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Case Laws
Showing 361 to 380 of 927 Records
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2011 (8) TMI 1012 - MADHYA PRADESH HIGH COURT
Whether assessee not liable to pay the State development tax in view of section 3H(4)(d) of the notification dated April 28, 2005?
Held that:- The conclusion drawn by the Tribunal is completely misplaced. Each and every clause of the notification refers to a separate category of commodity and can stand on its own. The Tribunal has wrongly come to the conclusion that one condition is connected to the other, that cannot be the case because every clause refers to specify benefits under specific sections and gives specific relief. The case of the assessee is covered under clause (iii) of the said notification, as his case was a payment of rebate being allowed to the full extent at the rate of five per cent. This was allowed to him for having paid entry tax at the rate of five per cent. Because the assessee had paid entry tax at the rate of five per cent he was given the benefit of not having to pay the State development tax. The other clauses are not connected with the rebate factor at all.
The claim made by the assessee under section 3H(4)(d) should have been allowed. The order of the Tribunal is, therefore, set aside. Revision allowed.
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2011 (8) TMI 1011 - RAJASTHAN HIGH COURT
Assessee relied on the notification dated March 15, 1996 claiming 100 per cent tax exemption for a period of five years
Held that:- In the present case, licensing authority has throughout been relying on the notification dated March 15, 1996 while renewing the licenses of the assessees in these matters and no effort was made by the Commercial Taxes Department to get that condition of licence altered according to subsequent notification dated August 8, 2002. There is no explanation why if the licensing authority had issued the licence containing the stipulation of "nil entertainment tax" and renewal thereof was done on year to year basis, the Commercial Taxes Department, which is authorized to collect entertainment tax, did not take any steps to get the said condition of the licence modified, altered, varied or even revoked or rectified to indicate the amount of tax.
The contention of the Revenue that condition incorporated in the licence by the licensing authority would, not be binding upon the Commercial Taxes Department, can neither be appreciated nor approved of because they are both two organs of the State, which cannot be permitted to speak two different voices. Even though the licensing authority was under an obligation to act according to the Act of 1952, yet the licensing authority has been assigned certain duties under section 11 of the Act of 1957 and both the authorities have to therefore act in tandem. Thus the revision petitions filed by the assessees deserve to be allowed and those filed by the Revenue deserve to be dismissed
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2011 (8) TMI 1010 - MADRAS HIGH COURT
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... ... ..... rned counsel for the petitioner contended, that the order of cancellation is required to be considered on merit, as the earlier writ was withdrawn, under the misconception, that the impugned order had become inoperative, and that, the writ had been rendered infructuous. This again cannot be a ground to re-open the closed matter. The remedy with the petitioner was to move this court for withdrawal of concession, by pointing out the misunderstanding, on account of the subsequent facts, leading to the impression that nothing had survived in the writ petition, but the petitioner cannot file the second writ petition, on the same cause of action, after the earlier writ petition was got dismissed as withdrawn unconditionally. Finding no merit, this writ petition is dismissed. However, this order shall not bar the petitioner, to take appropriate remedy in accordance with law, to get the previous writ petition revived, if so permissible, and advised, in accordance with law. No costs.
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2011 (8) TMI 1009 - KARNATAKA HIGH COURT
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... ... ..... the assessee by giving a date for their personal appearance, it would have met the requirements as contemplated under the aforesaid provision. Even otherwise the wordings in the first paragraph in the notice, do not satisfy the requirements. As such the opposed impugned order passed without affording a reasonable opportunity of being heard to the assessee is not only contrary to the express provision but also is violative of principles of natural justice and cannot be sustained. Hence, we pass the following ORDER The appeal is allowed. The impugned order is hereby set aside. Now the entire matter is remitted back to the Additional Commissioner for fresh hearing. The assessee shall appeal before the Additional Commissioner on August 24, 2011 at 11 a.m., without waiting for any notice from the Additional Commissioner. On such appeals, the Additional Commissioner shall hear the assessee or his representatives and then proceed to pass orders on the merits in accordance with law.
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2011 (8) TMI 1008 - KARNATAKA HIGH COURT
Whether under the facts and circumstances of the case the Tribunal is correct in holing that the assessee is provider of output services for the purpose of utilizing Cenvat credit in spite of the fact that the assessee is only a receiver of services?
Whether under the facts and circumstances of the case the Tribunal is right in holding that transportation of goods up to place of removal as output services though it has been held in no. of cases that it is an input service?
Whether under the facts and circumstances of the case the Tribunal is right in holding that the citations relied upon by the respondents are applicable to the facts of the case though it is not the fact?
Held that:- We answer the substantial questions of law against the revenue and in favour of the assessee and hold that the appeal is devoid of merit and pass the following order.
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2011 (8) TMI 1007 - GUJARAT HIGH COURT
Whether under Section 47(2) of the Act, the department was entitled to charge interest in facts of the present cases?
Held that:- In such a case interest could be changed on the differential duty under Section 18(3) of the Act. This is the only way in which we can reconcile the provisions contained in Section 47 with those contained in sub-section (3) of Section 18 w.e.f. 13-7-2006. If we accept interpretation of the department that sub-section (2) of Section 47 permits charging of interest on difference in duty between finally assessed and provisionally assessed customs duty, to our mind sub-section (3) of Section 18 would be superfluous and redundant. It is precisely to cover the situation where an importer is held liable to pay higher duty upon final assessment as compared to that he paid at the time of provisional assessment that he can be asked to pay interest on the difference, that sub-section (3) of Section 18 was introduced in the statute book. To our mind Section 47 and particularly sub-section (2) thereof and sub-section (3) of Section 18 operate in different fields.
In view of the above discussion, we do not find that the Tribunal has committed any error. Before closing we may record that there are no averments made before us that respondents-importers did not pay the provisional duty or the final duty as and when assessed within the time as envisaged in sub-section (2) of Section 47 of the Customs Act. Appeal dismissed.
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2011 (8) TMI 1006 - KARNATAKA HIGH COURT
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... ... ..... d when the same was brought to the notice of the assessee, the same was readjusted and interest was also paid on the wrongful credit. However, thereafter the proceedings have been initiated and original order has been passed imposing penalty and demand duty which was of ₹ 7,800/- and imposing penalty of ₹ 10,000/-. There is concurrent finding by the Appellate Authority and the Appellate Tribunal that the said finding of the Original Authority cannot be sustained and the same is set aside on the ground that as on the date of initiation of proceedings, the violation which was rectified by the assessee by readjusting the credit and also paying interest and therefore no further proceedings can be initiated and the said finding is justified having regard to the facts of the case. 7. In view of the above we hold that, on the facts of the case, the appeal do not give rise to any substantial question of law. Accordingly the appeal is dismissed as devoid of merits.
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2011 (8) TMI 1005 - KARNATAKA HIGH COURT
Whether the Tribunal was right in holding that the earlier OIA No. 414/2002, dated 4-7-2002 was in respect of the same claim as the present claim, instead of there being a clear distinction between the two claims which have also been dealt with the OIO?
Whether the Tribunal was right in holding that the extended period of limitation was not applicable to the facts of the present case, as there is no suppression of facts in spite of being pointed out that in the continuous correspondence the unit has deliberately suppressed the facts?
Held that:- It is well settled that the Tribunal is the final authority on the question of fact and even otherwise on perusal of the facts and the order in OIA No. 414/2002-C.E., dated 4-7-2002, we find that the process involved and input were the same. Therefore the order passed by the Tribunal is justified and accordingly we answer the first substantial question of law against the Revenue.
Since we have considered the appeal on merits, it is unnecessary to consider the second substantial question of law. Appeal dismissed.
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2011 (8) TMI 1004 - MADRAS HIGH COURT
Whether the appellant has proved by way of producing materials that the duty burden has not been passed on to the consumers.?
Held that:- In the present case, the appellant has not discharged their burden therefore in the result, by answering the substantial questions of law against the assessee and in favour of the revenue, we dismiss the Civil Miscellaneous Appeals.
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2011 (8) TMI 1003 - BOMBAY HIGH COURT
Whether the suspension order issued against the respondent was not valid beyond a period of 90 days of its issuance as the petitioners had breached the service rules applicable to the respondent?
Held that:- In any event, in our opinion, the submission that the original application has been filed beyond the period of limitation, is not tenable. This is because the petitioners extended the period of suspension time and again, albeit in breach of the service rules. It was thus a continuing cause of action for the respondent to approach the Tribunal. Therefore, the petitioners have not made out any case for us to exercise our extraordinary jurisdiction under Article 226 of the Constitution of India. Appeal dismissed.
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2011 (8) TMI 1002 - MADRAS HIGH COURT
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... ... ..... ecovery of ₹ 61,181/- paid by way of duty was rejected and in addition, a sum of ₹ 40,630/- was also imposed as penalty. 5. This factual finding was considered by the Commissioner and it was reversed by the Tribunal by following the judgment of the Apex Court in J. Kon Engineering P. Ltd., reported in 2004 (163) E.L.T. A53 (sic). In our opinion, in view of the subsequent judgment of Apex Court in 2009-TIOL-63-SC-CX 2009 (238) E.L.T. 3 (S.C.), in the event of the claim of the assessee lacking bona fide, the claim for refund on the ground of entitlement of Modvat facility in the event of duty paid after the show cause notice was accepted. Hence the order of CESTAT making avilable such a benefit to the respondent/assessee for the entitlement of Modvat facility and consequently for refund of the duty already paid, after the show cause notice cannot be sustained. Accordingly, the question is answered in favour of the Revenue and the appeal is allowed. No costs.
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2011 (8) TMI 1001 - KARNATAKA HIGH COURT
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... ... ..... otherwise in a regular manner can be considered as duty free clearances? 3. It is submitted by the learned counsel appearing for the parties that in view of the decision of this Court in CEA No. 151/2007, dated 9-6-2011, a Division Bench of this Court has held on identical question of law raised that, since the questions involved in the appeal regarding escisability to tax on the gasses which are vented into the air and which is sold to the sister concerns of respondent and whether the exemption granted under the Circular dated 1-10-1996 is available, the appeal lies to the Hon’ble Supreme Court under Section 35-L of the Central Excise Act and the jurisdiction of this Court is expressly barred under Section 35-G of the Central Excise Act. 4. Following the reasons assigned in the said judgment, we hold that the appeal is not maintainable and is disposed of as such, with liberty to the Revenue to file appeal under Section 35-L of the Central Excise Act.”
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2011 (8) TMI 1000 - GUJARAT HIGH COURT
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... ... ..... ection 129A in no unclear terms provide that no appeal to the appellate tribunal shall lie and the appellate Tribunal shall not have jurisdiction to decide any appeal in respect of any order passed by the Commissioner (Appeals), provided inter alia, for payment of drawback as provided in Chapter-X and the rules made thereunder. Thus, the Tribunal was justified in holding that the Department’s appeal was not maintainable. It may be that the order of the Commissioner (Appeals) itself was passed without proper jurisdiction. Of course, with respect to this aspect, we do not make any conclusive observation. Suffice it to note that even if a mistake was committed, same has to be rectified by bringing it to the notice of the proper forum with jurisdiction. 6. Subject to the above observation, this Tax Appeal is disposed of, making it further clear that it would be open for the Department to challenge the Commissioner (Appeals), Surat’s order in accordance with law.
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2011 (8) TMI 999 - KERALA HIGH COURT
Whether the Tribunal was justified in condoning the delay in filing the application for compounding and in granting compounding facility to the respondent to pay turnover tax on liquor under section 7(1)(b) of the Kerala General Sales Tax Act, 1963 after the closure of the relevant assessment year?
Held that:- The ground shown in support of the delay condonation petition, in our view, is also not reasonable or genuine because, for food sales assessee availed of the facility under the KVAT Act by making application at least at the fag end of the year. In fact the application was submitted with delay of an year, i.e., on May 18, 2009. We do not know on what basis the Tribunal could accept the grounds stated by the respondent in support of the delay condonation petition, assuming that delay could be condoned even beyond the year for which the application was submitted. We therefore, allow this sales tax revision by setting aside the orders of the Tribunal and by restoring the first appellate authority's order rejecting the delay condonation application and compounding application.
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2011 (8) TMI 998 - KARNATAKA HIGH COURT
Whether the assessee is a private limited company engaged in the business of civil works contract and are also developers of properties?
Held that:- In this case, admittedly, the assessee is a private limited company carrying on business of civil works contract and also development of properties. It is not in dispute that the taxable goods were purchased from unregistered dealers for development of their own property. That development of their own property is done in the course of business and therefore, section 3(2) is attracted. Hence, the order passed by the Tribunal cannot be sustained. Accordingly, we pass the following order:
The STRP is allowed. The impugned order passed by the Appellate Tribunal is hereby set aside. The orders passed by the assessing authority as well as the Appellate Commissioner are restored.
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2011 (8) TMI 997 - JAMMU AND KASHMIR HIGH COURT
Whether the petitioner's registration as "dealer" to deal in sale and purchase of goods indicated in the registration certificates, would include it to have been registered for executing a works contract to render services in terms of the turnkey agreement entered into by it with the Union of India?
Held that:- No merit in the case set up by the petitioner that it was a registered dealer and was not liable to imposition of security in terms of section 15A(9) of the Act. The challenge thrown by the petitionercompany to the statutory notices and orders passed by the assessing authority, Commercial Taxes check-post, Lakhanpur under section 15A(9) of the Jammu and Kashmir General Sales Tax Act, 1962, therefore, fails. Appeal dismissed.
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2011 (8) TMI 996 - KERALA HIGH COURT
Review petition - Held that:- Even at the review stage, the review petitioner was not willing to concede the true facts before this court. Even after threatening the review petitioner that the court will order heavy cost for trying to mislead the court, only technical arguments are raised without honestly conceding that the beneficiaries of the review petitioner and the holding company are the members of the Dhoot family which fact stands admitted in the affidavit filed by the petitioner. We, therefore, feel the review petitioner is liable to pay cost in this matter. Accordingly, we impose a cost of ₹ 25,000 (rupees twenty five thousand only) on the review petitioner with a direction to them to deposit the same before the High Court Legal Services Committee and produce the receipt in court within 30 days from now.
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2011 (8) TMI 995 - ALLAHABAD HIGH COURT
Whether the total value of the goods used in the execution of the works contract entered into between assessee, Delhi Development Authority or with National Building Construction Corporation could be treated to be a divisible part of the works contract so as to be subjected to levy of Central sales tax in view of the amendment introduced by addition of sub-clause (b) to clause (29A) of article 366 of the Constitution of India?
Held that:- The contract entered into between the assessee and the Delhi Development Authority and the other contract between the assessee and National Building Construction Corporation stand divided into two parts because of the Constitutional Amendment in the definition of "sale" under article 366(29A)(b).It is clear that the paragraphs 41 to 44 deal with the constitutionality of the State law framed under entry 54 of the State List for imposing tax on "deemed sale" as per definition under article 366(29A)(b). Appeal dismissed.
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2011 (8) TMI 994 - KARNATAKA HIGH COURT
Whether, on the facts and in circumstances of the case, can it be held that the order dated July 12, 2007 passed by the Karnataka Appellate Tribunal in S.T.A. No. 425 of 2006 allowing the appeal is correct and in accordance with law?
Whether, on the fact and in circumstances of the case, can it be held that the Appellate Tribunal was right in law in ignoring that under the KST Act in the Second Schedule in serial No. 1 of Part O. oil cake and de-oiled cake are listed under two separate sub-headings as two different commodities?
Held that:- The questions of law are answered in favour of the Revenue and against the assessee
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2011 (8) TMI 993 - CESTAT NEW DELHI
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... ... ..... tion. Since, the said professional services have no use in providing output services which have been exported. A close and direct nexus between these services and output services was not established by the party (respondent)." 5. From the above para, it is clear that the Commissioner (Appeals) has not given any reasons for arriving at the abovementioned findings. While the order of Commissioner (Appeals) was of October, 2010 and the Board's circular cited by the appellant is of January, 2010. But surprisingly the same has not been discussed at all. This speaks volumes of the respect the Commissioners in the field have for the Board's Circular. In view of this, the impugned order is set aside and the matter is remanded to the Commissioner (Appeals) for de novo decision strictly in accordance with the directions contained in the Board Circular No. 120/01/2010-S.T. dated January 19, 2010 and also after hearing the appellants. The appeal stands disposed of as above.
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