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Showing 381 to 400 of 938 Records
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2011 (8) TMI 1003
Whether the suspension order issued against the respondent was not valid beyond a period of 90 days of its issuance as the petitioners had breached the service rules applicable to the respondent?
Held that:- In any event, in our opinion, the submission that the original application has been filed beyond the period of limitation, is not tenable. This is because the petitioners extended the period of suspension time and again, albeit in breach of the service rules. It was thus a continuing cause of action for the respondent to approach the Tribunal. Therefore, the petitioners have not made out any case for us to exercise our extraordinary jurisdiction under Article 226 of the Constitution of India. Appeal dismissed.
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2011 (8) TMI 1002
Issues:
1. Whether penalty is leviable under Section 11AC of the Central Excise Act if duty is paid after detection of evasion but before the issue of show cause notice?
2. Whether penalty imposed under Section 11AC of Central Excise Act is a "combined penalty" and legal under the relevant provisions?
Analysis:
Issue 1:
The appeal concerns the levy of penalty under Section 11AC of the Central Excise Act, specifically focusing on the duty paid after the issuance of a show cause notice. The respondent availed the Modvat/Cenvat facility for spares before the notice and paid duty post-notice. The Original Authority and Commissioner imposed a penalty on the duty paid after the notice. However, the Tribunal, citing a Supreme Court judgment, set aside the penalty, emphasizing the need for bona fide conduct by the assessee to avoid penalty. The Tribunal's decision was based on the principle that penalty imposition is not automatic if the assessee demonstrates good faith post-detection of evasion.
Issue 2:
The show cause notice detailed willful suppression of facts by the assessee, leading to evasion of duty, and violations of various Central Excise Rules. The assessing authority rejected the demand for duty recovery and imposed a penalty based on lack of bona fide conduct by the assessee. The Commissioner reversed this decision, but the Tribunal, following an Apex Court judgment, upheld the penalty. However, in light of a subsequent Supreme Court ruling emphasizing the importance of bona fide conduct, the Tribunal's decision was overturned. The High Court held that if an assessee lacks bona fide conduct, the claim for refund based on duty paid after a show cause notice cannot be sustained. Consequently, the appeal was allowed in favor of the Revenue.
This judgment highlights the significance of demonstrating bona fide conduct by the assessee to avoid penalty under Section 11AC of the Central Excise Act. It underscores the need for genuine actions by the assessee post-detection of evasion to potentially avoid penalty imposition. The legal analysis provided by the High Court clarifies the application of relevant provisions and the impact of Supreme Court precedents on penalty imposition in excise duty cases.
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2011 (8) TMI 1001
Issues:
1. Appeal by Revenue against CESTAT order exempting excise duty on gases vented into the atmosphere.
2. Interpretation of Board Circular dated 1-10-1996 regarding duty-free clearances.
3. Jurisdiction of the High Court in appeals regarding excisability of gases vented into the air.
Analysis:
1. The appeal was filed by the Revenue challenging the CESTAT order exempting excise duty on gases vented into the atmosphere based on a Board Circular. The show-cause notice acknowledged the venting out of gases and the exemption as per the Circular. The issue raised was whether such vented gases are exempt from excise duty. The learned counsel for both parties highlighted similar substantial questions of law in another matter.
2. The interpretation of the Board Circular dated 1-10-1996 was crucial in determining the duty-free clearances for gases vented out into the air. The question revolved around whether the exemption extended by the Circular applied to gases vented in a manner other than through a flare system or regularly. The decision in CEA No. 151/2007 was cited, where it was held that the appeal on the escisability of gases vented into the air and sold to related entities lies with the Supreme Court under Section 35-L of the Central Excise Act.
3. Considering the precedent set in previous judgments, the High Court held that the appeal was not maintainable in their jurisdiction and should be filed under Section 35-L of the Central Excise Act. The Court emphasized that the questions raised regarding excisability of vented gases and the availability of exemptions under the Circular fell under the exclusive jurisdiction of the Supreme Court, as expressly barred under Section 35-G of the Central Excise Act. The appeal was disposed of with liberty given to the Revenue to approach the Supreme Court for further proceedings.
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2011 (8) TMI 1000
Issues involved: Challenge to Tribunal's decision on maintainability of appeal under Section 129A of the Customs Act, 1962.
Summary:
The Department appealed the decision of the Customs, Excise & Service Tax Appellate Tribunal (Tribunal) regarding the jurisdiction to entertain cases involving payment of drawback. The Tribunal rejected the appeal, stating that it lacked jurisdiction under Section 129A of the Customs Act, 1962. The Department argued that the Commissioner (Appeals), Surat did not have jurisdiction, citing a Bombay High Court decision. However, the High Court upheld the Tribunal's decision, emphasizing that Section 129A clearly prohibits appeals involving payment of drawback. The Court suggested that any jurisdictional errors should be rectified through the appropriate forum. The Tax Appeal was disposed of, allowing the Department to challenge the Commissioner (Appeals), Surat's order within the legal framework.
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2011 (8) TMI 999
Whether the Tribunal was justified in condoning the delay in filing the application for compounding and in granting compounding facility to the respondent to pay turnover tax on liquor under section 7(1)(b) of the Kerala General Sales Tax Act, 1963 after the closure of the relevant assessment year?
Held that:- The ground shown in support of the delay condonation petition, in our view, is also not reasonable or genuine because, for food sales assessee availed of the facility under the KVAT Act by making application at least at the fag end of the year. In fact the application was submitted with delay of an year, i.e., on May 18, 2009. We do not know on what basis the Tribunal could accept the grounds stated by the respondent in support of the delay condonation petition, assuming that delay could be condoned even beyond the year for which the application was submitted. We therefore, allow this sales tax revision by setting aside the orders of the Tribunal and by restoring the first appellate authority's order rejecting the delay condonation application and compounding application.
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2011 (8) TMI 998
Whether the assessee is a private limited company engaged in the business of civil works contract and are also developers of properties?
Held that:- In this case, admittedly, the assessee is a private limited company carrying on business of civil works contract and also development of properties. It is not in dispute that the taxable goods were purchased from unregistered dealers for development of their own property. That development of their own property is done in the course of business and therefore, section 3(2) is attracted. Hence, the order passed by the Tribunal cannot be sustained. Accordingly, we pass the following order:
The STRP is allowed. The impugned order passed by the Appellate Tribunal is hereby set aside. The orders passed by the assessing authority as well as the Appellate Commissioner are restored.
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2011 (8) TMI 997
Whether the petitioner's registration as "dealer" to deal in sale and purchase of goods indicated in the registration certificates, would include it to have been registered for executing a works contract to render services in terms of the turnkey agreement entered into by it with the Union of India?
Held that:- No merit in the case set up by the petitioner that it was a registered dealer and was not liable to imposition of security in terms of section 15A(9) of the Act. The challenge thrown by the petitionercompany to the statutory notices and orders passed by the assessing authority, Commercial Taxes check-post, Lakhanpur under section 15A(9) of the Jammu and Kashmir General Sales Tax Act, 1962, therefore, fails. Appeal dismissed.
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2011 (8) TMI 996
Review petition - Held that:- Even at the review stage, the review petitioner was not willing to concede the true facts before this court. Even after threatening the review petitioner that the court will order heavy cost for trying to mislead the court, only technical arguments are raised without honestly conceding that the beneficiaries of the review petitioner and the holding company are the members of the Dhoot family which fact stands admitted in the affidavit filed by the petitioner. We, therefore, feel the review petitioner is liable to pay cost in this matter. Accordingly, we impose a cost of ₹ 25,000 (rupees twenty five thousand only) on the review petitioner with a direction to them to deposit the same before the High Court Legal Services Committee and produce the receipt in court within 30 days from now.
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2011 (8) TMI 995
Whether the total value of the goods used in the execution of the works contract entered into between assessee, Delhi Development Authority or with National Building Construction Corporation could be treated to be a divisible part of the works contract so as to be subjected to levy of Central sales tax in view of the amendment introduced by addition of sub-clause (b) to clause (29A) of article 366 of the Constitution of India?
Held that:- The contract entered into between the assessee and the Delhi Development Authority and the other contract between the assessee and National Building Construction Corporation stand divided into two parts because of the Constitutional Amendment in the definition of "sale" under article 366(29A)(b).It is clear that the paragraphs 41 to 44 deal with the constitutionality of the State law framed under entry 54 of the State List for imposing tax on "deemed sale" as per definition under article 366(29A)(b). Appeal dismissed.
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2011 (8) TMI 994
Whether, on the facts and in circumstances of the case, can it be held that the order dated July 12, 2007 passed by the Karnataka Appellate Tribunal in S.T.A. No. 425 of 2006 allowing the appeal is correct and in accordance with law?
Whether, on the fact and in circumstances of the case, can it be held that the Appellate Tribunal was right in law in ignoring that under the KST Act in the Second Schedule in serial No. 1 of Part O. oil cake and de-oiled cake are listed under two separate sub-headings as two different commodities?
Held that:- The questions of law are answered in favour of the Revenue and against the assessee
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2011 (8) TMI 993
Issues involved:
1. Interpretation of Rule 5 of the CENVAT Credit Rules, 2004 for availing Cenvat credit on input services used in export of services.
2. Nexus between input services and output services exported.
3. Consideration of Board Circular in refund eligibility of Cenvat credit.
Analysis:
Issue 1: Interpretation of Rule 5 of the CENVAT Credit Rules, 2004
The appellant, a software consultancy service provider, availed Cenvat credit on various input services used in providing output services to overseas clients. Rule 5 allows utilizing Cenvat credit on inputs or input services for payment of duty on final products or service tax on output services. The appellant applied for cash refund of accumulated credit as they couldn't use it for taxable services in India. The Assistant Commissioner allowed the refund claim, but the Commissioner (Appeals) set it aside, stating a lack of nexus between input services and output services.
Issue 2: Nexus between input services and output services exported
The appellant argued that the Board Circular clarified the eligibility for refund under Rule 5, emphasizing that the nexus between input services and export goods/services need not be direct. They contended that services impacting the quality of exported services should be considered as input services eligible for refund. The Commissioner (Appeals) did not provide reasoning for rejecting the refund claim and did not consider the Board Circular issued in January 2010. The Tribunal found the Commissioner's failure to discuss the Circular as a disregard for its directives and remanded the matter for a fresh decision in line with the Circular and after hearing the appellants.
Issue 3: Consideration of Board Circular in refund eligibility
The Tribunal highlighted the importance of adhering to the Board Circular in determining the eligibility of Cenvat credit refund under Rule 5. The failure of the Commissioner (Appeals) to consider the Circular while making the decision was deemed a significant oversight. The Tribunal set aside the impugned order and directed a reconsideration by the Commissioner (Appeals) in accordance with the Circular and after giving the appellants an opportunity to present their case.
This judgment underscores the necessity of aligning decisions with relevant legal provisions and authoritative directives, such as circulars issued by governing bodies, to ensure consistency and fairness in tax refund matters related to export services.
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2011 (8) TMI 992
Whether, on the facts and in the circumstances of the case, can it be held that the order dated July 12, 2007 passed by the Karnataka Appellate Tribunal in S.T.A. No. 425 of 2006 allowing the appeal is correct and in accordance with law?
Whether on the facts and in the circumstances of the case, can it be held that the Appellate Tribunal was right in law in ignoring that under the Karnataka Sales Tax Act in the Second Schedule in serial No. 1 of Part O, oil cake and de-oiled cake are listed under two separate sub-headings as two different commodities?
Held that:- The Tribunal committed an error in allowing the benefit and extending the benefit of the notification dated May 31, 2002 to the assessee in so far as de-oiled cake is concerned. Hence, we are of the view that the order passed by the Tribunal requires to be set aside.The questions of law are answered in favour of the Revenue and against the assessee.
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2011 (8) TMI 991
Issues:
Penalty under section 78(10)(a) of the Rajasthan Sales Tax Act, 1994 - Legality of penalty imposition based on absence of seal of checkpost on documents - Appeal against penalty imposition - Interpretation of section 78(2)(b) of the Act of 1994 - Mens rea in tax evasion.
Analysis:
The judgment revolves around the imposition of a penalty under section 78(10)(a) of the Rajasthan Sales Tax Act, 1994, based on the absence of the seal of the checkpost of the Commercial Taxes Department of the State of Rajasthan on the documents. The Deputy Commissioner (Appeals) set aside the penalty, a decision upheld by the Rajasthan Tax Board, leading to a revision petition by the Department. The petitioner argued that the penalty was valid due to the missing seal, despite all relevant documents being available. However, the court examined the provisions of section 78(2)(b) of the Act of 1994, which do not mandate the presence of the checkpost seal for penalty imposition.
The court referenced a previous case where it was established that such provisions are directory, not mandatory, and the absence of the seal does not automatically imply an intention to evade tax. Both appellate authorities found no mens rea on the part of the assessee, given that all necessary documents were present, and taxes were paid. Consequently, the court concluded that there was no illegality in the findings of the appellate authorities, thereby dismissing the revision petition. The judgment emphasizes that the absence of the checkpost seal, in this case, did not indicate tax evasion intention, as all required documents were in order and tax payments were made.
In essence, the judgment clarifies the interpretation of statutory provisions regarding the imposition of penalties under the Rajasthan Sales Tax Act, highlighting that the presence of the checkpost seal is not a mandatory requirement for penalty imposition. It underscores the importance of assessing the presence of mens rea in tax evasion cases and confirms that the availability of all necessary documents and tax payments can negate any presumption of tax evasion intention. The decision reaffirms the principle that statutory requirements should be construed in a manner that aligns with the overall objectives of tax legislation and fairness to taxpayers.
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2011 (8) TMI 990
100% EOU - exit from EOU scheme to EPCG scheme - Duty demand - demand after calculation of depreciation - Method of calculation - Whether the method for calculation of depreciation prescribed under amending Notification No. 14/2004-C.E. and Notification No. 40/2004-Cus., both dated 26-2-2004 is applicable in this case - Held that:- Sections 21 and 24 of the General Clauses Act are not relevant, as far as this case is concerned. In fact, when a later statute incorporates by reference the provisions of an earlier statute, a repeal of amendment of the earlier statutes does not affect the later statute or provisions incorporated therein. This Rule is subject to the qualification enacted in Section 8, General Clauses Act, which in itself is a Rule of general application. (National Sewing Thread Co. v. James Chadwick & Bros. - [1953 (5) TMI 13 - SUPREME COURT]). Therefore, the method of calculation adopted by the Revenue is held to be incorrect - It cannot be denied that the demand was made within the stipulated period of 1 year without invoking the extended period - Decided against assessee.
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2011 (8) TMI 989
Denial of refund claim - Unjust enrichment - Held that:- there was no such exchange of debit notes and credit notes. Of course, credit notes or cheques were issued by the assessee to their dealers. But the dealers did not reciprocate with debit notes. In this scenario, it cannot be held that the incidence of duty was actually passed on to the dealers. The burden was on the assessee under Section 12B of the Central Excise Act to establish that the burden of duty claimed as refund had been passed on to the buyers (dealers). There is nothing on record to indicate that this burden was discharged beyond the pale of doubt. Clearly, therefore, the bar of unjust enrichment would operate against the assessee - mere issuance of credit notes by a refund claimant (assessee) subsequent to clearance of goods would not obliterate the bar of unjust enrichment - Following decision of S. Kumar’s Ltd. v. CCE, Indore [2003 (2) TMI 85 - CEGAT, NEW DELHI] - Decided in favour of Revenue.
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2011 (8) TMI 988
Reversal of CENVAT Credit - Intention to evade duty - Irregular utilization of CENVAT Credit - Held that:- appellant becomes liable to pay interest on the amount of CENVAT credit reversed by them after taking it wrongly in their CENVAT account and such interest should be paid for the period from the date of taking of the credit to the date of its reversal - liability to pay interest for the delayed payment would not arise unless the credit of duty entered in the account books was duly taken to discharge the duty payable.
No credit was taken at all by the appellant and hence the question of payment of interest does not arise. In this context, it is also pertinent to note that the credit reversed by Unit-I is undisputedly available to Unit-II. Both the units are owned by the appellant. Hence it cannot be reasonably presumed that Unit-I had any intention to evade payment of duty through irregular availment and utilization of CENVAT credit. The finding of the original authority that what was done by Unit-I during the period of dispute could, at best, be an unintended error without mala fides appears to be reasonable - Decided in favour of assessee.
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2011 (8) TMI 987
Abatement of duty - whether for claiming abatement from monthly duty liability on account of closure of unit, provided under Rule 10 of Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008, the minimum period of closure should be 15 days in a calendar month or whether the assessee can claim the benefit for a continuous period of 15 days not falling within the same calendar month - Held that:- other rules provide for calculation of duty liability and manner of payment of duty to be deposited. The word “month” is not used in Rule 10. Instead the word “period” is used. There is no intendment of the idea canvassed by Revenue expressed in clear words in the Rule. Prima facie, we are of the view that the word “month” is omitted with clear intention that abatement should be allowed for any continuous 15 days. Therefore, prima facie, the appellant has made out a case for waiver of demand confirmed by the impugned order - Stay granted.
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2011 (8) TMI 986
Impleading as party - Held that:- As far as provisions of Section 35B is concerned, the Revenue is the only party in this case and the aggrieved party or person can only appeal against the order of Commissioner (Appeals). In the appeal memorandum, in form EA3, Revenue has impleaded M/s. Rajan Prints as respondent and it is M/s. Rajan Prints to whom the notices have been sent by the Tribunal - Decided against assessee.
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2011 (8) TMI 985
Restoration of application - Pre deposit order not complied - Bar of limitation - whether the appeal can be restored when pre-deposit of amount required to be deposited as per Stay Order has not been deposited by filing application for restoration and further whether such restoration application can be filed without any time-limit - Held that:- appellant was required to deposit amount and report compliance in 5-10-2007 and appeal was dismissed for non-compliance on 5-11-2007. Restoration application was filed on 25-5-2008. Therefore, it can be seen that restoration application in that case had been filed after about 8 months. In this case, restoration application is being filed after 5 years. When there is a decision of the Tribunal refusing to allow restoration application filed after 8 months in the case of Kiritkumar J. Shah v. CCE, Nagpur [2009 (5) TMI 86 - CESTAT, MUMBAI], such a decision is bound to be followed unless distinguishable - Decided against assessee.
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2011 (8) TMI 984
Waiver of pre deposit - Penalty - Held that:- I have not found prima facie case for the appellant/applicant against either of the penalties. During the period from November 2008 to May 2009, they had not paid any amount of duty as per the Rules, but, in their returns, they stated that duty was paid in cash. Prima facie, they mis-represented a crucial fact in the statutory returns. This mis-representation cannot be held to have been made without intent to evade payment of duty. This mis-representation is no different from “mis-statement of fact with intent to evade payment of duty”, which is one of the grounds under Section 11AC for mandatory penalty. Irregular utilization of CENVAT credit in violation of Rule 8(3A) ibid is a fact not in dispute. The amount of duty paid by way of such irregular availment of CENVAT credit has been demanded with interest under Rule 14 of the CENVAT Credit Rules, 2004. On a perusal of the text of the Rule shows that interest is leviable on an amount of duty paid by irregular availment/utilization of CENVAT credit.
Wrong utilization of CENVAT credit virtually created a situation of short-payment of duty on excisable goods. It would thus appear that the CENVAT credit in question was utilized irregularly in violation of Rule 8(3A) of the Central Excise Rules, 2002 with intent to evade payment of duty on excisable goods - Conditional stay granted.
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