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Showing 381 to 400 of 1429 Records
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2014 (12) TMI 1055
Validity of confirmation of penalty u/s 271(1)(c) – Assessee failed to offer any explanation regarding the deposit - Penalty proceedings initiated on addition of unexplained deposit made u/s 68 – Held that:- The assessee claimed to have received share application money from one person which the Director (Inv.) had found to be engaged in the business of accommodation entries and assessee was found to be the beneficiary of the same - assessee had no answer to the query of the revenue authorities - Section 68 clearly states that if a credit appearing in the books of account of the assessee is not explained regarding its nature and source then this amount will be treated as income of the assessee - the assessee has not furnished any explanation regarding this cash credit, therefore, AO rightly treated it as income of the assessee - assessee has failed to offer any explanation regarding this deposit. Therefore, explanation I to Section 271(1)(c) comes into play - the provisions of Section 271(1)(c) not only covers the cases in which assessee has concealed the income or has furnished inaccurate particulars of income - even without there being anything to indicate noteworthy deeming fiction for concealment of income comes to play and it covers the cases where the assessee does not offer any explanation for any material concerning the computation of total income - the assessee miserably failed to offer an explanation for the cash credit raised in the form of share application money - the case of the assessee is squarely hit by the provisions of Section 271(1)(c) – thus, the order of the CIT(A) is upheld – Decided against assessee.
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2014 (12) TMI 1054
Refund claim of Terminal Excise Duty (TED) - Supply of manufactured goods to 100% EOU - Deemed export - Denial in terms of the provisions of the Foreign Trade Policy 2009-14 framed under the Foreign Trade (Development and Regulation) Act, 1992 - Held that:- petitioner did not make any supplies against the ICB. Therefore, it would be covered by latter part of para 8.3(c), i.e. cases where refund of TED will be given. This intention is given effect by the second entry in column (a) of para 8.4 read with corresponding benefits spelt-out in column (c) which states that entitlement in terms of para 8.3 to refund is permissible. The eligibility for refund, therefore, would be in terms of these provisions and the unit has to apply for such refund - authorities in this case appear to have proceeded to make an order adverse to the petitioner and proceeded to hold that the petitioner was disentitled to the benefit of refund in view of some clarification given by the Policy Interpretation Committee, in its meeting of 04.12.2012 to the effect that “refund of CENVAT credit provisions are available under Excise rules and CENVAT rules which should be availed of rather than claiming refund”. This reasoning appears to have prevailed with the Policy Relaxation Committee as well in this case.
Court also is unable to see the reason why the respondents were of the view that refund claim or benefit under the CENVAT regime under the Central Excise Act or the other statutory schemes framed under it is available. In this Court’s opinion, that regime operates in its own terms and is independent of the rights and liabilities of the petitioner and the respondents under the import-export policies framed under the 1992 Act - The respondents are hereby directed to process and pass appropriate orders in accordance with the 2009 policy in respect of the petitioner’s refund claims made through its applications dated 29.08.2012 and 16.11.2012 within three months - Following decision of Kandoi Metal Powders Mfg. Co. Pvt. Ltd. Versus Union of India And Others [2014 (2) TMI 773 - DELHI HIGH COURT] - Decided in favour of assessee.
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2014 (12) TMI 1053
Confiscation of seized goods - Seizure of gold and silver bars - Gold bars bear the foreign origin marking but silver bars does not have the same - Appellant claims only silver bars - appellant acquitted by the Judicial Magistrate in the criminal proceedings initiated by the Customs Authorities under Section 135(1)(b)(i) - Whether the plea of the appellant that in view of the acquittal of the appellant in the criminal proceedings, there could not be any imposition of penalty in the adjudicating proceedings is correct - Whether the contention of the respondent that the criminal court has not gone into the question of mensrea and in such circumstances, the judgment of acquittal would not affect the finding of the Tribunal is correct.
Held that:- Act contemplates two separate proceedings for the same act or omission and therefore, there is no question of double jeopardy involved, as rightly pointed out by the learned counsel appearing for the first respondent. - mere acquittal in the criminal proceedings before Magistrate court in every case cannot result in setting aside, ipso facto, the orders of the confiscation passed by the competent authority under the Act. Therefore, the contention of the appellant that the judgment of the Judicial Magistrate acquitting the appellant was binding on the Departmental Authorities, adjudicating the question of confiscation is not correct. As rightly pointed out by the learned counsel appearing for the first respondent, the fact of seizure of gold and silver bars recovered from the appellant's residence is not in dispute. In the criminal proceedings, it is the duty of the prosecution to prove the case beyond any reasonable doubt and also to prove the mensrea for the above said criminal act by adducing reliable evidence. In the instant case, the respondents have discussed in detail about the seizure of gold and silver bars from the residence of the appellant and the above said fact was not disputed by the appellant. Therefore, the appellant cannot be exonerated from adjudication proceedings. - only on the ground of acquittal in the criminal proceedings, the respondents need not exonerate the appellant from the adjudication proceedings regarding imposition of penalty and therefore, the final order passed by the Customs, Excise and Service Tax Appellate Tribunal is valid in law - Decided against assesse.
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2014 (12) TMI 1052
Imposition of penalty - Benefit of Customs Notification No.80/95 dated 31.3.1995 under DEEC Scheme - Whether the importer is liable for penalty under Section 112 of Customs Act, 1962 or not on failure to fulfil the conditions of Duty Exemption Entitlement Certificate Notification 80/95 read with under Section 111(o) of CA'62 - Whether the Hon'ble Customs, Excise and Service Tax Appellate Tribunal is right in holding that the importer is not liable to fulfil the conditions of Duty Exemption Entitlement Certificate Notification 80/95 read with under Section 111(o) of CA'62 - Held that:- Export Import policy itself enables the Customs Authorities to exercise its power for confiscation or for imposing fine and penalty. In this case, the goods are not available for confiscation under Section 111(o) of the Customs Act and hence, no fine was imposed, however penalty was imposed. The findings of the Adjudicating Authority is that there is no material to prove that there is a bona fide default, which fact is now being corrected by the respondent by producing statutory documents issued by the Office of the JDGFT. This aspect of the case requires to be re-considered by the Adjudicating Authority. Tribunal is not justified in holding that no penalty can be imposed after payment of duty and interest as required by the Notification. The Tribunal did not look into the position of law as found in para 7.29 of the Export and Import Policy 1997-2002 and therefore fell into error. In view the documents now produced by the assessee showing that the assessee had discharged the export obligation for the purpose of regularising the bonafide default, the matter requires to be re-considered by the Adjudicating Authority on the issue of confiscation and penalty. Accordingly, we remand the matter back to the Adjudicating Authority. - Matter remanded back - Decided in favour of Revenue.
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2014 (12) TMI 1051
Penalty u/s 114(i) - Confiscation of goods - Misdeclaration of goods - export of fertilizer grade Potassium Chloride (Muriate of Potash - MOP) by declaring it as industrial salt, chemical grade (sodium chloride) - Whether the Tribunal was right in coming to the conclusion that the appellant is liable for penalty in terms of Section 114 (i) of the Customs Act in the absence of any tangible evidence against the appellant - Held that:- the fact that the appellant was responsible for sourcing the bogus bill for the mis-declared goods from R.B. Trades as 'Industrial Salt' to support the unlawful attempt to export Muriate of Potash is evident from the materials available on record. The further fact that payments were made by the consignee, who is none other than the sister of the appellant, is also confirmed by the statement of Rajagopal, the father of the appellant and the consignee, Ms.Aruna Murugesh the sister of the appellant. The above fact clearly shows the active involvement of the appellant in the transaction. That the appellant is responsible for the attempt to illegally export by way of mis-declaration, contrary to prohibition in law is further evident from the statement of L.Subash Proprietor of Sharmi Exim Co., whose statement is to the effect that he consented to the said improper export only for the purpose of individual gain of ₹ 5,000/- per container. The complicity of the appellant further gets confirmed by the statement of the Custom House Agent, who stated that the false/bogus invoice of R.B. Trades were handed over to him by the appellant and that he proceeded to file the shipping bills on the instructions of the appellant. - In view of the clear and categorical evidence available on record, there appears to be no error in the order passed by the Tribunal confirming the findings of the original authority as well as the Commissioner (Appeals) on levy of penalty under Section 114 (i) of the Customs Act.
Involvement of the appellant in the attempted export by way of mis-declaration contrary to prohibition imposed by law - Held that:- all the authorities have considered the material evidences available on record, including the statements and have given a clear finding that the appellant was actively involved in the improper and illegal attempt to export goods by way of mis-declaration contrary to prohibition imposed by law and, therefore, this Court sees no reason to differ with the findings of the authorities below. The finding on guilt of the appellant on the basis of the materials available on record is uniform in all proceedings below. The appellate court is not inclined to reappreciate the evidence unless it is shown that the impugned order is perverse, arbitrary and against the well established legal principles. There is no sound legal principle that appellant relies upon to interfere with the impugned order. The issues raised by the appellant in the present appeal are purely questions of fact and this Court finds no question of law, much less substantial questions of law, arising for consideration in this appeal. - Decided against assesse.
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2014 (12) TMI 1050
Denial of conversion of free shipping bill to drawback shipping bill - there was no compelling reason beyond the control of the appellant for availing free shipping bill into drawback scheme - Maintainability of appeal - Order passed by Commissioner - Held that:- In fact, the argument of the learned AR is self contradictory as on one hand he submits that the Commissioner is not proper officer, the Asst. Commissioner is the proper Commissioner and on the other hand, he submits that the impugned order has been passed by the Asst. Commissioner. The stand of the learned A.R. is not consistent. Further, I find that in this case, in the communication from the Asst. Commissioner forwarded to the appellant stating that the learned Commissioner has taken the decision. Therefore, I hold that the appeal is maintainable before this Tribunal against the order of the Commissioner.
There was an alert circular issued against the appellant therefore, it was the compelling reason for not filing the shipping bills under drawback scheme. In these circumstances, the learned Commissioner has committed an error for not considering the request of the appellant for conversion of free shipping bill to drawback scheme. - matter remanded back - Decided in favour of assessee.
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2014 (12) TMI 1049
Determination of FOB value - denial of the exorbitant claim of DEPB scrips - Held that:- To resolve the controversy between the parties, it would be fair to send back the matter to the adjudicating officer to issue notice to the respondent clearly stating why he disbelieves the value declared by the appellant. If such a notice is issued that shall serve the purpose of Rule 8 of the Export Valuation Rules. Upon receipt of the explanation of the respondent, learned authority shall examine the same threadbare and ignoring incredible evidence if any, shall consider only proper and cogent evidence to resort to the appropriate rule of valuation. - Decided in favour of Revenue.
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2014 (12) TMI 1048
Condonation of delay - Inordinate delay of more than 5 years - Change of address - Delay in receipt of order - Held that:- As per the provisions of Section 153 of the Customs Act, the order is to be served by tendering or sending by Registered Post and in case the order is not served in that manner by processing it on notice board of the Custom House - adjudication order was sent on the address which was given in the bills of entry and the same was received back with the postal remark “Left” and, therefore, the same has been displayed on the notice board as per the provisions of Section 153 of the Customs Act which provides that in case the order was not served by tendering or by post the alternative service is by displaying on the notice board. In view of this, we find no merit in the contention of the applicant is that order is not properly served on the applicant. In view of this the condonation of delay application is dismissed - Condonation denied.
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2014 (12) TMI 1047
Date of communication of order - Refund claim - Whether the date of passing of the order completing the provisional assessment shall be considered or the date of communication of order shall be considered to count limitation for filing refund application - Held that:- facts are not in dispute exhibiting that the provisional assessments in the case of the appellant were completed prior to the communication of the final assessment order. The date on which a public order is served on the person to whom that is meant, such date of service is counted for remedial measure if the person on whom the order served is aggrieved. The date of communication is deceive for different purposes of law in respect of the person to whom the order is meant and on whom that is served.
Whether the refund arising out of completion of provisional assessment shall undergo the process of Section 27 when the refunds related to the period prior to 13-7-2006 - Held that:- when refund arises upon completion of provisional assessments, that flows suo motu under law prior to 13-7-2006 to the assessee without an application being made. The refund so arsing does not under go the process of Section 27 of the Customs Act, 1962 but is covered by the Section 18 of the said Act. However Section 18 has undergone amendment with effect from 13-7-2006 with necessary implication that even refund arising on completion of provisional assessment shall be governed by Section 27 of the said Act. By that amendment, bar of limitation as well as unjust enrichment are enacted to the law. Therefore before 31-7-2006, the refund arising upon completion of the provisional assessments is not intended by law to undergo the test of limitation as well as unjust enrichment in terms of law laid down by the Hon’ble High Court of Delhi in the case of the present appellant reported in [2012 (1) TMI 31 - DELHI HIGH COURT]. Following the ratio laid down therein, appeal of the appellant is allowed and the refund is payable to the appellant. - Refund allowed.
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2014 (12) TMI 1046
Refund claim - recovery of the refund already sanctioned to the appellant - no nexus between the input services and the output services - Held that:- Services in respect of which credit is proposed to be denied and refund sanctioned to be demanded back are held to be input services in the case of the very same assessee in previous final order. Both the issues are no longer res integra and therefore we consider it appropriate that the matter itself should be finally decided even though the learned AR strongly opposed it and submitted that only stay may be granted and decision an appeal may be postponed. When this Tribunal already has taken a view in respect of the very same services in two orders passed in respect of the very same appellant, one of which has been referred to above and the Hon’ble High Court also has taken a view in respect of the refund rejected on the ground that ISD registration should have been taken, I consider that it would be appropriate to decide the issue finally at this stage itself especially because the learned counsel submitted that this is a recurring issue and if a final order is not passed at this stage, there will be recurring litigation, it may not be proper to allow to continue - Decided in favour of assesse.
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2014 (12) TMI 1045
Construction of commercial complex - Appellants entered into joint development agreement with land owners, constructed commercial complex of their portion and sold the property on the basis of Power of Attorney executed in their favour by the landowners - Held that:- IT is not a case of self-service - Appellants have clearly provided service to the landowners – No infirmity in the demand – Order of the Commissioner (A) requiring the appellant to deposit the entire amount of service tax adjudicated is reasonable and does not require interference. However, in the interest of justice, we give another opportunity to the appellant to deposit the amount ordered by the Commissioner (A) within 10 weeks - Matter remanded back - Decided partly in favour of assessee.
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2014 (12) TMI 1044
Waiver of pre-deposit of Service Tax - manpower recruitment and supply agency services - appellant submitted that all labourers who were retrenched from the Public Sector Undertaknig-M/s.Hindusthan Copper Ltd. has formed the society, and supplies the labourers on daily wage 'basis to M/s.Hindusthan Copper Ltd. only.- Held that:- Prima facie we find that the Applicant had rendered services under the category of manpower recruitment or supply agency services. However, keeping in view the financial hardship expressed and taking into account that the Applicant is a society formed for the welfare of the labourers it would be prudent at this stage to direct deposit of the amount offered by them. Consequently, the Applicant is directed to deposit the amount of ₹ 2.00 Lakhs within a period of eight weeks - Partial stay granted.
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2014 (12) TMI 1043
Denial of refund claim - CENVAT Credit - refund claim has arisen because the appellants have accumulated credit since the CENVAT credit cannot be utilized by them in the absence of provision of service in domestic tariff area - No nexus between the output service and the input service - Held that:- prima facie the appellant is eligible for the credit of service tax paid on input services and the matter had not attained finality as regards the decision relied upon by the Revenue. Accordingly we consider that appellant has made out a prima facie case for complete waiver. - Stay granted.
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2014 (12) TMI 1042
Waiver of pre deposit - demand based on original return ignoring the revised return - Port Service, Goods Transport Agency Service - Held that:- Rule 7B itself does not require any reason to be given while filing the revised return. In fact it is not required since the assessing officer has power to scrutinize the report and call for records and documents in case he has any doubts or needs any clarification. Therefore when a revised return is filed, the proper course would have been to call the assesses and ask them to explain why the difference has arisen and why the taxable value was -not shown correctly. Instead the revised return has been ignored and the tax demand has been confirmed ignoring the revised return completely. We feel that there is no case for a tax demand in this case at all. Accordingly we consider that the appellant has made out a case for complete waiver of pre-deposit and stay against recovery - stay granted.
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2014 (12) TMI 1041
Waiver of pre deposit - ineligible benefit of Notification No. 12/2003-S.T - Held that:- There is no dispute as to the fact that the appellant herein has been raising separate bills for the service rendered and for the materials supplied. The appellant has been claiming of the benefit of Notification No. 12/2003-S.T. which clearly talks about the availment of benefit if the materials are billed separately. Prima facie, we find that the decision of the Tribunal in the case of Sobha Developers Ltd. (2009 (9) TMI 342 - CESTAT, BANGALORE) may be applicable. Accordingly we find that the appellant has made out a prima facie case for the waiver of pre-deposit of the amounts involved. Application for the waiver of pre-deposit of the amounts involved is allowed and recovery thereof stayed till the disposal of the appeals. - Stay granted.
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2014 (12) TMI 1040
Commercial Training and Coaching service - Bar of limitation - Held that:- demand pertains to the period September, 2003 to January, 2005. During this disputed period, Respondents were having valid permission from Chhattisgarh Government for functioning as University. When State Government itself granted them permission for running a University, there cannot be any intention of evasion of Service Tax by the Respondents. We therefore do not find any infirmity in the impugned Order-in-Appeal - Decided against Revenue.
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2014 (12) TMI 1039
Waiver of pre deposit - Reimbursible expenses - Excess pension amount deducted - Tax on House Rent Allowance (HRA) - Held that:- demand is based on the estimates prepared by M/s. RINL (service recipient) towards various expenditure including salary for the personnel of CISF (Appellant) for ensuring that security services are available. This demand also included medical expenditure incurred by M/s. RINL on CISF. The Department has contended that it is reimbursible expenditure. Prima facie, we find that this cannot be considered as reimbursible expenditure since in the first place this expenditure are not incurred by CISF at all. Therefore, prima facie, appellant has made out a case.
Second demand is approximately ₹ 10.61 lakhs on the ground that the appellant has collected excess pension charges from M/s. RINL. Learned counsel submits that in respect of the amount relating to subsequent period from 1-4-2009, Service Tax has been discharged. The dispute is only for the earlier period during which the Service Tax was not paid. Since there was no liability on the service prior to 1-4-2009, we find that this claim of the appellant appears to be justifiable.
The third demand is approximately ₹ 17 lakhs. M/s. RINL provides accommodation to CISF employees and in this case, no HRA is paid to CISF. Since there is no question of receipt of HRA by the appellant, there is no question of payment of Service Tax on the notional value of the HRA which is presumed to be received by the appellant for reimbursement to CISF. Therefore, in this case also, we do not find that it can be covered under reimbursible expenditure or under the category of payment for the service rendered.
Prima facie, the appellant has made out a case. Accordingly, there shall be waiver of pre-deposit and stay against recovery of the adjudged dues during pendency of the appeal. - Stay granted.
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2014 (12) TMI 1038
Mid-day Meal Scheme - Exemption order No. 2/2/2011-Service Tax, dated 8-8-2011 - Outdoor catering services - Held that:- By an ad hoc exemption order No. 2/2/2011-Service Tax, dated 8-8-2011, the Central Govt. in purported exercise of powers under Section 93(2) of the Act granted exemption from the liability to tax in respect of outdoor catering service provided by a NGO registered under any Central Govt. Act or State Act, or centrally assisted Mid-day Meal Scheme, during the period 10-9-2004 to 2-10-2010. That the assessee fulfils the requirements for entitlement to the exemption under the Notification dated 8-8-2011, is not contested by Revenue. - impugned adjudication orders are set aside - Decided in favour of assessee.
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2014 (12) TMI 1037
Business Auxiliary Service - Delivery of money to the ultimate beneficiary in India as per directions given by their principal representative for which the respondents get commission - whether the activity is liable to service tax under Section 65(19) of the Finance Act, 1994 - Held that:- Tribunal in case of Paul Merchants Ltd. reported in [2012 (12) TMI 424 - CESTAT, DELHI (LB)] by majority decision has held that advertisement and sale promotion by agent/sub-agent is to be treated as export of the service and therefore not liable to the service tax. Following the said decision we are of the view that activity undertaken by the respondents are not liable to service tax being the export of service. Accordingly we uphold the Order-in-Appeal - Decided against Revenue.
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2014 (12) TMI 1036
Clandestine removal of goods - manufacture of the fireworks - Search at the alleged secret office of the assessee - presumption regarding documents/computer recovered - department rejected the request for cross examination on the ground that the said persons being employee of M/s Hingora could have been compromising parties. - Held that:- The veracity of the statements needs to be always checked and cross checked before relying upon such statement. M/s. Hingora were well within their rights to ask for cross examination of these employees to bring on record that the statements tendered by these employees could not be relied upon for making allegation against the Appellants. In our considered opinion, due to non-granting of the cross examination of above said persons, no reliance can be placed upon these statements and thus the statement of these persons cannot stand test of the law. - Decision of of Hon’ble Apex Court in the case of Shalimar Rubber Industries v. Collr. of C.E., Cochin [2002 (11) TMI 91 - SUPREME COURT OF INDIA] followed.
Records were not recovered from regular business premises. Some of these records related to production were said to be tallying with the records seized from the factory. However in the show cause notice there is nothing stated that the details of goods found were tallying with the details of the clearances on payment of duty or otherwise and to whom. We find that the entire case of the revenue is based upon the dispatch details found from the files and data recovered from the secret office. However except these evidences there is virtually no other evidence to reflect upon the clandestine production and removal by M/s Hingora.
Alleged dispatch details and the parallel invoices said to be found from the secret office contained the name of the parties to whom the goods were cleared as well as other details. However no evidence is appearing on record that the officers investigated such recipients, inspite of their details appearing in all such alleged clearance records. In such case, it has to be held that the said evidence is uncorroborated.
In all clandestine removals, it has been now well laid that the crux of the issue in respect of clandestine removal is that Revenue cannot proceed solely on the basis of a seized private notebook maintained by a worker unless the entries are corroborated by various other pieces of evidences in as much as that Revenue has to show that appellants have purchased the inputs from market and utilised the same and that the same has been sold to particular persons through invoices or otherwise and the money has flowed back as capital. In this particular case, admittedly the only piece of evidence is a notebook seized from the premises of the appellant. It was brought to the notice of the seizing officers that it was maintained by the Accountant who was very much present during the time of investigation. It was the duty of the investigating officers to have sought explanation from the said Accountant with regard to the entries made therein. Non-examination of the Accountant has rendered the document inadmissible in evidence.
Appellants have also brought to the notice of the Revenue that fireworks are required to be insured mandatorily while removing the same and various authorities are required to be informed and permission obtained. Revenue has not examined this point in the correct perspective. The danger of removal and penal consequence of non-insurance is a serious matter and the Commissioner ought to have relied on same evidence to show as to how they could manufacture and remove such controlled explosive commodity without proper protection and insurance. Merely to give finding that such clandestine removal is done secretly and stealthily and they do not follow the law is not acceptable in the peculiar facts and circumstances of this case. There is no other corroborative evidence with regard to the sale and purchase by particular persons and there is no evidence of removal through any transporter and the transporters have not been examined and statements recorded. Each link in the aspect of production and clandestine removal is required to be proved and since this has not been done, the demands are required to be set aside for lack of evidence in the matter.
For bringing the charges of clandestine removal the evidences decided by various case laws as above. However in the present case in absence of any tangible evidence which would indicate that there was clandestine manufacture and clearance of the goods by M/s Hingora Industries we hold that the charges of clandestine removal against M/s Hingora Industries are not sustainable. Thus, in the peculiar facts and circumstances of this case, we hold that the impugned order which confirms the demand against M/s Hingora Industries and imposes penalty on them is not sustainable and is liable to be set aside and we do so. There is no sustainable demand, consequential penalties on various other appellants, who are in appeal before us, would also automatically be set aside - Decided in favour of assessee.
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