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Case Laws
Showing 361 to 380 of 1843 Records
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2017 (1) TMI 1485
Restoration of the winding up petition - Held that:- The present application shows sufficient ground for restoration since it is accompanied by an affidavit of counsel for the petitioner to the effect that it was owing to their default that there was no appearance on behalf of the petitioner.
In view of the foregoing, the present application is allowed.
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2017 (1) TMI 1484
Addition on accommodation entry - Reopening of assessment - where about of concerns - Held that:- There was a remand directed by the Commissioner on 17.12.2012 and again on 13.01.2014 is acknowledged in the first part of the Remand Report. Similarly from Paper Book page 236, it is evident that Virdi Travel Pvt. Ltd. confirmed the investment in shares of ₹ 3 lacs by relying upon bank statement reflecting the investment; copy of share certificate received; copy of income tax return filed alongwith balance sheet in support of the said assertion. The fact that this was received and filed is evident from the fact that it was diarised as per stamp of AO, Ward-11, New Delhi stamp dated 27.01.2014. Similar is the position in regard to other two replies received by the AO from Natraj Communication Pvt. Ltd. and V.R. Traders Pvt. Ltd. at Paper Book page 282 and 329. It is seen that the evidences available on record right from assessment stage have not been assailed negatively at any of the stages by the AO nor by the CIT(A) or for that matter even before the ITAT.
Qua the other two concerns who did not reply though notice u/s 133(6) was served upon them, it is seen that as per record Lokesh Tools & Trading Pvt. Ltd. who it is claimed had paid ₹ 2,50,000/- vide Instrument No.- 405868 and Suraj Cycle Mart Pvt.Ltd. who also has paid ₹ 2,50,000/- by Instrument No.517394 the record shows that the details of banks; amounts; instruments and dates were all along available on record wherein no further enquiry was considered necessary by the AO.
The fact remains that the notices have been served upon these parties. Thus, in a case were 4 out of 6 concerns admittedly reply the two who though do not reply but their evidences remain unassailed per se cannot be the reason for sustaining the addition in the facts and circumstances of the present case. In the facts where all details are available notice u/s 133(6) have been served, four have replied thus, if the department still had any further doubts about their existence or genuineness then their presence should have been enforced as the whereabouts of these two concerns were known to the department as notices were served upon these parties at the address given is a fact on record. In the afore-mentioned peculiar facts and circumstances, the request of the Revenue to direct yet another remand does not make any sense. It is seen that when the evidences on record are considered qua the stated business of the assessee, thus find that the addition on merits cannot be sustained.
Addition on facts was wrongly made as there is nothing on record justifying the addition except the suspicion of the Revenue which cannot be the basis of either making or sustaining an addition as at best it could have been the basis for making a further enquiry which already stood directed. - Decided in favour of assessee.
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2017 (1) TMI 1483
Benefit of N/N. 108/95-C.E., dated 28-8-1995 as amended - denial on the ground that the relevant certificates produced under N/N. 108/95, from the “United Nations Children’s Fund” (UNICEF) has been issued in favour of M/s. Eicher Motors Ltd. and not in favour of the appellant - case of appellant is that these goods were manufactured on job work basis and supplied to M/s. Eicher Motors Ltd., Pithampura, who in turn has supplied the same to UNICEF in terms of the notification issued.
Held that: - even though the certificate covers the goods cleared by the appellant, since it is issued in favour of M/s. Eicher Motors Ltd., there has to be documentary proof to effect that the goods in turn have been supplied by M/s. Eicher Motors Ltd. for the said UNICEF project - ld. Counsel submits that he is in a position to provide such documentary evidence.
The benefit of exemption notification as claimed will be allowable to the appellant provided, he furnishes documentary proof to the effect that the goods in question have been supplied for the UNICEF project either by the appellant or by M/s. Eicher Motors Ltd - appeal allowed by way of remand.
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2017 (1) TMI 1482
CENVAT credit - shortage of the raw material - Rule 9(2) of the CCR, 2004 - Held that: - it appears that the appellant has availed the credit of ₹ 45,789/- on the basis of Xerox copy of invoices which was not accepted by the lower officers and they have raised the demand - in the case of Cords Cable Industries Ltd. v. CCE, Jaipur-I [2013 (11) TMI 983 - CESTAT NEW DELHI] the Tribunal allowed carbon copy/extra copy of the invoices as basis to avail the Cenvat credit.
Though the appellant has submitted Xerox copies, the authorities have not provided any opportunity to them to provide the original copies. If the primary evidence is not given, then secondary evidence is admissible as per the proviso to Section 63 of the Indian Evidence Act, 1872.
Appeal allowed in part.
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2017 (1) TMI 1481
Suspension of CHA License - subsequent restoration of license - export benefits such as Duty Drawback and DEPB - Held that: - it appears that the appellant was providing logistic support to certain syndicates which were involved in the scandal of availing undue and inadmissible export benefits such as Duty Drawback, DEPB, etc. For this offence, the licence of the appellant was suspended in the year 2009 at Mumbai Office of Customs. Mumbai Customs office had also intimated about the suspension of licence to Delhi Customs office. The licence was restored as per the order of CESTAT dated 21-5-2012.
When Delhi Customs office, after receiving the CESTAT order and reports from Mumbai Customs office had not taken any action, and the licence of appellant was restored by setting aside the suspension, then there is no occasion for Delhi Customs office to restart administrative action for revocation of the licence. It amounts to double jeopardy. As per Article 20 of the Constitution of India, no person can be punished twice for the same offence.
Appeal allowed - decided in favor of appellant.
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2017 (1) TMI 1480
Levy of ADD - ‘Tablet PC’ - Retrospective effect or prospective effect? - Held that: - the Commissioner (Appeals) has given the benefit for the period which was not covered by the Board Circular. For penal provisions, no law can be implemented retrospectively unless specifically mentioned. In the instant case, for levy of Additional Duty, Circular cannot be implemented retrospectively - appeal dismissed - decided against Revenue.
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2017 (1) TMI 1479
CENVAT credit - capital goods/inputs - Asbestos jointing Sheets, Welding Electrodes, etc. - Held that: - the appellant is entitled to Cenvat credit on Asbestos jointing Sheets, Welding Electrodes, etc., used in the factory of production for manufacture of excisable goods, as inputs as defined in Section 2(g) of CCR, 2004 - appeal allowed - decided in favor of appellant.
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2017 (1) TMI 1478
Benefit of N/N. 5/2006 C.E. dated 1-3-2006 - denial on the ground that the appellant did not submit the Intimation in form D-3 in respect of Fly Ash received in the factory on 18-3-2007 as required by the Trade Notice No. 40/97-C.E. (24-Misc.) dated 16-5-1997 issued by Commissioner, CE Jaipur - Held that: - the appellant manufacturer is entitled to the benefit of the N/N. 5/2006-C.E. where the product namely Asbestos Cement Pressure Pipe manufactured by the appellant is entitled to be cleared on the concessional rate of duty of 8%.
In Central Excise Rules, 2002, there is no requirement to submit D-3 intimation and furnishing of monthly returns as was earlier specified in Trade Notice No. 40/97-C.E., dated 16-5-1997. Thus, the Trade Notice No. 40/97, dated 16-5-1997 is not consistent with the provisions of new Central Excise Rules, 2002 - substantial benefit available in the Central Excise law cannot be denied, when there has been mere omission of following procedural requirements by the assessee.
Appeal allowed - decided in favor of appellant.
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2017 (1) TMI 1477
Maintainability of appeal - amount involved in the appeal - penalty of ₹ 2 lakhs was imposed - Held that: - as per the clause (iii) to Second Proviso to Section 129A of the Customs Act, 1962, the appeal is not maintainable where the amount of penalty does not exceed ₹ 2 lakhs - the appeal filed by the appellant is dismissed as non maintainable.
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2017 (1) TMI 1476
Benefit of N/N. 4/2007-C.E., dated 1-3-2007 - clearances of packaged Cements to individuals - Held that: - the assessee-appellants have sold the goods directly to the consumer which includes the Government agencies, builders, institutions and individuals without involving a retail sale agency or other institutions, and has, therefore, not fulfilled the criteria of “retail sale”. Hence, the definition of “Retail Sale” as per Rule 2(q) of Standards of Weights and Measures (Packaged Commodities) Rules, 1977 will not apply - the sale to the individual without any intermediary person is entitled for concessional rate of duty - appeal allowed - decided in favor of appellant-assessee.
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2017 (1) TMI 1475
Petition barred by limitation in view of Section 433 of the Companies Act 2013 read with Article 113 of the Limitation Act 1963 - Held that:- Section 433 of Companies Act 2013 will not be applicable to the old cases, the appellant/ petitioner before the Tribunal cannot escape the ground of delay and laches in preferring the Company petition as raised by the respondents. The appellant was removed as Director as back as on 31st December 2010 after notice to the appellant. There is no subsequent cause of action taken place thereafter. The appellant has not explained the delay in filing the Company Petition though there is delay of more than five years.
As appellant submitted that the dividends are not paid in time, which are forwarded to his address at Ernakulum(Kerala) where he is not residing, but such submission cannot be accepted in view of the fact that the address at Ernakulum (Kerala) was given by the appellant to the company as one of his address and in the present appeal, the address for service on appellant, as set out is - D-3/ 1 1, South Star Apartments, Gandhi Nagar Behind KSRTC Bus Stand, Ernakulum-20.
For the reasons aforesaid, we are not inclined to entertain this appeal. The appeal is accordingly dismissed
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2017 (1) TMI 1474
Misdeclaration of imported goods - goods declared as unbranded motorcycle parts, whereas on examination goods were found to be “Roll On” brand motorcycle chains and “STEBEL” brand horns - grant of permission to re-export of the goods to the supplier - Held that: - the wrong supply has been made of goods bearing counterfeit brand name. This involves not only mis-declaration of imported goods, but also infringement of Intellectual Property Rights - since the exporter is willing to take back the wrongly supplied goods, the same should be permitted - a penalty of ₹ 1 lakh imposed on the importer u/s 112 of the CA, 1962 - appeal allowed in part.
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2017 (1) TMI 1473
Lapsing of credit of duty lying unutilised with the manufacturer from a specified date - the decision in the case of M/s SML Isuzu Ltd. & Anr. V.E. Commercial Vehicle Ltd. & Anr. Versus Union of India & Anr [2016 (7) TMI 1074 - DELHI HIGH COURT] contested, where it was held that Scope of judicial review in respect of fiscal legislation is limited to the extent of determining whether it is outside the legislative competence of the legislature to enact such legislation and/or whether such enactment is so unreasonable and irrational so as to violate the rights guaranteed under the Constitution - Held that: - the decision in the above case upheld - SLP dismissed.
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2017 (1) TMI 1472
Acting contrary to the Bill of Lading - Held that: - there is no privity of contract between the plaintiff and the second respondent. Reliance made by the learned counsel for the appellant/defendant No. 1, on the Customs Act, 1962, does not help his case, as were not concerned with the authorisation qua a transhipment. On the contrary, it is a case of the violation of Terms of Contract by one party leading to a suit filed for damages based upon it. In the same way, the question of limitation would not arise. When there is no authorisation given to on the part of the appellant, the unilateral exercise undertaken and the goods being damaged, then the responsibility lies on it as rightly found by the Courts below - appeal fails and is dismissed.
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2017 (1) TMI 1471
Capital gain computation - consideration paid for free-hold -lawful right or interest in the property - Assessee transfers his land by way of "capital contribution" and becomes a partner in the firm, does it result in transfer in terms of Section 2 (47) of Act, 1961 or the term ''transfer' has to be construed in the light of Act, 1882 - Whether Tribunal has erred in law in holding that full value of consideration shall be determined as per Section 45 (3) and not under Section 50C of Act, 1961?
Held that:- Entire consideration for free-hold was paid by M/s SICCL but in what capacity, is not known. A part of land was transferred by sale to M/s SICCL at a consideration which has a vast difference than that was acquired by Assessee after execution of free-hold deed. For the purpose of contributing to partnership firm and applying book value, Tribunal failed to appreciate that the entire land came to be acquired by Assessee only on 31st March, 2002. Prior thereto, it had no lawful right or interest in the property in dispute which belonged to State of U.P. Even as per book value, cost of land determined and share profits determined between the parties and their capital contribution is so negligible, as it did not conform to even any normal business transaction entered into by a person of ordinary prudence, and, therefore, there existed all the facts and circumstances to show prima facie that entire transaction of contribution to partnership is a sham and fictitious transaction and an attempt to device a method to avoid tax. Even the terms and conditions of partnership fortify the above inference.
In the present case, in the garb of entering into a partnership and taking recourse to some earlier laws, an attempt was made to avoid execution of a registered document which would have needed stamp duty to the State and, as a result thereof, there could have been an occasion for payment of tax under the Act, 1961. The requirement of registration needs consideration in the light of the fact that contribution of immovable property as partnership asset by a person is ''transfer' and has the effect of extinguishing or limiting rights and interest of the owner partner and, therefore, such a non-testamentary document is within the ambit of Section 17 (1)(b) of Indian Registration Act, 1908
However, we find that the Tribunal has not looked into the matter with regard to colorable device and sham transaction of partnership, which was an issue directly raised by Revenue right from the stage of ACIT and onwards, and for that purpose matter requires to be remanded to Tribunal.
At this stage we propose to answer question no.1 in favour of Revenue and against Assessee
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2017 (1) TMI 1470
Classification of imported goods - Micro SD cards - applicability of Board’s Circular No. 12/2012-Customs, dated 1st May, 2012 - Held that: - the circular having clarificatory is beneficial to the assessee so, it is applicable with retrospective effect - reliance placed in the case of SUCHITRA COMPONENTS LTD. Versus COMMISSIONER OF CENTRAL EXCISE, GUNTUR [2007 (1) TMI 4 - SUPREME COURT OF INDIA] - the matter remanded to the original authority to decide the issue de novo on merit but in the light of above clarificatory circular dated 1st May, 2012 - appeal allowed by way of remand.
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2017 (1) TMI 1469
Issues: Appeal for reduction of litigation, rejection by Settlement Commission, appeal to Commissioner (Appeals), limitation period
In the present case before the Appellate Tribunal CESTAT, CHENNAI, the appellant failed to appear during the proceedings, leading to the matter being adjourned multiple times. The appellant's request for additional time to submit documents through a new advocate was deemed an abuse of process, and the application was rejected. The Tribunal proceeded with the appeal based on the existing record, as the appellant had sufficient time to prepare for the defense.
The Legal Draftsman representing the respondent pointed out that the appellant had bypassed the appellate Commissioner and directly approached the Settlement Commission in an attempt to reduce litigation. However, the Settlement Commission dismissed the application citing the absence of prior proceedings before the proper officer. Subsequently, after a delay of 286 days, the appellant appealed to the Commissioner (Appeals), who noted that the appeal was time-barred. The Tribunal concurred with the Legal Draftsman's submission, finding alignment between the appellate order and the arguments presented. Consequently, the appeal was dismissed by the Tribunal.
In conclusion, the Tribunal upheld the dismissal of the appeal, emphasizing the importance of following the appropriate legal procedures and timelines in seeking relief from litigation. The case serves as a reminder of the significance of adhering to established legal processes and engaging with the relevant authorities in a timely manner to address legal disputes effectively.
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2017 (1) TMI 1468
Delivery of documents seized by respondents - the case of petitioner is that at present, he has received total 192 files and 16 files are still with them and due to the aforesaid, he is not in a position to file his reply to the show cause notice or appear before the appropriate authority - the decision in the case of Jiji Industries Ltd. Versus Union of India [2016 (7) TMI 1274 - MADHYA PRADESH HIGH COURT] contested, where it was held that no case for issuance of any direction, as prayed in this writ petition is made out - Held that: - the decision in the above case upheld - SLP dismissed.
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2017 (1) TMI 1467
ADD - rejection of sunset review - case of petitioner is that rejecting the sunset Review is contrary to Rule 23 of the Anti-Dumping Rules and Section 9A(5) of the Act, which casts a mandatory obligation on the authorities to conduct reviews - Held that: - the petitioners have shown that there would be irretrievable injustice given the fact that without any order of initiation of anti-dumping review under Rule 23 through the SSR proceedings would be rendered impossible. Consequently, an interim direction is issued to the respondents to, in the course of the day, initiate the SSR in the petitioners’ cases. The notification to be issued consequential to this direction, as well as the orders, shall carry a stipulation that the proceedings would be subject to the final outcome of the present writ petitions - petition allowed.
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2017 (1) TMI 1466
Classification - blood along with the term 'liquids' - Held that: - the process of renal dialysis or hemodialysis or kidney dialysis is adverted to and considered in a common parlance approach. Clearly, we have to say that this is not one of the processes which would fall as merely separation of liquid from colloidal particles to bring it under the purview of Entry 8421 with the aid of last paragraph falling under Entry 8421 (II)(A). The process of hemodialysis or renal dialysis as has been noticed by the CBEC is not something which can be treated merely as passing of a liquid through a semi-permeable membrane leading to separation of liquids by diffusion and separation from colloidal particles. Hemodialysis or renal dialysis is activity of a different nature and is much more than merely separation from colloidal particles.
Appeal dismissed - decided against appellant.
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