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Showing 381 to 400 of 639 Records

• 2010 (6) TMI 428
  

  Penalty – Suppression of value of taxable service - order of Commissioner (Appeals) extended option to the respondent to pay 25 per cent of the penalty imposed within a period of thirty days of receipt of the order - imposing penalty to the extent of 100 per cent, Additional Commissioner had not extended any option to the assessee - no infirmity in the view adopted by Commissioner (Appeals) – Revenue appeal rejected

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• 2010 (6) TMI 427
  

  Refund - unjust enrichment - deceitful clearance of offending goods without payment of duty at the time of clearance is an act of unjust enrichment at the cost of revenue and breach of law made for undue advantage - mere deposit of some money made upon detection by Revenue is not immune from scrutiny of unjust enrichment when refund is claimed - lawful protest not lodged – Held that: - plea of inapplicability of bar of unjust enrichment on the ground of excess payment made is untenable - revenue is merited and appeal of the appellant is liable to be dismissed

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• 2010 (6) TMI 426
  

  Beverage Cans - Import of a manufactured or produced article - CVD will be equal to the excise duty for the time being leviable on a like article if produced or manufactured in India - additional duty under Section 3(1) of the Customs Tariff Act – Held that: - Aluminium Used Beverage Cans are not excisable, as these are not manufactured goods - goods in question are not excisable; therefore, in view of the decision of Hon'ble Supreme Court in the case of Hyderabad Industries (1999 -TMI - 45071 - SUPREME COURT OF INDIA) - additional duty not payable - Appeal is dismissed

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• 2010 (6) TMI 425
  

  Stay order – Lower authority confirmed service tax demand on assessee on ground that it was receiving services of GTA – assessee not availing the services of ‘Goods Transport Agency’ but were availing services of truck owners or goods transport operators - two persons were giving services were truck owners or transport operators - demand of service tax on the services received from the truck owners or goods transport operators as GTA service is inappropriate and cannot be sustained - stay application allowed

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• 2010 (6) TMI 424
  

  Cenvat credit - the appellants were served with a show cause notice on 10-6-08, proposing to disallow Modvat Credit of Rs. 1,42,78,588/- along with interest and imposition of penalty on the ground that since M/s. ITC Ltd. was not a financing company, the availment of Modvat Credit of the appellant was de-barred under Rule 4(3) of Cenvat Credit Rules, 2004 - Held that: - Rule 4(3) does not require procurement of capital goods from the financing company but is enabling and enlarging sub-rule allowing Modvat Credit even in those cases where the capital goods have been procured from a financing company - appellant is entitled to the benefit of Modvat Credit

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• 2010 (6) TMI 423
  

  Demand – limitation – extended period - Cenvat Credit availed in respect of input services - towards payment of duty on excisable goods manufactured - Revenue stated that availment of credit of input services used at the site of WTG which were installed away from the factory premises of the appellant, was not available - as the electricity so generated from the WTG was not liable to tax – Held that: - appellants cannot be alleged to have suppression or mis-stated any fact so as to invoke longer period - penalty cannot be imposed upon the appellant - for the demand is within limitation period – matter remanded

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• 2010 (6) TMI 422
  

  Refund – limitation - appellant is claiming the refund of the 4% Addl. Duty; paid which was not leviable on the appellant - Section 27 of the Act applies only when the refund that is being sought is of customs duty otherwise leviable under the Act. In this case I find that the appellant is claiming the refund of the 4% Addl. Duty; paid which was not leviable on the appellant. - refund claim has been dismissed being time-barred and there is no findings has been given on merits - remand back the matter to the original adjudicating authority

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• 2010 (6) TMI 421
  

  Demand – Issuance of SCN subsequent to clearance of goods under section 47 of Customs Act, 1962 by assessee upon payment of duty assessed by proper officer of Customs, enquiries conducted by SIIB revealed misdescription and undervaluation of goods - absence of any corroboration - importer, admitted undervaluation of the goods and came forward to pay the differential amount of duty along with fine and penalty - statements were never retracted - Nothing contained in the statements given under Section 108 of the Act by their CHA or the CHA's employee was, in any way, in conflict with the fact admitted by the importer - classification and the enhancement of value proposed by the Revenue, the importer can hardly withdraw from the consistent position taken by him - importer wrongly classifies the goods in the Bill of Entry, it is for the assessing authority to correct the mistake in due discharge of the function - Commissioner (Appeals) should pass fresh order on the appeals filed by the parties – Order set aside – Appeal allowed by way of remand

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• 2010 (6) TMI 420
  
  The Appellate Tribunal CESTAT, Chennai dismissed the stay application and took up the appeal for hearing. The appellants paid duty, interest, and 100% penalty promptly. They were entitled to a refund of 75% of the penalty paid. The jurisdictional Commissioner's review of the refund order was deemed unwarranted, and the Order-in-Appeal was set aside.

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• 2010 (6) TMI 419
  

  Order – contradictory finding – demand – limitation - Para 6.1 of his order, he has held that the demand in the present case is barred by time. However, surprisingly, in Para 10, he upheld the demand and extended the benefit in respect of penalty only - no appeal by the Revenue against the findings of Commissioner (Appeals) in Para 6.1 - Commissioner (Appeals) having himself held the demand to be time-barred not sustainable - set aside the impugned order – appeal is allowed

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• 2010 (6) TMI 418
  

  Exemption - "Electro-surgical Generator" describes such apparatus as one which utilizes high frequency electric current, the needle, probe etc. forming one of the electrodes - Diathermy is a form of heat treatment using high frequency electromagnetic currents. These cause molecules in deep tissues to vibrate, heating the issues and increasing the blood flow to them, thus speeding up the recovery – Since goods are used surgically, they are different from daithemy equipments which are non-invasive – Exemption available only to diathermy apparatus – Benefit cannot be extended to electrosurgical apparatus

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• 2010 (6) TMI 416
  

  Penalty - nothing on record to indicate that there was an intention-to evade the duty - factory is under the physical control of the Central Excise Officer – Held that: - provisions of Section 11AC of Central Excise Act, 1944 will not invoke - appropriate duty on the goods, which were unaccounted, discharged by the assessee when they sought provisional clearance of the goods - penalty imposed on the assessee under the provisions of Section 11AC of the Central Excise Act, 1944 cannot sustain.

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• 2010 (6) TMI 415
  

  Demand – cenvat credit – credit availed on goods which are neither capital goods nor input in relation to manufacture of final product – goods removed on payment of duty - credit taken was returned by paying duty at the time of clearance of items – Held that: - duty demandable from the appellant and the interest payable thereof and the consequent penalties can be only to the extent of the duty amount arising as difference, between the credit taken and the duty paid – matter remanded back to the Adjudicating Authority

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• 2010 (6) TMI 414
  

  Refund – Interest on refund – during the course of the assessment proceedings – Section 244A(2) provides that in the event the proceeding resulting in refund has been delayed for reasons attributable to the assessee, the period of delay so attributable shall be excluded from the period for which the interest is payable. In the present case, section 244A(2) is clearly not attracted - The proceeding resulting in the refund was not delayed for reasons attributable to the assessee. Though the TDS certificates were not submitted with the return and were filed during the course of the assessment proceedings, the Tribunal has noted that the tax was in fact deducted at source at the right time. In the circumstances, the Tribunal is correct in holding that since the benefit of TDS has been allowed to the assessee, interest under section 244A could not be denied only on the ground that the TDS certificates were not furnished with the return of income. Tax was deducted and deposited in the exchequer in time. Section 244A (2) is not attracted.

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• 2010 (6) TMI 413
  

  Penalty – clandestine removal – shortage of final product - quantum of shortage was 7271.30 kg. due to mistake in recording the weight - burden of proving that the shortage is not due clandestine removal would be on the assessee - goods clandestinely removed by the appellants - penal provisions of Section 11AC would be attracted irrespective of the fact that the duty had been paid by the appellants prior to the issuance of SCN

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• 2010 (6) TMI 412
  

  Penalty – cenvat credit – input removed as such - Authority has imposed equivalent amount of penalty on the appellant for non-reversal of the Special Additional Duty when the inputs were cleared 'as such' - amount involved in this case is Rs. 45,106/- and if the contention of the assessee that they have paid Rs. 1.41 crores for the preceding three years through PLA - it cannot be said that there was an intention to evade payment of duty by not debiting the amount of Special Additional Duty when the goods were cleared 'as such' – penalty set aside

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• 2010 (6) TMI 411
  

  Confiscation – Misdeclaration of export – muriate of Potash - As per the specifications of the Fertiliser (Control) Order, 1985, Potassium Chloride (Muriate of Potash) must contain minimum 60% by weight of Water Soluble Potash content - report itself suggests to get expert opinion from Regional Fertilizer Control Laboratory to find out as to whether the sample is classifiable as Muriate of Potash - Though the report mentions the percentage of Water Soluble Potash as K2O in the samples, no opinion is expressed in it stating that the samples are of Potassium Chloride (Muriate of Potash) - The Detaining Authority, in the grounds of detention, having alleged violation of the provisions of Fertiliser (Control) Order, cannot rely on the Analysis Report of a Laboratory, which is not notified under Order - Counsel appearing for the petitioner, the conclusion of the Detaining Authority that the consignment was Potassium Chloride (Muriate of Potash), was based on erroneous interpretation of the report of the Custom House Laboratory and based on the report of a laboratory not notified as per Fertilizer Control Rules and the order of detention was vitiated by total non-application of mind

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• 2010 (6) TMI 410
  

  DEPB scheme - Duty Entitlement Pass Book on exports at specified rates and subsequently debiting amount equal to duty payable – Exemption from Education cess - full exemption from Customs duty - under Notification No. 89/2005-Cus.and notification No. 45/2002-Cus - Reliance Industries judgment stand reversed by higher appellate forum - appeal is rejected

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• 2010 (6) TMI 409
  

  Penalty on director - Contumacious conduct of the director is not coming out from record - mens rea does not come out, mere acceptance of discrepancy at the investigation stage not be commitment of offence - Penalty proceeding being quasi criminal in nature, the charge framed calls for evidence of conscious abatement to establish the same – evidence is absent

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• 2010 (6) TMI 408
  

  Confiscation - goods were found outside the 100% E.O.U. premises - plea of the assessees that this was only a technical violation not warranting confiscation cannot be accepted since the condition under which raw materials were imported violated – Held that: - assessees were not able to establish either before the Commissioner of before the Tribunal that the goods were not despatched by them to the premises from where they were detained – confiscation and fine is reasonable

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