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Showing 361 to 380 of 1244 Records
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2013 (7) TMI 885
Denial of rebate claim - clearance to SEZ cannot be treated equivalent to export to other countries - Held that:- supplies made to SEZ are treated as export and such supplies are eligible for rebate claim under Rule 18 of the Central Excise Rules, 2002. Hence, the lower authorities have erred in holding to the extent that supplies to SEZ are not eligible for rebate benefit by ignoring the provisions of above said C.B.E. & C. Circulars. - applicant initially sought to supply the impugned goods to the SEZ Unit under Rule 19 of the Central Excise Rules, 2002. Subsequently on being pointed out above non-execution of UT-I, they paid Central Excise duties through debit entries in Cenvat account and claimed refund/rebate of such said duty. In these cases there is no allegation that said goods were not received by the SEZ unit. As such the payment of duty and export of goods is not in dispute. Therefore, rebate claim is required to be considered in accordance with law on merit in the light of above said C.B.E. & C. circulars. - Matter remanded back - Decided in favour of assessee.
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2013 (7) TMI 884
Denial of rebate claim - Export of Paclitaxel Injection (of different strength) containing alcohol - export product is non-excisable and applicant has not followed procedure/condition laid down in Not. No. 21/2004-C.E. (N.T.), dated 6-9-2004 - Held that:- Central Government may, where any goods are exported, by notification, grant, rebate of duty paid on materials used in the manufacture or processing of such goods and rebate shall be subject to such condition or limitations if any, and fulfilment of such procedure as may be specified in the Notification. It is quite clear that rebate of duty paid on materials is to be granted under Rule 18 of CER, 2002 read with Not. No. 21/2004-C.E. (N.T.), dated 6-9-2004 issued under said rule. - applicant has not followed the statutory provision of Not. No. 21/2004-C.E. (N.T.), dated 6-9-2004 which is admitted by him and therefore input rebate claim is not admissible. - Decided against assessee.
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2013 (7) TMI 883
Denial of rebate claim - Duty paid at higher rate - Held that:- Erroneous refund/rebate sanctioned under an order can be recovered by invoking provisions of Section 11A of Central Excise Act, 1944, without taking recourse to provisions of Section 35E ibid and fling appeal against the assessment on the basis of which refund was initially sanctioned. Hence, Government finds that appellate authority erred in holding that since the assessment at the time of export was not challenged, the rebate claim cannot be reduced with reference to the time of assessment. - notification changing effective rate of duty takes effect from the date of publication of notification in official Gazette - So, it is a settled legal position that on 24-2-2009, duty was payable on impugned goods @ 8% in terms of Notification No. 4/2009-C.E., dated 24-2-2009. - any amount paid in excess of duty liability on one’s own volition cannot be treated as duty and it has to be treated as a voluntary deposit with the Government which is required to be returned to the assessees/respondents in the manner in which it was paid as the said amount cannot be retained by Government without any authority of law. - Decided partly in favour of assessee.
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2013 (7) TMI 882
Denial of refund claim - applicants have failed to produce the invoices issued by them to Khapri Depot to establish the duty payment - Held that:- In order to avail benefit of rebate under Rule 18 r/w Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 the applicant was required to comply with condition and procedure stipulated in the said Notification dated 6-9-2004. The original authority observed that the applicant failed to remove the goods by following ARE-I procedure under cover of ARE-1 as prescribed under Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004. Since no ARE-I form was prepared/submitted for clearance of excisable goods for export.
ARE-1 application is the basic essential document for export of duty paid goods under rebate claim. The Customs certification on these copies of ARE-1 proves the export of goods but in the absence of duly certified copies of ARE-1, rebate sanctioning authority has no chance to compare these documents with triplicate copy of ARE-1 as stipulated under above discussed provisions of Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 and therefore he cannot satisfy himself of the correctness of the rebate claim. Hence, it cannot be established that excisable goods cleared from factory of manufacture on payment of duty has been exported. - due to non-compliance of ARE-1 procedure, non-submission of original/duplicate copy of ARE-1 duly endorsed by customs and non-submission of Central Excise Invoice issued by manufacturer the export of duty paid goods cannot be established. The compliance of said fundamental requirement is must for sanctioning the rebate claim under Rule 18 of the Central Excise Rules, 2002 read with Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004. As such the rebate claim is not admissible in this case under Rule 18 of Central Excise Rules, 2002 read with Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004. - No infirmity in impugned order - Decided against assessee.
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2013 (7) TMI 881
Condiscation of vessels - Imposition of redemption fine and penalty - Held that:- In respect of the vessels, namely, Smit Lynx, Union Boxer, Smit Borneo, Giant-2, Mastas Star, Seacor Valor and Smit Cyclone, these vessels were never seized at all and in the adjudication orders passed, the Commissioner had not confiscated these vessels inasmuch as they were not available for confiscation. However, demands of duty on these vessels have been confirmed under the provisions of Section 125(2) of the Customs Act, 1962. The said Section provides for recovery of duty only in a case where the goods are confiscated and a fine in lieu of confiscation is imposed under Section 125(1). In such a situation, the owner of such goods or the person from whom the goods have been seized would, in addition to the fine, be liable to any duty and charges payable on such goods. In other words, provisions of Section 125(2) are attracted only when goods are confiscated and an option to redeem the goods on payment of fine in lieu of confiscation is given.
Demand of duty on these seven vessels is clearly unsustainable in law. In all these cases, it is seen that the duty demands were made in the show cause notices under Section 28(4). However, since the show cause notices were issued beyond the normal period of limitation and duty demands could not have been confirmed under Section 28(8), the Commissioner resorted to confirmation of duty demand under Section 125(2) which does not prescribe any time limit. From the facts of the case, it is seen that these vessels on arrival, after completing all the formalities, were converted from foreign-run to coastal-run for undertaking salvage operations. After completing the salvage operations and obtaining the requisite permissions and clearances from Customs authorities, the vessels went back within a short period of 1 to 2 months. However, the show cause notices were issued one year after the vessels went back from India (beyond the period of 6 months, the normal period of limitation for duty demand). Therefore, the duty demands are clearly time-barred as there was no suppression on the part of the appellants.
In the facts of the case before us, 7 out of the ten vessels are tugs which are not designed to carry goods or passengers and 3 are barges but they were not engaged in transport of goods or passengers from one port of India to another. Thus by no stretch of imagination, it can be considered that any of these vessels were on the “coastal-run” as defined in law. Therefore, merely because permissions were given for conversion, albeit wrongly, they do not become coastal vessels as defined in law. Thus the arguments advanced by the appellant in this regard are completely misplaced and merits rejection.
The concessional rate of duty prescribed is fifteen per cent. of the aggregate of the duties of customs, which would be leviable, in the case of goods which are re-exported within six months of the date of importation. In the case of goods which are re-exported after six months, but within one year of the date of importation, the rate of duty chargeable would be thirty per cent. of the aggregate of the duties of customs. To be eligible for the concession, the goods should be either machinery, equipment or tools. Tugs and barges can, by no stretch of imagination, be considered as falling in this category. They fall under Chapter 89 as “Ships, boats and floating structures”. Therefore, in our view, the appellant would not be eligible for any duty concession under the said Notification and the claim in this regard is not sustainable.
The vessels, Smit Lumba, Posh Giant-I and Salvaree have been confiscated under the provisions of Sections 111(f), 111(g) and 111(h) of the Customs Act. In respect of the other 7 vessels, they have also been held liable to confiscation under the same provisions. Section 111(g) is attracted when any dutiable goods or prohibited goods are unloaded from a conveyance in contravention of the provisions of Section 32. Since the case of the Customs is that the impugned vessels are not “conveyances”, there cannot be any violation of Section 111(g) as no unloading has taken place from a ‘conveyance’. Similarly, violation of 111(h) can also not be alleged for the reason that the said section is attracted when dutiable or prohibited goods are unloaded or attempted to be unloaded in contravention of the provisions of Section 33 or 34.
Confiscation under Section 111(f) is sustainable in law. Since the non-filing of the IGM and Bills of Entry were with the knowledge of the Customs Authorities and the transactions were declared to the Customs, no mens rea can be attributed to the appellants. This fact should be given due consideration while imposing redemption fine in lieu of confiscation and penalty on the appellants.
Redemption fine on the 3 confiscated vessels and penalties on the importer/agent in respect of all the 10 vessels are reduced - However, Penalties on the co-appellants are set aside - Decided partly in favour of assessee.
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2013 (7) TMI 880
Disallowance of loom expenses - revenue v/s capital - CIT(A) confirmed the addition - Held that:- The admitted facts of the case are that the assessee booked the looms expenditure on the basis of self-made vouchers. It is also admitted facts as admitted by the Commissioner of Income-tax (Appeals) that such expenditures are necessary for the purpose of the business. Once it is found that such expenditures are necessary for the purpose of business, the entire expenses claimed by the assessee cannot be disallowed. In the light of the fact, the orders of the Revenue authorities cannot be sustained. It is also a fact that the expenditure accounted for and claimed by the assessee on account of looms is not verifiable. Therefore, the case under consideration is a reasonable estimation of such expenses. If we consider comparative trading account for the year ended March 31, 2007, year under consideration and the last year ended March 31, 2006, we noticed that the last year the assessee claimed ₹ 12,60,374 as loom expenses and gross profit shown was ₹ 1,45,00,622 and for the year ended March 31, 2007 gross profit shown is ₹ 2,12,79,434. Thus, proportionate loom expenditure should be ₹ 18,50,000 (rounded off) (1260374/14500612 x 2,12,79,434). It is stated that in last year the loom expenses have been accepted by the Department. Under the circumstances loom expenses to the extent of ₹ 18,50,000 is allowable as expenditure. We accordingly allow the same and the balance amount of ₹ 4,12,695 is confirmed. The assessee gets relief of ₹ 18,50,000 out of addition of ₹ 22,62,695.- Decided partly in favour of assesse.
Disallowance of interest expenses - Held that:- Details of the own funds and others are not available on record. In the absence of relevant details available on record, we are sending back this matter to the file of the Assessing Officer with direction to decide the issue in the light of the above order of the Income-tax Appellate Tribunal, Mumbai Bench, after providing reasonable opportunity of hearing to the assessee. - Decided in favour of assesse by way of remand.
Disallowance of depreciation on car - Held that:- the assessee has failed to furnish supporting evidence that the car was purchased in the name of partner Shri Lalit Jain and it was used for the purpose of business. The assessee has failed to furnish any evidence in this regard. Once it is found that the car was not used for the purpose of business, depreciation is not allowable. The assessee has failed to furnish any evidence to show that the car was used for the purpose of business. - Decided against assesse.
Disallowance of food and beverages expenses - CIT(A) confirmed disallowance @ 20% as against 5% as seeked by assesse - Held that:- The assessee has failed to furnish any evidence or explanation why only 5 per cent. was to be disallowed, whereas the Commissioner of Income-tax (Appeals) has considered the relevant provisions of fringe benefit tax and found that 20 per cent. of the disallowance was reasonable. In the absence of contrary material on the finding of the Commissioner of Income-tax (Appeals), the order of the Commissioner of Income-tax (Appeals) is confirmed on the issue. - Decided against assesse.
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2013 (7) TMI 879
Depreciation on reach stacker - 25 per cent. or 40 per cent - whether it falls under the head "motor lorries as envisaged in Entry III E (1A) of Part I of Appendix-I? - Held that:- From the facts in entirety, we are of the view that "reach stacker" which is a sophisticated mobile crane manufactured by TIL Limited with a brand name RSL 45 is nothing but motor car also called motor lorries under the heavy goods vehicle. "Heavy goods vehicle" as per section 2 of the Motor Vehicle Act, 1988 means any goods carriage the gross weight of which, or a tractor or a road roller the unladen weight of either of which, exceeds 12,000 kilograms. Certificate of registration issued by the Regional Transport Officer, Kohima, Nagaland as mobile crane having vehicle No. NL 01 G 1810 proves that "reach stacker" is a mobile crane under the heavy goods vehicle. Nature and utility of the "reach stacker" will clear the type of vehicle and help us to come to the conclusion that "reach stacker" is nothing but a industrial motor car and/or industrial motor lorries. It is a special type of industrial truck which provides special services of lifting load, moving it side by side, rotating it or moving it horizontally. Most industrial trucks permit mechanized pick up and deposit of the loads, eliminating manual work in lifting as well as transporting. It will thus, be clear that motor vehicles like fire trucks, fork lifts trucks, crane trucks and reach stacker which are designed for special services fall within the category of "motor trucks" (also called "motor lorries". Even the Revenue in future assessment years has allowed the claim of the assessee.
Once fall under this category, the assessee is entitled the depreciation at 40 per cent. and this view is supported by case of Gujco Carriers v. CIT [2002 (2) TMI 48 - GUJARAT High Court] - Decided in favour of assesse.
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2013 (7) TMI 878
Constitutional validity of sub-section (4) of Section 8 of the Representation of the People Act, 1951 - Disqualifications for persons being chosen as, and for being, a member of either House of Parliament as well as a member of the Legislative Assembly or Legislative Council of the State - Held that:- The result of our aforesaid discussion is that the affirmative words used in Articles 102(1)(e) and 191(1)(e) confer power on Parliament to make one law laying down the same disqualifications for a person who is to be chosen as member of either House of Parliament or as a member of the Legislative Assembly or Legislative Council of a State and for a person who is a sitting member of a House of Parliament or a House of the State Legislature and the words in Articles 101(3)(a) and 190(3)(a) of the Constitution put express limitations on such powers of the Parliament to defer the date on which the disqualifications would have effect. Accordingly, sub-section (4) of Section 8 of the Act which carves out a saving in the case of sitting members of Parliament or State Legislature from the disqualifications under sub-sections (1), (2) and (3) of Section 8 of the Act or which defers the date on which the disqualification will take effect in the case of a sitting member of Parliament or a State Legislature is beyond the powers conferred on Parliament by the Constitution.
Looking at the affirmative terms of Articles 102(1)(e) and 191(1)(e) of the Constitution, we hold that Parliament has been vested with the powers to make law laying down the same disqualifications for person to be chosen as a member of Parliament or a State Legislature and for a sitting member of a House of Parliament or a House of a State Legislature. We also hold that the provisions of Article 101(3)(a) and 190(3)(a) of the Constitution expressly prohibit Parliament to defer the date from which the disqualification will come into effect in case of a sitting member of Parliament or a State Legislature. Parliament, therefore, has exceeded its powers conferred by the Constitution in enacting sub-section (4) of Section 8 of the Act and accordingly sub-section (4) of Section 8 of the Act is ultra vires the Constitution.
We do not also find merit in the submission of Mr. Luthra and Mr. Kuhad that if a sitting member of Parliament or the State Legislature suffers from a frivolous conviction by the trial court for an offence given under sub-section (1), (2) or (3) of Section 8 of the Act, he will be remediless and he will suffer immense hardship as he would stand disqualified on account of such conviction in the absence of sub- section (4) of Section 8 of the Act. A three-Judge Bench of this Court in Rama Narang v. Ramesh Narang & Ors. [1995 (1) TMI 268 - SUPREME COURT OF INDIA] has held that when an appeal is preferred under Section 374 of the Code of Criminal Procedure [for short ‘the Code’] the appeal is against both the conviction and sentence and, therefore, the Appellate Court in exercise of its power under Section 389(1) of the Code can also stay the order of conviction and the High Court in exercise of its inherent jurisdiction under Section 482 of the Code can also stay the conviction if the power was not to be found in Section 389(1) of the Code.
As we have held that Parliament had no power to enact sub-section (4) of Section 8 of the Act and accordingly sub-section (4) of Section 8 of the Act is ultra vires the Constitution, it is not necessary for us to go into the other issue raised in these writ petitions that sub-section (4) of Section 8 of the Act is violative of Article 14 of the Constitution. It would have been necessary for us to go into this question only if sub- section (4) of Section 8 of the Act was held to be within the powers of the Parliament. In other words, as we can declare sub-section (4) of Section 8 of the Act as ultra vires the Constitution without going into the question as to whether sub-section (4) of Section 8 of the Act is violative of Article 14 of the Constitution, we do not think it is necessary to decide the question as to whether sub-section (4) of Section 8 of the Act is violative of Article 14 of the Constitution.
Sitting members of Parliament and State Legislature who have already been convicted for any of the offences mentioned in sub-section (1), (2) and (3) of Section 8 of the Act and who have filed appeals or revisions which are pending and are accordingly saved from the disqualifications by virtue of sub-section (4) of Section 8 of the Act should not, in our considered opinion, be affected by the declaration now made by us in this judgment. This is because the knowledge that sitting members of Parliament or State Legislatures will no longer be protected by sub-section (4) of Section 8 of the Act will be acquired by all concerned only on the date this judgment is pronounced by this Court. Refer Judgement in case of Harla v. State of Rajasthan [1951 (9) TMI 37 - SUPREME COURT]. - Decided in favour of appellants.
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2013 (7) TMI 877
Denial of rebate claim - Rule 18 of Central Excise Rules, 2002 rebate is admissible to supplier of goods to SEZ Unit only and not to a unit situated in SEZ and also that SEZ unit - jurisdictional Assistant Commissioner of Central Excise was not having jurisdiction to sanction rebate claim under Rule 18 of Central Excise Rules, 2002 since SEZ unit was located in Pharmez, Ahmedabad - Held that:- applicant, who is receiving the goods from DTA supplier cannot be treated as exporter nor he has exported any goods in terms of said Section 2(m) of the SEZ Act. The SEZ Unit, the applicant is a importer of said goods in this case. Hence applicant cannot file the rebate claim under Rule 18 of Central Excise Rules, 2002. As such the rebate claim is rightly held inadmissible to the applicants on this count. - Decided against assessee.
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2013 (7) TMI 876
Denial of rebate claim - goods were not exported direct from factory or warehouse as laid down in condition 2(a) of Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 and the relaxed procedure laid down in C.B.E. & C. Circular No. 294/10/97-CX, dated 30-1-1997 - Held that:- Applicants cleared the goods from factory to their godown at Bhiwandi, which was admittedly not a registered warehouse. However, the above said Circular dated 30-1-1997 provides for permits the export of goods from a place other than factory or registered warehouse subject to compliance of procedure laid down therein. Hence, rebate claims cannot be rejected merely on the grounds that the goods have not been exported directly from the factory or warehouse. The whole case is required to be seen in context of compliance of the said Circular dated 30-1-1997. The department has not brought out any violation of Circular dated 30-1-1997 by the applicant. Moreover, the applicant kept the department informed that they are routing their goods through Bhiwandi godown. The applicant got their goods stuffed in presence of excise authority. As such, the applicant cannot be alleged to have violated the provisions contained in the above said circular.
Central Excise Officers have made verification as required under C.B.E. & C. Circular dated 30-1-1997. The certification by Central Excise Officers in ARE-1 is certainly required to be done after verifying that goods are in original packing. The Central Excise Officers have nowhere pointed out that goods were not in original packing. So the contention of department regarding correlability is not sustainable. The cross reference of ARE-1s and Shipping Bills is available on ARE-1s and shipping bills. The ARE-1s duly certified by Central Excise Officers and Customs Officers leave no doubt that duty paid goods cleared from factory have been exported as there is no reason to doubt the endorsement of Customs Officers on the ARE-1 Form.
Substantial compliance of provisions of said Circular dated 30-1-1997 has been done by the applicant - Government also notes that although there are a catena of judgments that the substantial exports benefits should not be denied on mere procedural infractions until and unless there is some evidence to point out major violation to defraud the Government revenue.- rebate claims are admissible to the applicants. - Decided in favour of assessee.
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2013 (7) TMI 875
TDS u/s 194C - Disallowance of reimbursement of expenses - CIT(A) deleted the disallowance - Held that:- Payments made to agent for final settlement of bills at Orissa, i.e., payment made to NLP as an agent in pursuance of agreement for supply of trucks are merely reimbursement. The assessee has claimed total freight charges at ₹ 1,45,14,602 including this amount of reimbursement of ₹ 72,83,181 and the assessee has already deducted the tax at source under section 194C of the Act on contractual payment of freight, i.e., total freight at ₹ 1,45,14,602 and nothing is to be deducted from reimbursement. These were never claimed as expenditure by the assessee and once the assessee has not claimed the expenditure qua this reimbursement, the assessee is not liable to tax deduction at source under section 194C of the Act. Further, the Assessing Officer has wrongly made disallowance by holding that the expenses incurred are not for the purpose of business rather according to him, these are inflated expenses booked by the assessee. This finding of the Assessing Officer is erroneous for the reason that the payments made of reimbursement of expenses are purely for business expenses. - CIT(A) rightly deleted the addition - Decided against Revenue.
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2013 (7) TMI 874
Assessee in default - TDS u/s 194H - Whether the learned Commissioner of Income-tax (Appeals) was justified in holding that the relationship between the assessee-company and its distributor is that of "principal agency" relationship and consequently the discount paid to the distributors constitute "commission payment" exigible for deduction of tax at source under section 194H of the Income-tax Act, 1961 - Held that:- Commissioner of Income- tax (Appeals) has followed the binding decision of the hon'ble jurisdictional High Court in the case of Vodafone Essar Cellular Ltd. [2010 (8) TMI 691 - KERALA HIGH COURT] in deciding the issue against the assessee. - Calcutta High Court has also taken the view that the discount given to the distributors of "pre-paid cards" constitutes commission payment in the assessee's own case reported in Bharti Cellular Ltd. (Now Bharti Airtel Ltd) v. Asst. CIT [2011 (5) TMI 590 - CALCUTTA HIGH COURT]. The learned Commissioner of Income-tax (Appeals) has noticed that the hon'ble High Court of Delhi has also taken identical view on this issue in the case of Idea Cellular [2010 (2) TMI 24 - DELHI HIGH COURT]. - Decided against assessee.
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2013 (7) TMI 873
Depreciable assets - adjustment of the cost of new flat against the sale consideration of factory premises under section 50(1)(iii) - scope of block of assets under section 2(11) - Held that:- Assessee would be entitled to claim set off of cost of new asset acquired in the previous year, even if the assessee was not carrying on the same business or the other business. - assessee has not stopped business, therefore, as rightly held by the co-ordinate Bench the assessee is entitled for deduction under section 50(1)(iii) if the new asset is falling under same block of assets.
Even though the property may be situated in residential premises, the same if used as office premises, there cannot be any objection for allowing depreciation at 10 per cent. Therefore, what is required to be examined is whether the assessee is using premises for office purposes. - property is used as office premises, the depreciation allowable is at 10 per cent. Therefore, the said asset falls in the same block of asset for deduction under section 50(1)(iii). In that case the written down value of the business premises may become zero, if the adjustment sought by the assessee was allowed in the computation of capital gains. This aspect required to be considered while working capital gains. Consequential adjustment for allowance of depreciation in later year(s) may require modification. In case the property is not used as office premises, the assessee may not be entitled for depreciation, unless asset is used for business purposes. This aspect also requires examination. Therefore, in the interest of justice we restore the matter to the file of the Assessing Officer to examine the exact usage of the property purchased and then work out capital gains/depreciation accordingly - Matter remanded back - Decided in favour of assessee.
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2013 (7) TMI 872
Revenue expenditure or capital expenditure - Expenditure on introduction of new technology - Held that:- Tribunal while adjudicating the matter has also taken into consideration various case laws decided by the hon'ble Supreme Court of India including Assam Bengal Cement Co. Ltd. v. CIT reported as [1954 (11) TMI 2 - SUPREME Court]; Empire Jute Co. Ltd. v. CIT reported as [1980 (5) TMI 1 - SUPREME Court] ; Alembic Chemical Works Co. Ltd. v. CIT [1989 (3) TMI 5 - SUPREME Court] ; and the order of the Tribunal in the case of Vijayeswari Textiles Ltd., in [2011 (8) TMI 1060 - ITAT CHENNAI]. The co-ordinate Bench of the Tribunal after discussing the facts of the case and the aforesaid decisions of the hon'ble apex court came to the conclusion that the expenditure incurred by the assessee on introducing the compact spinning system is revenue in nature and is thus an allowable expenditure. - Following decision of assessee's own previous case [2012 (1) TMI 103 - ITAT CHENNAI] - Decided against the revenue.
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2013 (7) TMI 871
Benefit under the Rajasthan Sales Tax New Incentive Scheme, 1989 - Held that:- AO has no jurisdiction to sit over the judgment passed by the committee, and the proper course for the AO was to make a representation to the committee in case the petitioner was deviating from the claim originally granted which has not been done in the present case. Therefore, the AO has no jurisdiction to take his own view and going behind the eligibility granted by the committee. In the light of the judgments and the judgment of the apex court in the case of Sonebhadra Fuels [2006 (8) TMI 304 - SUPREME COURT OF INDIA] in which the same business was there as in the present case where it has been held to be manufacturing and that was the objection of the AO that the assessee is not a manufacturer now therefore, in the light of the judgment of the apex court where the activity has been held to be manufacturing then even on the merits the claim of the petitioner deserves to be allowed. - Decided in favour of assessee.
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2013 (7) TMI 870
Reassessment proceeding - Bar of limitation - Held that:- The issue regarding applicability of the provisions regarding reassessment proceedings and its retrospectivity stand concluded by the judgment of this court in Shrinath Emporium [2000 (1) TMI 963 - RAJASTHAN HIGH COURT] - The court further on the facts of that case also found that the assessing authority had no jurisdiction for initiating proceedings for reassessment and the Tribunal was justified in setting aside the assessment. Further, in view of the judgment in the case of Agarwal Salt Company [2007 (11) TMI 564 - RAJASTHAN HIGH COURT] cited by learned counsel for the respondent, the issue otherwise has also become academic. - there is no substance in the revision petition - Decided against Revenue.
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2013 (7) TMI 869
Classification of cold coffee - rate of tax - whether cold coffee is coffee or it is a soft beverage - meaning of beverage - beverage will have water, but it will not be pure water - It is not in dispute that coffee is added to water with milk, sugar, etc., and, thereafter, the temperature thereof is reduced before serving the same as cold coffee to the customers - can it be said that it is a beverage? - when beverage is also coffee in the sense hot or cold coffee, can it be said that it is no longer coffee, but it has become a beverage? - Held that:- The real issues has not been decided either at the assessment stage or at the appellate stage or at the Tribunal stage. - Matter remanded back to the Assessing Authority - Decided in favor of Revenue.
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2013 (7) TMI 868
Appeal u/s 41 (7) (a) of the Kerala General Sales Tax Act, 1963 - Held that:- Section 41(7)(a) provides an application for review only on the basis of discovery of new and important facts, which were not within the knowledge of the applicant or could not be produced by him, when the order was made. - even if the assertion by the review petitioners is that the High Court had exercised jurisdiction beyond the terms of section 41(1) of the Act, that is not a ground to entertain a review in view of section 41(7)(a) of the Act. - Appeal not maintainable.
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2013 (7) TMI 867
Exemption from sale turnover - contention of the petitioner is that the petitioner has sold "husk" and the sale of such "husk" is exempted as per entry 30D of List A of the rate chart under the Orissa Sales Tax Act. - Held that:- Case of State of Orissa v. Mangala Store [2001 (7) TMI 1270 - ORISSA HIGH COURT] deals with the issue of "mustard oil cake" and not "mota kunda" as in the present case. Apart from that, admittedly in the present case as would be clear from entry No. 30D that it relates to exemption of tax on the sale of feed and fodder in respect of the item mentioned therein. In order to claim benefit of such entry, the sale must have been for the purpose of feed for cattle, poultry and aquatic excluding prawn feed. Hence, in the circumstances of the present case, no question of law arises. No good reason to entertain the present revision petition and we are in respectful agreement with the conclusion reached by the Tribunal in the impugned order. - Decided against assessee.
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2013 (7) TMI 866
Exemption from trade tax - Utilization of timber for manufacture - Held that:- It was not the case of the assessing officer that the assessee was not dealing with the items with which he was entitled to deal. He felt that since imported timbers were not being used in manufacturing activity at the registered place of business of the assessee, the imported timbers have not been utilized for manufacturing those items, which are being dealt with by the assessee, instead the imported timbers have been sold as such. The fact remains, as aforesaid, in order to come to the said conclusion, it was obligatory on the part of the assessing officer to ascertain, whether, in law or on the basis of the grant, the assessee was required to convert the imported timbers at his registered address into the products which the assessee was entitled to deal with. That having not been done, question of remitting the matter in the instant case does not arise. - Decided against Revenue.
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9911796707
