Regulation) Act, 1992 - Held that:- Passenger is neither a habitual offender nor carrying the said goods for somebody else. He is the owner of the goods and concealment was not is an ingenious manner. There is a merit in the pleading of applicant that goods should be allowed to be redeemed on payment of redemption fine and therefore said plea is acceptable.
As regards, the pleading to release the laptop unconditionally, Government finds that one laptop computer is allowed to be imported duty free by every passenger in terms of Notification No. 11/2004-Cus., dated 8-1-2004. So there is no case for its confiscation. Government therefore set aside the confiscation of said laptop computer and allows its duty free clearance. The confiscation of other mobiles/I-Phone is upheld. However, combined redemption fine in respect of mobiles/I-phone is modified to ₹ 6,000/. - Decided partly in favour of assessee.
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2012 (8) TMI 898
Duty drawback claim - imported raw leather was fully exempted from duty vide Notification No. 21/2002-Cus., dated 1-3-2002 - While rejecting the drawback claims, the original authority had held that in terms of Notification No. 26/2003-Cus. (N.T.), dated 1-3-2003, Notification No. 8/2005-Cus. (N.T.), dated 18-1-2005 and Notification No. 36/2005-Cus. (N.T.), dated 2-5-2005, the rates of drawback shall not be applicable to export of a commodity or product if such commodity or product is manufactured by availing of facility under DEPB Scheme as contained in para 4.3 and para 4.3.5 of Exim Policy 2002-07 and para 4.3 and para 4.3.5 of Exim Policy 2004-09 - Held that:- Circular No. 24/2001-Cus., dated 20-4-2001 and Circular No. 19/2005-Cus., dated 21-3-2005, clarify that All Industry Rate (AIR) of duty drawback are based on the concept of averages, where the drawback rates are based on average incidence of duties suffered on inputs and has no relationship to the actual input consumption matters or actual duty incidence suffered on inputs. Government finds that in this case these circulars are not relevant since the ground for rejection of drawback claim is as explained in para 8 above. However, Government finds no merit in contention of department that since, the applicant has not suffered any duties on their inputs, they are not eligible for Drawback claim. Here, Government is in agreement with the observation of Commissioner (Appeals) in this specific issue that AIR of Drawback cannot be denied/reduced by field formation as the same is fixed by Central Government taking into account all the relevant factors as stated in above said circulars.
Circular No. 3/99-Cus., dated 3-2-1999 where in it has been clarified that drawback is admissible only against cash payment of duties and debit of duties against DEPB scrip on import of goods is in effect availment of exemption of duty and therefore no drawback is admissible when duty is paid on inputs by debit of DEPB Scrip. Department has also contested that Circular No. 41/2005-Cus., dated 28-10-2005 provides that additional customs duty paid through debit under DEPB shall also be allowed as brand rate of drawback and no clarification has been given in respect of AIR. Since, the respondents are claiming drawback of duty at AIR this circular is not applicable to this case. - Drawback benefit is not permissible in this case since export goods have been manufactured by availing facility of DEPB Scheme. Since the applicant is not entitled for drawback claim there is not question of allowing instant interest claim. Therefore, Government sets aside both the impugned Orders-in-Appeal, dated 5-12-2008 and 21-3-2006 - Decided in favour of Revenue.
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2012 (8) TMI 897
Recover of duty u/s 11A - Denial of rebate claim - original authority initially sanctioned rebate claims - After sanction of rebate claims it had been observed by the applicant department that the respondents failed to submit copy of BRC (Bank Realization Certificate) w.r.t. exports in question - violation of Board’s Circular No. 354/70/97-CX., dated 13-11-1997 - Held that:- Section 11A of Central Excise Act, 1944 being an independent substantive provision, the appellate proceedings are not required to be initiated before issuing Show Cause Notice under Section 11A if there are grounds existing such as short levy, short recovery or erroneous refund, etc. Section 11A is an independent substantive provision and it is a complete code in itself for realisation of excise duty erroneously refunded. There are no preconditions attached for issuance of notice under Section 11A for recovery of amount erroneously refunded. Decision of Bombay High Court [2002 (2) TMI 132 - HIGH COURT OF JUDICATURE AT BOMBAY] has been upheld by Hon’ble Supreme Court reported as [2003 (4) TMI 558 - SUPREME COURT] holding that recovery of duty erroneously refunded is valid in law under Section 11A of Central Excise Act and there is no need of first filing the appeal against the order by which refund was erroneously sanctioned. - Decided in favour of Revenue.
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2012 (8) TMI 896
Denial of rebate claim - Bar of limitation - Delay due to non-availability of dealing (Central Excise) Assistant because he met with a serious accident and further lack of documents without which the department would not have accepted the claim - whether revision application is filed within statutory time limit - Held that:- The relevant date for filing rebate claim as given in Explanation B(a)(i) of Section 11B, is the date on which ship or the aircraft in which export goods are loaded, leave India. The one year time limit has to be calculated from said relevant date and not from date when the applicant was able to make claim claimed by applicant irrespective of the truth or otherwise in reasons of extreme contingencies for which energy one has to think or an alternative arrangements. - rebate claim filed after stipulated time limit of one year being time-barred in terms of Section 11B of Central Excise Act, 1944 is rightly rejected by the Commissioner (Appeals). - Decided against assessee.
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2012 (8) TMI 895
Eligibility of deduction u/s 10A - assessee had merely made a revised claim after the time for filing a revised return had elapsed, the assessee was not eligible for deduction u/s 10A of the Act - Held that:- The assessee, on being pointed out by the Assessing Officer that deduction u/s 10B was not available to it, changed its claim to one u/s 10A of the Act, by way of filing a report in Form No.56F before the Assessing Officer. “Goetze (India)” (2006 (3) TMI 75 - SUPREME Court), to our mind, is not attracted to the facts of the present case, since therein, the claim made subsequently was an altogether fresh claim, whereby the returned income got changed. It is not so here. Undisputedly, in the present case, on the change of the claim, neither the returned income, nor the assessed income of the assessee has undergone any change whatsoever
Ld. CIT (A) has correctly held the claim of the assessee to be allowable, if found to be in accordance with law. Moreover, the assessee’s eligibility for the claim u/s 10A rather than u/s 10B of the Act nowhere stands disputed. It is only that the department contends that the claim u/s 10A did not exist in the original return and, therefore, it cannot be allowed. We, as per the foregoing discussion, do not subscribe to this view. - Decided in favour of assesse.
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2012 (8) TMI 894
Denial of request of fixation of Brand Rate of Drawback - applicant had made the relevant exports by classifying the goods under category “A” of relevant entry Drawback schedule of All Industry Rate - Held that:- it is noted that the applicant exporters had indeed filed their drawback claims under relevant All Industry Rate Drawback schedule entry of category ‘A’ which on verification found was inadmissible because of Cenvat Credit facilities as discussed above. Now, the applicant by terming the same as an inadvertent error and wants to change the same into a claim of fixation of Brand Rate of Basic Customs Duty. It is now noted that the lower authorities have objected to it in absence of any authorized legal amendment to the filed EDI system AIR-DBK Shipping Bills. Government also notes that neither the above amendment nor any specific relaxation thereof under Rule 17 of the above DBK Rules, 1995 is on record before this authority. Rather for such subject matters for fixation of Brand Rate under Rule 7(1) of the Drawback Rules, 1995 after exporter avails All Industry Rate Drawback under Rule 3 by virtue of his declaration on the shipping bill to avail AIR of drawback.
When provisions are stipulated for doing a particular act in a specific manner then it would mean that any deviation therefrom is not permitted at all and it should be performed in that manner itself as per Rules. - sufficient cause of action stands completed on the basis of all the submitted documents by the applicant, thus the same nowhere contravenes the principles of natural justice. The applicant has been heard by Commissioner (Appeals) and the submission made by him are duly considered. So there is no merits in his pleadings. Government finds itself in conformity with the views of Commissioner (Appeals) herein as there is no legal infirmity in the said order. - Decision in the case of M/s. ITC Ltd. v. CCE, Delhi [2004 (9) TMI 103 - SUPREME COURT OF INDIA] relied upon - Decided against assessee.
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2012 (8) TMI 893
Deduction u/s. 80 IA (4) denied - whether the assessee is a “Port”, therefore, entitled to get deduction under section 80 IA (4)? - Held that:- As relying on All Cargo Global Logistics Ltd. & Others vs. DCIT [2012 (7) TMI 222 - ITAT MUMBAI(SB)] it has been held that container freight station is an “inland port” as it carries out the functions of warehousing, customer clearance and transportation of goods from its location to the port and vice versa by railways or by trucks and, therefore, its income is eligible for deduction under section 80 IA(4), thus as the assessee is an “inland port” hence, eligible for deduction under section 80 IA(4) of the Act. - Decided in favour of assesse.
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2012 (8) TMI 892
Classification of goods - Classification under CTH 4821.00 or under Heading 4819.19 - Held that:- In the case of goods in question it is fairly clear that the product is used as wrapper and such product is classifiable under Heading 4819.19 as claimed by the Revenue since such sleeves are just not for indicating the nature, identity, manufacturer, price, etc., of the product but are used as wrappers, The position is obvious in the case of gift wrappers supplied to Sahara Airlines and is a reasonable inference in the case of Rolon Belt Sleeves. So we order classification of the product under sub-heading 4819.19. - The respondents had raised the issue that the demand is raised considering cum-duty-price as assessable value. They pray that the price realized should be split as assessable value and duty in which case the demand will come down. We are of the view that such benefit should be given in this case.
Since this is a dispute about classification of the goods and no special role played by the Director is brought on record to impose penalty on him, we find it proper to waive penalty imposed on the Director of the Respondent Company and it is ordered accordingly. - Decided partly in favour of Revenue.
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2012 (8) TMI 891
Convicted and sentenced under Sections 302/307 of Indian Penal Code - Convicted under Section 3 of The Explosive Substances Act, 1908 - Unable to engage a counsel to defend himself - Denial the right of a counsel - Held that:- In my view, every person, therefore, has a right to a fair trial by a competent court in the spirit of the right to life and personal liberty. The object and purpose of providing competent legal aid to undefended and unrepresented accused persons are to see that the accused gets free and fair, just and reasonable trial of charge in a criminal case. This Court, in the case of Zahira Habibullah Sheikh [2006 (3) TMI 729 - SUPREME COURT] has explained the concept of fair trial to an accused and it was central to the administration of justice and the cardinality of protection of human rights.
In the case of Hussainara Khatoon and Others v. Home Secy., State of Bihar [1979 (4) TMI 159 - SUPREME COURT OF INDIA ] held that the court should consider the probable sentence that will follow if a conviction is obtained. The more serious the likely consequences, the greater is the probability that a lawyer should be appointed . The court should consider the individual factors peculiar to each case. These, of course would be the most difficult to anticipate. One relevant factor would be the competency of the individual defendant to present his own case." (emphasis added) ".
Accordingly, I am of the opinion that the conviction and sentence of the appellant is vitiated, not on merit but on the ground that his trial was not fair and just. Appellant admittedly is a Pakistani, he has admitted this during the trial and in the statement under Section 313 of the Code of Criminal Procedure. I have found his conviction and sentence illegal and the natural consequence of that would be his release from the prison but in the facts and circumstances of the case, I direct that he be deported to his country in accordance with law and till then he shall remain in jail custody. - Decided in favour of appellant.
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2012 (8) TMI 890
Demand u/s 11A - Denial of CENVAT Credit - Held that:- At the time of obtaining registration HBSA Pvt. Ltd. had submitted a ground lay out plan, which was approved by the Superintendent, Customs and Central Excise, Range-6, Division-III, Ghaziabad on 21-8-1998 and in which the engine assembly on ground flour in the premises of Majestic Auto Limited was clearly demarcated. The plant and machinery was installed and was never removed from the premises. The I.C. Engines manufactured by HBSA Pvt. Ltd. in the same premises were used by the appellant. Once it was admitted that the capital goods, on which Modvat Credit was taken by the appellant remained installed in the same premises, which was leased out and continued to be engaged in the manufacture of I.C. Engine, which was further used in the manufacture of two wheelers and that a separate registration certificate was obtained by HBSA Pvt. Ltd., there was no removal of goods. The capital goods remained installed in the same premises and thus even if the premises were transferred on lease, the capital goods even if they were deemed to be installed in the premises of HBSA Pvt. Ltd., Rule 57-S, would not be attracted.
Since a separate registration certificate was obtained by which the ground plan was approved by the Central Excise Department, there was no case made out for attracting Section 11A of the Act as there was no intention to evade the payment of duty nor HBSA Pvt. Ltd. could be made liable for penal action under the provisions of Rule 209A of the Central Excise Rules. - Decided in favour of assessee.
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2012 (8) TMI 889
Penalty u/s 271(1)(c) - Wrong claim of loss - Held that:- Mere making of a wrong claim by the assessee by itself shall not constitute concealment of income or furnishing inaccurate particulars of income. The Assessing Officer has to complete the assessment after verifying various claims of the assessee. It is very much necessary to verify the claim of the assessee and if it is a genuine claim it has to be allowed. The claim of the assessee could not be allowed because provisions of the Act that were amended with effect from April 1, 2005 and the assessee has made a wrong claim in considering the new amendments and in our opinion, there is a bona fide error on the part of the assessee and that cannot be a reason for levy of penalty. More so, the assessee admitted the mistake in the course of assessment proceedings. Being so, we are of the opinion that there is a reasonable cause in this case. The provisions of section 271(1)(c) of the Act give discretionary powers to the Assessing Officer to levy or not to levy penalty in the case of concealment of income or furnishing inaccurate particulars of income. - Even if a minimum penalty is prescribed, the authority competent to impose the penalty will be justified in refusing to impose penalty, when there is a technical or venial breach of the provisions of the Act or where the breach flows from a bona fide belief that the offender is not liable to act in the manner prescribed by the statute - Decided against Revenue.
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2012 (8) TMI 888
Refund of sales tax – Sales in course of inter-State trade - Amount realized by Sales Tax Officer, Bhubaneswar-II Circle, Bhubaneswar illegally and arbitrarily or not – Petitioner contended that a sum of ₹ 8,10,516 deducted from the petitioner even though the same is not realizable u/s 54 of the Orissa Value Added Tax Act, 2004 - whether a writ in the nature of mandamus directing opposite Party No. 2-Commissioner of Sales Tax, Orissa and opposite Party No. 3-Sales Tax Officer, Bhubaneswar-II Circle, Bhubaneswar can be issued to refund ₹ 8,10,516 alleged to have been illegally collected by IOCL from the petitioner and deposited with the Government - Held that:- Law is well-settled that a particular sale may either be intra-State or inter-State sale, but cannot be both - a transaction of sale is a single transaction whereby the property of goods passes through the seller to the buyer and there can never be two transactions of sale in one sale - Thus a single transaction of sale can be assessed either under the State Act or under the Central Sales Tax Act and can never be under both the Acts - whether a particular sale is an inter-State sale or an intra-State sale would depend upon the factual scenario and nature of evidence produced - Without examining the evidence it cannot be definitely said whether the transaction is an intra-State or inter-State transaction - The nature of transaction cannot be decided in the writ petition because the material produced along with the writ petition can be more effectually examined by the assessing authority - The stand that the petitioner is not liable to be registered under the Orissa Value Added Tax Act, 2004, does not improve the situation because the High Court cannot examine the material as an original forum - the petitioner has to establish that there is no breaking of chain of inter-State movement which has to be factually established.
It was incumbent on the part of the petitioner-contractor to make an application as provided under subsection (5)(a) of section 54 to the assessing authority and satisfies him that no tax is deductible from the payments made to the petitioner as the materials supplied by it to IOCL is sale in course of inter-State trade and it is protected by Explanation appended to section 54 – the AO has to examine the case of the petitioner and if is satisfied, he is obliged under the statute to issue no deduction of tax certificate to the petitioner and on production of such certificate before the IOCL, IOCL is bound not to deduct any tax from the payments made to the petitioner as provided under section 54(5)(b) of the Act, otherwise for contravention of the provision of section 54(5)(b) penalty shall be imposed on the IOCL as provided under sub-section (6) of section 54 of the Act -section 54 is a complete provision so far as deduction of tax from the payment made to the contractor is concerned - admittedly, the petitioner has not availed of the remedy provided u/s 54(5) of the Act.
Whether in exercise of power under articles 226 and 227 of the Constitution, a direction can be issued to the State to refund the tax alleged to have been collected from the petitioner by IOCL illegally and deposited with the State – Held that:- As held in Suganmal v. State of Madhya Pradesh [1964 (11) TMI 7 - SUPREME Court] it has been held that a petition under article 226 of the Constitution of India solely for issue of a writ of mandamus directing the State to refund money alleged to have been illegally collected by the State as tax was not ordinarily maintainable because a claim for such refund is ordinarily made in a suit against the authority which had illegally collected the money as tax - the question whether the State was bound under section 72 of the Contract Act to refund the amount on the ground that it was paid under a mistake was a matter for decision in a regular suit and not in a proceeding under article 226 - in view of the detailed provision made u/s 54 with regard to the deduction of tax and no deduction of tax and deduction of tax at a lower rate from the payment made to the contractor with reference to nature of the contract and the Explanation to section 54 of the Orissa Value Added Tax Act – thus, the prayer made by the petitioner for a direction to refund ₹ 8,10,516 cannot be granted – Decided against petitioner.
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2012 (8) TMI 887
Restriction upon registered dealers to trade with unregistered dealers by other State - Held that:- The incidence of tax has been given under section 8 of the Act of 2005 and the State Government's power to legislate on subject of levy of tax in Chapter III of the Act of 2005 is also not under challenge. What is under challenge is, the withdrawal of credit given on the basis of input tax. Therefore, from the facts itself it is clear that the State has not imposed the tax but has granted some concessions in the matters of the tax levied under the Act of 2005.
The State has decided to encourage the trade with the registered dealers under the CST Act by giving some credit known as input-tax credit and has not levied any tax or penalty upon the petitioners on their entry to trade with the unregistered dealers. Therefore, from the impugned substitution of sub-clause (ii) of sub-section (4) of section 18, neither the State Government has levied some additional tax on the subject-matters covered under the article 246(1) nor has put any restrictions against the trade by the petitioners with unregistered dealers. Therefore, the petitioners' challenge to substituted provisions of sub-clause (ii) of sub-section (4) of section 18 of the Jharkhand Value Added Tax Act, 2005, by the impugned Ordinance Act is misconceived. W.P. dismissed.
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2012 (8) TMI 886
Tax evasion - Whether, in the facts and in the circumstances of the case, the dispatch of defective goods for refinishing to a dealer would amount to trade and the technical defect render the dealer liable to maximum penalty?
Held that:- The Tribunal while affirming the findings of the authorities below held that only an undated declaration had been filed before the detaining officer. No bill/ invoice which might have been issued by M/s. Dhir Global from whom allegedly the appellant had earlier purchased these goods had been produced along with documents from ICC situated on the entry point of Punjab State. The driver of the vehicle was not carrying the delivery challan and the goods receipt. The Tribunal had recorded that the non-production of the books of account and also any bill/invoice to establish its plea, the same gave rise to legitimate presumption and conclusion that the goods were not covered by proper and genuine documents.The Tribunal came to the conclusion that the appellant had attempted to evade tax.
As the learned counsel for the appellant was unable to show that the aforesaid findings were perverse or erroneous in any manner, no question of law muchless a substantial question of law arises in this appeal. Accordingly, the appeal is dismissed.
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2012 (8) TMI 885
Issues involved:
The issue involves quashing an order passed by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi, requiring a Government Department under the Ministry of Railways to deposit the entire service tax demand as a condition for hearing the appeal.
Summary:
The petitioner, a Government Department under the Ministry of Railways, filed a petition seeking to quash an order by the Tribunal directing the deposit of the entire service tax demand of Rs. 3,28,838 as a pre-condition for hearing the appeal. The petitioner argued that as a department under the Ministry of Railways, it should not be liable to deposit the service tax amount. However, the court found no merit in the writ petitions.
The Tribunal noted that the petitioner had availed services of a goods transport agency, and the levy was on taxable services provided/received. Therefore, the court held that there was no error in the Tribunal's jurisdiction. No illegality or perversity was found in the impugned order, leading to the dismissal of the petitions. The court clarified that any observations made should not be considered an expression of opinion on the merits of the controversy. The petitioner was granted an extension of two weeks to deposit the amount as directed by the Tribunal, with the assurance that the appeals would be heard on merits if the deposit was made within the stipulated time.
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2012 (8) TMI 884
Vocational educational institute - appointing franchises - whether the transaction in the petitioner's line of business were liable to be treated as subject to VAT in view of section 2(35) of the 2003 Act?
Held that:- Applying the dominant nature test in respect of composite transactions where both an element of sale and that of service may be discernible and has held that unless the transaction composite in nature represents two clearly different and separate contracts, the State would not have the power to disintegrate the contract between that "for service" and "for the sale" components and levy (VAT) tax on the sale component. In the facts of the case a very contentious question of law has indeed arisen to be adjudicated by the statutory authorities and the Tax Board on the basis of the material as to the nature of transaction before them.
The Tax Board has on lesser facts in the case granted absolute protection to the assessee therein during the pendency of the assessee's appeal before the Deputy Commissioner (Appeals) and stayed the demand and recovery. Apart from the merits of the petitioner's case, the unexceptional rule of uniformity of orders in similar cases springs to the aid of the petitioner herein. Dispose of the writ petitions setting aside the order dated August 7, 2012, passed by the Tax Board, and directing the Deputy Commissioner (Appeals) I, Commercial Taxes, Jaipur, to decide the appeals filed by the petitioner-company within a period of four weeks from the date of receipt of the certified copy of this order.
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2012 (8) TMI 883
Condonation of delay - whether there was sufficient cause for condonation of delay in filing the appeals which was belated? - Held that:- No ground for condonation of colossal delay of 789 days has been made out. The reason advanced for condonation of delay is that Shri Avinash Chander Sharma son of Shri Lal Chand Paniwal who is the Director of the assessee-company was looking after the taxation matters of the company who had fallen ill but affidavit of the Director filed does not specify the period of ailment and the nature of illness. Further, no details and supporting material had been produced to substantiate such a plea. In the absence of definite averments and substantive proof, the ground taken for condonation of delay does not inspire confidence. Such a general plea without there being any material cannot be accepted and could be raised in all cases. The appellant was required to act with care and due diligence in pursuing litigation which is absent in the present case. Appeal dismissed.
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2012 (8) TMI 882
Goods brought through escape route - Held that:- The finding of fact recorded by the Tribunal that mens rea to evade payment of tax has been established in the case, was not shown to be erroneous or perverse in any manner which may warrant interference by this court. No question of law much less a substantial question of law arises in this appeal. Accordingly, the appeal is dismissed.
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2012 (8) TMI 881
Whether the respondents can collect service tax from the petitioners as service recipients on the payments made to a service provider which is a non-resident and who does not have any office in India?
Held that:- The entire issue is thus covered by the decision of this court in the case of Quintiles Data Processing Centre (I) P. Ltd. [2011 (4) TMI 585 - GUJARAT HIGH COURT] wherein held that in the absence of any charging section in the parent Act, on the basis of rule 2(1)(d)(iv), service tax cannot be collected from the service recipient.The impugned show-cause notices, therefore, quashed. Appeal allowed.
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