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Case Laws
Showing 401 to 420 of 1967 Records
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2014 (1) TMI 1569
Waiver of pre deposit - Commissioner dismissed on the ground of delay - Held that:- Commissioner has not discussed the merit of the case but dismissed the appeal on the ground of delay of two days in filing the appeal before him. From the submission of the Ld. Advocate, prima facie we find that if due date was Saturday, and the appeal was filed on Monday then there was no delay. However, these facts are need to be scrutinized and verified - Matter remanded back - Decided in favour of assessee.
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2014 (1) TMI 1568
Duty demand - show cause notice was issued to the respondents on the ground that the respondents are engaged in the manufacture of office furniture system falling under Chapter Heading 9403 of the Tariff - Commissioner (Appeals) set aside the demand on the ground that the respondents were only assembling the duty paid parts of the furniture as the furniture was manufactured by M/s. Kemp & Co. - Held that:- there is no allegation in the show cause notice that the respondents were not receiving all the parts of the furniture. In fact the manufacturer has paid duty under Chapter Heading 9403 of the Tariff which covers ‘other furniture'. The furniture manufactured was cleared in CKD condition for ease of transportation and the respondents were only assembling the parts of the furniture at site. In view of this we find no infirmity in the impugned order - Decided against Revenue.
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2014 (1) TMI 1567
Denial of CENVAT Credit - Credit on return clearances to Shipping Corporation of Karwar of Electrostatic Liquid Cleaner - Credit taken when goods were not in factory - Held that:- Goods have been returned back to the appellant although after a gap of 3 days and same has been cleared on payment of duty. Therefore, the only lapse on the appellant is that they have not followed the proper procedure. For not following the proper procedure, credit cannot be denied. Accordingly, I hold that the appellant are entitled to credit as said goods have been cleared on payment of duty. Therefore, impugned order for denial of CENVAT credit is set aside to the extent only - Decided in favour of assessee.
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2014 (1) TMI 1566
Goods Transport Agency Service - Availment of CENVAT Credit - Held that:- On Goods Transport Agency Service which was availed by the appellant, service tax has been paid, and appellant has taken the credit of the service tax paid. It is immaterial who has paid the service tax. Ld. Commissioner (Appeals) has failed to appreciate the fact that the service has suffered service tax and any payment towards duty or service is entitled for input service credit/input credit. Therefore, the finding of the lower authorities that in the case of Goods Transport Agency Service, service tax is required to be paid by the service recipient is not tenable - Decided in favour of assessee.
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2014 (1) TMI 1565
Valuation of goods - Duty on promotional pack and trade pack - Demand of differential duty - Penalty u/s 11AC - Imposition of redemption fine - Held that:- to constitute a combination package it should be a package containing dissimilar commodities. In the present case, it is an undisputed fact that the trade packs and the promotional packs are packed separately and they are not packed in a single package. They are also dispatched to the dealers and the retailers separately. Therefore, it is difficult to accept the contention of the appellant that they constitute a combination package. The very conduct of the appellant in not packing them together and discharging excise duty separately on both of them, i.e., under Section 4A of the Central Excise Act in respect of the trade pack and under Rule 8 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 in respect of promotional pack clearly shows that the appellant themselves did not treat them as a combination package.
The promotional pack is also a cosmetic product classifiable under Chapter 33 of the Central Excise Tariff and there is no dispute in this regard. Merely because the same is supplied free-of-cost, it does not obliterate the liability to pay excise duty of the promotional pack. It is a well settled position in law that excise duty is on manufacture and not on sale of the goods. Therefore, irrespective of the fact whether the goods are sold or otherwise dispose of, liability to excise duty is attracted, the moment the goods are manufactured. Therefore, notwithstanding the fact that the promotional packs are given free, they are liable to excise duty - notwithstanding the non-availability of the normal sale price under Section 4(1)(a) of the Act, by reason of the goods being specified under Section 4A(1) making the retail sale price i.e. MRP as its deemed value, the appropriate rule governing the valuation of physician's samples would continue to be rule 4.
Appellant cannot take the plea that they become aware of the correct position of law only in 2008 which does not stand to any reason. Since the legal position was settled way back in 2006 itself, the appellant could not have entertained any bona fide belief with regard to their liability to discharge excise duty under Rule 4 read with Rule 11. This is all the more so when the appellant company's advocate Mr. Karl Shroff has also advised that duty liability has to be discharged in terms of Board's Circular dated 25/04/2005 as admitted by Shri Shailendra Goel in his statement before the investigating agency. Thus, the alibi of bona fide belief fails flat on its face - When the law stipulates imposition of mandatory penalty on account of suppression of facts, the same cannot be set aside or waived.
The goods were seized and thereafter they were released on execution of bond/bank guarantee. Therefore, the decision to confiscate the goods and imposition of fine in lieu thereof is correct in law - Decided against assessee.
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2014 (1) TMI 1564
Refund of pre-deposit amount - unjust enrichment - Commissioner (Appeals) has held that for pre-deposit made by the assessee is not hit by the bar of unjust enrichment - Held that:- Respondent has paid the disputed amount at the time of consideration of their appeal before he Commissioner (Appeals) as pre-deposit and as per Section 11B of the Central Excise Act, 1944 bar of unjust enrichment is applicable to the duty paid by the assessee only. Admittedly, the stay amount paid by the respondent at the time of considering of their stay application is not the duty. It is only for consideration of their appeal. Therefore, provisions of Section 11B of the Central Excise Act, 1944 are not applicable to the facts of the case - Therefore bar of unjust enrichment is not applicable - Following decision of Suvidhe Ltd. vs. UOI [1996 (2) TMI 136 - HIGH COURT OF JUDICATURE AT BOMBAY] - Decided against Revenue.
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2014 (1) TMI 1563
Penalty u/s 11AC - Under valuation of goods - Appellants had cleared two consignments under the same serial number of the invoice and accounted for only one consignment in respect of each invoice - Held that:- ingredients contemplated for imposition of mandatory penalty under Section 11AC are in existence and therefore prima facie penalty under Rule 25 of Central Excise Rules could have been imposed.
Total duty involved may be around Rs.13 lakhs on the goods and redemption fine of more than Rs.21.65 lakhs has been imposed for redeeming the goods, in my opinion, if the appellant deposits an amount of Rs.2/- lakhs that should be sufficient as pre-deposit for the Commissioner (A) to hear the appeal - Commissioner (A) is requested to hear the appeal and decide the issue on merits after noting compliance with the requirement of pre-deposit - Decided against assessee.
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2014 (1) TMI 1562
Service Tax Audit under EA-2000 - power to conduct audit - The petitioners-assessees objected and also challenged the vires of Rule 5A(2) of the Service Tax Rules, 1994 interalia on the ground that the provision of Rule 5(A)(2) are contrary to the provision of Section 72 of the Service Tax Act - Held that:- section 72A is applicable, where the assessee is not maintaining the books of account properly to ascertain the liability of the service tax. To determine the correct tax, books will have to be examined and if need be, audited by a qualified Chartered Accountant - accounts will be audited by a Chartered Accountant or a Cost Accountant to be appointed by the Commissioner. In Clause-(2) to Section 72-A of above, it is mentioned that the Chartered Accountant or Cost Accountant will submit a report duly signed and certified by him to the said Commissioner. In Clause-(4), it is mentioned that "the person liable to pay tax shall be given an opportunity of being heard in respect of any material gathered on the basis of the audit under sub-section (1) and proposed to be utilized in any proceeding under the provisions of this Chapter or rules made thereunder". Copy of the audit report may be made available to the assessee and a proper opportunity will also provided to him, as per law.
It is Commissioner on whose behalf, the officer will collect the material and the Auditor will perform the audit. In any case, the final report duly signed by the Chartered Accountant will be submitted to the Commissioner. In case of Government Autonomous Body, the function of the audit has been assigned to the Comptroller of Auditor General of India - in case of private assessee, the Commissioner will refer the matter to an officer to collect the material or Chartered Accountant for the purpose of audit. Thus, for the purpose of audit, the material can be collected either by the officer authorized by the Commissioner or by the Auditor himself. But, audit will be performed only by the Chartered Accountant - Thus there is no inconsistency in Rule 5A and Section 72-A of the Finance Act, 1994. The said provision is not arbitrary. The manner for conducting the audit is as per the accounting standard provided by the Institute of Chartered Accountant of India. The audit report will be made available to the assessee, as per law - Decided against Appellant.
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2014 (1) TMI 1561
Rejection of rebate claim - Rule 18 - Notification No. 19/2004-C.E. (N.T.), dated September 6, 2004 - Period of limitation of 6 months - Held that:- On a reading of the Notification No. 40/2001 there is nothing to show that the time stipulation cannot be extended retrospectively, after the export, having regard to the facts of a particular case. The benefit of drawback has, in numerous case, been allowed notwithstanding the delay in export. This in itself shows that the respondent authorities have proceeded on the basis that the time stipulation of six months is not inflexible and the time stipulation can be condoned even at the time of consideration of an application for refund/drawback - When there is proof of export, the time stipulation of six months to carry out export should not be construed within pedantic rigidity. In this case, the delay is only of about two months. The Commissioner should have considered the reasons for the delay in a liberal manner.
It would perhaps be pertinent to note that an exporter does not ordinarily stand to gain by delaying export. Compelling reasons such as delay in finalization and confirmation of export orders, cancellation of export orders and the time consumed in securing export orders/fresh export orders delay exports - What is important is, the reason for delay. Even after export extension of time may be granted on the same considerations on which a prior application for extension of time to carry out export is allowed. If there is sufficient cause for the delay, the delay will have to be condoned, and the time for export will have to be extended. In my view, in considering the causes of delay, the Commissioner would have to take a liberal approach keeping in mind the object of the duty exemption, which is encouragement of exports - The impugned revisional order is set aside and quashed - Decided in favour of assessee.
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2014 (1) TMI 1560
Maintainability of appeal u/s 78 - Held that:- it is required to be noted that what was challenged before the learned Tribunal was the order passed by the Commissioner in exercise of suo motu revisional powers under Section 75 (1)(a) of the Act. The Commissioner did not exercise the revisional powers on any application and as stated above exercise the suo motu revisional powers. Under the circumstances considering Section 75(1)(b) of the Act against the order passed by the Commissioner passed in exercise of suo motu revisional powers only revision application before the learned Appellate Tribunal was maintainable and therefore, as such the learned Appellate Tribunal rightly entertained the revision applications and has rightly passed the impugned judgment and order in exercise of the revisional jurisdiction. That being so considering Section 78(1) of the Act and as the impugned order passed by the learned Appellate Tribunal is passed in revision applications shall not in appeal and therefore, Tax Appeal before this Court under Section 78(1) of the Act would not be maintainable. Considering Section 78(1) of the Act an appeal shall lie to the High Court from every order passed in Appeal by the Tribunal. In view of the above, it is held that the present appeals preferred under Section 78(1) of the Act would not be maintainable - Following decision of State of Gujarat v. Shakti Containers [2014 (1) TMI 674 - GUJARAT HIGH COURT] - Decided against Revenue.
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2014 (1) TMI 1559
Rejection of books of account - Determination of turnover of the applicant - Non summoning the records of the excise department despite specific request merely on the basis of surmises and conjectures - Held that:- assessee had tried to place an agreement with other parties and had also produced copies of the agreements, which were not duly signed and simply on the ground that the place of settlement or agreement and issue of the stamp paper was not shown in some cases, were not acceptable as evidence to proof that the assessee was not the holder of the trade mark - matter be remanded to the assessing authority to reconsider the matter on the three questions above. He may give to the assessee an opportunity of hearing to the assessee to lead evidence that he may have to establish its case. On remand the matter may be examined and decided within a period of three months from the date of production of a certified copy of this order being placed by the assessee - Decided in favour of assessee.
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2014 (1) TMI 1558
Constitutional validity of Section 65(105) (zzd), Section 65 (105) (zzq) and Section 65 (105) (zzzh) of the Finance Act, 1994 - Levy of the service tax on the works contract and Ready-mix Concrete - Held that:- impugned three provisions pertain, to composite contracts involving erection, commissioning or installation services, commercial or industrial construction as well as construction of residential complexes. Such composite contracts may have service as well as supply components. It is an accepted position that, insofar as the sale/supply of materials is concerned, they fall under Entry 54 of List II of the Seventh Schedule to the Constitution of India and, therefore, fall within the exclusive domain of the State Legislature. This is, of course, to be read with Article 366 (29-A) of the Constitution. It is, therefore, clear that Parliament cannot legislate in respect of the sale of goods component involved in such a composite contract. Service tax, however, falls within the exclusive domain of Parliament. This is under the residual Entry 97 of List I of the Seventh Schedule to the Constitution.
We do not find any encroachment by Parliament on the powers of the State Legislature to impose a tax on the sale of goods. The provisions clearly relate only to the service component of the composite contracts referred to in the impugned provisions - The grievance of the petitioner with regard to assessment and computation cannot be equated with the challenge to the constitutional validity of the impugned provisions. It is open to the petitioner to raise issues of computation before the appropriate Adjudicating Authority/Appellate Authority and demonstrate the extent to which service tax can be imposed on the services that are provided by them. To be clear, it is open to the petitioner to demonstrate the extent of the service element included in the composite contract and to pay service tax only on that component - petitioner manufactures the ready-mix concrete and either supplies it to third parties or uses it in its own works. It is not the entire ready-mix concrete which is to be taxed under the provisions of service tax but, only the service element in relation to the use of the ready-mix concrete which would be amenable to service tax - Consequently, the impugned provisions are valid but, are to be applied in the different manner - Decided against assessee.
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2014 (1) TMI 1557
Outdoor catering service - Suppression of facts - Delay in payment - Penalty u/s 78 - Invokation of Section 73 - Applicant was not discharging the service tax liability promptly but they were paying service tax along with interest as applicable with delays ranging from 1 day to 293 days in different months - Held that:- allegations regarding suppression or other ingredients in terms of Section 78 were not raised in the show cause notice. This confirms the position that this is only a case of delay in payment of service tax and not a case of suppression of information - Decided in favour of assessee.
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2014 (1) TMI 1556
Assessable value - Whether the reimbursements are to be taken into consideration while arriving at the assessable value for the purpose of service tax - Held that:- tax has to be paid on the gross amount received - what are costs for inputs services and inputs used in rendering services cannot be treated as reimbursable costs. There is no justification or legal authority to artificially split the cost towards providing services partly as cost of services and the rest as reimbursable expenses - Following decision of Sri Bhagavathy Traders V. CCE, Cochin [2011 (8) TMI 430 - CESTAT, BANGALORE] - Decided against assessee.
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2014 (1) TMI 1555
Valuation of service - Service of manpower supply - Assessee paid tax on the portion of the service charges retained by the appellants - Assessee excluded labour wages and other amount received from the textile mills and SSC Board - Held that:- Section 67 of the Finance Act provides that the assessee is liable to pay service tax on the gross amount received in respect of the service provided. In the present case, the service is of supply of manpower - The appellants are receiving the gross amount in respect of the labour supplied to the service recipient hence in view of the provisions of Section 67 of the Finance Act, the appellants are liable to pay service tax on the gross amount received - Decided against assessee.
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2014 (1) TMI 1554
Penalty u/s 76 & 78 - Simultaneous penalty u/s 76 & 78 - Clearing and Forwarding Agents Services - Goods Transport Agency Services - Whether penalty under Section 76 is imposable when the penalty under Section 78 has been imposed under the Finance Act - Held that:- penalty was imposable under both Section 76 and 78 separately even if offence were committed in the course of same act - Following decision of Bajaj Travels Ltd. Versus Commissioner of Service-tax [2011 (8) TMI 423 - DELHI HIGH COURT] - Decided in favour of Revenue.
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2014 (1) TMI 1553
Demand of service tax - Commercial or industrial construction services - Whether construction of hospital is a commercial or industrial construction - Held that:- In view of the clarification issued by the Board at the time of introducing levy on the impugned service and also different classifications being adopted by the State Governments for approvals, the appellant cannot be prima facie faulted for having entertained a bonafide belief that their activity was not taxable. Therefore, we consider it proper to waive the requirement of pre-deposit for hearing the appeal - Stay granted.
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2014 (1) TMI 1552
Rectification of mistake - Change in cause of title - Held that:- Registry is directed to correct the cause title insofar as the words written Commissioner of Central Excise, Chennai IV Commissionerate would be substituted by Commissioner of Service Tax, Chennai. The assessee is also directed to mention the correct cause title in further proceedings - Rectification granted.
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2014 (1) TMI 1551
Demand of service tax - Denial of CENVAT Credit - Refund of Cenvat Credit - Assessee 100% Export Oriented Unit - Service Tax Registration Certificate not submitted - Whether the refund claimed by the respondent for certain unutilized amount of CENVAT credit taken on input services which were claimed to have been used for export of output service during the material period can be denied on the sole ground that they had not taken registration before the date on which the output service was introduced as a taxable service - Held That:- Following decision of mPortal India Wireless Solutions (P.) Ltd. Versus Commissioner of Service Tax [2011 (9) TMI 450 - KARNATAKA HIGH COURT] - Stay denied.
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2014 (1) TMI 1550
Denial cenvat credit of Service tax paid on warehousing outside India under reverse charge - Waiver of Pre-deposit – Held that:- As per the Board’s Circular dated 27-6-2008, credit cannot be denied - Prima facie the applicants are entitled to CENVAT credit on services tax – Pre-deposits waived till the disposal – Stay granted.
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