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Showing 361 to 380 of 1271 Records
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2015 (6) TMI 917
Waiver of pre-deposit - Outdoor catering services - Service tax not paid on catering services in respect of the Mail/Express trains - Notification No.2/2006-ST dated 1.3.2006 - Held that:- In view of the different views taken by two Courts i.e. Delhi high court in the case of INDIAN RAILWAYS CATERING & TOURISM CORPORATION LTD Versus GOVT OF NCT OF DELHI & ORS [2010 (7) TMI 174 - HIGH COURT OF DELHI] , Kerala high court in the case of SAJ Flight Services Pvt. Ltd. V. Superintendent of Central Excise reported in [2005 (8) TMI 20 - HIGH COURT (KERALA)] and going by the nature of the services provided by the appellant as alleged by the Department in the adjudication order, we find that this issue still remains debatable on facts and on law. We, therefore, not inclined to go into the merits of the case. However, taking note of the financial hardship pleaded and in view of the uncertainty on the levy of service tax, which we find is still a debatable issue, we are inclined to modify the brief and non-speaking order of the Tribunal. - amount of pre-deposit reduced to 50% - Decided partly in favour of assessee.
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2015 (6) TMI 916
Site formation and clearance, excavation & earthmoving & demolition - Whether the respondent, while executing a work order awarded to them by Goa State urban Development Agency (GSUDA) for a project name "Construction of Market-Cum Community Hall and Park, Phase-I Land Development" had provided the taxable service of "Site formation and clearance, excavation and earth moving and demolition" under Section 65(97a) of the Chapter V of the Finance Act, 1994 - Held that:- Site formation basically refers to earth work or activities related to earthwork or, at the most, drilling for the passage of cables or drain pipes. Whereas the activities undertaken by the respondent indicate a comprehensive works contract which includes appreciable RCC work for foundations, columns and walls apart from construction of walls, laying of pipes. The definition includes creation of passages for pipes. It does not include laying of pipes itself. There is merit in the finding of the Commissioner (Appeals) that if such works are held to be taxable under the site formation service, then every such project would involve the activity of site formation. Revenue could at most tax only that part of the contract which involves site formation and related earthwork and not the entire works. But that has not been done by Revenue. Be that as it may, the total activities undertaken cannot be categorized under the Site Formation service. The nature of work is more akin to a comprehensive works contract. - Therefore, we hold that the work undertaken by the respondent cannot be termed as an activity of "Site formation and clearance, excavation & earthmoving & demolition". - Decided against Revenue.
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2015 (6) TMI 915
Waiver of pre deposit - Market Research Agency service - Held that:- prima facie the classification of the services rendered has been done on the basis of the service rendered under only one of the eleven agreements under which the services were rendered. - service held to be Market Research Agency service would amount to export of service. Consequently, the appellant has been able to make out a good case for granting waiver of pre-deposit as far as the demand under the said service (Rs.6,57,10,433/-) is concerned. As regards the remaining amount of demand, the appellant has not pressed for stay. - Decision in the case of SGS India Pvt. Ltd. (2014 (5) TMI 105 - BOMBAY HIGH COURT) followed - Partial stay granted.
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2015 (6) TMI 914
Waiver of pre deposit - 'Management, Maintenance or Repair service on the Annual Maintenance Charges - Held that:- Amount received as AMC is not deposited in the Govt. treasury. Further there is no constitutional basis to hold that services rendered as a statutory function are ipso facto immune from liability to service tax. Thus, the decision of CESTAT in the case of Maharashtra Industrial Development Corporation (2014 (11) TMI 311 - CESTAT MUMBAI) may be per incuriam of the Constitution of India. - prima facie it had added the maintenance charges in the lease rent while computing the taxable amount and paid the service tax thereon and if that is taken into account, the short payment would come in the range of ₹ 5 lakhs. Accordingly, we order pre-deposit of ₹ 5 lakhs along with proportionate interest within four weeks - Partial stay granted.
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2015 (6) TMI 913
Denial of CENVAT Credit - Held that:- certain input services were availed for the purpose of setting up of business in Uttrakhand. But, for no feasibility of the unit there, that could not come up. This shall not disentitle the appellant to cenvat credit of the services availed - input services definition in Rule 2(l) would permit cenvat credit for such services which has nexus with business - Decided in favour of assessee.
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2015 (6) TMI 912
Benefit of CENVAT credit - Outdoor Catering Service - Held that:- Both the authority below allowed the credit following various decisions of the Tribunal. Revenue in their grounds of appeal stated that the Commissioner (Appeals) followed by the decision of the Tribunal in the case of CCE, Mumbai V. M/s. GTC Industries Ltd. - [2015 (6) TMI 83 - CESTAT CHENNAI]. It is contended that the decision of the Larger Bench in the case of GTC Industries (supra) does not appear to correct. In my considered view, the Single Member Bench of the Tribunal cannot make any observation on the correctness of the decision of Larger Bench of the Tribunal. In any event, I find force in the submission of the Learned Authorised Representative of the Revenue in respect of denial Cenvat Credit on Outdoor Catering Service, as per decision in the case of Commissioner Of Central Excise Nagpur V/s. Ultratech Cement Ltd. [2015 (6) TMI 83 - CESTAT CHENNAI]. In that case, it has been held that the assessee is not eligible to avail the credit on the Outdoor Catering Service on the employees Share. - impugned order is modified to the extent the Cenvat Credit on Outdoor Catering Service is not admissible to respondent on the part of service tax borne by the worker. - Decided in favour of Revenue.
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2015 (6) TMI 911
CENVAT Credit - duty paying documents - whether the appellant is entitled for the Cenvat credit on the strength of debit note issued by the service provider - Held that:- All the particulars as required under Rule 9(2) of Cenvat Credit Rules are undisputedly appearing on the debit note. Therefore the debit note is at par with the documents prescribed under Rule 9(1) of Cenvat Credit Rules, 2004. On going through various judgments relied upon by the Ld. Counsel for the appellant, I find that the ratio of those judgments are squarely applicable in the present case. There is no dispute raised by the department that the service were received and same was accounted for in the books of account of the appellant, therefore, I am of the view that debit note containing all the details as required under the rule 9(2) of Cenvat Credit Rules, 2004 is valid documents for the purpose of taking cenvat credit. - impugned order is set aside - Decided in favour of assessee.
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2015 (6) TMI 910
Denial of CENVAT Credit - whether the appellant is eligible for Cenvat credit of duty paid on Air-conditioner and furniture - Held that:- air-conditioner has been used within the factory in the control panel room to keep the temperature down. There is no dispute that it has been installed in the factory. As regards furniture, the learned counsel relied upon the Board's circular issued by the Board vide Circular No. 943/4/2011-CX. dated 29.04.2011. In the circular it was mentioned that 'goods such as furniture and stationery used in an office within the factory are goods used in the factory and are used in relation to the manufacturing business and hence the credit of same is allowed.' This circular was issued after the amendment of Cenvat Credit Rules specifically denying benefit of Cenvat credit on certain activities which are not at all related to manufacture. - According to the definition of 'input' as it existed during the relevant period, inputs used in the factory 'for any other purpose' the credit is admissible. In this case there is no denial of the fact that furniture had been used within the factory. - Decided in favor of Assessee.
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2015 (6) TMI 909
Dispute in Transaction Value - Demo cars vs Normal cars sold by dealers - Held that:- Earlier tribunal vide judgment [2011 (7) TMI 1044 - CESTAT CHENNAI] dated 8-11-2011 held that the assessees have not been able to demonstrate any difference between the ‘demo cars’/’normal cars’ sold through dealers. The ‘demo cars’ are put to test and usage as desired by prospective buyers and the assessees also permit such usage to enhance the marketability of their cars. In these circumstances, the transaction value cannot be accepted and comparable price adopted for other cars (other than ‘demo cars’) has correctly been adopted and differential duty charged thereon. We, therefore, uphold the duty demands together with interest but set aside the penalties imposed on the ground that the penalty is not warranted as the assessees received and paid the duty on the transaction value and the demands are also within the normal period of limitation. - SC dismissed the appeal on the ground of delay of 245 days.
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2015 (6) TMI 908
Classification of product part of illuminated signs - Chapter sub-heading 9405.90 or under heading No. 49.01 - Held that:- We respectfully agree with the view expressed by this Court in the decision of Commissioner of Central Excise, Mumbai v. Tanzeem Screen Arts [2008 (12) TMI 473 - CESTAT, MUMBAI]. Therefore, we allow this appeal and remand the matter to the Tribunal for fresh disposal in accordance with law as expeditiously as possible, at any rate, within six months from the date of receipt of copy of the order of this Court. All the contentions of both the parties are left open.
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2015 (6) TMI 907
Penalty u/s 114 - Aiding and abetting - Held that:- The exchange of e-mail messages between Shri Selvam and Shri Bhaskar Naidu clearly indicates their earlier transaction and business dealings even before the present consignment. This clearly establishes that Shri Bhaskar Naidu, CEO of M/s. Archana Exports and the overseas buyer knew each other very well. Both carefully hatched a fraud creating a web of intermediaries to smuggle prohibited Red Sanders under the garb of Granite Cobble Stones. He himself being the main conspirator tried to mislead the Department by way of engaging a number of intermediaries and by furnishing the wrong and fictitious telephone numbers and addresses, so that investigations are lost in the trail. In such facts the exporter was held liable for aiding and abetting. Further, in the case of P. Bhaskar Naidu, the payment for goods was received in cash, wherein in the case of present appellant the payment is received through Banking Channel. Further in the Bhaskar Naidu's case, the goods were factory stuffed and it moved from the factory to the Port, whereas in the appellant's case the goods have been taken to ICD premises for inspection. - allegation of aiding and abetting does not stand. - Decided in favour of assessee.
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2015 (6) TMI 906
Clandestine removal - Warehoused goods, date of clearance thereof - Evidence - High court dismissed the appeal of the assessee for non prosecution which was filed against the decision of Tribunal [2004 (7) TMI 217 - CESTAT, BANGALORE], wherein Tribunal held that in case of clandestine removal it is not always possible to establish exact date of clearance of goods but if the period during which clearances took place established, it would be sufficient to say goods have been removed within that period. Once from records, clandestine clearance of goods from warehouse during period July to Oct. established, clearance of same goods under Ex-bond Bill of Entry at a later date on 22-11-1996 becomes manipulated.
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2015 (6) TMI 905
Exemption availed under conditional notification no. 64/88 – Notification was withdrawn later – violation of post import conditions - In this, matter was remanded back to tribunal by high court to decide the case on merit basis and consequently penalty was reduced ₹ 5 lacs to ₹ 1 lac by judgment [2008 (10) TMI 218 - CESTAT, NEW DELHI] dated 22-10-2008 . Now supreme court dismissed the appeal and held that there is no warrant to reduce the penalty regard being had to the amount. - Appeal dismissed.
Eligibility criteria as per Notification 65/88, dated 1-3-1988 & Notification No. 118/86, dated 7-2-1986 - Seeking direction to Commissioner to do needful within a stipulated time - Held that:- Present appeal is squarely covered by the judgment passed by this court in M/s. Grant Medical Foundation v. Commissioner of Customs, Mumbai [2015 (6) TMI 221 - SUPREME COURT] dated September 17, 2014. - Appeal accordingly disposed of.
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2015 (6) TMI 904
Validity of consent circulars issued by SEBI - whether SEBI is justified in rejecting the consent application filed by the appellant as not consentable under paragraph 1(ii) of consent circular dated May 25, 2012 - Section 15JB read with Section 30A inserted to SEBI Act with retrospective effect, whether appeal against the impugned order dated January 2, 2013 is maintainable before this Tribunal.
Held that:- In the present case, since consent application of appellant dated April 26, 2011 was disposed of on January 2, 2013 without giving an opportunity to the appellant to present consent proposal before the IC after perusing documents which were furnished by SEBI partly in the last week of November 2012 and partly in December 2013 (after disposal of consent application), appellant was entitled to file appeal under Section 15T(1) of SEBI Act alleging that the impugned order has been passed even before giving full inspection of documents referred to and relied upon in show cause notice dated December 16, 2010 and without giving an opportunity to submit consent proposal after perusing documents furnished to the appellant. Since Section 15T(2) is deleted and Section 15JB(4) is inserted to SEBI Act with retrospective effect from April 20, 2007 by Ordinance No. 2 of 2014 which bars appeal against any order passed in consent proceedings. - Appeal dismissed.
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2015 (6) TMI 903
Illegal and wrongful occupation of company's flat - Refusal to handover the vacant possession of flats - Offence punishable u/s 630 of the Companies Act, 1956 - Held that:- In the case of Dharampal v. Smt. Ramshri [1993 (1) TMI 291 - SUPREME COURT OF INDIA] the Hon'ble Supreme Court was pleased to hold that Learned Session Judge's powers under Section 397(3) Cr.P.C. while hearing the revision, are equivalent to that of High Court and any one cannot avail of two opportunities of filing revision under the garb of Section 482 Cr.P.C. When once his revision was found unsubstantial by the Learned Sessions Judge under Section 397(1) Cr.P.C., then the remedy under Section 482 Cr.P.C. is barred and he cannot file this petition.
The facts of the present case do not warrant any interference under Section 482 Cr.P.C. being a second revision under the garb of Section 482 Cr.P.C. The present petition is neither maintainable nor is there any merit in the same. Accordingly, the present petition is dismissed on both counts, i.e., on the question of maintainability as well as on merits. - Keeping in view the age of the case and also the nature of the offence, the Learned Metropolitan Magistrate, 17th Court, Calcutta is directed to dispose of this case finally as expeditiously as possible without giving any unnecessary adjournment.
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2015 (6) TMI 902
Application for winding up - Non refund of non interest Bearing Maintenance Security (IBMS) - Direction to deposit the entire amount as a pre-condition to deal with its movable and immovable assets in the ordinary course of business - Held that:- On a consideration of the entirety of the matter as well as the documents filed by the parties which have been placed before us, it was the responsibility of the appellant to place the amounts collected towards (IBMS) from the apartment owners in a separate account. Even before us, the appellant does not dispute receipt of this amount from the apartment owners.
A reading of the affidavit filed by the appellant would show that the entire amount collected towards IBMS has been utilised by it. The nature of the utilisation, however, is not disclosed. It is also not known whether the amount has been utilised for the purpose or in the manner required in the flat buyers agreement. The respondent has also absolutely refuted the liability of any dues at all. - Calling upon the appellant to secure the amount is clearly justified and cannot be assailed on any legally tenable grounds. However the appellant pleads financial difficulty in making a lump sum deposit. The amount can be secured by other conditions as well to mitigate this expressed difficulty.
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2015 (6) TMI 901
Disallowance of building repair expenses - revenue v/s capital - Held that:- The assessee has only replastered, re-furnished and re-plumbered its factory building. This is not the Revenue’s case that the same has caused any increase in capacity of the building or otherwise. The Assessing Officer has been heavily swayed by the quantity of the material used (supra). We observe that this factor is not relevant in deciding such an issue of capital and revenue expenditure once it has not resulted in creation of a new asset giving enduring advantage. We quote hon’ble Bombay high court decision in CIT vs. DBS Corporate Services (P) Ltd., (2012 (9) TMI 478 - BOMBAY HIGH COURT) in support. Thus, we accept the assessee’s relevant ground and delete the impugned disallowance by treating these building repair expenses as revenue expenditure liable to be treated as current repair u/s.30 of the Act. - Decided in favour of assessee.
Disallowance of commission expenditure u/s.40(a)(i) paid to foreign agents in lieu of procuring export order - Held that:- The assessee places on record agreement dated 8th December, 2005 highlighting its payees obligations, Revenue therein fails to point out involvement of any technical component therein. The assessee’s overseas agents have procured export orders and provided logistic support through adequate publicity etc. There is not even an iota of evidence to prove any technical service actually rendered to the assessee. Thus, the Revenue’s contention relating to Section 9(1)(vii) aplicability stands negated. We hold that the assessee has not availed any technical services from its overseas agents so as to deduct TDS on the impugned export commission payments. The Hon’ble Supreme Court in G.E. India Technology Centre P. Ltd., (2010 (9) TMI 7 - SUPREME COURT OF INDIA ) has held that Section 195 applies only when overseas payments are taxable in the recipients hands under the Act. Therefore, we delete the impugned disallowance. - Decided in favour of assessee.
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2015 (6) TMI 900
Reopening of assessment - disallowance on account of deferred revenue expenditure - CIT|(A) deleted the disallowance - Held that:- The hon’ble jurisdictional High Court in DCIT vs. Core Healthcare Ltd., (2008 (10) TMI 74 - GUJARAT HIGH COURT) holds that an expenditure incurred at the time of installation of machinery in existing line of business resulting in enduring benefits cannot be held to be capital expenditure merely because some direct or indirect benefits; immediate or a period of time, flow from the same. The Revenue does not quote any case law to the contrary. We take cue therefrom and treat the entire expenses as revenue expenditure.
An assessee can adopt the two ways of giving different accounting treatment to an expenditure in its books and claim the entire sum as revenue expenditure in the relevant assessment year. Therefore, we uphold the CIT(A)’s order deleting the impugned disallowance/addition of deferred revenue expenditure. The Revenue’s ground fails. - Decided in favour of assessee.
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2015 (6) TMI 899
Transfer pricing adjustment - Information Technology enabled services (ITES) segment - selection of comparable - Held that:- Cosmic Global Ltd. be excluded from the list of comparables for the reason of its major activity, namely, Translation, with revenue of ₹ 6.99 crore (out of total revenue of ₹ 7.35 crore), being dissimilar with the assessee’s activities under this segment. The second reason for considering this company as incomparable on entity level is the business model adopted by it. It can be seen that this company has outsourced major activities in comparison with the assessee doing its business inhouse. It goes without saying that these two business models, namely, outsourcing services and providing in-house services, cannot be compared with each other because of their inherent differences.
Accentia Technologies Ltd. directed to be excluded from the final list of comparables as a company cannot be considered as comparable because of exceptional financial results due to mergers/demergers. It can be noticed from page 31 of the Annual report that during the year under consideration this company completed the acquisition of 96% of M/s Oak Technologies Inc., a healthcare back-office processing company engaged in medical billing, coding and transcription activities and having substantial global work force.
Microland Ltd. company was not originally selected by the assessee as comparable in its TP study. No contention was raised before the TPO for considering it as comparable. It was only for the first time that the assessee came up with the argument for the inclusion of Microland Ltd., in the list of comparables before the Dispute Resolution Panel (DRP). Since the authorities below have not pondered over the comparability of this company, we are of the considered opinion that the ends of justice would meet adequately if the impugned order on this score is set aside and the matter is restored to the file of AO/TPO for examining the comparability of this company. - Decided in favour of assessee for statistical purposes.
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2015 (6) TMI 898
Disallowance of business expenses - CIT(A) allowed claim - Held that:- When the assessee company was neither dissolved nor was its business closed, the Revenue Authorities were unjustified to disallow the expenses claimed by the assessee. As per revenue record, the assessee company started its business in the year 1997 and has done its business but in the year 1999-00 and in the current year, it had suffered recession and the company could not procure export orders in the year under consideration, but the company claimed only those expenses which were necessary to maintain the business and assets of the company which were allowable under the Income-tax Act, 1961. Almost similar are the facts of the present case during the years under consideration as it is not the case of the Assessing Officer that the expenditure of the assessee were excessive or unreasonable vis-ŕ-vis its legitimate business requirements but the claimed expenditure has been denied by the Assessing Officer on the basis that it had not manufactured any product and not traded in any item and it had only earned income from interest on FDR. Thus CIT(Appeals) was justified in allowing the claimed expenditure which were disallowed by the Assessing Officer based on a wrong view. We are thus not inclined to interfere with the findings of the Learned CIT(Appeals) in this regard. The same is upheld. - Decided against revenue.
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