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Case Laws
Showing 361 to 380 of 924 Records
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2011 (9) TMI 900
Denial of refund claim - Unjust enrichment - Held that:- Payment of duty, interest and penalty was in pursuance of an order passed by the adjudicating authority earlier. Once that order is set aside, the refund is automatic. Merely because the adjudicating authority is yet to adjudicate the exigibility of tax, is no ground to refuse refund. When once the Appellate Commissioner on consideration of the material on record has held that there is no unjust enrichment and therefore the assessee is entitled to get back duty, interest, penalty paid in pursuance of an earlier order by the adjudicating authority which is now set aside, the said order is legal and the Tribunal was justified in upholding the said order - Decided against Revenue.
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2011 (9) TMI 899
Validity of ZTribunal's order - Held that:- Assessee had not contested the duty demand of ₹ 12,395/- as confirmed by the Commissioner (Appeals), because on these basis, the appeal of the Department and the cross-objection of the assessee were disposed of. Tribunal omitted to consider the department’s appeal on merits. Only on the assessee not contesting the Commissioner (Appeals) order and thereby not pressing, his cross appeal would not permit the Tribunal to dismiss the Department’s appeal as well. The appeal of the Department was to challenge that portion of the Commissioner (Appeals) order which was adverse to the department. Such appeal had to be examined on merits - matter remanded back - Decided in favour of Revenue.
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2011 (9) TMI 898
Imposition of penalty - Appellate Authorities set aside the penalty imposed on the assessee on the ground that he had paid duty with interest and there is no fraud, suppression as the excisable goods was transferred by way of stock transfer - Held that:- Penalty is leviable only on the conditions which are set out in the section being fulfilled. If two authorities on appreciation of entire material on record concurrently held that those conditions are not fulfilled and that being a pure question of fact, we do not see any error to interfere with the order - Decided against Revenue.
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2011 (9) TMI 897
Manufacture - Assessee engaged in the manufacture of brass strips, phosphor bronze strips and copper strips falling under chapter sub-heading 7409 21 00, 7409 11 00 and 7409 31 00 respectively. The Commissioner confirmed demand of ₹ 3,50,33,094/- under Rule 14 read with proviso to Section 11A as irregular credit availed by it - Tribunal held that demand barred by limitation - Held that:- departmental authorities are fully aware of the activities undertaken by the assessee during the material period. It had periodically filed returns relating to receipt of inputs and availment of Cenvat credit. It had also filed periodical returns showing payment of excise duty on its final products. Authorities never raised objection to the assessee taking and utilizing Cenvat credit during the material period for payment of duty on its final products as reflected in the monthly ER-1 returns. Therefore, the impugned demand invoking larger period under Rule 14 of the Cenvat Rules read with proviso to Section 11A is not sustainable. The Revenue has not made out a case that the assessee had suppressed any relevant fact from the department or took the Cenvat credit of duty paid with an intention to evade payment of duty on final products - as the demand was made beyond the period of one year, it was clearly barred by time - Decided against Revenue.
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2011 (9) TMI 896
Denial of Input tax credit - Whether the Tribunal was justified in confirming disallowance of input tax credit claimed on opening stock held on the first day of the assessment year 2005-06 - Held that:- findings based on which disallowance was confirmed by the Tribunal are only on findings of fact based on accounts and audit statement filed in Form 25A, wherein from the gross profit accounted it was clearly established beyond doubt that the assessee had not passed on to the customers the sales tax paid on purchases of goods held as opening stock in respect of which input tax credit was availed of by the assessee. Since the tax paid on purchases was also recovered from the buyers along with tax payable under section 6 of the Kerala Value Added Tax Act, the input tax credit on opening stock is rightly demanded as reverse tax in terms of the second proviso to section 11(13) of the Kerala Value Added Tax Act read with sub-section (7) thereto. We notice that the demand is made under the statutory provisions based on the findings of facts with regard to the failure of the assessee to pass on the input tax credit availed of to the buyers/customers. Decided against assessee.
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2011 (9) TMI 895
Liability to pay luxury tax on halls used for conducting birthdays, anniversaries and get-togethers, for which requisite charges are collected - Held that:- a club is not included in the hotel, as on today. Section 3B applies only to hotels and not to clubs. Therefore the impugned order passed by the authorities levying luxury tax under section 3B of the Act on the club is one without authority of law and cannot be sustained. Accordingly, all the impugned orders are set aside. However, it is made clear that this order is subject to the ultimate decision to be rendered by the apex court - Following decision of Century Club v. State of Karnataka [2005 (9) TMI 611 - KARNATAKA HIGH COURT] - Decided in favour of assessee.
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2011 (9) TMI 894
Vacation of interim order - Whether in fact any review application dated December 13, 2000 was filed by the petitioner and whether pending such review application, it is open for the respondents to proceed against the petitioner in pursuance of the orders dated October 21, 2000 and November 20, 2000 - Held that:- Whether or not any review application, as claimed by the petitioner, was filed on December 13, 2000 or assuming in favour of the petitioner that if any such application was filed as claimed by the petitioner on December 13, 2000 the reviewing authority was required to decide the same within the maximum period available to it under clause (ii) and the proviso within 180 days, i.e., the period of 90 days as provided under clause (ii) and the extended limit of 90 days in aggregate. If no decision is arrived on the review application in the aforesaid period of 90 days, as prescribed under para 5A, the reviewing authority, in my opinion, would cease to have jurisdiction over the review application and the only remedy available to the applicant, in the present case the petitioner, would be of preferring an appeal before the learned Tribunal under rule 6 of the Scheme of 1989.
With reference to the letter dated December 1, 2006, and the admitted case of the petitioner is that the said review application filed on December 13, 2000 was not decided and the prayer made is also for seeking a mandamus that the said review dated December 13, 2000 is deemed to have been decided as allowed. A reading of clause (ii) and the proviso does not show that there is any mention of deemed acceptance or refusal. even assuming that the petitioner had filed the review application on December 13, 2000, after the lapse of 180 days the reviewing authority would have no jurisdiction to decide the same.
There is no specific provision for deemed acceptance and in absence of any such provision this prayer cannot be allowed. The alternate prayer of remand too cannot be accepted as the outer-limit of the 180 days period allowed too has long expired. As far as the other reliefs claimed regarding challenge to the orders dated October 21, 2000 and November 20, 2000, the petitioner has remedy of preferring appeal under para 6 of the Scheme of 1989 before the learned Tribunal. Decided against assessee.
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2011 (9) TMI 893
Issues:
1. Dismissal of D.B. Central Excise Appeal No. 36 of 2011 by Rajasthan High Court.
2. Interpretation of Section 35G of the Central Excise Act, 1944.
3. Observations on the filing of certified copies with markings.
Analysis:
1. The Rajasthan High Court, comprising Hon'ble Mr. Justice A.M. Sapre and Hon'ble Mr. Justice Narendra Kumar Jain-II, dismissed the D.B. Central Excise Appeal No. 36 of 2011 filed by the Commissioner of Central Excise, Jaipur-II against the CESTAT Final Order No. 141/2010. The Tribunal had set aside the order passed by the Commissioner (Appeals-II) and remanded the case for fresh consideration on merits. The High Court, while dismissing the appeal, emphasized that in a case of remand, no substantial question of law arises for determination by the court. The appellant was assured of the opportunity to raise all legal objections once the appeal is decided after remand, allowing for objections to be raised at a later stage if necessary.
2. The appeal was filed by the Government of India under Section 35G of the Central Excise Act, 1944. The High Court noted that all legal objections that could be raised at a later stage if needed could still be presented by the appellant on law. The court concluded that there was no substantial question of law arising in the case, leading to the dismissal of the appeal in limine. This decision was based on the understanding that the appellant would have the chance to address legal issues at the appropriate stage following the remand process.
3. In a parting observation, the High Court expressed concern over the filing of certified copies with markings by the appellant. The court stressed the importance of filing clean, legible, and properly typed documents without any markings, whether handwritten or otherwise. The court specifically addressed the appellant, a Government of India Department (Customs & Excise Department), urging them to adhere to the rules of proper filing in the future. The court's expectation was that the appellant would take the observations seriously and ensure the correct filing of appeals moving forward, emphasizing the importance of maintaining the integrity of court documents.
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2011 (9) TMI 892
The Appellate Tribunal CESTAT CHENNAI dismissed appeals filed by assessees due to delay beyond statutory limitation period. Assessees claimed unauthorized person received orders, but tribunal found no merit. Appeals and stay applications dismissed.
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2011 (9) TMI 891
Exemption from payment of duty under Sl. No. 14 of the Notification No. 6/2002-C.E., dated 91-3-2002 - Interest u/s 11AB - Why the exemption specified at Sl. No. 14 of Notification No. 6/2002-C.E., dated 1-3-2002 as amended should not be denied to the impugned Products, which was manufactured by the assessee under the brand name of MTR and classified under Chapter sub-heading 21069099 (under sub-heading 2108.99 up to 28-2-05) as miscellaneous edible preparations.
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2011 (9) TMI 890
Issues:
Applicability of MODVAT Scheme to electricity generation for export.
Analysis:
The primary issue in this case revolves around the applicability of the MODVAT Scheme to electricity generation for export. The dispute arises from the interpretation of provisions of Rule 57Q or 57R(2) of the Central Excise Rules, 1944. The Commissioner (Appeals) initially ruled in favor of the assessee, allowing MODVAT credit for electricity generation. However, the Revenue challenged this decision, arguing that electricity, being a non-excisable product, is not eligible for MODVAT credit under the mentioned rules. The Appellate Commissioner of Central Excise also disallowed the credit availed by the assessee, leading to an appeal before the Commissioner of Central Excise (Appeals), who reversed the decision, prompting the Revenue to appeal to the Customs, Central Excise and Service Tax Appellate Tribunal (CESTAT).
The CESTAT, upon reviewing the case, upheld the decision of the Commissioner (Appeals), emphasizing that the decision was based on binding case law and thorough analysis. However, the CESTAT did not specifically address the crucial question raised by the Revenue regarding the eligibility of MODVAT credit for electricity exported to the Tamil Nadu Electricity Board. The High Court, acknowledging the importance of this unresolved issue, remitted the matter back to the CESTAT for a fresh consideration. The High Court directed the CESTAT to independently evaluate the grounds raised in the appeal and make a decision in accordance with the law.
In conclusion, the High Court disposed of the Civil Miscellaneous Appeal by remitting the case to the CESTAT for a reevaluation of the critical issue concerning the eligibility of MODVAT credit for electricity generation and export. The High Court refrained from expressing any opinion on the merits of the case but emphasized the need for a thorough examination of the grounds raised by both parties. No costs were awarded in the disposition of the appeal.
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2011 (9) TMI 889
Order of the Tribunal upholding the levy of penalty by the Assistant Excise and Taxation Commissioner and the first appellate authority under section 51(7) of the Act challenged
Held that:- No illegality or perversity could be shown by the learned counsel for the assessee in the impugned orders on the face of the aforesaid findings which in the opinion of this court duly justify the levy of penalty. No question of law much less a substantial question of law, thus, arises in this appeal. Accordingly, the appeal is dismissed.
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2011 (9) TMI 888
Whether both the notices have been issued directing the petitioner to pay ₹ 13,33,115 along with interest at the rate of two per cent for the period from January 1, 2010 to the date of payment of the amount as directed in form E24 without application of mind and misconstruing the above provisions of the OET Rules?
Held that:- The petitioner-dealer has filed its nil return for the period under consideration. Since it is not the case of the assessing officer that the dealer has admitted certain amount towards its tax liability in the return and made less payment than the amount admitted to be payable by him in its return, he is not justified to issue notice in form E24 and consequently demand notice in form E8 raising demand of ₹ 13,33,115. According to the assessing officer, as per the figures furnished in the return, the tax due for the period under consideration comes to ₹ 13,33,115 as various deductions claimed by the dealer, according to the assessing authority, is not admissible/allowable. In that event, the assessing officer shall, issue a show cause, asking the dealer to pay the amount due on the return in forms E22 and E23 as provided under rule 10(5).
Thus the notice issued in form E24 and demand notice in form E8 under annexure 3 series are quashed. Liberty is given to the assessing officer to proceed against the petitioner in accordance with law, if he is of the opinion that the tax due on the return as furnished by the petitioner is not paid by it due to wrong/excessive claim of deduction(s) in the return. Appeal allowed.
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2011 (9) TMI 887
Whether the contract value cannot be taken to be taxable turnover, as given in Explanation V to section 2(1)(aa) of the Act, therefore Explanation V to section 2(1)(aa) of the Act be declared ultra vires?
Held that:- The impugned Explanation V to section 2(1)(aa) of the Act, being contrary to the provisions of the Act, as interpreted, has to be declared, to be arbitrary, and beyond the competence of the State Legislature, thus, unconstitutional.
Consequently, this writ petition is allowed, the Explanation V to section 2(1)(aa) of the Tamil Nadu Additional Sales Tax Act, 1970 is declared to be ultra vires the Constitution of India, being beyond the competence of the State Legislature.
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2011 (9) TMI 886
Provisional assessment orders - Held that:- In the instant case, opposite party No. 3 being aware of the fact that he himself had not issued the declaration forms to TATA from whom the petitioner is to obtain the said forms to furnish before him, he should not have rejected the petitioner's application dated April 20, 2011 and passed the provisional order of assessment on the very same day. This action of opposite party No. 3 is not certainly fair and reasonable and in consonance with the provisions of rule 12(7) of the CST (R & T) Rules and 12(1)(b) of the CST (O) Rules.
In view of the above, the provisional assessment orders passed under annexure 3 series and notice issued in terms of section 51 of the VAT Act under annexure 5 are quashed. Opposite party No. 3 is directed to examine the petitioner's claim of sale under section 6(2) of the CST Act in accordance with law taking into consideration the declaration forms/certificates produced by the dealer-petitioner and pass appropriate orders. With the aforesaid observation/direction, the writ petition is allowed.
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2011 (9) TMI 885
Issues:
Challenge to correctness of Sales Tax Tribunal's order for reference under section 61 of Bombay Sales Tax Act, 1959.
Detailed Analysis:
1. Challenge to Tribunal's Order:
The Revenue challenged the correctness of the Sales Tax Tribunal's order dated November 22, 2010, which dismissed the application for reference under section 61 of the Bombay Sales Tax Act, 1959. The Tribunal had partly allowed the second appeal filed by the assessee, granting relief towards purchase tax under section 13AA and consequential reliefs towards additional tax and interest. Subsequent rectification applications and orders were made by the Tribunal and the first appellate authority. The Revenue's applications for rectification were dismissed, leading to the application for reference under section 61.
2. Requirements for Reference Application:
Section 61(1) outlines the conditions for allowing a reference application. These include: the order must be passed in appeal, it must affect the liability of any person to pay tax, penalty, interest, or forfeiture, a question of law must arise from the order, and the application must be filed within ninety days of the order's communication. The Tribunal's order resulting from the rectification application did not impact the liability of any person to pay tax, penalty, or interest, as per precedents from Division Benches of the court.
3. Precedents and Legal Interpretation:
The judgment referred to previous decisions by Division Benches of the court, such as Commissioner of Sales Tax v. S.K. Manekia and Santoshi Tel Utpadak Kendra v. Deputy Commissioner. These cases established that an order on an application for rectification does not fall under the category of an order affecting liability to pay tax, penalty, or interest. In line with these precedents, the court concluded that the application for reference under section 61 was misconceived.
4. Dismissal and Remedy:
The High Court dismissed the application for reference under section 61 on the grounds that it was misconceived. However, the court left it open for the Revenue to pursue other available remedies in accordance with the law. The judgment concluded with a decision of no order as to costs, indicating that each party would bear their own legal expenses.
In conclusion, the High Court's judgment clarified the requirements for a reference application under section 61 of the Bombay Sales Tax Act, emphasizing that orders resulting from rectification applications may not necessarily impact the liability to pay tax, penalty, or interest. The court's decision was based on legal precedents and interpretations, ultimately dismissing the reference application while allowing the Revenue to explore alternative legal remedies.
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2011 (9) TMI 883
Whether section 11(2)(c) read with rule 6(e) should provide for various deductions as set out/prescribed by the honourable Supreme Court in Gannon Dunkerley's case [1992 (11) TMI 254 - SUPREME COURT OF INDIA] for the purpose of determining taxable turnover in case of a works contract?
Held that:- Absence of provisions for various deductions in section 11(2)(c) and rule 6(e) in line with the judgment of the honourable Supreme Court in Gannon Dunkerley's case [supra] certainly creates uncertainty, so far levy of tax on works contract is concerned. To avoid such uncertainty, the State Government is directed to amend rule 6(e) to bring in line with judgment of the honourable Supreme Court in Gannon Dunkerley's case vis-a-vis section 11(2)(c) of the OVAT Act. Till such amendment is made to rule 6(e) of the OVAT Rules, the Commissioner of Sales Tax is directed to issue suitable instructions to all the taxing authorities to allow various deductions from the gross turnover to arrive at the taxable turnover in respect of works contract in terms of decision of the honourable Supreme Court in Gannon Dunkerley's case. WP allowed.
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2011 (9) TMI 882
Whether opposite-party No. 2-Joint Commissioner of Sales Tax having approved the audit visit report is competent to assess the petitioner ?
Whether the impugned orders of assessment are barred by limitation under section 42(6) and (7) of the OVAT Act, 2004 ?
Whether the demand raised in the orders of assessment on the ground of suppression of sale is without any valid reason ?
Held that:- In the instant case, the audit visit report was received by the dealer on February 22, 2010, the assessment could not be completed within six months and the assessing officer sought for extension of time from the Commissioner and the Commissioner extended the time to complete the audit assessment by February 9, 2011 positively. Although the Commissioner could have extended the time till February 21, 2011, i.e., one year from the date of receipt of the audit visit report by the dealer-assessee, the assessment in the instant case has been completed on January 21, 2011. When the impugned orders of assessment were passed, the judgment of this court on the period of limitation was in operation. Therefore, the stand now taken by the assessee is not acceptable and we are of the view that the impugned orders of assessment have been passed within the period of limitation.
We set aside the orders of assessment passed under annexure 1 in both the aforesaid writ petitions and remand the matter for fresh assessment by the competent assessing authority having jurisdiction over the dealers assigned to LTUs, who is in no way connected with the tax audit of the petitioner. However, we make it dear that we have not expressed any opinion on the merits of the cases except on the question of limitation and jurisdiction/authority of Joint Commissioner of Sales Tax who has passed the impugned assessment orders. The fresh assessment process shall be completed within a period of eight weeks from today after giving opportunity of hearing to the petitioner-dealer.
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2011 (9) TMI 881
Penalty under Section 15A(l)(o) of the U. P. Trade Tax Act, 1948 - Held that:- The order of the Tribunal, insofar as it holds that penalty can be levied even in absence of intention to evade the tax, is affirmed. The Tribunal may redetermine the quantum of penalty to be levied, giving due weightage to the mens rea part involved, namely, the intention to evade tax. For the limited purpose the matter is remanded to the Tribunal for quantification of the penalty alone afresh.
So far as the judgment in the case of Commissioner of Sales Tax v. Sanjiv Fabrics [2010 (9) TMI 461 - SUPREME COURT OF INDIA] is concerned, it may be recorded that section 54(1) of the VAT Act was under consideration. This court is not required to examine the provision of the said Act in the facts of this case, yet this court may point out that clause (2) of clause (14) of section 54 has not been taken note of in the said judgment. The matter is left to be examined in an appropriate case.
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2011 (9) TMI 880
Issues:
- Interpretation of U.P. Value Added Tax Act, 2008 regarding seizure of goods.
- Determination of whether master batch and plastic dana are distinct commodities.
- Consideration of expert opinion in verifying the identity of seized goods.
Interpretation of U.P. Value Added Tax Act, 2008 regarding seizure of goods:
The High Court considered a commercial tax revision filed against the Tribunal's order setting aside the Joint Commissioner's order under section 48(7) of the U.P. Value Added Tax Act, 2008. The case involved the interception of a vehicle loaded with plastic dana, where discrepancies were found in the goods being transported. A show-cause notice was issued, and subsequent orders of seizure were passed. The Tribunal's order was challenged, arguing that the Tribunal failed to establish the difference between master batch and plastic dana. The Court found the Tribunal's reasoning inappropriate, emphasizing that the presumption made by the Tribunal lacked evidence or material support. The Court concluded that the Tribunal should have verified the identity of the seized goods through expert opinion rather than relying on presumption.
Determination of whether master batch and plastic dana are distinct commodities:
The Court addressed the contention that master batch and plastic dana are distinct commodities, highlighting that the Tribunal's presumption of their equivalence lacked factual basis. The Court emphasized that despite both goods being taxed at the same rate, it does not automatically imply they are the same. The Court criticized the Tribunal for not seeking expert opinion to clarify the distinction between master batch and plastic dana. Consequently, the Court quashed the Tribunal's order and directed a reevaluation of the goods' identity through expert opinion before issuing a fresh order.
Consideration of expert opinion in verifying the identity of seized goods:
The Court stressed the importance of expert opinion in determining the identity of goods, especially when there is ambiguity or dispute regarding the nature of the commodities involved. The Court found fault with the Tribunal for not seeking expert input to differentiate between master batch and plastic dana. By emphasizing the need for factual verification through expert opinion, the Court highlighted the necessity of relying on concrete evidence rather than presumptions in cases involving the classification of goods for tax purposes.
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