|
Advanced Search Options
Case Laws
Showing 381 to 400 of 899 Records
-
2010 (8) TMI 803
Issues involved: Central Excise duty liability on clearance of dies from different manufacturing sheds.
Summary:
First Issue - Observations by Audit Officers:
The Audit Officers visited the factory of the appellants and observed that the appellants were manufacturing "Dies" at one manufacturing unit and using some of the dies in the process of manufacturing at other units owned by the appellants. The dies were transferred to customers and charges for making dies were recovered from them. The appellants were issued a show cause notice proposing recovery of Central Excise duty on the clearance of dies from one shed, involving a duty amount of Rs. 4,70,880.
Second Issue - Commissioner (Appeals) Decision:
In the first round of litigation, the matter was remanded to the original adjudicating authority to ascertain the actual movement of dies from one unit to another. In the second round, the Commissioner (Appeals) held the appellants liable to pay the duty and upheld the penalty imposed on them.
Third Issue - Appellant's Submission and Lower Authorities' Views:
The appellant argued that the original adjudicating authority went beyond the terms of the remand order by concluding that the appellants had cleared the dies without paying Central Excise duty. The appellant highlighted that the dies were shown as sold to customers but were actually used by the manufacturer in the casting process. The lower authorities maintained their findings.
Fourth Issue - Tribunal's Decision:
The Tribunal noted that the show cause notice alleged that the appellants transferred the title of the dies to customers but did not pay duty until cleared to customers. The Tribunal found that the demand for duty was based on the removal of dies from one place to another, not on sale. As there was no evidence of actual removal of dies, the demand for duty could not be sustained. Therefore, the appeal was allowed.
Conclusion:
The Tribunal held that the impugned order went beyond the proposal in the show cause notice, and in the absence of evidence showing the removal of dies from one manufacturing shed to others, the demand for duty was not sustainable.
-
2010 (8) TMI 802
Issues: Rectification of Tribunal's Final Order, Time bar aspect, Unjust enrichment, Validity of refund claim, Impact of court order on refund claim, Applicability of limitation period.
Rectification of Tribunal's Final Order: The applicant-Commissioner sought rectification of the Tribunal's Final Order No. 1070 & 1071/09 dated 19-8-09. The Tribunal remanded the case to the adjudicating authority on two main terms: firstly, regarding the time bar aspect citing the National Winder v. CCE., Allahabad case, and secondly, concerning unjust enrichment. The Department's appeal was allowed for further examination on whether the assessees had passed on the duty incidence to their customers.
Validity of Refund Claim: The applicant argued that the refund became due following a favorable order from the High Court of Madras on 29-6-1999, and the refund claim was filed on 24-11-1999, within a reasonable period of six months. The applicant contended that this was not merely a case of protest, and thus, the entitlement to the refund was not affected by subsequent judgments.
Impact of Court Order on Refund Claim: The Tribunal noted that the law was amended in 2007 to include the date of a court order as relevant for filing a refund claim and to prescribe a time limit. In this case, the High Court's order was dated 29-6-1999, and the refund claim was filed within six months, which was considered reasonable. As there was no specific time limit prescribed at the time for filing a refund claim after a court order, the claim was not time-barred.
Applicability of Limitation Period: The Tribunal acknowledged that the Supreme Court's decision in the National Winder case was overruled by a Larger Bench in the Allied Photographic India case. However, considering the specific circumstances of this case and the absence of a prescribed time limit for filing a refund claim after a court order, the Tribunal held that the refund claim was not hit by limitation. The Tribunal modified its earlier order and allowed the refund claim based on the High Court's order.
Conclusion: The Tribunal disposed of the matter by modifying its previous order, holding that the refund claim was valid and not time-barred. The decision emphasized the specific circumstances of the case, the absence of a prescribed time limit, and the timely filing of the refund claim following the High Court's order.
-
2010 (8) TMI 801
Issues:
Disallowance of Cenvat credit for goods not exported due to accident during transit; Interpretation of Rule 16 of Central Excise Rules, 2002; Requirement of show cause notice for erroneous refund under Section 11A of Central Excise Act, 1944.
Analysis:
1. The appellant appealed against the disallowance of Cenvat credit amounting to Rs. 4,59,214 for goods that were not exported due to an accident during transit. The Assistant Commissioner initially granted the refund, but the Commissioner (Appeals) overturned this decision, citing Rule 16 of the Central Excise Rules, 2002, which allows for suo motu credit without the need for a refund claim.
2. The appellant argued that while they could have taken the credit suo motu under Rule 16, they opted to inform the Department and file a refund claim as a precautionary measure. The Commissioner (Appeals) failed to consider this aspect properly. Additionally, the appellant contended that if there was an erroneous refund, a show cause notice under Section 11A of the Central Excise Act, 1944 should have been issued for recovery, citing relevant circulars and case law.
3. The Tribunal examined the case and found that the appellant had followed the prescribed procedure by informing the Department and obtaining approval for the refund. It was established that the appellant was entitled to the credit on the goods that could not be exported due to the accident. The Tribunal agreed with the appellant's assertion that a show cause notice is necessary for recovery of an erroneous refund under Section 11A, supported by relevant circulars and legal precedents.
4. The Tribunal differentiated the present case from the cited case law, emphasizing that in this instance, the refund was initially sanctioned by the original authority and was reviewed under Section 35E, which is impermissible. Consequently, the Tribunal set aside the Commissioner (Appeals)'s decision, allowing the appeal and granting any consequential relief deemed appropriate.
In conclusion, the Tribunal upheld the appellant's entitlement to the Cenvat credit for the goods that could not be exported due to the accident during transit. The importance of following procedural requirements, such as obtaining approval for refunds, and the necessity of a show cause notice for recovery of an erroneous refund under the Central Excise Act, 1944, were highlighted in the judgment.
-
2010 (8) TMI 800
Extended period of limitation - revenue neutrality - CENVAT credit - clearance of input to sister unit - Held that: - it is a case of the appellant that whatever duty they will pay, credit of the same is available to their sister unit which is not in dispute. Such situation is of revenue neutrality - in case of revenue neutrality, extended period is not invokable - for the period from December 2001 to December 2005 the SCN has been issued on 4th January 2007 which is beyond the period of one year, the extended period is not invokable in this case being the situation of revenue neutrality - appeal allowed - decided in favor of appellant.
-
2010 (8) TMI 799
Issues:
1. Levy of excise duty on branded jewellery
2. Clearance of excisable goods without payment of duty
3. Contravention of Central Excise Rules
4. Discharge of duty liability by the assessee
5. Imposition of penalty under Section 11AC of the Central Excise Act, 1944
6. Penalty imposed under Rule 25 of the Central Excise Rules, 2002
Levy of Excise Duty on Branded Jewellery:
The case involved the imposition of a 2% excise duty on 'Articles of branded Jewellery' as per the Union Budget 2005-06. The appellant was found to have removed excisable goods without paying the duty from their factory premises to retail showrooms, leading to a contravention of Central Excise Rules.
Clearance of Excisable Goods Without Payment of Duty:
The appellant was accused of clearing excisable goods without correctly determining the assessable value, without paying appropriate duty, and not reflecting the clearances in the filed returns. This action was seen as an attempt to evade duty payment.
Contravention of Central Excise Rules:
The appellant was found to have contravened Rules 4, 6, 8, 11 & 12 of the Central Excise Rules, 2002 by not seeking permission for provisional assessment, undervaluing excisable goods, and not paying duty on the entire cost of gold used for making jewellery.
Discharge of Duty Liability by the Assessee:
The appellant claimed to have discharged the differential duty before the show cause notice was issued, asserting no intention to evade payment. Correspondences between the appellant and the department were highlighted to support their argument that they sought clarifications and discharged the duty liability pending clarifications.
Imposition of Penalty under Section 11AC of the Central Excise Act, 1944:
The adjudicating authority dropped the penalty under Section 11AC but imposed a penalty under Rule 25 of the Central Excise Rules, 2002. The Commissioner (Appeals) rejected the appellant's appeal and allowed the Revenue's appeal for the penalty under Section 11AC.
Penalty Imposed under Rule 25 of the Central Excise Rules, 2002:
The appellant argued against the penalty under Rule 25, claiming no intent to evade duty. The department contended that the appellant did not follow the correct procedure and should have paid duty on a provisional assessment basis.
Analysis and Decision:
The Tribunal found that the appellant had intended to discharge the duty liability, as evidenced by their correspondences seeking clarifications. The imposition of penalty under Section 11AC was deemed unwarranted due to the appellant's clear intention to pay duty. However, the penalty under Rule 25 was upheld as the appellant had not maintained proper records. The Tribunal set aside the penalty under Section 11AC but retained the penalty under Rule 25.
-
2010 (8) TMI 798
Issues involved: Classification of packed food for duty imposition under CET sub-heading 2106.90.99, applicability of Notification No. 3/2006-C.E., and penalty imposition.
Classification of packed food: The Commissioner confirmed a duty demand on packed food for aircraft passengers as "ready to eat packaged food" under CET sub-heading 2106.90.99, attracting 8% duty u/s Sl. No. 30 of Notification No. 3/2006-C.E. The claim that the food is not excisable due to short shelf life and for coverage under Nil rate of duty u/s Sl. No. 42 was rejected.
Interpretation of 'food preparations': The Tribunal disagreed with the adjudicating authority's distinction between "food preparations" and "ready to eat packaged foods." It held that ready to eat packaged foods also fall under food preparations as per Chapter 21.06, which covers "foods preparations not elsewhere specified or included." Since the food in question is not cleared in sealed containers, it qualifies for Nil rate of duty under Sl. No. 42 of Notification No. 3/2006-C.E.
Applicability of earlier notification: The Tribunal noted that prior to the amendment introducing Sl. No. 42, the assessees were covered by Notification No. 15/06-C.E., exempting food preparations falling under tariff item 21069099 from duty payment during a specific period.
Decision: Considering the above, the Tribunal set aside the duty demand and penalties imposed, thereby allowing the appeals of the appellant company and its Finance Manager.
Separate Judgment: No separate judgment was delivered by the judges in this case.
-
2010 (8) TMI 797
Valuation - the amortized value of moulds and dies supplied free of cost by the buyer is liable to be included in the assessable value of the final products manufactured by making use of such moulds and dies or not? - time limitation - Held that: - the appellant deliberately excluded the amortized cost of moulds (supplied free of cost by Telco) from the assessable value of the excisable goods supplied to Telco (buyer) - this conduct of the appellant was wilful with intent to evade payment of appropriate duty on the goods in question - the extended period cannot be resisted by the appellants on the premise that whatever duty paid by them would ultimately be available as Modvat/Cenvat credit to the buyer - the demand of duty for the period from 1997-98 to 31-1-99 is not hit by time-bar and that the demand of duty for the prior period is time-barred.
The amount of interest on duty u/s 11AB and amount of penalty u/s 11AC require to be re-quantified by the original authority - appeal allowed by way of remand.
-
2010 (8) TMI 796
Whether elongated period mentioned under Section 11A of the Central Excise and Salt Act, 1944 is available to the Respondent No. l herein for demanding central excise duty for the goods cleared by the Petitioner during the period from December, 1992 to 15th March, 1995?
Held that:- In the instant case on the basis of the material on record, it cannot be said that there was any misstatement of facts by the Petitioners as the Department was fully aware of the activities of the Petitioners. The said material being before the Respondent No. 2 as well as before the Tribunal and, in view of the fact that the Respondent No. 2 as well as the Tribunal have not recorded a finding as regards the predicates for availing of the extended period of limitation, in our view, both the impugned orders are required to be set aside and are accordingly set aside.
Since we have held in favour of the Petitioner on the point of limitation, it is not necessary for us to go into the aspect of classification of goods in question. For the aforesaid reasons, the above Petition is allowed.
-
2010 (8) TMI 795
Whether competent authority, in the notice issued under 6(1) of the Act, had not indicated the reasons which made him to believe that the properties are illegally acquired properties in terms of the Act?
Whether the Chartered Accountant who appeared on behalf of the petitioner had produced all the records showing the income of the petitioner from out of which the burden of the petitioner under Section 8 of the Act had been discharged?
Held that:- The right to hold a property, though no more a fundamental right, still, is a constitutional right under Article 300A of the Constitution of India. Depriving a citizen of his legally acquired property otherwise than in accordance with law, will be unconstitutional. Therefore, every endeavour should be made to find as to whether the properties are really illegally acquired properties from out of the earnings of the convict. The nexuses, as discussed above, should be established. It is needless to point out that while holding such an enquiry, for the purpose of deciding the above issues, the competent authority is expected to strictly adhere to the principles of natural justice also.
In this case, in my considered opinion, the competent authority has given a go by to all the above basic principles resulting in injustice to the petitioner. First of all, a Chartered Accountant is not a competent person to practise as a counsel to represent the petitioner before the competent authority.
In view of the above, the writ petition is allowed; the impugned orders are set aside; and the matter is remitted back to the 2nd respondent who shall hold a fresh enquiry as indicated above , afford sufficient opportunity to the petitioner to let in evidence, both oral and documentary, if any, and pass final order in accordance with law.
-
2010 (8) TMI 794
Issues Involved:
1. Jurisdiction of the Commissioner of Customs, Chennai to issue a show cause notice.
2. Validity of the "let export order" issued by Bangalore Customs.
3. Authority to confiscate goods under Section 113 of the Customs Act, 1962.
Issue-wise Detailed Analysis:
1. Jurisdiction of the Commissioner of Customs, Chennai to issue a show cause notice:
The primary issue was whether the Commissioner of Customs, Chennai had the jurisdiction to issue a show cause notice for the confiscation of export cargo. The Commissioner of Customs (Export-Seaport) held that under Section 124 of the Customs Act, 1962, the Commissioner of Customs, Chennai had the jurisdiction to issue the show cause notice dated 27-3-2007 for the confiscation of red sanders wood being exported under the guise of handicrafts to Singapore. The Commissioner referenced several legal provisions, including Section 4 of the Customs Act, 1962, Notification 15/2002-Cus. (N.T.), dated 7-3-2002, and Section 7 of the Customs Act, 1962, which designated Chennai Seaport as a Customs Area under Notification No. 52/2006-Cus. (N.T.).
The Commissioner explained that the jurisdiction to give the "allowed for shipment" order, i.e., the loading of goods, lies with the Chennai Customs, as Chennai is the gateway port. The Commissioner further noted that under Circular No. 6/2002-Cus., dated 23-1-2002, export containers sealed at ICDs can be examined when there is specific intelligence.
2. Validity of the "let export order" issued by Bangalore Customs:
The appellants challenged the order on the grounds that the shipping bill covering the goods was filed in Bangalore and the "let export order" was passed by the proper officer at Bangalore under Section 51 of the Customs Act. The Commissioner held that the "let export order" given by Bangalore Customs did not reach its finality as the loading of goods order was not given by Bangalore Customs. The proper officer at the gateway port, Chennai Customs, has the jurisdiction to give the "allowed for shipment" order.
The Commissioner cited Section 2(18) of the Customs Act, 1962, which defines 'export' as taking out of India to a place outside India. The act of export and clearance is completed only when the goods are passed for shipment or allowed to be loaded onto a vessel. Therefore, the seizure was made before the completion of export formalities, and Chennai Customs had the authority to stop and examine the loading of export goods.
3. Authority to confiscate goods under Section 113 of the Customs Act, 1962:
The Commissioner referenced the decision of the Division Bench of the Hon'ble Madras High Court in Madanlal Steel Industries v. UOI [1991 (56) E.L.T. 705 (Mad.)], which held that confiscation proceedings are not controlled by the clearance of goods for home consumption or export under Section 47 or Section 51 of the Customs Act. The Court noted that action to confiscate goods does not depend on the clearance of goods for home consumption or export but on conditions enumerated under Section 111 (improperly imported goods) and Section 113 (goods attempted to be improperly exported).
The Commissioner also cited the case of Commissioner of Customs, Bangalore v. Vikram Jain [2009 (244) E.L.T. 504 (Kar.)], where the Hon'ble Karnataka High Court held that show-cause notices issued by the Commissioner of Customs, Bangalore were valid as proceedings for confiscation are actions in rem, and the proper officer having jurisdiction over the situs of goods had the authority to initiate proceedings.
Conclusion:
Following the ratio of the Madanlal Steel Industries and Vikram Jain decisions, the Commissioner concluded that the Commissioner of Customs, Chennai had the jurisdiction to issue the show cause notice. The impugned order was upheld, and the appeal was rejected.
-
2010 (8) TMI 793
Issues involved:
The judgment involves the interpretation of various sections of the Income Tax Act, 1961 related to the treatment of profit on the transfer of Duty Entitlement Pass Book (DEPB) entitlement and the calculation of deduction under section 80HHC.
ITA No. 301 of 2010:
The revenue filed ITA No. 301 of 2010 under Section 260A of the Income Tax Act, 1961 against an order passed by the Income Tax Appellate Tribunal. The substantial questions of law raised include the treatment of total sale consideration inclusive of face value of DEPB and premium amount received, the calculation of profit on the transfer of DEPB entitlement, and the deduction under section 80HHC. The Tribunal's interpretation of the term "profit" under sections 28(iiid) and 28(iiie) was a key point of contention.
Agreement on Covered Matters:
In several other ITA cases, the parties agreed that the issues were already covered by a previous order dated 16.8.2010 in a specific case, Commissioner of Income-tax v. M/s F.C. Sondhi & Company (P) Ltd.
Disposal of Appeals:
For the remaining appeals where no notice was issued, the court decided to dispose of them in the same terms as the covered matters. It was deemed unnecessary to issue notices to the assessee due to the matters being already covered. The parties were directed to appear before the Tribunal for further proceedings on a specified date.
Administrative Direction:
An administrative direction was given for a copy of the order to be placed on the files of the connected cases for reference.
-
2010 (8) TMI 792
Right to information - decline to disclose information - Held that:- The petitioner has sought disclosure of answer sheets of some of the constables which comes within the purview that the disclosure of the same would harm the competitive position of the third party interest. Thus, no illegality or irregularity found in declining to disclose information i.e. supply of answer sheets of the constables to the petitioner.
In the case on hand, no consent of the third party was sought before declining the disclosure of the above stated information. On bare perusal of Section 11 of the Act, 2005 makes it clear that seeking consent of the third party would arise only in the event the Public Information Officer is satisfied that larger public interest warrants the disclosure of such information. In the instant case, the Public Information Officer including the respondent No. 1 State Information Commission has not expressed its satisfaction in favour of disclosure on account of larger public interest. Thus, provisions of Section 11 of the Act, 2005 would not be applicable. Appeal dismissed.
-
2010 (8) TMI 790
Valuation - freight - the freight collected from the dealer turned out to be more than the actual cost of transportation incurred by the assessee, that is the amount paid to the transporter - includibility - claim of appellant is that what was collected by them from the dealers in excess of the actual cost of transportation was only a profit on transportation and hence the same was not liable to be included in the assessable value of the goods u/s 4 of the Act - Held that: - the place of delivery is the factory gate and, even according to the Revenue, the cost of transportation from the factory gate to the buyers’ premises is liable to be excluded from the assessable value of the goods. The rule does not provide for inclusion of any excess freight in the assessable value in the circumstances specified under Section 4(1)(a) of the Act. We do not think that the proposal to include the excess freight in the assessable value is corollary to exclusion of the actual cost of transportation from the assessable value.
The excess freight collected from the dealers was only a profit on transportation and not an “additional consideration” within the meaning of this expression used in Rule 6, nor an “additional amount” within the meaning of the definition of “transaction value” under Section 4(3)(d) of the Act
Appeal allowed - decided in favor of appellant.
-
2010 (8) TMI 789
Issues Involved:
1. Maintainability of the appeal.
2. Legality of Cenvat credit utilization.
3. Entitlement to refund of duty and interest.
4. Applicability of amendments and notifications.
5. Validity of Circular No. 201/9/2003-C.X. 6 dated 15-10-2003.
Issue-wise Detailed Analysis:
1. Maintainability of the Appeal:
The Tribunal initially dismissed the Revenue's appeal due to improper authorization. However, the Hon'ble High Court of Bombay remanded the case back to the Tribunal for a decision on merits. Consequently, the Tribunal took up the appeal for disposal.
2. Legality of Cenvat Credit Utilization:
The respondent availed Cenvat credit from 1-7-2003 to 5-7-2003, utilizing Rs. 2,89,284/- for duty payment in June 2003. It was alleged that this contravened sub-rule (3) of Rule 3 of the Cenvat Credit Rules, 2002. Upon realizing they weren't required to pay the duty due to Notification No. 18/2003-C.E. (N.T.), the respondent filed a refund claim. The adjudicating authority allowed restoration of the credit but rejected the refund claim. The Commissioner (Appeals) observed that the restriction on utilizing Cenvat credit was removed by Notification No. 18/2003 effective from 18-3-2003, making the utilization for June 2003 legally correct.
3. Entitlement to Refund of Duty and Interest:
The Commissioner (Appeals) noted that the lower authority erred in rejecting the refund claim based on a circular, stating that no circular can override the benefits provided by a notification. The appellants were not required to pay duty through the personal ledger account, and thus, there was no question of delayed payment or interest. The Commissioner (Appeals) allowed the appellants to take credit in either the Personal Ledger Account or Cenvat Account and directed the lower authority to refund the interest amount of Rs. 2,84,284/-.
4. Applicability of Amendments and Notifications:
The Revenue argued that the amendment by Notification No. 13/2003-C.E. (N.T.) effective from 1-4-2003 was enforceable, and the respondent wrongly availed the credit. However, the respondent contended that Notification No. 18/2003-C.E. (N.T.) effective from 1-4-2003 had taken over the amendment, and the proviso to sub-rule (3) of Rule 3 was not in the statute book. The Tribunal examined the statute book and confirmed that the substitution by Notification No. 18/2003 was effective from 1-4-2003, supporting the respondent's claim.
5. Validity of Circular No. 201/9/2003-C.X. 6 dated 15-10-2003:
The Commissioner (Appeals) doubted the existence of the circular and emphasized that even if it existed, it could not deprive the benefits provided by the notification. The Tribunal found no force in the Revenue's argument supported by the circular and upheld the Commissioner (Appeals)'s decision.
Conclusion:
The Tribunal rejected the Revenue's appeal and upheld the impugned order, confirming the respondent's entitlement to the Cenvat credit and refund of interest. The cross-objections were disposed of accordingly.
-
2010 (8) TMI 788
Issues Involved:
1. Mistake apparent from the record.
2. Refund claim barred by limitation under Section 11B of the Central Excise Act, 1944.
3. Applicability of Rule 233B of the erstwhile Central Excise Rules, 1944.
4. Treatment of deposits made during investigation as duty.
5. Jurisdiction and scope of rectification under Section 35C(2) of the Central Excise Act, 1944.
Detailed Analysis:
1. Mistake Apparent from the Record:
The appellant filed an application under Section 35C(2) of the Central Excise Act, 1944, stating that there was a mistake apparent from the Final Order No. 1641/08-SM passed on 28-11-2008. The appellant argued that the Tribunal failed to consider the law laid down in the case of Mafatlal Industries v. Union of India, which states that deposits made during investigations are not governed by Section 11B of the Act. The Tribunal, however, found that there was no apparent mistake in its order as the appellant did not demonstrate how its case was covered by the Mafatlal judgment during the original hearing.
2. Refund Claim Barred by Limitation:
The Tribunal recorded that the rejection of the appellant's refund claim was based on the fact that the duty was paid between 22nd February 1999 and 28th August 1999, while the refund claim was filed on 8-9-2005, which was beyond the one-year limitation period prescribed under Section 11B of the Act. The appellant's argument that the amount paid during the investigation should be treated as a deposit and not as duty was not accepted, as all refund claims are governed by Section 11B, and the claim was rightly rejected for being time-barred.
3. Applicability of Rule 233B:
The Revenue contended that the appellant did not follow the procedure of payment of duty under protest as required by Rule 233B of the erstwhile Central Excise Rules, 1944. The Tribunal held that there was no evidence on record to show that the appellant made a formal protest regarding the deposit before adjudication. Therefore, the appellant was required to follow the provisions of Section 11B for claiming a refund.
4. Treatment of Deposits Made During Investigation:
The appellant argued that the amount deposited during the investigation should be treated as a deposit and not as duty, relying on the Supreme Court's judgment in Mafatlal Industries. However, the Tribunal found that the appellant's deposit was made voluntarily towards duty of excise consequent to audit objections and was not under protest. The Tribunal held that deposits made during investigations are subject to the provisions of Section 11B, including the limitation period and unjust enrichment.
5. Jurisdiction and Scope of Rectification:
The Tribunal emphasized that the power to rectify mistakes under Section 35C(2) is limited to correcting mistakes apparent from the record and does not extend to reviewing or revising the entire order. The Tribunal cited various judgments, including those of the Supreme Court, to underline that a mistake must be obvious and patent, not something that requires elaborate arguments or detailed examination of records. The Tribunal concluded that the appellant's application for rectification was an attempt to seek a review of the original order, which is not permissible under the law.
Conclusion:
The Tribunal dismissed the appellant's application for rectification of the mistake, holding that there was no apparent mistake in the original order. The Tribunal reiterated that all refund claims are governed by Section 11B of the Central Excise Act, 1944, and the appellant's claim was rightly rejected for being time-barred. The Tribunal also clarified that its power under Section 35C(2) is limited to rectifying patent mistakes and does not include the authority to review or revise its decisions.
-
2010 (8) TMI 786
Imposition of penalty under Section 38(3) of the Finance Act, 1979 (“Finance Act” or “Act” for short) for delay in payment of Foreign Travel Tax to the Government challenged
Held that:- If one goes through the order of remand, one would find that it was not a limited remand. The remand was to enable the adjudicating authority to consider all the issues after affording opportunity of personal hearing to the petitioner. The first order-in-original dated 14th June, 1999 was in breach of principles of natural justice. Consequently, it was set aside, that too, at the request of the petitioner. The show cause notices were restored to the file of the adjudicating authority for consideration afresh. It was not a limited remand. In that view of the matter, it was open for the adjudicating authority to enhance the amount of penalty in consonance with the provision of sub-section (3) of Section 38 of the Act. Thus, submission made in this behalf holds no water. Appeal dismissed.
-
2010 (8) TMI 785
Whether ITAT was correct in law in allowing benefit of netting of interest to the assessee while computing deduction under section 80HHC of the Act?
Held that:- Furnishing of the fixed deposit receipts is an obligation, and is a pre-condition for obtaining export quota in the absence of which exports cannot be made. In such a scenario, the furnishing of these bank guarantees is a direct nexus with the export activities of the assessee and interest earned thereupon would clearly be treated as having an immediate nexus with the export business.
Once this position is accepted, as per the formulation of principle laid down in Shri Ram Honda Power Equip’s case (2007 (1) TMI 86 - HIGH COURT, DELHI) itself, netting has to be allowed by the adjustment of aforesaid interest received against the interest paid by the assessee to the bank on the credit facilities availed as is clear from the conclusion No. 8 in the judgment.
We, accordingly, concur with the aforesaid view of the ITAT and thus, answer the question in favour of the assessee and against the revenue.
-
2010 (8) TMI 784
Issues:
1. Validity of reassessment proceedings for the assessment year 2001-02.
2. Allowability of provision for warranty for the assessment year 2006-07.
Issue 1: The validity of reassessment proceedings for the assessment year 2001-02 was challenged by the Revenue, contending that the learned Commissioner of Income-tax (Appeals) erred in holding the reassessment proceedings as invalid. The Revenue argued that the assessee failed to disclose material facts during the original assessment, leading to income escaping assessment. The Assessing Officer reopened the assessment under section 148 of the Act, citing undisclosed expenditure on 'product development expenses' as capital in nature. The assessee objected to the reopening, asserting that all details were provided during the original assessment proceedings. The Tribunal noted that the assessee had furnished complete details, including a break-up of expenses, during the original assessment. The Tribunal held that the reassessment was merely a change of opinion without fresh material, contravening the proviso to section 147. Relying on the decision in CIT v. Kelvinator of India Ltd., the Tribunal upheld the Commissioner's decision, deeming the reassessment invalid and dismissing the Revenue's appeal.
Issue 2: The second issue pertained to the allowability of a provision for warranty for the assessment year 2006-07. The Revenue contested the deletion of the provision by the Assessing Officer, citing the decision in Rotork Controls India P. Ltd. v. CIT. The assessee had based the provision on actual expenditure for previous years, justifying it as a realistic estimate. The Commissioner allowed the provision, noting the reversal of the earlier decision by the apex court. The Tribunal observed that the provision was made scientifically and on actual warranty expense figures, in line with the apex court's decision in Rotork Controls India P. Ltd. The Tribunal emphasized that the absence of similar provisions in earlier years did not preclude the assessee from making a provision based on legitimate grounds. Therefore, the Tribunal upheld the Commissioner's decision, dismissing the Revenue's appeal.
In conclusion, the Tribunal dismissed the Revenue's appeals for both assessment years, affirming the Commissioner's decisions. The judgments were delivered on 18th August 2010.
-
2010 (8) TMI 783
Issues:
Recomputation of deduction under section 80-IB of the Income-tax Act, 1961.
Analysis:
The appeal pertains to the assessment year 2003-04 against the order passed under section 143(3) of the Income-tax Act, 1961. The primary issue raised is the recomputation of deduction under section 80-IB of the Act. The dispute revolves around the exclusion of interest, royalty, and lease rent from the profits eligible for deduction under section 80-IB. While the grounds of appeal mentioned disallowance on account of insurance, it was clarified that the actual dispute is related to the exclusion of interest, royalty, and lease rent. The assessee argued for the netting of interest to be excluded from the profits, citing a previous Tribunal order. The Revenue relied on a Supreme Court judgment to support the Commissioner of Income-tax (Appeals) decision.
The Tribunal considered the claim of the assessee regarding the exclusion of interest income while computing the deduction under section 80-IB. Referring to a previous case of the same assessee, the Tribunal acknowledged the nexus between interest earned and interest expended. It was established that if a connection exists between the two, netting-off of interest income against interest expenditure should be allowed. The Tribunal remitted the matter back to the Assessing Officer for verification of this nexus and directed to exclude only the balance net interest income from the profits eligible for deduction under section 80-IB.
Following the precedent set in the earlier assessment year, the Tribunal remitted the issue back to the Assessing Officer to recompute the deduction under section 80-IB in accordance with the directions provided. Additionally, the Tribunal confirmed that receipts from royalty and lease rent, akin to interest, should also be excluded from the profits eligible for deduction under section 80-IB. Consequently, the grounds of appeal raised by the assessee were partly allowed, leading to a partial allowance of the appeal.
In conclusion, the Tribunal partially allowed the appeal of the assessee concerning the recomputation of deduction under section 80-IB for the assessment year 2003-04. The decision was pronounced in open court on August 10, 2010.
-
2010 (8) TMI 782
Issues:
Challenge to assessment under CST Act for assessment year 2005-06, legality of final assessment, delay in submission of 'C forms', power of authority to condone delay, interpretation of Rule 12(7) of CST (R&T) Rules, rejection of 'C forms' by assessing authority.
Analysis:
1. The petitioner, a Public Sector Undertaking, challenged the assessment finalised by the first respondent under the CST Act for the assessment year 2005-06. The primary issue raised was whether the petitioner should be directed to pursue the statutory remedy of appeal instead of approaching the Court directly.
2. The grievance raised by the petitioner pertained to the legality of the assessment process followed by the first respondent, resulting in a substantial tax liability being imposed on the petitioner. The petitioner contended that the assessment was more of a legal issue than a factual one, emphasizing that the 'C forms' produced by them were not considered due to alleged delay.
3. The petitioner argued that they were a registered dealer under the KVAT and CST Act, engaged in the manufacture and sale of 'newsprint'. They highlighted that the requirement to procure 'C forms' during the assessment year in question was on purchasers, and due to changes in the law, delays occurred in obtaining the forms, leading to the assessment dispute.
4. Following the issuance of a notice of assessment (Ext.P1), the petitioner submitted a detailed reply (Ext.P2) explaining the circumstances leading to the delay in obtaining 'C forms'. Despite this explanation, the first respondent finalized the assessment (Ext.P3) holding the petitioner liable for a significant tax amount, citing non-submission and belated submission of 'C forms'.
5. The petitioner contended that the assessing authority's decision (Ext.P3) was incorrect and contrary to statutory provisions, specifically Rule 12(7) of the CST (R&T) Rules. They argued that the authority had the power to condone delays in submitting 'C forms', which was not exercised in their case, leading to the imposition of higher tax liability.
6. The Government Pleader representing the respondents defended the assessment order (Ext.P3) as reasoned and supported by the petitioner's failure to apply for condonation of delay within the prescribed period. The respondents maintained that the petitioner had the option to appeal and that judicial interference was unwarranted.
7. The Court acknowledged that the dispute primarily revolved around the interpretation of relevant legal provisions, particularly the power of the authority to condone delays in 'C form' submissions. The petitioner's claim of having procured the necessary 'C forms' was noted, emphasizing the rejection of forms solely on grounds of delay.
8. In its analysis, the Court highlighted the importance of the proviso in Rule 12(7) of the CST (R&T) Rules, which allows for the condonation of delays in submitting 'C forms'. The Court noted the lack of discussion in the assessment order (Ext.P3) regarding the authority's power to condone delays, leading to the decision to set aside the assessment and remit the matter for fresh consideration.
9. Emphasizing the legislative intent behind retaining the proviso unchanged post-amendment, the Court stressed the beneficial nature of the provision for condoning delays. Referring to legal precedents and the lack of discussion on the authority's power in Ext.P3, the Court directed a reevaluation of the matter by the first respondent within a specified timeframe.
10. Consequently, the Court allowed the writ petition, setting aside the assessment order (Ext.P3) and remitting the matter for fresh consideration by the first respondent, emphasizing the need for a comprehensive review in light of legal provisions and judicial precedents.
............
|
9911796707
