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Showing 361 to 380 of 1389 Records
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2014 (7) TMI 1031
Restriction of Labour charges – Held that:- A reasonable rate should have been applied by CIT(A) - it would be fair and reasonable to allow labour charges as claimed by the assessee - the short comings of the assessee shall also be addressed - an average rate can be allowed instead as claimed by the assessee – The decision in Dy. Commissioner of Income-Tax Versus M/s. M. Kantilal Exports [2014 (7) TMI 819 - ITAT AHMEDABAD] followed - thus, the order of the CIT(A) is modified in respect of an adhoc disallowance– Decided partly in favour of Revenue.
Under valuation of closing stock of polished diamonds – Held that:- This year can be treated as a demarcating year from the past years; hence, without disturbing the value of the opening stock, the AO is authorized to change the method of valuation for valuing the closing stock - an average of the two valuations is the right solution - The average of the two valuations - To resolve this long pending issue is a reasonable and fair approach to compute the value of the stock of the polished diamond at an average value of the closing stock - Closing stock of the diamond was and by applying the rate - The decision in Dy. Commissioner of Income-Tax Versus M/s. M. Kantilal Exports [2014 (7) TMI 819 - ITAT AHMEDABAD] followed - the AO is directed to re-calculate the valuation of the polished diamond by adopting the average rate of the two figures and accordingly compute the under valuation of the polished diamonds – Decided partly in favour of Revenue.
Valuation of closing stock of polished diamonds - Valuation made without any method – Valuation made at average rate of purchases – Held that:- The valuation of the stock is to be made at the market price or the cost price, whichever is lower - when the complete information about the quality of the stock is not made available then to resolve the issue a middle path is to be adopted - the assessee was in possession of the rough diamond; hence, the difference of the two, i.e., purchase cost (- minus) sale cost is the correct method for determining the valuation of the rough diamond - The decision in Dy. Commissioner of Income-Tax Versus M/s. M. Kantilal Exports [2014 (7) TMI 819 - ITAT AHMEDABAD] followed - the AO is directed to re-compute the valuation of the closing stock of the rough diamonds by adopting an average rate on the same guidelines – Decided partly in favour of Revenue.
Admission of additional evidence – Deduction u/s 80HHC – Export realization during extended period – Held that:- The assessee has received approval from the R.B.I, and the realising Bank for extension of period for realisation in terms of section 80HHC (2)(a) of the Act – there was no reasons for not allowing deduction u/s 80HHC of the Act on this realization - The AO is directed to include the said late realisation in export sale proceeds and allow deduction u/s 80HHC of the Act on this amount also – Decided against Revenue.
Defects in Labour payment expenses – Held that:- The labour charges are different from lot to lot depending upon the quality of the diamond manufactured - while explaining the correctness of the valuation of the stock in the past year, the assessee himself had taken a plea that the diamonds are of two qualities, a superior quality and inferior quality - the valuation of such type of diamonds effect the overall valuation of the closing stock - it was impractical to pay an identical rate of job charges to all the job workers - Certain other doubts have also been raised such as a huge amount of labour charges remain outstanding at the end of the financial year- the AO is directed to re-compute the disallowance – an average is to be taken for the purpose of disallowance of labour expenses – Decided partly in favour of Assessee.
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2014 (7) TMI 1030
Undisclosed payment to land owners – Proper appreciation of facts and evidences not made - Held that:- The main contention of the assessee was that SNOA wanted to develop a housing scheme for which land was purchased from several land owners - About 28,500 sq. yard of land was transacted and alleged that SNOA had entered into a contract for purchase of land from different land owners - the question is that whether the transactions as appeared in the seized diary were in fact the transaction of SNOA or those transactions belonged to the assessee - it was expected from the AO to examine the books of accounts of SNOA, to see whether there was sufficient cash in the books of accounts before making an expenditure in cash or through cheque –thus, the matter is remitted back to the AO - The queries cannot be treated as an exhaustive list and the AO, therefore, in his discretion can raise allied question to verify the claim of the assessee that the payment was not made by the assessee but by SNOA.
Once the issue was restored back to the file of the First Appellate Authority, but at that time there was an apparent denial of opportunity to the assessee as prescribed under Rule 46-A by learned CIT(A) - even after the perusal of the Remand Report the questions/doubts as raised could not be removed – thus, it is not only necessary but also justifiable to restore the matter back to the stage of investigation, i.e., the assessment stage so that the assessee as well as the Revenue both can go upto the hilt of the facts and thereupon can arrive at the correct conclusion – Decided in favour of assessee.
Addition made cash deposit in bank account – source of income not appreciated – Held that:- The assessee has not explained the exact details of the agriculture holding and the income earned there from - It was necessary on the part of the assessee to place on record the area/measurement of the agriculture holding duly supported by the evidence - Assessee was also required to show agriculture crop produced. Be that as it was - the assessee had produced bills during the course of assessment proceedings - the assessee had produced evidence to this extent confirming the agriculture income, therefore, the AO is directed to reduce the addition and rest of the amount is confirmed – Decided partly in favour of Assessee.
Investment for the purpose of visa – Held that:- A deposit made for the purpose of obtaining Visa cannot be termed as an investment - A Visa may or may not be granted, therefore, the amount in question appears to be an expenditure and not an investment - undisclosed income has already been taxed coming out of the seized material, therefore, the expenditure for obtaining Visa can be set-off against that income – the addition is set aside – Decided in favour of Assessee.
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2014 (7) TMI 1029
Penalty u/s 271(1)(c) – Disclosure of additional income - Held that:- the assessee voluntarily disclosed additional income during the course of assessment proceedings and paid tax - it cannot be said that additional income disclosed during the course of assessment proceedings was not voluntary or that the assessee wanted to conceal the income - Even though the revised return was found to be invalid, the AO accepted the income as declared in the revised return and computation - AO did not bring any material on record that the declaration of income made by the assessee in his revised return or his explanation was not bona fide - there appears to be no basis for imposition of penalty on the ground that the assessee furnished inaccurate particulars of income - revenue have not placed before us any material nor brought to our notice any contrary decision so as to enable us to take a different view in the matter – Decided against Revenue.
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2014 (7) TMI 1028
Rejection of books of accounts – Held that:- The shareholders of the company appointed new auditors who submitted audit report on 01.09.2009 and the assessment was completed on 31.12.2010 without considering the same - it is mandatory to file return in time as prescribed in section 139 (1) of the Act as provided in Fourth Proviso to section 10 (B)(1) of the Act - This appears to be a reasonable cause to file return in haste and on the basis of unaudited results and statement of accounts - it is not a case of non-maintenance or not keeping stock register but it is case of not having stock register being maintained according to certain standard of compliance required by the auditors - the issue of rejection of books of accounts is remitted back to the AO with a direction that the qualifications mentioned in the audit report – Decided in favour of Assessee.
Gross Profit rate to be applied @ 28.39% or 12.55% - Held that:- The AO has not properly verified and examined the explanation of assessee pertaining to decline in GP rates at Bhiwadi and Delhi unit - neither the AO nor the CIT (A) attempted to examine the veracity of reasons submitted by the assessee for decline in GP rate – AO as well as the CIT (A) made and confirmed the addition mainly on the reason that books of accounts stood rejected - As the issue of rejection of books to the file of the AO for fresh and de novo adjudication - the issue of GP rate is also remitted back to the AO for fresh adjudication – Decided in favour of Assessee.
Managerial remuneration and salary to director’s relatives – Held that:- The managerial remuneration which could be paid by the assessee per managerial person comes to ₹ 1,25,000/- monthly or say ₹ 15 lacs per annum - the amount paid is only ₹ 12,96,000 - this is well within the limit as prescribed in the Companies Act, 1956 - CIT (A) was not justified in sustaining the same - the salary can be paid to relative of the directors were up to ₹ 20,000/- per month or ₹ 2,40,000/- per annum - the salary paid was only ₹ 2,40,000/-, therefore, the payment was also within the limits of Companies Act, 1956 which does not require any approval from Board or Central Government – Decided in favour of Assessee.
Foreign exchange fluctuation loss - Held that:- The issue is covered by the judgment CIT vs. Woodward Governor India Pvt. Ltd. [2009 (4) TMI 4 - SUPREME COURT] - "Loss" suffered by the assessee on account of fluctuation in the rate of foreign exchange as on the date of the balance-sheet is an item of expenditure under section 37(1) of the Act - Under the mercantile system of accounting, what is due is brought into credit before it is actually received, it brings into debit an expenditure for which a legal liability has been incurred before it is actually disbursed – Decided in favour of Assessee.
Disallowance of VAT written off – Profits chargeable to tax under s. 41(1) - Held that:- Following the decision in ITO vs. Binayak Hi Tech Engg. Ltd. [2012 (5) TMI 331 - ITAT, Kolkata] - Refund arises pursuant to the decision of the commercial tax authority who has to adjudicate the claim – After the claim of refund is made by the assessee in the prescribed form, the Commercial Tax Department has to accept or reject the claim – No benefit has accrued to the assessee during the relevant year as the claim was not adjudicated by the commercial tax authority – Therefore, refund receivable by the assessee is not chargeable to tax - the refund of VAT receivable by the assessee is not chargeable to tax u/s 41(1) until the claim of refund is adjudicated by the commercial tax authority – Decided in favour of Assessee.
Exemption u/s 10B – Held that:- As decided in assessee’s own case for the earlier assessment year, it has been held that, drawback received by the assessee under a scheme to encourage export was not profit and gains derived from industrial undertaking and therefore, not entitled for deduction u/s 80IB - the assessee has been allowed claim u/s 10B but with certain observations in the earlier orders - the claim of the assessee is allowed on the same conditions – Decided in favour of Assessee.
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2014 (7) TMI 1027
Availment of wrongful credit - Goods not received but credit availed - Credit reversed befor issuance of SCN - Levy of penalty - Whether the appellants have availed the Cenvat credit on the basis of the Cenvatable invoices issued by M/s HSAL, without actually receiving the inputs - Held that:- The investigations conducted at the end of the manufacturer, transporter as also the appellant resulted in emergence of evidence clearly pointing out to the fact of wrong availment of credit. The manufacturer’s statement is not a general statement laying down in some cases the credit has been based on without the corresponding supply of goods. It is a specific statement laying down that only Cenvatable invoices were issued in the name of the appellant whereas the inputs were diverted to other manufacturer at Jodhpur and Ahmedabad.
Revenue has conducted further investigations from the transporters as also from the owners of the truck mentioned in the invoices. The said investigations also resulted in establishing the fact that the trucks in question were never used for transportation of the goods from M/s HSAL to the appellant’s factory premises. All the representatives of the transporter as also the owners of the truck have clarified such position. Further the appellant’s authorised representative has clearly accepted the fact that no inputs were received by them and they had taken the credit on the basis only the Cenvatable invoices.
Similarly the fact of payment of the Cenvat credit by reversing the entries in the Cenvat account before the issuance of the Show Cause Notice is not sufficient to accept the appellant’s contention that no penalty should be imposed upon them. In cases of fraud, mere deposit of the duty before the issuance of the Show Cause Notice is not sufficient for non-invocation of the penal provision. - Decided against assessee.
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2014 (7) TMI 1026
Clandestine removal - manufacture of aerated water - appellant was draining out the aerated water without entering it first in the R.G.-1 register - water was not fit for human consumption - not in conformity with the specifications provided under the Prevention of Food Adulteration Act and Weights and Measures Act, 1976 - Held that:- R.G.1 register only a finished product is required to be entered. - a finished product is a manufactured goods which is marketable.
Under filled or over filled or badly crowned caps bottles cannot be treated as being fully manufactured nor could it be treated as finished goods and, consequently, there was no occasion for such goods to be entered in R.G.1 register. The finished goods after undergoing the screening test are only required to be accounted for in R.G.1 register having found that they are fit for sale.
The authority had misdirected itself in holding that under filled, over filled, badly crowned cap bottles and even contaminated bottles were required to be entered in R.G.1 register. The authorities were wholly incorrect and misdirected itself in coming to the conclusion that since these under filled, overfilled, badly crowned bottles were not entered in R.G.1 register, it amounts to clandestine removal of goods without payment of excise duty, is patently erroneous. - Demand set aside - Decided in favor of assessee.
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2014 (7) TMI 1025
Waiver of pre-deposit - 50% stay order was already grated - review of order - Held that:- A perusal of the order passed by the Tribunal discloses that several contentions urged on behalf of the petitioner were taken into account, and they were dealt with extensively. From the order, it does not appear that the ground of financial incapacity or inability was not dealt with by the Tribunal, obviously because it was not pressed. The discussion was undertaken mostly on the contentions, touching upon the legality, or prima facie case. - order dated 09-01-2014, passed in C.E.A.No.48 of 2014 recalled - matter remanded to the Tribunal for fresh consideration and disposal only for the limited aspect.
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2014 (7) TMI 1024
Restoration of appeal - appeals were dismissed for non-prosecution - advocate was preoccupied before Sales Tax Authority, Bangalore and he informed his clerk to take instructions from this Tribunal who had not taken proper steps. Held that:- there is sufficient reason to recall order dt. 6.6.2012. - the ex-parte order dt. 6.6.2012 is recalled and the COD applications and the appeals are restored to its original numbers.
Condonation of delay of 413 days - Held that:- the reason for delay is mainly for obtaining requisite departmental approval for filing the appeal from the higher authorities. It is seen that the delay is caused for taking approval from higher authorities for 413 days which cannot be accepted as sufficient reason for condonation of delay. Accordingly, the COD applications filed by the appellant are rejected. - Conononatin of delay dened - Decided against the assessee.
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2014 (7) TMI 1023
Classification of Polymer Modified Bitumen (PMB) and Crumbled Rubber Modified Bitumen (CRMB) - manufacturing from Petroleum Bitumen - classification under TSH No. 27150090 or under 27132000 of the CETA - Held that:- PMB or CRMB cannot be treated as bituminous mixtures falling under CSH 27150090 and was continued to be classified under CSH 27132000 pertaining to tariff for petroleum bitumen. - Decision in the case of Osnar Chemical Pvt. Ltd (2012 (1) TMI 27 - Supreme Court of India) followed - Decided in favor of assessee.
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2014 (7) TMI 1022
Failure to produce certificates as required under exemption Notification No. 6/2006-CE from the Project Implementing Authority - Held that:- the adjudicating authority has correctly confirmed the demands along with interest - since the appellant had always been informing the lower authorities about the intention of claiming benefit of Notification No. 6/2006, we are of the view that penalty which has been imposed on the appellant seems to be excessive. - penalty reduced to ₹ 1,00,000 lakh only.
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2014 (7) TMI 1021
Cenvat Credit - non receipt of inputs with invoice - fraudulent credit - revenue entertained a view that said manufacturing unit was only issuing cenvatable invoices to various manufacturers without actually sending the corresponding goods - Held that:- The manufacturer’s statement is not a general statement laying down in some cases the credit has been based on without the corresponding supply of goods. It is a specific statement laying down that only Cenvatable invoices were issued in the name of the appellant whereas the inputs were diverted to other manufacturer.
The matter does not rest at this point only. Revenue has conducted further investigations from the transporters as also from the owners of the truck mentioned in the invoices. The said investigations also resulted in establishing the fact that the trucks in question were never used for transportation of the goods from M/s HSAL to the appellants factory premises. All the representatives of the transporter as also the owners of the truck have clarified such position.
There is no justification for allowing the Cenvat credit - demand confirmed - appellants to pay the entire dues along with 25% of penalties within a period of 30 days from the date of receipt of order. - Decided against the assessee.
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2014 (7) TMI 1020
Classification of service - Works Contract service or erection, commissioning or installation service - nature of contract is pure labor contract or not - Held that:- The appellants have from their records show that almost 31% of the contract value is represented by material value. - The assumption appears to be that in the said Service contract entered into by appellants with Power Grid Corporation of India Ltd., there is no transfer of property in goods. This assumption is based on incorrect appreciation of facts. The records shown by appellants indicate that a significant percentage of the total contract work under the ‘Service Contract' involves material component. Therefore we hold that there is transfer of property in goods involved in the execution of the Service Contract. - Decided in favor of assessee.
The appellants pay Sales Tax/Vat on the transfer of property in the goods involved in execution of the Service contract. Copies of VAT returns have also been placed on record. Therefore, the second aspect that goods in the Service Contract are leviable to tax as sale of goods, is also fulfilled.
Benefit of composition scheme - Held that:- it is quite clear that from 7.7.2009, the Composition Scheme was restricted to such Works Contracts where the value of goods used whether supplied under any other contract, is to be included. The change in Rules is not a mere clarification of the earlier Rules. There has been a clear amendment in law from 7.7.2009. The period of dispute in the case of appellant is from April 2008 to March 2012, and Revenue does not dispute that the contract had commenced before 7.7.2009. Therefore, the amended Rules would not apply in the case of appellant in accordance with the proviso to the Explanation in the amended Rules - appellants have correctly availed the Works Contract (Composition Scheme for Payment of Service Tax) Rules, 2007. - Decided in favor of assessee.
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2014 (7) TMI 1019
Management, Maintenance and Repair Services - Consulting Engineer service - activity of supply of spares, refurbishing and upgradation of air craft and other defence equipments for defence purposes - Held that:- In the case of Management, Maintenance and Repair Services, there are 5 agreements considered. Even in the reproduction of the findings of the Commissioner, it is mentioned that the agreement No. 4 is for upgradation of navigation and weapon system Maintenance Simulator and carrying out the related services according to suppliers Technical Proposal. Sl. No. 5 in paragraph 75 covers upgradation of Sea Harrier. We are unable to understand how upgradation of particular equipment or an air craft can amount to Management, Maintenance or Repair Service - in agreement No. 1 the details of which are not discussed by the Commissioner was for design, development of software, development of detailed engineering, procurement, fabrication of proto type of air craft, development of new aircrafts, training etc. Prima facie we do not find any basis for the conclusion reached by the Commissioner that this agreement is for Management, Maintenance or Repairs.
Matter needs a more detailed consideration of the agreements, the activities undertaken by the appellants in terms of the agreement and the basis for conclusion to classify any of the services in the taxable category. At this juncture it will not the out of place to mention that when an offence case is registered, the burden to prove that a taxable service has been rendered is on the Revenue and it is not of the assessee and in our opinion this burden has not been discharged in respect of both the services in this case
The scope of the service of consulting engineering service is to render any advice on consultancy or technical assistance in any manner. From the definition it appears that the service has to be related to consultancy or technical assistance whereas from the agreement and from the summary of the agreements as reproduced by the Commissioner himself, the appellants are engaged in design, development of software, development of detailed engineering, procurement, fabrication of proto type of air craft. Prima facie, the activities undertaken by the appellants did not appear to be covered by the Consulting Engineers Service - matter remanded back - Decided in favour of assessee.
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2014 (7) TMI 1018
Waiver of pre deposit - Demand of service tax on reverse charge basis - Payment of pre deposit done from CENVAT Credit account - Whether pre-deposit of service tax by a recipient of service as per provisions of section 66A, utilizing Cenvat credit is legally proper - Held that:- credit and its utilization for payment of subsequent liability was making the entire levy of service tax on goods transport agency meaningless because no collection was accruing to the government. It appears that the amendments made in legal provisions were to plug this loop hole - The effect of amendment made in Rule 2(p) w.e.f 01-03-2008 to exclude service of goods transport agency and the effect of Explanation added w.e.f. 01-07-2012 in Rule 3(4) is the same. However, it appears that there is no decision with reference to Cenvat Credit Rules as amended in Rule 3(4) on 01-07-12 by adding Explanation as stated above. In this case Cenvat credit has been utilized for payment of duty liability arising under section 66A of Finance Act, 1994 on service receiver after a specific Explanation prohibiting such use was introduced in Rule 4(4) with effect from 01-07-2012. Therefore, the pre-deposit made is not proper - However, time period for making pre deposit is extended - applicant allowed to reverse the credit already made in Cenvat account for complying with stay order - Decided partly in favour of assessee.
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2014 (7) TMI 1017
Development of land activity - Construction of complex - Held that:- The development of land for township is not covered by the definition of construction of complex service as given in Section 65 (105) (zzzh) readwith Section 65 (39a) and 65 (91a) or by the definition of Works Contract Service in Section 65 (105) (zzzza) w.e.f. 01/06/2007. It is not even disputed that the construction of residential complexes was undertaken by other contractors and not by the appellant. In view of this, the service tax demand from the appellant firm by treating their activity as taxable under Section 65 (105) (zzzh) as ‘construction of complex service’ upto 30/05/2007 and under Section 65 (105) (zzzza) as Works Contract Service w.e.f. 01/06/2007 is not sustainable - Decided in favour of assessee.
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2014 (7) TMI 1015
Waiver of pre deposit - 100% EOU - Determination of rate of duty - Goods cleared into DTA against advance DTA sole permission - Notification No. 23/2003-C.E. (Sl. No. 2) of the Table to the Notification prescribes a concessional rate of duty in respect of DTA clearances made by a 100% EOU, which is subject to certain conditions, as mentioned in this notification - Held that:- Since, the exemption Notification No. 23/2003-C.E. in terms of its condition in provides concessional rate of duty only to the goods cleared into domestic tariff area in accordance with sub-para (a), (d), (e) or (g) of para 6.8 of the Foreign Trade Policy and since it does not cover the goods cleared into DTA against advance DTA sale permission given under sub-para (k) of para 6.8 of the Foreign Trade Policy, it is very clear that the goods sold Into DTA against advance DTA sales permission granted under para 6.8(k) are not covered by this notification.
While in terms of the conditions of this notification, the product being sold into DTA must be similar to the product being exported, in this case prima facie the product clear into DTA - O-Ring and the products exported - Striker bumpers and nut seals are not similar. The fact that the advance DTA clearances in terms of para 6.8(k) of the Foreign Trade Policy are not covered by this exemption notification is also clear from the Condition (II)(b) of the notification, according to which the total value of the goods cleared into DTA under sub-para (a), (d), (e) and (g) of para 6.8 does not exceed 50% of the FOB value of exports made during the financial year.
Prima facie appellant were not entitled for concessional rate of duty under Notification No. 23/2003-C.E. in respect of advance DTA clearances made by them during the period from October 2006 to October 2007 - product being cleared into DTA and products being exported were not similar was never disclosed by the appellant to the department. Beside this, the appellant could not be unaware of the fact that while concessional rate of duty under Notification No. 23/2003-C.E. which they had erroneously availed, is available only when the DTA clearance are made under sub-para (a), (d), (e), (g) of the para 6.8 of the Foreign Trade Policy and the advance DTA clearances made under para 6.8(k) are not covered in this notification, they still availed of this notification - Prima facie case not in favour of assessee - Conditional stay granted.
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2014 (7) TMI 1014
Denial of refund claim to SEZ unit - authorized operations - Denial on the ground that the appellant has received the Scientific and Technical Consultancy Services which are not related to the authorized operation of the appellant which is in the list - Held that:- as regards non-inclusion of services of Scientific and Technical Services, in the letter dated 20th May, 2010, office of the Development Commissioner, KASEZ, Ahmedabad, at Entry Nos. 37 and 84, of the list, specifically indicated the Scientific or Technical Consultancy Services and technical testing and analysis as services for authorized operation of appellant. It is un-disputed that these services which are rendered by Cadila was in respect of the products manufactured by the appellants, which need study as regards research and analysis and testing. These activities are must for pharmaceutical industry before marketing and/or exporting the final products - reasons given by the First Appellate Authority as well as the Adjudicating Authority for rejecting the refund claim seems to be misconstrued - Following decision of Cadila Health Care Ltd. [2009 (8) TMI 172 - CESTAT, AHMEDABAD] - Decided in favour of assessee.
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2014 (7) TMI 1013
Denial of CENVAT Credit - GTA Service - Whether in respect of clearances from the factory gate directly to the customers the appellant would be eligible for cenvat credit in respect of GTA services availed for transportation of cement upto the customer’s premises - Held that:- the prima facie the definition of ‘place of removal’ in Section 4 of the Central Excise Act, 1944 can be adopted for the purpose of Cenvat Credit Rules, 2004 only in those cases where the final product is chargeable to duty at an ad valorem rate on the value determined under Section 4 i.e. when the provisions of Section 4 are applicable for determining the duty leviable on the goods and the definition of ‘place of removal’ in Section 4 would not be applicable for the purpose of Cenvat Credit Rules, 2004 when the final product is chargeable to duty at a specific rate or of at ad valorem rate, on the value determined under Section 4A or on tariff value fixed under Section 3(2).
Prima facie when the rate of duty on the final product is specific, the definition of ‘place of removal’, as given in Section 4, which is only for the purpose of this section, cannot be adopted for the purpose of Cenvat Credit Rules and in such cases, the place of removal would be the place on removal from which duty is payable on the goods, which in this case, would be the factory gate. Therefore, the Appellant cannot be said to be having prima facie case in their favour and some conditions have to be imposed for safeguarding the interests of Revenue. - stay granted partly.
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2014 (7) TMI 1012
Waiver of pre-deposit - Cargo handling service - whether by way of loading, unloading or transportation or stacking - within the factory premises of RINL these activities would not fall within the ambit of ‘cargo handling service’ - Held that:- The demand under ‘management, maintenance or repair service’ is to the tune of ₹ 98 lakhs, that under ‘commercial or industrial construction service’ is to the tune of ₹ 38 lakhs and the rest of the demand (a little over ₹ 1 lakh) is under ‘manpower recruitment or supply agency service’ - Prima facie, from the description of works, it appears that the first appellant was handling cargo of RINL. This activity was undertaken by way of loading, unloading, stacking etc. and, of course, incidental transportation of the goods also. We are not impressed with the argument that ‘goods’ are different from ‘cargo’.
Incidental transportation of any goods would not per se take out such activities from the purview of the definition of ‘cargo handling service’ - It is not the case of the appellant that they voluntarily disclosed their activities to the department. The departmental knowledge referred to by the learned counsel might be related to visits by the Range Officer to the factory of RINL. But there is nothing on record to show that there was any positive act or gesture on the appellant’s part to disclose the material facts to the department or to communicate to the department that they had ever maintained a bona fide belief against service tax liability. The plea of financial hardships raised by the learned counsel has also been considered. The first appellant is a public sector undertaking and the balance sheet produced by them indicates some losses for the year ended 31-3-2011 - Appellant has no prima facie case on merits - stay granted partly.
Demand of service tax from Sub-contractor - Held that:- There was a circular of the Board, issued in 1997, which also prompted the second appellant to believe that they would not be liable to pay service tax qua sub-contractor. It was only in 2007 that the Board changed the view and clarified that a sub-contractor would also be liable like the main contractor for payment of service tax in respect of a given work. The period of dispute in this case is October 2002 - March 2007. - Full stay granted in respect of sub-contractor.
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2014 (7) TMI 1011
Denial of refund claim - tax paid on sale of bricks - Held that:- Court without going into the merits of the claim made by the petitioner, directs the respondent to consider the representation of the petitioner dated 02.05.2014, and pass appropriate orders on merits and in accordance with law within a period of three months from the date of receipt of a copy of this order - Matter remanded back - Decided in favour of assessee.
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