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Showing 361 to 380 of 1287 Records
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2014 (11) TMI 929
Service Tax Voluntary Compliance Encouragement Scheme, 2013 - Request for rectification / amendment in the declaration - It is contended that the petitioner in the declaration filed before the Service Tax Authorities sought to declare the amount of ₹ 3.87 crores. In terms of its understanding, it claimed credit for the sum of ₹ 81,35,729/- deposited by it earlier, i.e., prior to March, 2013. It also sought to seek credit for the sum of ₹ 1,18,00,000/- paid between 18th March, 2013 and 10th July, 2013, in compliance of Section 107(3). The Service Tax Authorities however refused to accept the declaration, taking the position that the credit claimed in respect of the earlier sum paid up to 18-3-2013 was based upon a wrong understanding of the provisions relating to the scheme. The tax authorities also held, consequently, that in the absence of 50% deposit under Section 107(3) the application could not be entertained and proceeded with.
Held that:- The authorities have not been given any discretion in the matter of grant of extension of time to make initial pre-deposit of 50% of the declared amount. In fact, the consequences are spelt out for failure to pay the tax dues under Section 110. In these circumstances the claim in the petition for a direction to extend the period or alternatively for deleting the sum of ₹ 81 lakhs from the declaration already filed cannot be granted. - Decided against assessee.
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2014 (11) TMI 928
Clim of reimbursement of service tax from the service recipient of services by the service provider / contractor - Maintainability of petition - Denial of refund claim - whether the petition is maintainable for the purpose of a dispute between the petitioners and the Jabalpur Development Authority in the matter of refund of service tax - Held that:- question with regard to entitlement of the petitioners to recover the amount of service tax from the Jabalpur Development Authority either under the common law or under the Resolution No. 12 is a matter which is disputed between the contractor and the Jabalpur Development Authority and it was held that for the said dispute, the matter will have to be decided by a court of competent jurisdiction which can receive evidence, hear the parties and decide the matter in accordance with the terms of the agreement. Once, this court has held that the question of refund of the amount and the tenability of the same based on Resolution No. 12 is to be decided by a court of law after recording of evidence, i.e. after conducting an inquiry, we are of the considered view that this petition is not maintainable. - Decided against assessee.
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2014 (11) TMI 927
Challenge to the Show Cause Notice - Business support service or not - security services provided by Assam Tea Plantation Security Force (ATPSF) to protect the planters and their property. - sovereign function or not - Held that:- The value of sovereign functions of a state is not taxable in the hands of the citizens. Support services rendered by the government are taxable. According to the government this kind of service received by the writ petitioner is classifiable as a “support service”.
The department has the jurisdiction and obligation to determine whether the writ petitioner is receiving support services from the government. Therefore, before it could demand or even show cause under Section 73 of the Finance Act, 1995, for Service Tax, it was incumbent upon the department to make the determination whether the subject service could be classified as a support service and the writ petitioner exigible to service tax. If the department’s answer was in the affirmative, only then, a show cause notice and thereafter a demand for service tax could have been issued. - the notice dated 20th November, 2013 is quashed and set aside. - Decided in favour of assessee.
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2014 (11) TMI 926
Cenvat Credit - input services - Non commencement of production / manufacturing activity - Whether the CESTAT was right in considering the services namely Technical Testing and Analysis Service, Technical Testing and Certification Service, and Intellectual Property Rights Services, availed by the assessee, as eligible services for availing input service credit as defined under Rule 2(l) of the CCR, 2004 - Held that:- Tribunal has merely followed its earlier decision in the case of M/s. Cadila Healthcare Pvt. Limited [2009 (8) TMI 172 - CESTAT, AHMEDABAD] and has allowed the appeal. - It is an accepted position that the above decision of the Tribunal in the case of M/s. Cadila Healthcare Pvt. Limited came to challenged before this court [2013 (1) TMI 304 - GUJARAT HIGH COURT] and the same had been answered in favour of the assessee and against the Revenue
From the findings recorded by the Commissioner (Appeals) it appears that though the nature of services involved are more or less similar, the facts of the present case are different from that of M/s. Cadila Healthcare Pvt. Limited inasmuch as the services availed by the assessee are in respect of products which are not put to manufacture even after availment of the services in question. The assessee has not commenced manufacture of the final product in view of the fact that if the product is manufactured during the patent period there would be violation of Intellectual Property Rights which would have huge financial implications. Hence, the assessee is waiting till the time the product becomes generic before commencing manufacture of the final product. The Commissioner (Appeals) has, therefore, held that as and when the assessee is able to co-relate the use of the above services as input service used in its final product it would be eligible for credit of such taxes.
The Tribunal, in the impugned order has without delving into the facts of the present case and noticing the distinguishing features, has blindly followed its earlier decision in the case of M/s. Cadila Health Care Pvt. Limited. However, the Tribunal being the final fact finding authority having not examined the facts of the case in proper perspective, in the absence of proper facts being placed before it, it is not possible for this court to answer the question formulated hereinabove. Under the circumstances, the matter is required to be remitted back to the Tribunal - Matter remanded back - Decided in favour of Revenue.
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2014 (11) TMI 925
Goods Transport Agency service - Interest on delayed payment of tax - assessee contended that, they would have taken Cenvat credit and utilised the same for payment of Service Tax. - Accordingly, the assessee contended that the levy of interest was not sustainable. - Held that:- Assessee had remitted the tax belatedly and under the advice of their Internal Audit, interest on belated payment being automatic, rightly the Revenue invoked Section 75 of the Finance Act in this case. In the circumstances, we do not find any ground to accept the plea of the assessee herein that interest cannot be demanded on the facts of the case. - in the light of the decision of the Apex Court in the case of Commissioner of Trade Tax (UP) v. Kanhai Ram Thekedar reported in [2005 (4) TMI 75 - SUPREME COURT OF INDIA], we hold that the action taken by the Revenue could not be faulted with. - Decided in favor of revenue.
Whether the service from the individual truck operator did not fall within the definition of “Goods Transport Agency” as per Section 65(50b) of the Finance Act, 1994. - Held that:- The expression “any person” is not defined under the Act. Section 3(42) of the General Clauses Act defines “person”, as including any company or association or body of individual whether incorporated or not. The thrust of the definition is that it includes every person engaged in an activity providing service of transport of goods by road. Thus, any commercial or a proprietary concern carrying on the business of Goods Transport would fall under the definition of “Goods Transport, Agency” in Section 65(50b) of the Finance Act. In the absence of any words of restriction, the definition ‘any person’ thus would have application to any concern providing the service. - Decided in favor of revenue.
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2014 (11) TMI 924
Release of trucks - Maintainability of appeal before tribunal - Uttarakhand Value Added Tax Act, 2005 - truck was not possessing relevant documents and failed to comply with the procedures - Held that:- under Section 43(8), there is a clear discretion vested with the authority to exercise the power to order release, as provided by it. We are fortified in the said view when we notice that the lawgiver mandates that, whenever power is exercised by giving a direction, it must be for reasons to be recorded. The provision containing the limitation on the exercise of power that there must be reasons recorded, itself, shows that the Legislature was anxious to protect the interest of the revenue. The power was, no doubt, lodged with the superior officer; but, the Legislature has taken great care to see that the power is not exercised in a routine manner. It unerringly points out that the power under Section 43(8) is a purely discretionary power. No doubt, any discretion vested with any public officer must be exercised bona fide and according to well established principles relating to exercise of discretion by statutory authorities.
The Legislature has used the word "may" in Section 43(8) and that, again, goes a long way to persuade us to hold that the power is discretionary.
The legislative intent was that an appeal will lie against a direction for release ordered under Section 43(8) and, when it is refused, no appeal will lie under Section 53. It may not be out of place to record that, subsequently in the year 2012, Section 56(b), itself, was amended by the Legislature and, after the amendment in 2012, Section 56(b) does not contain the prohibition against an appeal or revision against action under Section 43(8). Therefore, it would appear to be an error, which was probably noticed by the Legislature as Section 53 and Section 56(b) were completely inconsistent with each other.
Incidentally, we may notice in the Explanation to Section 53 that the person, who could file the appeal, includes the Commissioner. But, again, we notice curiously that it is in relation to an order and not in relation to a direction. But, nonetheless, we would think that, in view of the word "direction" under Section 43(8), the Legislative intent is clear that it is only a direction under Section 43(8) ordering release of the goods, which would be appealable.
The Revision is to be allowed and the same is allowed. We answer the question of law in regard to the maintainability of the appeal in favour of the revisionist. The impugned order, therefore, cannot be sustained on the ground that the appeal was not maintainable. Therefore, the impugned order is set aside. - Decided in favor of revenue.
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2014 (11) TMI 923
Interest on refund - state is contesting payment of interest at 12 per cent per annum to the assessees on the amounts refunded - refund was issued in compliance of order of the Supreme Court in Shri Krishna Enterprises' case [1988 (3) TMI 407 - SUPREME COURT OF INDIA] - Held that:- grant of interest on refund of tax by the Appellate Deputy Commissioners was valid in view of section 33B read with section 33F of the Act, but such interest should have been granted only from the date immediately following the expiry of the period of six months from the date of order of Appellate Deputy Commissioners granting refund to the date on which the refund is granted as mandated in section 33F.
The principles of res judicata or estoppel do not apply in these cases and the mere fact that the assessees have not claimed interest either originally or subsequently in appellate proceedings would not preclude them from claiming it as section 33F gives them a right to get interest on the refund. - Decided partly against the revenue.
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2014 (11) TMI 922
Validity of coercive proceedings of Punishment - sales tax evasion - petitioner having already been mulcted with the penalty of "thrice the tax amount" sought to be evaded under section 17(5A) of the KGST Act - Held that:- Admittedly, the liability under section 17(5A) has become final as per exhibit P11 order and it has been satisfied by the petitioner as well. This being the position, the said assessee is not liable to be punished for the same offence by referring to the general provision of section 45A, as to the failure to maintain proper accounts and non-response to the summons/ notice, which stands on a much lower pedestal. Even though sections 17(5A) and 45A are distinct and different, governing separate situations, the offence involved is measured in greater scales, imposing punishment in a mandatory manner, that too by "three times" of the tax effect in respect of the years 1998-99 and 1999-2000, while leaving the rest in respect of 2000-01 as the turnover did not touch the limit.
It is relevant to note that, as observed by the Supreme Court in Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth [1984 (7) TMI 355 - SUPREME COURT], when a "special provision" is there, the "general provision" has to be excluded, so as to give way to the former. In the instant case, section 17(5A) is the special provision and section 45A is the general provision, which in turn has to yield to the former. Above all, in fiscal statutes, interpretation has to be given, taking the choice of construction which is favourable to the assessee, as held by the apex court in Commissioner of Income-tax, West Bengal v. Vegetable Products Ltd. [1973 (1) TMI 1 - SUPREME Court]
It is declared that, when punishment under section 17(5A) is imposed, further punishment under section 45A in respect of the same offence/ingredients is not correct or proper. - Decided in favor of assessee.
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2014 (11) TMI 921
Waiver of pre deposit - Difference between running bills and consolidated bills - Government is coming to the conclusion that the difference amount between ₹ 112 crore and 124 crore is actually excise duty collected. - Held that:- We are unable to find basis for this conclusion at all. When we compared it was submitted based on the statement given by the Additional Vice President of PSL that the treatment for the purpose of working out the amount by L&T is the system of piece rate bill whereas the appellant’s billing system is based on quantity. Nevertheless when we see, both the statements referred to by us and reproduced as in the show cause notice, according to L&T, the gross amount is ₹ 158.95 crore and deductions/recoveries is ₹ 124.41 crore. When we look at the categories of deductions/recoveries, we see that these are the amounts which are actually paid by L&T in some other form to the appellant and not in the form of cash.
Similarly in the case of bills raised by the appellant also the amount of ₹ 154 crore is the payment received from L&T in the form of HR coil and other items. In the statement of the appellant, excise duty is not reflected because the excise duty is not paid by the appellant. In the case of L&T these are figuring because probably this was taken into account at the time of agreement for calculating the bill amount payable but in fact it was not paid or was paid. However when we summed up the figures, according to L&T record the net amount payable is ₹ 34.53 crore whereas according to the appellants net amount receivable is ₹ 35.03 crore. The above analysis would show that according to the bills preferred by both the sides, the amount payable to which both sides agree is only about ₹ 34.53 crore which is actually less than what they have already received. Whereas it is the department’s claim that they have received more than ₹ 11.26 crore as excise duty and this figure is nowhere getting reflected in both. The above analysis would show that prima facie we are not in a position to appreciate the fact that the appellants have received the amount as excise duty and is recoverable as per the provisions of Central Excise law. Therefore appellants have made a prima facie case in their favour for complete waiver for this amount also. - Stay granted.
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2014 (11) TMI 920
Valuation of goods - MRP based valuation or transaction value - Whether the impugned goods supplied to TNCSC, which are intended for free distribution to the women beneficiaries belonging to families holding family cards eligible for drawal of rice as per the T.N. Government scheme are to be assessed under the provisions of Section 4 or Section 4A of the Central Excise Act, 1944 - Held that:- M/s. Butterfly Gandhimati Appliances Ltd. and M/s. LLM Appliances Ltd. are manufacturing Mixies, Table Top Wet Grinders falling under heading 85094010 and Electric Fans and Electric Rice Cookers falling under Chapter Heading 84145190 and 85166000 respectively and clearing the goods on payment of appropriate Central Excise duty on Retail Sale Price (R.S.P.) as per Section 4A of the Central Excise Act. The period of dispute in these appeals is September 2011 to September 2013. There is no dispute on the fact that the impugned goods are covered under Section 4A and also listed in the Notification No.49/2008 as amended for availing the abatement.
TNCSC carried out procurement of Mixies, Table Top Wet Grinders, Electric Table Fans and Electric Rice Cookers for free distribution to the women beneficiaries, who are holding family cards eligible for drawal of rice on behalf of Tamil Nadu Government. The TNCSC is an undertaking of the Government of Tamil Nadu similar to M/s.ELCOT. M/s.ELCOT had been entrusted by Govt. of Tamil Nadu for procurement of colour T.V sets and in the present case, TNCSC has been entrusted to procure Mixes, Table Top Wet Grinders, Electric Fans & Electric Rice Cookers. - goods were sold by the appellant to TNCSC and there is consideration of sale and the goods are covered under Section 4A of the Central Excise Act. The appellants have rightly cleared the said goods on payment of Central Excise duty as per RSP in terms of Section 4A read with Notification No.49/08. - appellants correctly discharged the duty under Section 4A based on RSP basis. Accordingly, we set aside the impugned orders passed by the Adjudicating Authority in respect of both the appellants - Following decision of PG Electroplast Ltd. [2014 (7) TMI 575 - CESTAT NEW DELHI] and Jayanti Food Processing Private Ltd. Vs CCE Rajasthan [2007 (8) TMI 3 - Supreme Court] - Decided in favour of assessee.
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2014 (11) TMI 919
Captive Consumption of Molasses - Manufacturing of Rectified Spirit and ENA - According to Revenue, Rectified Spirit and ENA are non-excisable goods with effect from 1.3.2005 and therefore, the appellants are not eligible to avail benefit of exemption Notification No. 67/95-CE on Molasses captively used in the manufacture of Rectified Spirit and ENA. - Held that:- Prior to 28.2.2005, Rectified Spirit and ENA manufactured by the appellant were covered under sub-heading No. 2204.90, NIL rate of duty. After amendment of Tariff (8 Digit Classification Code), Heading 22.04 would correspond to Heading No. 22.07. In the above Board Circular, it has been clarified that Notification No. 3/2005-CE dated 24.2.2005 was issued to preserve the existing duty rate. So, it is clearly evident that the Rectified Spirit existing NIL rate of duty under Sub-heading No. 2204.90 has been covered under Serial No. 14 of the Table appended to Notification 3/2005-CE. In view of the above Board Circular, we find merit in the submission of the learned Advocate that with effect from 28.2.2005, Rectified Spirit and ENA are exempted goods, covered under Notification No.3/2005-CE.
After re-structuring of Central Excise Tariff from 6 Digit to 8 Digit with effect from 1.3.2005, Rectified Spirit and ENA are exempted by Notification No. 3/2005-CE (supra) and the appellant discharged the obligations under Rule 6 of the CENVAT Credit Rules, 2004 in respect of clearance of Rectified Spirit and ENA and therefore denial of exemption Notification No. 67/95-CE (supra) on Molasses captively consumed in Rectified Spirit and ENA cannot be sustained. Accordingly, denial of CENVAT credit on the Molasses purchased from other sugar mill used in the manufacture of Rectified Spirit and ENA are also liable to be set aside. We have also noted that inputs and input service are not exclusively used for generation of electricity and therefore CENVAT credit cannot be denied. - Decided in favour of assessee.
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2014 (11) TMI 918
Condonation of delay - Section 5 of the Indian Limitation Act, 1963 - Inordinate Delay of 5 years and 113 days - financial status of the company was not good - Held that:- On due consideration and in view of the law laid down Commissioner of Central Excise (2009 (3) TMI 31 - SUPREME COURT) the provision of Indian limitation Act, 1963 will not be applicable and as per Section 35G(2) (a) of Central Excise Act, 1944 the appeal was filed after the period prescribed therein and, thus, the same is liable to be dismissed as barred by time - Condonation denied.
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2014 (11) TMI 917
CENVAT Credit - Andhra Pradesh High Court after relying upon the decision of the Supreme Court in case of Vikram Cement v. Commissioner of Central Excise, Indore [2006 (1) TMI 130 - SUPREME COURT OF INDIA] admiited appeal of assessee against the decision of Tribunal on the following substantial questions of law :
Whether the decision of Tribunal in holding that the mines do not form part of the factory inspite of the mines and the place of production being contiguous in nature is valid.
Whether the decision of the Tribunal in holding that the appellants are not eligible to the Modvat Credit of duty paid on capital goods used in mines as well of the duty paid on goods used outside the factory is valid?
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2014 (11) TMI 916
Applicability of enhanced rate of duty as amended in the manner specified in the Seventh Schedule of the Finance Act, 2008 coming into force with immediate effect after passing of the Bill on 29.04.2008 or on date of enactment as on 10.05.08 - appellant engaged in the manufacture of Portland Pozzolana Cement falling under sub-heading 25232930 of the First Schedule to the Central Excise Tariff Act, 1985 - demand raised arising out of the substitution of tariff rate of ₹ 900/- per ton in place of ₹ 600/- per ton for the intervening period from 29.04.2008 to 09.05.2008 - Calcutta High Court admitted the appeal of Revenue against the decision of CESTAT, Kolkata on the following questions of law:-
Whether power under Section 3 of the Provisional Collection of Taxes Act, 1931 to give immediate effect to a Bill before its passage by a declaration of expediency in public interest extends to amendments as well?
If amendment is proposed after a declaration under Section 3 of the Provisional Collection of Taxes Act, 1931, but before the introduction or passage of the bill, or before expiry of 75 days from the date of declaration, would a fresh declaration be necessary for giving immediate effect to the amendment?
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2014 (11) TMI 915
Waiver of pre deposit - Held that:- twenty six year old appellant is on the threshold of taking over the Establishment following the demise of his father, who was the proprietor; succumbing to carcinoma. We are persuaded to think that the appellant is entitled to be heard by the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) without insisting on any condition as to pre-deposit, having regard to the peculiar facts and circumstances, including the contentions on merits; particularly because the plea is on jurisdictional issue as to coverage. We are of the view that this course would pave way to secure ends of justice and would give a reasonable opportunity to the appellant to place his case. - Decided in favour of assessee.
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2014 (11) TMI 914
Restoration of appeal - Non compliance of pre deposit order - Appellant has deposited the amount of pre-deposit now - Karnataka High Court restored the appeal of the assessee against the decision of Tribunal [2014 (11) TMI 758 - CESTAT BANGALORE] of dismissing the appeal on the ground of non-compliance under Section 35F of the Central Excise Act.
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2014 (11) TMI 913
Challenge to recovery proceedings - Coercive measures of recovery - Held that:- At the outset, it needs to be stated that we have not gone into merits of the case of either side and our indulgence is restricted only in respect of the request of the petitioner seeking to recover the amount confirmed by the Commissioner (Appeals) pending the revision when revisional authority is yet to examine its request of stay of order sought to be executed. When admittedly, revisional authority is already approached by the petitioner challenging the order of Commissioner (Appeals) raising various grounds and when the said authority is unable to take up the request of stay of recovery pursuant to appellate orders in absence of any attempt on the part of the petitioner to thwart hearing of such application of stay as also proceeding with hearing of revision on merit, actions of respondent Nos. 2 and 3 warrant interference at this stage - Decided in favour of assessee.
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2014 (11) TMI 912
Review application - Previous order passed in [2013 (4) TMI 303 - GUJARAT HIGH COURT] - Held that:- Court has decided Tax Appeal [2013 (4) TMI 303 - GUJARAT HIGH COURT] finally on merits. The orders passed in other two Tax Appeals are of admission. This cannot be a ground for review of our order. - Decided against Revenue.
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2014 (11) TMI 911
Application for stay - Suspension of CHA License - Tribunal declined to stay order stating that the entire issue should be considered at the time of hearing of the appeal - Held that:- A perusal of the order of the Tribunal shows that none of the plea with reference to prima facie case has been considered by the Tribunal. All that the Tribunal held is that the challenge to the impugned order on perversity will be decided after examining the evidence in detail at the time of hearing of the appeal and therefore, the stay application was disposed of and the early hearing application was dismissed as infructuous. We also find that the Tribunal has not considered the prima facie case for considering the interlocutary application sought for by the applicant. To that extent, the prejudice and hardship pleaded by the appellant justifies the filing of the present Civil Miscellaneous Appeal before this Court - matter remanded back - Decided in favour of appellant.
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2014 (11) TMI 910
Benefit of exemption under Notification No.12/2012-Cus. (Sl. No.359) - Confiscation of goods - Redemption fine - Smuggling of goods - Held that:- Prima facie when the ship and tug and rig were brought and rig was handed over for repair an into bond bill of entry must have been filed. Similarly in the case of tug, before utilizing the same in Indian waters, a bill of entry must have been filed. Therefore in both cases, it can be said that the goods have acquired the characteristics of smuggled goods even though it cannot be said that appellants have intentionally and deliberately resorted to evasion of duty and violation of procedure in view of the fact that there were entries in IGM even though not in appropriate column. At the time of importation, non-filing of bill of entry can be said to be a procedural error and for this reason, when the appellant is eligible for the exemption available otherwise which is a substantial benefit, it may not be correct to deny the entire benefit when we know that appellants are eligible for the same. Needless to say since the rig and the tug have acquired the characteristics of smuggled goods, they are liable for confiscation and penalty is imposable on the concerned importer thereof, but duty demand is a different proposition.
The bank guarantee for ₹ 3.5 crores executed by the appellants if kept alive during the pendency of appeal, would be sufficient for hearing the appeal. - Learned counsel agrees to keep the bank guarantee alive during the pendency of appeal. - Stay granted.
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