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Showing 41 to 60 of 571 Records
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2005 (12) TMI 571 - CESTAT NEW DELHI
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... ... ..... ts who were providing service to Exide Industries Ltd. cannot remain ignorant for about five years about their liability to service tax and not getting the registration. I, therefore, find that the order of the Commissioner (Appeals) in dropping the penalty imposed under Sections 75A, 76, 77, 78 is not correct. I, therefore, set aside the order of Commissioner (Appeals) as far as it relates to dropping of penalties. Considering the facts and circumstances of the case, I uphold the order of adjudicating authority imposing penalties but modify penalties imposed on respondents as under - (i) Penalty imposed under Section 75A of ₹ 500/- is upheld. (ii) Penalty imposed under Section 76 is reduced to ₹ 16,000/-. (iii) Penalty imposed under Section 77 of ₹ 1,000/- is upheld. (iv) Penalty imposed under Section 78 is set aside. 7. The appeal and the cross objections filed by the respondents stand disposed of accordingly. (Dictated and pronounced in open Court).
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2005 (12) TMI 570 - GUJARAT HIGH COURT
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... ... ..... tioners have succeeded, the Bank Guarantees that may have been furnished by the petitioners in pursuance of the aforesaid interim order are required to be released. The respondents are accordingly directed to release the Bank Guarantees that may have been furnished by the petitioners pursuant to the order dated 8/8/2001 passed in the aforesaid Civil Applications within a period of eight weeks from today. 10. Rule is made absolute accordingly, with no order as to costs. CIVIL APPLICATIONS No. 3323 & 3322 OF 2005. Though both these Civil Applications have not been listed on the Board as the main petitions have been disposed of today the Civil Applications are taken up for hearing and disposal as the papers are available. Both these applications seek fixation of early hearing of the main petition. By an order of the even date, both the main petitions have been finally adjudicated. In the circumstances, these Civil Applications do not survive and are disposed of accordingly.
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2005 (12) TMI 569 - GUJARAT HIGH COURT
Refund claim - duty paid on capital goods and inputs - Imports plant and equipment known as Steam Tube Dryer (machinery/plant) from Germany for upgrading its existing plant - HELD THAT:- Once the bank guarantee has been invoked and encashed, the amount partakes the character of duty paid and thereafter, even when an assessee succeeds ultimately, the claim of refund will be for refund of duty paid. The claimant has to comply with the conditions of the provisions pertaining to refund, namely, Section 11B of the Central Excise Act, 1944 and Section 27 of the Customs Act, 1962.
During the course of hearing, it was submitted on behalf of the petitioner that even if such an incidence of duty might form part of the cost price, unless and until it goes in as a part of the sale price, the doctrine of unjust enrichment cannot be invoked against the petitioner. This contention is based on the plea that the sale price which existed prior to putting the plant and machinery to use continued in relation to the manufactured products after the plant and machinery was put to use and therefore, in absence of any difference in the sale price at different points of time, a presumption should be raised that "incidence of duty" had not been passed on. The entire premise on which the submission is built is fallacious. In the first instance, it is the case of petitioner itself, that it had imported the plant in question so as to replace and upgrade its existing plant and machinery. This would indicate that the cost of user of the old plant and machinery was such that a particular sale price had to be fixed.
As against that, when new plant and machinery are installed and put to use, the manufacturing cost is bound to come down, which would leave enough margin to the manufacturer to retain the sale price at the same level. This could be only one instance why the sale price has remained constant. There could be various other factors, and such factors are within the knowledge of the petitioner. The petitioner is, therefore, duty bound to place on record the relevant material in this regard and discharge the onus which has been cast on the person making a claim to establish that the "incidence of duty" has not been passed on.
The contention that merely because the sale price might be such that, due to market factors, an assessee may incur losses would not necessarily reflect that the incidence of duty has not been passed on. May be, in a given case, only a proportionate part may be passed on in such circumstance. Ultimately, it would be a question of fact and evidence will have to be led in this context. In the case of the petitioner, both the adjudicating authority and the appellate authority have come to the conclusion that the petitioner has not been able to establish that incidence of duty had not been passed on. This is a finding of fact and it is not possible for this Court in these proceedings to take a different view of the matter.
In principle, the contention that in case of capital goods, the incidence of duty can never be passed on, cannot be accepted for the reasons mentioned hereinbefore.
Thus, the claim of the petitioner regarding balance amount of ₹ 23,98,176/- is concerned, it is not possible to find any infirmity in the impugned order of Commissioner (Appeals).
The petition therefore, partly allowed to the extent of claim of ₹ 17,50,000/-, and rejected insofar as the claim of ₹ 23,98,176/- is concerned. The amount of ₹ 17,50,000/- to be refunded by the respondent authorities within a period of twelve weeks from today. The claim as to interest cannot be accepted for the simple reason that the principal claim having been rejected in absence of any entitlement to refund of ₹ 23,98,176/-, there would be no question of granting any interest.
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2005 (12) TMI 568 - ANDHRA PRADESH HIGH COURT
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... ... ..... ore such an event takes place, no employee can claim the said amount. Equally same, an employee cannot have a right either to pledge or to permit adjustment of such amount before it had accrued to him. It is for this reason, that the Act as well as Section 60 C.P.C. were amended suitably, as to keep the entire amount of gratuity, out of the purview of attachment or other adjustments. When the Law has prohibits the attachment or other kinds of adjustments of gratuity, it is not at all open to the respondents to adjust the same towards the repayment of loan, extended to the husband of the petitioner. It may not be so, with regard to other amounts. 8. For the foregoing reasons, the writ petition is partly allowed, directing the respondents to pay a sum of ₹ 1,09,480/-towards the gratuity, that had accrued to the service of the husband of the petitioner, within a period of four (4) weeks from the date of receipt of a copy of this order. There shall be no order as to costs.
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2005 (12) TMI 567 - CESTAT NEW DELHI
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... ... ..... ry quarter. This was also paid for their right to use the brand name “Saporiti Claasics”. The learned Consultant to the respondents relies upon the Tribunal’s order in the case of Bajaj Auto Ltd. v. Commissioner of Central Excise and Customs, Aurangabad reported in 2005 (179) E.L.T. 481 (T. - Mumbai). The Tribunal has held here that royalty for right to use trade mark is a transaction in property and no consultancy or advice is involved and the same is not liable to service tax. 5. After going through the agreement carefully and after hearing both the sides, we are of the view that royalty charged cannot be taken as a consideration for the service. It is rather a fee between the two contracting parties to be paid for sharing mutual benefits/profits. In view of this, we dismiss the appeal filed by the Revenue. 6. The memorandum of cross-objection filed by the respondents in this case is accordingly disposed of. (Dictated in open Court on 6-12-2005)
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2005 (12) TMI 566 - SC ORDER
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... ... ..... the connected records. We do not find any merit in the same. The review petition is dismissed.
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2005 (12) TMI 565 - CESTAT MUMBAI
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... ... ..... the respondents submits that in para 4 of the impugned order the Commissioner (Appeals) has recorded sufficient reasons for reducing the penalty amount. Besides, Section 80 of the Service Tax Act gives discretionary power to the Commissioner (Appeals) not to impose or to reduce the penalty. He submits that the Commissioner (Appeals) has given sufficient reasons for reducing the penalty as such, there is no need to interference in the order of the Commissioner (Appeals). 3. After hearing both sides, perusal of the records and the provisions as contained in Service Tax Act, I find that Section 80 has overriding effect on Sections 76, 77, 78 and 79 of the Service Tax Act. Therefore, when the Commissioner (Appeals) has reduced the penalty in exercise of the power as conferred in Section 80 and has given reasons therefor, I do not find any legal infirmity in the order of the Commissioner (Appeals). Therefore, the appeal filed by the Revenue is dismissed. (Dictated in Court)
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2005 (12) TMI 564 - DELHI HIGH COURT
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... ... ..... rs constitute a piece of evidence available to the adjudicating authority for passing an appropriate order of confiscation and for levy of penalty. Any such confessional statement even if retracted or diluted by any subsequent statement had to be appreciated in the light of other circumstances and evidence available to the adjudicating authority while arriving at a conclusion whether the goods had been cleared without payment of duty, misdeclared or under-valued. The Adjudicating Authority and the Tribunal have upon evaluation of the available material concurrently come to the conclusion that the persons concerned were hand in glove with each other and were responsible for having the goods cleared by abuse of their positions. There is neither any illegality nor any perversity in that finding to justify interference by us, especially when no substantial question of law arises for our consideration. Under the circumstances therefore these appeals fail and are hereby dismissed.
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2005 (12) TMI 563 - ITAT BANGALORE
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... ... ..... egards increase in the expenses, the assessee has furnished valid reasons. It is also true that when the factory was closed for 7 months in the earlier year and 5 months in the current year, the figures of earlier year was not directly comparable. The assessee had contended that all the vouchers were produced and were also test checked by the Assessing Officer. To what extent the vouchers were not produced are not mentioned by the Assessing Officer or Learned CIT(A). Considering the fact and the stand taken by the assessee before the Assessing Officer as well as Learned CIT(A), we restrict the disallowance to ₹ 5,000 as against ₹ 50,000 sustained by Learned CIT(A). 6. The last ground of appeal is relating to disallowance of depreciation on plant and machinery amounting to ₹ 919. At the time of hearing, no mistake in such disallowance has been pointed out. We, accordingly, sustain the disallowance on depreciation. In the result, the appeal is partly allowed.
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2005 (12) TMI 562 - SUPREME COURT
Whether though payment of back wages was not the normal rule yet on the facts of the case the respondent was entitled to 50% of the back wages with 9% interest?
Whether Labour Court was not justified in modifying the award as was originally made?
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2005 (12) TMI 561 - ALLAHABAD HIGH COURT
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... ... ..... r the items mentioned in the registration certificate and there was no mis-representation. Heard learned Counsel for the parties. 3. I do not find any error in the order of Tribunal. Learned Standing Counsel is not able to assail the finding recorded by the Tribunal and I not able to produce any material to controvert the findings. The finding of the Tribunal that Form “C” were issued under the bonafide belief that the alleged items purchased from outside the State of U.P. and in respect of which Form “C” were issued were covered under the registration certificate, is finding of fact. Assessing Authority had also not made out any case that Form “C” were issued knowingly that the goods were not covered and made false representation. For the levy of penalty under Section 10-A of the Act for the alleged default of Section 10 (b) of the Act on case of false representation is made out. In the result, revision fails and is accordingly dismissed.
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2005 (12) TMI 560 - CESTAT NEW DELHI
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... ... ..... d authorised representative of the department refers to para No. 13 of the show cause notice which obliquely refers to the underlying service-component which could be a part of any such transactions so as to rope them into the tax net. However, a careful reading of this para makes it clear that the details gathered from the respondents are only in respect of “technical know-how fee/royalty” and incidentally, no demand is pegged on any other activity including rendering of any service that could be incised and quantified from the total sum thereof. In view of the circumstances discussed above, we are of the view that the Commissioner (Appeals) has rightly come to the conclusion that the demand of service tax on the present respondents with reference to their royalty payments made to their foreign collaborators M/s. Continental cannot be sustained. In view of the above, the appeal filed by the Revenue deserves to be dismissed. (Dictated in open Court on 28-12-2005)
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2005 (12) TMI 559 - SUPREME COURT
Whether as the dispute involved in the writ petitions related to two State Governments, the writ petitions were not maintainable, in view of the constitutional bar under Article 131 of the Constitution of India?
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2005 (12) TMI 558 - CESTAT CHENNAI
Service Tax - foreign company for “Consulting Engineers Service” - technical know-how/assistance fee - interest - Penalty - HELD THAT:- The very definition of “Consulting Engineer” is till a question mark for the appellant. According to this definition “Consulting Engineer” means any professionally qualified engineer or an engineering firm, who either directly or indirectly renders any advice, consultancy or technical assistance in any manner to a client in one or more disciplines of engineering”. In order to place any person within the ambit of such “Consulting Engineer”, the Revenue should, in the first instance, establish that he is a professionally qualified engineer.
The Revenue has not established this. The original authority observed that such advice and technical assistance as contemplated under the above agreement cannot be rendered by anybody other than a professionally qualified engineer and, therefore, M/s. Power Gem Ltd., would come within the ambit of “Consulting Engineer” as defined u/s 65 of the Finance Act, 1994. This observation of the original authority is just a presumption. No tax could be levied on the basis of presumption. The above definition of “Consulting Engineer” called for a finding, supported by evidence, that M/s. Power Gem Ltd., U.K. were professionally qualified engineers. No such finding is forthcoming from the Order-in-Original. Apart from this, the said order does not even mention the disciplines of engineering in which the so-called advice, consultancy or technical assistance was rendered to the assessee by the foreign company. Thus, the Revenue has not been able to make a good case with reference to the definition of “Consulting Engineer”.
It has been consistently held by this Tribunal that any royalty or other consideration for technical know-how received by an assessee in India from a foreign company was not taxable under the Finance Act, 1994 vide case law cited above. Admittedly, the payment made by the assessee to the foreign company is in the nature of running royalty for the technical know-how/assistance rendered by the latter, which service was not to be treated as “Consulting Engineers Service” for the reasons already recorded.
In the result, the impugned order gets affirmed and this appeal is dismissed.
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2005 (12) TMI 557 - BOMBAY HIGH COURT
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... ... ..... is aspect when an Appeal was carried by the respondent to the Income Tax Appellate Tribunal and that deduction is rightly granted by the Income Tax Appellate Tribunal. 5. Question No.3 is with respect to the wages to various employees being credited to suspence account. That issue has been decided in favour of the assessee in the decision of the Supreme Court in CIT vs. Sugauli Sugar Works (P) Ltd. reported in 236 ITR page 518. 6. As far as question No.4, which is sought to be raised in this matter is concerned, that is also decided in favour of the assessee by a Division Bench of this Court in Commissioner of Sales Tax vs. Empico Traders reported in 47 Sales Tax Cases page 426. 7. In the circumstances, we entertain this Application on question No.1 and answer it in favour of the revenue by consent of both parties. As far as the other three questions are concerned, this Application does not deserve to be entertained on these three questions and it is accordingly disposed of.
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2005 (12) TMI 556 - SUPREME COURT
Whether the policy decision taken by the State in the matter of allotment of quarters by rotation basis was illegal?
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2005 (12) TMI 555 - CESTAT MUMBAI
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... ... ..... lable to the clearance of inputs/capital goods as such from the factory of manufacturer. 4. A similar issue has been considered in the case of KLRF Textiles vs Commr. of Central Excise, Tirunelveli which is reported in 2005 (188) ELT 169 (Tri.-Chennai). It has been observed to the effect "it is clear that this facility is available not only in respect of final product but also in respect of inputs and capital goods removed as such from the factory of production of final product";. Thus as issue is settled in favour of the assessee, the appeal filed by the Department does not stand to the merit, hence this appeal is dismissed.
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2005 (12) TMI 554 - GUJARAT HIGH COURT
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... ... ..... e Baroda Peoples Co-operative Bank Limited. In these circumstances,no substantial question of law arises from the impugned order of Tribunal. 2.However, even if it can be stated that a substantial question of law arises the same is already answered and, therefore, it is not necessary to admit the appeals and await service of admission as the question stands answered in favour of the assessee. 3.In the result, the Tax Appeals stand dismissed.
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2005 (12) TMI 553 - DELHI HIGH COURT
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... ... ..... dings and also Kuldeep Kapur has filed false affidavits before this Court, during the proceedings in the Court, fully knowing that the Court is to rely upon such documents while passing judicial orders which would affect the right of the parties one way or the other. At least, it is clear that the said plaintiff/respondents, prima facie, have committed offences under Sections 191, 192 read with Sections 193, 199, 200, 465, 471 of the Indian Penal Code. The Registrar of this Court should file a complaint against Kuldeep Kapoor, Ashok Kapoor and Girdhari Lal in accordance with law within a period of two weeks from today under the provisions of Section 340 Cr.P.C. The said persons shall also furnish a security in the sum of ₹ 10,000/- each for their appearance before the Court of Competent Jurisdiction, to the satisfaction of the Registrar of this Court within one week from today. The application against Ms.Priya Kapoor is dismissed. 24. IA stands disposed of accordingly.
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2005 (12) TMI 552 - SUPREME COURT
Whether the Respondent should have taken a licence or permit under the 2003 Act or not?
Whether having regard to the provisions of the 1998 Act and the 2003 Act, the Commission alone had the jurisdiction to decide the dispute and not the City Civil Court?
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