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Showing 341 to 360 of 1739 Records
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2017 (8) TMI 1402
CENVAT Credit - inputs - H.R.Plates, Sheets, Flats, Angles, M.S.Joist, M.S.Channels, Oxygen Gas, Industrial Gas - Held that:- Reliance placed in the case of Mangalam Cement Ltd. vs. CCE, Jaipur [2017 (1) TMI 141 - CESTAT NEW DELHI.], where it was held that the controversy can be laid to rest by making a reference to the decision of the Apex Court in the case of CCE, Jaipur vs. Rajasthan Spinning & Weaving Mills Ltd. [2010 (7) TMI 12 - SUPREME COURT OF INDIA], wherein the Hon’ble Supreme Court has considered an identical issue of steel plates and MS Channels used in the erection of chimney for diesel generating set - The credit stands allowed in the light of Rule 57Q of the erstwhile Central Excise Rules, 1944.
Applying the User Test to the facts in hand, there is no hesitation in holding that the structural items used in the fabrication of support structures would fall within the ambit of capital goods as contemplated under Rule 2(a) of the Cenvat Credit Rules, hence will be entitled to the Cenvat Credit.
Appeal dismissed - decided against Revenue.
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2017 (8) TMI 1401
Whether the CESTAT is right in law in setting aside the order passed in exercise of powers under Section 110(2) of the Customs Act, 1962 extending the time to issue a cause notice in respect of the goods seized under sub-section (1) of Section 110? - Appeal is admitted on above substantial questions of law.
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2017 (8) TMI 1400
Whether the demands based on triplicate copies of invoices were sustainable or not; and whether, the Revenue had disclosed the source of the invoices relied on by it were matters in dispute? - Held that:- The questions sought to be raised are primarily questions of facts and do not generate any substantial question of law for interference in favor of the Revenue through an appeal under Section 35G of the Central Excise Act - appeal dismissed.
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2017 (8) TMI 1399
Valuation - FOB contract on export items - whether FOB price can be treated as cum-duty or not? - Held that:- The issue regarding treating the FOB price as cum-duty is not in favour of the appellant, as per the ratio laid down by the Tribunal in an order in the case of appellant-assessee, M/s. Essel Mining & Industries v. Commr. of C. Ex, Customs & S.T., BBSR-I [2017 (4) TMI 87 - CESTAT KOLKATA] - decided against appellant.
Valuation - enhancement of the value of the goods on the basis of contemporary price - Held that:- Appellant submits that he can submit reply provided the department will supply contemporary documents to appellant - the department is asked to provide documents pertaining to contemporary rate to the assessee-appellant, and appellant will file reply within a period of 3 weeks thereafter.
Appeal decided partly against appellant and part matter on remand.
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2017 (8) TMI 1398
Rectification of Mistake application - Ms. Neha Garg, the Ld. Counsel submits that the entire order is against the assessee but somehow in concluding para 7 it is mentioned that the “appeal is allowed” - Held that:- In view of above in para 7 we insert the word ‘not’. After inserting the word ‘not’ it will be read as “In the result, the appeal is not allowed” - ROM allowed.
ROM application - appellants submits that the submissions made by the appellants were not considered by the Tribunal and the same are not reflecting in the impugned order - Held that:- It is not necessary to impede each and every argument of the appellant. Only the cumulative effect will have to mention in the order - Also, In the name of ROM, review of the appeal is not permissible - ROM dismissed.
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2017 (8) TMI 1397
Classification of imported goods - artificial kidneys into India - Benefit of N/N. 21/2002-Cus dt. 1.3.2002 as amended by N/N. 66/2004 dt. 09.07.2004 - whether classified under CTH 90189031 or under CTH 84212900 - the Department clarified that purifier dialyzers are to be classified under CTH 84212900 and thereby denied the benefit of notification - Held that:- The issue stands decided in the case of SANWAR AGARWAL VERSUS COMMISSIONER OF CUSTOMS (PORT) & OTHERS [2016 (4) TMI 621 - CALCUTTA HIGH COURT], where it was held that the natural classification of dialysers should be under CTH 90189031 - benefit of notification cannot be denied - appeal allowed - decided in favor of appellant.
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2017 (8) TMI 1396
Demand of duty with Interest and penalties - demand on the ground that the appellant has not been able to produce rewarehousing certificates in respect of 11 ARE’s prepared by them indicating that the goods have been cleared to an EOU - Held that:- The SCN is not alleging that there was a diversion of goods to another person. In the absence of any such allegation and an acceptance of the fact that consignments were delivered to the consignee, non-production of rewarehousing certificate and consequent demand thereof does not stand scrutiny of law and it has to be held that demand of duty cannot be raised against appellant herein.
Demand set aside - appeal allowed - decided in favor of appellant.
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2017 (8) TMI 1395
Principles of Natural Justice - case of petitioner is that the petitioner was never served any SCN as to why the assessment should not be finalized - Held that:- As per Section 122A of CA, an opportunity of hearing to a party in a proceeding is required to be given before passing the order. If sufficient cause is shown at any stage of the proceeding, the adjudicating authority may grant more time to the party for reasons to be recorded in writing.
In the present case, neither any show cause notice under the provisions of the Act was issued nor any opportunity of hearing was given to the petitioner before passing the impugned order, resulting in violation of principles of natural justice - Identical issue has been decided by this Court in R.V. General Trading v. Union of India, [2016 (9) TMI 673 - PUNJAB & HARYANA HIGH COURT], wherein in the absence of affording an appropriate opportunity of hearing, the impugned order was set aside and the matter was remitted back to the competent authority for fresh consideration - appeal allowed by way of remand.
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2017 (8) TMI 1394
Concessional rate of duty - N/N. 62/2004-Cus., dated 12-5-2004 - case of the Revenue is that they should be considered as “Articles of Jewellery” not eligible for concession under the said notification - Held that:- In the face of the declarations made in the bills of entry as well as description of the gods in the import invoices, we note that a change in the categorization of the imported goods cannot be made in absence of the material facts to the effect that the declarations made in the bills of entry or the description in the import invoices are incorrect or deliberately misdeclared. The declarations as per the documents and the goods in physical form were available at the time of assessment and the goods were cleared after such due assessment.
The categorization of assessed goods were sought to be changed only on the interpretation of various terms and the same was not based on clear material supporting evidence. In absence of such evidence, we agree with the impugned orders that no denial of exemption can be agreed upon on the basis of the presumptions and interpretative, post-clearance of the goods, after due assessment.
Appeal dismissed - decided against Revenue.
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2017 (8) TMI 1393
Jurisdiction - power of DRI to issue notice prior to 8.4.2011 - Held that:- When an identical case came up before the Tribunal in the case of M/s. HR Electronics and M/s.Laxmi Radios vs. CC, New Delhi [2017 (7) TMI 747 - CESTAT, NEW DELHI], a view was taken that inasmuch as, the jurisdiction of the DRI is pending before the Hon’ble Supreme Court, all the matters need to be remanded to the jurisdictional adjudicating authority to first decide the issue of jurisdiction after availability of supreme court’s decision in the case of Mangali Impex Limited. [2016 (5) TMI 225 - DELHI HIGH COURT] - the matters remanded to the jurisdictional adjudicating authority for fresh decision after availability of the Supreme Court decision in the case of Mangali Impex Limited.
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2017 (8) TMI 1392
Addition applying section 14A read with rule 8D - sufficiency of own funds - Held that:- As the assessee is possessed of sufficient interest-free funds of its own and in excess of the investment made, then no part of the interest paid on borrowed funds can be disallowed on the basis that investments are made out of the interest-bearing funds under section 14A of the Act. No fault can be found with the impugned order of the Tribunal in following the decision of this court in Reliance Utilities and Power Ltd. [2009 (1) TMI 4 - BOMBAY HIGH COURT] - Decided in favour of assessee.
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2017 (8) TMI 1391
Corporate insolvency process - proof of existing dispute - Held that:- There is no dispute pending between the parties under the meaning and definition of section 5(3) of the IB Code 2016 as the aforesaid pending matters are nowhere connected to the payment of dues in question. Also, there is no technical lacuna as the petitioner has complied with all the requirements under the law. This Adjudicating authority is satisfied that the petitioner has made out his case by establishing that this Corporate Debtor has defaulted the payment dues on various occasion to this petitioner/OC and there is no dispute between the parties. Thus inclined to admit the instant application.
Instant petition is admitted and order the commencement of the Corporate Insolvency Resolution Process which shall ordinarily get completed within 180 days, reckoning from the day of this order is passed.
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2017 (8) TMI 1390
Initiation of Insolvency Resolution process - outstanding debt - Held that:- As to the principal amount shown as ₹ 22,32,678 in respect of the invoice amount in the notice given u/s.434 of the Companies Act, 1956, the Petitioner says that calculation inadvertently has come to ₹ 22,32,678 without deduction of ₹ 4,400 gone towards transport charges on behalf of the Debtor Company which subsequently the Debtor paid to the Petitioner, that amount has been deducted when the Company Petition was filed u/ss.433 and 434 of the Companies Act, 1956. Since this variation has been explained in Company Petition, we are of the view that defence taken in respect to variation of the amount, have no sense after taking the explanation given by the Petitioner in the Company Petition into consideration.
For having the Corporate Debtor admitted the liability except saying adjustments should have been made against the invoices first in point of time, this Bench hereby holds that it is a fit case for admission. Accordingly, this Petition is admitted declaring Moratorium with directions.
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2017 (8) TMI 1389
Disallowance of deduction u/s 80P(2)(a)(vi) - Held that:- NLC Industrial Co-operative society, the assessee, is registered as a co-operative society under Tamil Nadu Cooperative Act, 1983 - the board of the assessee society is responsible for the affairs of the assessee society and not the NLC board .The ultimate authority of its administration is vested with the General Body of the members. NLC or its nominated members, if any, do not have voting rights in elections of the assessee society as per Rule 22 of its Byelaws. NLC has been co-opted as a member only for operational ease and convenience to assist the board of the assessee society in administration, without which the smooth running of the assessee society will be practically difficult .Further, the registration of the society has not been revoked under law for violation of the provisions of TNSCA, 1983 - hence the order of the CIT(A) does not require any interference and hence the revenue’s appeal is dismissed - Decided in favor of assessee.
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2017 (8) TMI 1388
Valuation - job-work - inclusion of input materials supplied free of cost under the cover of delivery challan in assessable value - Rule 4(5)(a) of CCR, 2004 - Held that:- In Ghatge Patil Inds. Ltd [2005 (7) TMI 648 - CESTAT MUMBAI] the Tribunal has relied upon International Auto Products case to hold that such addition of free supplied parts is not to be included in the assessable value - In SRF Ltd [2007 (3) TMI 613 - CESTAT, CHENNAI] the Tribunal was of the view that the entire exercise would be revenue neutral and therefore the demand cannot sustain - appeal dismissed - decided against Revenue.
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2017 (8) TMI 1387
Classification of goods - different parts of oil tanker - burden to prove - Held that:- When Rule 2(a) of the Customs Tariff Act, 1975 is read that throws light that it was the burden of the assessee to prove that different goods came to India as presented through bill of entries should have similar characteristics of the principal goods - But that was not the case - appeal dismissed.
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2017 (8) TMI 1386
Principles of natural justice - opportunity for cross-examination denied - Recovery of wrongly availed CENVAT credit - it was alleged that goods had not been supplied against invoices issued by M/s Sunrise Zink Ltd used for availing CENVAT credit - Held that:- The pleading before the lower authorities for an opportunity to cross examine a critical witness had been turned down and such disregard places the confirmation of demand and imposition of penalty in jeopardy. Clearly this must be remedied - To enable that consummation, the impugned order is set aside and the matter remanded back to the original authority for grant of such opportunity to the appellant-assessee - appeal allowed by way of remand.
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2017 (8) TMI 1385
Exigibility to tax under section 4 of the Gift-tax Act, 1958 - gift-tax on surrender of share on a reconstitution of the firm - transfer of shares effected by some partners of the firm in favour of a newly inducted partner, virtually suffering a reduction in the share of profit simultaneously facilitating extension/increase of profits to the incoming partner by itself - sufficient consideration for the purpose of the exemption - Held that:- Reduction of shares at the hands of the assessee at the time of reconstitution of the firm, to the extent the same has been transferred in favour of the newly inducted partners, is for adequate consideration and that it is not a "gift" in terms of section 4(1)(a) of the Gift- tax Act so as to suffer any tax liability. Answering the question as above, the matter is remitted to the Tribunal in terms of section 26(6) of the Act for further steps.
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2017 (8) TMI 1384
Initiation of the Corporate Insolvency Resolution Process - Held that:- Resolution Plan envisages for insolvency resolution of SDAL, and ensure continuity of business along with most effective use of the assets and equipments of SDAL and the amalgamation of the Corporate Debtor with the Resolution applicant will bring in the number of operating and financial synergies, since both the companies relates to Aluminum Alloy wheel manufacturing industry, in which the corporate debtor is engaged in the manufacturing of Aluminum Alloy wheel and that of the applicant is in the field of painted and chrome plated Aluminum Alloy Wheel etc.
The applicant (applicant of resolution plan) in the past has settled dues pertaining to 5 banks of the Corporate Debtor, which constituted 93% of the borrowings of corporate debtor. And the same was also recognized by BIFR in one of its proceedings. Applicant has proven track record of optimum utilization of the infrastructure and manufacturing facilities of the corporate debtor and it has successfully provide continued and meaning employment to direct/indirect work force of over 1500 employees. Most of these employees are absorbed by the applicant when the corporate debtor ceased operations. It is currently single largest employer of extremely skilled and unskilled persons in the Zone and more than 1500-2000 families depend on the applicant.
Apart from others as provided in the resolution plan, it would be in the best interest of the Company, its employees in particular, public in general, and also in the interest of financial creditors to accept the Resolution plan in question. We are unanimous in accepting Resolution plan in question as it meets all parameters including legal and moral.
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2017 (8) TMI 1383
Condonation of delay - e-filing of appeal - Held that:- Direct the Ld. CIT(A) to condone the delay in dispute. And also in the interest of justice, set aside the issues in dispute to the file of the Ld. CIT(A) with the directions to decide the same afresh, under the law, after giving adequate opportunity of being heard to the assessee and decide the appeal on merit and pass a speaking order, keeping in view of the judgment of the Hon’ble Supreme Court of India in the case of Hossein Kasam Dada vs. State of MP (1953 (2) TMI 35 - SUPREME COURT OF INDIA)
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