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Showing 401 to 420 of 2855 Records
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2015 (10) TMI 2462
Liability of Service Tax - Cargo Handling Services - Loading, unloading, packing and unpacking of cargo - Cargo handling involves loading and unloading from any ship or container is a principle that is etymologically established - Held That:- Appellant directed to remit the entire assessed tax liability along with the proportionate interest thereon (excluding the penalty component), within 4 weeks - Stay granted conditionally.
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2015 (10) TMI 2461
Service Tax Liablity - Cargo handling, repairs and maintenance, storage and warehouse and technical inspection and certification - Whether adjudicating authority erred in not imposing penalty under Section 76 of Finance Act from 18/04/2006 i.e., ₹ 200/- per day or 2% of amount of tax payable? - Revenue contends that since issue has already been decided appeal for non-taxability by assessee should not be allowed - Respondent contends that Service tax on cargo handling is per se not taxable and technical inspection and certification is in respect of containers which was done as per request and not get covered under technical inspection and certification services - No service tax liability on part of assessee as same has been complied with interest - Held That:- Respondent cannot be allowed to re-argue entire case on merits and it was for him to put forth all his submission on merits of case when its appeal was being heard - Period from 18/04/2006, penalty as imposed under Section 76 has to be applied in letter and spirit of said section and provisions as it stood in the statute needs to be applied - Decided in favour of Revenue.
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2015 (10) TMI 2460
Rejection of Refund Claim on input services Classification of Services - Business Auxiliary Service or Business Support Service? Services rendered in respect of legal requirements relating to the business and provide market data relating to the industry. - Appellant referred to CBEC Circular No. 59/8/2003 and stated that if provisions of Section 65A are followed services rendered by appellant would fall under category of Business Auxiliary Services Revenue contended that agreement does not clarify services rendered by Appellant and services rendered are mostly in respect of legal requirements relating to business and provide market data relating to industry thus rightly classified as Business Support Service.
Held That:- As per CBEC Circular No. 59/8/2003 services rendered by appellant would fall under Business Auxiliary Service - Services would be covered under Section 65A (2) (c) which indicates that if a services cannot be classified in any of the manner specified in clause (a) or clause (b) it shall be classified under the sub-clause which occurs first among the sub-clauses which equally merits consideration, which in this case is the Business Auxiliary Services. Decision made in case of of mPortal (India) Wireless Solutions Pvt. Ltd. vs. Commissioner of Service Tax, Bangalore [2011 (9) TMI 450 - KARNATAKA HIGH COURT] followed Decided in favour of assessee.
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2015 (10) TMI 2459
Deputation of employees to group company - Manpower Supply Recruitment Agency Service - Appellant contends that employees were and are kept informed that their services may be utilised for any of organisation in group companies and salary paid by them to deputed employees is only amount collected by them from group companies which is reimbursement of actual expenses - Held That:- Since, various group companies make salary payment to appellant on actual basis to deputed employees thus contention of the Revenue is incorrect as decided in case of Arvind Mills Ltd. [2014 (4) TMI 132 - GUJARAT HIGH COURT]
The definition though provides that Manpower Recruitment Supply Agency means any commercial concern engaged in providing any services directly or indirectly in any manner for recruitment or supply of manpower temporarily or otherwise to a client, in the present case, the respondent cannot be said to be a commercial concern engaged in providing such specified services to a client. It is true that the definition is wide and would include any such activity where it is carried out either directly or indirectly supplying recruitment or manpower temporarily or otherwise. However, fundamentally recruitment of the agency being a commercial concern engaged in providing any such service to client would have to be satisfied - Decided in favour of assessee.
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2015 (10) TMI 2458
Challenge to legality and validity of attachment order - Attached property purchased in auction without any notice of the alleged charge of the Sale Tax Authorities - Held that:- Petitioners attended the hearing in the Office of Respondent No.3 on 15th July, 2014 and submitted their written submissions inter alia stating that the notice issued was completely illegal and unsustainable in law. It was submitted that the purported new charge of ₹ 2,77,72,073/- was recorded in the 7/12 extract of the secured property only after 22nd May 2013, while the Petitioners had bonafide purchased the same by paying the full consideration to Respondent No.2 on 21st March 2013, without any knowledge of the alleged encumbrance of the Sales Tax Authorities. At that time, the only encumbrance recorded in the 7/12 extract was a sum of ₹ 4,34,601/- due to District Industries Centre, Raigad. It is important to note that in the written submissions filed by the Petitioners, they also intimated the Sales Tax Authorities that the said defaulter M/s Iccon Oil was already functioning at another address duly registered under the Maharashtra Value Added Tax Act, 2002.
Even after the purchase of the secured property, the Petitioners once again obtained a 7/12 extract of the secured property dated 12th April, 2013. Even in this 7/12 extract, the charge of the Sales Tax Authorities (in the sum of ₹ 2,77,73,073/-) was not reflected. It is only for the first time on 7th January, 2014 that the charge of the Sales Tax Authorities was reflected in the 7/12 extract of the secured property. This was much after the sale of the secured property was confirmed in favour of the Petitioners. In these circumstances, we find that Mr Joshi is fully justified in contending that the Petitioners had no knowledge or notice of the charge of the Sales Tax Authorities before they purchased the secured property from Respondent No.2 and therefore, the Sales Tax Authorities cannot enforce their charge against the secured property.
Iccon Oil was wound up by and under the orders of this Court and this Court by its order dated 18th March 2015, passed in Company Application (L) No.603 of 2014, has given liberty to the Sales Tax Authorities to file their claim before the Official Liquidator. We are informed that the claim of the Sales Tax Authorities has also been filed thereafter with the Official Liquidator of this Court and we are of the view that the Sales Tax Department is free to pursue its claim against Iccon Oil. - Appeal disposed of.
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2015 (10) TMI 2457
Demand of outstanding tax from purchaser of auctioned property - Held that:- official liquidator in order to effect the sale of the assets of the company in liquidation had issued a tender notice. Pursuant to the notice so issued, the appellant had offered his highest bid which was inclusive of all the taxes payable under the Kerala General Sales Tax Act, 1963 and the Central Sales Tax Act, 1956 and also the dues payable under other statutory levies.The offer so made was accepted by the official liquidator. - there is a concluded contract between the official liquidator and the appellant-company herein. We reiterate that while making the offer, the appellant-company had specifically indicated to the official liquidator of the company in liquidation that the offer made by him is inclusive of all statutory levies. In view of that, the liability to pay taxes cannot be imposed the appellant-company herein. - appellant discharged from payment of any demands from either the official liquidator or from the sales tax department of the State in respect of the sale of Items 1-2 of the tender notice dated 26.11.2001. - Decided in favour of assessee.
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2015 (10) TMI 2456
Duty demand u/s 11AB - Whether the appellant is liable to pay interest under Section 11AB of the Act or interest liability is to be determined in terms of clause (v) of Section 88(4) of the Finance Act, 2004 as incorporated by Section 124 of the Finance Act, 2005 - Held that:- Section 88(1) of the 2004 Act retrospectively amended Rule 3(6) of the 2002 Rules providing that AED (GSI) Credit accrued prior to 1.4.2000 could not be used for payment of BED and SED. However, sub-section (4) of Section 88 thereof provided for recovery of AED (GSI) Credit prior to 1.4.2000 which was availed for payment of BED and SED - Section 11A of the Act provides for recovery of duties not levied or not paid or short levied or short paid or erroneously refunded. Section 11AB of the Act as it existed at the relevant time mandates payment of interest on delayed payment of duty.
The relevant date specified in the provision as 10.9.2004 is for the purpose of determining the period of limitation for issuing show cause notice for recovery under Section 11A of the Act and not for levy of interest under Section 11AB of the Act. The appellant had wrongly utilized AED (GSI) Credit pertaining to period prior to 1.4.2000 in 2003 immediately after amendment to Rule 3(6) of 2002 Rules. Thus, the interest liability under Section 11AB of the Act would commence from 1st day of the following month when wrong utilization had taken place till the payment of wrongly utilized credit. - The relevant clause (v) of sub-section (5) thereof stipulates that interest on the amount of credit utilized for paying CENVAT duty shall be @ 13% per annum for the period beginning on and from the day when each time the amount of credit was utilized and ending on 10.9.2004. Though subsection (5) added to Section 88 of 2004 Act starts with non obstante clause and would have an overriding effect on sub-section (4) of Section 88 of 2004 Act, nonetheless it would apply only to those cases where the wrongly utilized AED (GSI) Credit still remains outstanding on the date of the coming into force of Finance Act, 2005. - No substantial question of law arises - Decided against assessee.
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2015 (10) TMI 2455
Constitutional validity of Rule 8(3A) of the 2002 Rules - Disallowance of the benefit of adjustment of CENVAT credit lying unutilised in its account by issuing show cause notices - Held that:- Rule 8(3A) of the 2002 Rules to the extent it contains the words 'without utilizing the CENVAT Credit' is held to be arbitrary and unreasonable and is struck down. In other words, the unamended Rule 8(3A) of 2002 Rules whereby the benefit of CENVAT Credit for all the period till the actual payment was made, stands disallowed in the event of a minor default also is arbitrary and unreasonable.
It may further be noticed that the respondents had themselves realized the unreasonableness of the provisions of Rule 8 (3A) of 2002 Rules and had withdrawn the words 'without utilizing the benefit of CENVAT Credit' and had amended the same w.e.f 11.7.2014 by incorporation that now a penalty shall be imposed at the rate of 1% of the defaulted amount for each month or part thereof calculated from the due date. - Decision in the case of Indsur Global Limited & Precision Fasteners Limited's cases (2014 (12) TMI 585 - GUJARAT HIGH COURT) and Malladi Drugs and Pharmaceuticals Limited's case (2015 (5) TMI 603 - MADRAS HIGH COURT) followed - matter remanded back - Decided in favour of assessee.
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2015 (10) TMI 2454
Denial of CENVAT Credit - Inappropriate documents - Held that:- Tribunal pointed out that the appellant has not shown any other challan, on the basis whereof that credit could be claimed and, in particular, before the amendment was made in Rule 9(1)(e) of the Cenvat Credit Rules, 2004. In the grounds of appeal, appellant has not indicated, which challan could be stated to be appropriate challan to obtain such credit. - Decided against Revenue.
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2015 (10) TMI 2453
CENVAT Credit - Whether appellant is required to debit an amount of Cenvat Credit proportional to the utilisation of steam in non-productive use in canteen and laundry or otherwise - Held that:- Cenvat Credit on furnace oil is eligible to be availed by the appellant as they are utilising the steam produced by using furnace oil for manufacturing of final products in factory premises. It is also undisputed that some part of the steam is utilised in canteen and laundry. - Requirement of a canteen in the factory is statutorily mandated in the factories act, the cleaning of the utensils in the canteen for providing hygienic food cannot be disputed by any one. Again, using of clean uniform in the course of manufacturing of final products cannot also be disputed as unwanted expenses. On this factual matrix, we find that the steam which is used in the factory premises is in a way related to manufacturing of final products. - In the said case of Indo Rama(2007 (7) TMI 315 - HIGH COURT OF JUDICATURE AT BOMBAY) their Lordships were considering the use of electricity generated in the factory and the above observations were made while denying the proportionate Cenvat Credit on the fuel used in that portion of electricity which is used for lighting the residential quarters. We find that the said observations will apply in the case in hand as it is undisputed that the canteen services and the laundry service is used within the factory and in a way related to manufacturing activity - impugned orders are unsustainable and liable to be set aside and - Decided in favour of assessee.
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2015 (10) TMI 2452
Disallowance of CENVAT Credit - credit on the quantity of input/coal which was short due to washing of coal in Coal Washery - Held that:- Washing of coal is an indispensable process for using the coal in the manufacture of Sponge Iron. The objection raised is that only lesser quantity of coal after wash is received in the factory and proportionate credit on such loss cannot be allowed to the appellant. The loss of coal during the process of washing is inevitable and the shortage caused is not in the hands of the appellant - Undeniably the quantity of 2,182,910 MT of coal was short due to washing loss which occurred at the job worker s end during the process of coal washing. The Board s Circular No. 267/136/87-CX-8, dated 15.1.1988 is with regard to somewhat similar loss of material as waste which occurs during the process of manufacture. The Board has clarified that credit cannot be denied on the ground that part of inputs is contained in the slag and other invisible losses. In Bharat Radiators Ltd case (2002 (3) TMI 685 - CEGAT, MUMBAI) it was held that denial of credit on burning loss was not sustainable. Since the issue stands settled by the above judgments, following the dictum laid in the above judgments I hold that the denial of credit is unjustified. - Decided in favour of assessee.
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2015 (10) TMI 2451
Waiver of pre deposit - Section 35F - Mandatory pre deposit - Held that:- Appeal and stay application were not pending before the Tribunal prior to the amendment of Section 35F of the Act. It is also noted that in the present case, the impugned order was passed after amendment. The only stand of the Learned Counsel of the applicant is that the Show Cause Notice was issued prior to amendment and therefore, they are not covered by the amended section the 35F of the Act. - there is a clear direction of the legislature that the Tribunal shall not entertain any appeal unless the appellant has deposited the amount as specified therein in respect of appeal filed after amendment. In our considered view, the applicant is required to furnish the evidence of the mandatory deposit as required under amended section 35F of the Act. - merit in the application filed by the applicant. However, considering the facts and circumstances of the case, we direct the applicant to furnish proof of mandatory as required under Section 35F as amended by the Act, within two weeks from today to the Registry of this Tribunal. Otherwise, the Registry is directed to return the appeal as the Tribunal has no power to entertain the appeal. - in view of the amendment of the Section 35F of the Act, the Stay application is not maintainable. - Decided against assessee.
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2015 (10) TMI 2450
Reversal of CENVAT Credit - Exemption of duty on such pipes in terms of Notification No.6/2002 - Appellant contended that notification does not require any reversal of Cenvat credit on the inputs or work-in-progress or finished goods lying in stock on the date on which exemption was granted. - Held that:- It has not availed any exemption either on value-based or quantity-based criteria for clearance in a financial year. Therefore, this rules out applicability of Rule 9 (2) of Cenvat Credit Rules, 2002. Once the applicability of Rule 9 (2) is ruled out, there is no further case of Revenue and if unutilised credit is on record under Rule 9 (1) prior to 04.04.2002 and remaining unutilised, there is a modality prescribed by law for utilisation. The modality prescribed by Rule 9 (2) only. Once Rule 9 (2) of Cenvat Credit Rules, 2002 is not applicable even Rule 9 (1) has no significance.
Notification did not prescribe any value-based or quantity-based exemption. There is no case of Revenue to the contrary. Therefore, Rule (2) of Rule 9 of Cenvat Credit Rules, 2004 is not applicable - If Cenvat credit is taken validy, which is not disputed by the department, in absence of one-to-one relationship between input or output or output service, there cannot be exercise of power by executive to ask the assessee to revert such Cenvat credit. Following this ratio, the order of authority below is set aside - Decided in favour of assessee.
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2015 (10) TMI 2449
Fraudulent Availment of CENVAT Credit - Bogus invoices - Held that:- Appellant M/s. Mansi Industries is also party in the case of M/s. Akik Dyechem & Others (2013 (9) TMI 415 - CESTAT AHMEDABAD). The present proceeding is related with investigation in the case of M/s. Akik Dyechem & Others (supra). In that case, the investigation taken up by the Revenue revealed that the premises registered for manufacture of Aluminium Ingots did not have any electricity connection, only one manually operated furnace which was also being operated by a different person during the period from 1997 onwards. The Tribunal upheld the adjudication order. In the present case, we find that the proprietor of M/s. Itisha Alu-Chem Industries had admitted that they have issued invoices to the appellant to facilitate for availment of CENVAT credit. It is clearly evident that the invoices were fake and therefore, the appellant is not eligible to avail credit on the fake invoices. - appellant is given option to pay penalty 25% of the duty alongwith entire amount of duty and interest within 30 days from the date of communication of the order - Decided partly in favour of assessee.
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2015 (10) TMI 2448
Penalty u/s 11AC - Undervaluation of goods - Held that:- As the penalty was imposed under Section 11AC of the Act, we do not find that there is any requirement of impose penalty under Rule 173Q of the erstwhile Central Excise Rules. So, the contention of the learned Authorised Representative on this issue cannot be accepted. The assessee should be allowed to pay penalty 25% of the duty alongwith entire amount of duty and interest, within 30days from the communication of this order under Section 11AC. - appeals filed by the Revenue are allowed to the extent the penalty imposed under Section 11AC is enhanced to equal amount of duty. The assessees are entitled to pay the penalty 25% of the duty alongwith entire amount of duty and interest within 30 days from the date of communication of this order - Decided partly in favour of assessee.
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2015 (10) TMI 2447
Classification of Resin Bonded Bamboo Mats with Veneer in between - Classification under Chapter 4410.90 or under Chapter 4408.90 - Held that:- On going through the earlier order of the Tribunal we note that a clear finding stands given that in terms of Chapter Note 6 the goods would be classified properly under heading 4410. The Revenues contention is that the Chapter Note 6 relied upon by the assessee was not in existence during the period 1986-87 i.e. the period involved in the present appeal. The same came into existence w.e.f. 1997. As such it is their contention that the Tribunal relied upon a wrong Chapter Note. - Since order of Tribunal is not challenged - it becomes binding for the lower authorities to follow the Tribunals order - Decided against Revenue.
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2015 (10) TMI 2446
Failure to make pre-deposit of 7.5% to entertain appeal - SCN issued for non-fulfilment of export obligation - Appellant contended that amendment to Section 129E would not be applicable to them since SCN was issued prior thereto on 10th June 2014 and CESTAT erred in dismissing the appeal on account of non-compliance of amended Section 129E Held That:- CESAT had to apply the second proviso to the amended Section 129 E since appeal was filed after 6th August 2014 - Section 35 F indicated that on and after the date of its enforcement an Assessee in appeal was required to deposit the stipulated percentage of duty and if it failed to do so, CESTAT shall not entertain the appeal - Appellant deposited a sum of ₹ 4,95,532 on 8th May 2015 which was admittedly not 7.5% of the demanded duty as confirmed by Commissioner of Customs (Export) Appeal dismissed Decided in favour of Respondent.
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2015 (10) TMI 2445
Challenging order under Section 14 of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 - Petitioner contends that Respondent defaulted in payment of instalments of loan and same was classified as NPA - Notice issued under section 13(2) of SARFAESI Act but neither borrowers nor guarantors replied to same nor repaid the amount - Affidavit filed made a false statement that neither is there any third party in possession nor is there any lease created in respect of premises and further incorrect fact is that there was no suit or legal proceeding pending in respect of secured assets Overriding effect of SARFAESI Act would not enable Respondent No. 4 Bank to obtain assistance of learned Chief Metropolitan Magistrate in taking possession of secured assets and even if rent is paid annually, this is not a lease covered by first part of Section 107 of Transfer of Property Act, 1882 and lease of more than one year which is unregistered, is void.
Respondent contends that petition is not a bonafide proceeding, is a collusive action, inasmuch as deed of mortgage executed would indicate as to how registered mortgage was created and by same signatories and same parties dealing with Petitioners Petitioners have been put up by them in order to defeat rights of Bank and particularly order and protection under Section 14 After promulgation of Maharashtra Rent Control Act by virtue of Section 55, an agreement for tenancy is to be registered and compulsorily - No false statement on oath was made by Respondent No. 4 Bank as it may be dealing with Petitioners as a client constituent, but it does not mean that Bank is aware of status of Petitioners in respect of premise.
Held That:- If lease is not valid, possession is not lawful, then, there is no justification for interference in extra ordinary, discretionary and equitable jurisdiction of Court and merely because person in possession claims to be a lessee does not mean that he should be protected - Section 107 clearly states that a lease of immovable property from year to year, or for any term exceeding one year or reserving a yearly rent, can be made only by a registered instrument - It is undisputed that agreement which is relied upon is unregistered, but rent is claimed to be payable yearly, then, this Act would clearly fall within the mischief - Omission in given facts and circumstances was not fatal and claim of tenancy is prima facie doubtful - Action of Bank in the present case determines the tenancy - Tenancy was not known to Bank, a third party in the absence of registration of the instrument thus cannot be held guilty of suppression Decided in favour of Respondent.
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2015 (10) TMI 2444
Confiscation of goods under Section 113 of Customs Act, 1962 Contended by the Appellant that he did not have knowledge that rice supplied was not basmati Sample reports are contradictory in reference to 933 bags and alleged that Redemption Fine and penalty are excessively charged.
Held That:- Length of 7mm does not necessarily makes rice basmati - Report of Deputy Agricultural Marketing Adviser is not in disharmony with physical examination which merely stated that rice contained in 933 bags appeared to be of length 7mm - Such huge quantity purchased by appellant and he did not realise that goods were not basmati rice Redemption fine and penalty cannot be said as unwarranted - Appellant held guilty Decided in favour of the Revenue.
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2015 (10) TMI 2443
Determination of value of imports made from overseas Pre-condition of 5% of EDD Appellant contended that directions of Commissioner (Appeals) can be limited to proceedings and cannot order 5% EDD Revenue submits only 1% of extra duty deposit has been ordered till finalisation of provisional assessment.
Held That:- Relying on the orders given by Honble High Courts in cases of Terumo Penpol Ltd. Vs. CC [2015 (6) TMI 500 - MADRAS HIGH COURT] and National Oxygen Ltd., Vs. CC, Chennai [2008 (7) TMI 174 - HIGH COURT MADRAS], 5% EDD is set aside Appeal allowed in favour of the Appellant.
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