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Case Laws
Showing 401 to 420 of 1817 Records
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2013 (11) TMI 1418
Benefit of SSI Exemption under Notification No.1/93 – Brand name not own by the person using it – Held that:- If a brand name is not owned by any particular person, the use will not deprive a unit of the benefit of the small scale exemption scheme - This applies not only to locks but to all other goods specified in Notification No. 1/93 - the brand name ‘AVON’ is being used by the partnership concerns of the same family - It has not been established by the investigation that the brand name ‘AVON’ belongs to any other person – Relying upon CCE Vs Minimax Industries [2011 (1) TMI 782 - DELHI HIGH COURT] and on CBEC Circular No. 52/52/94-CX, dt.01.09.1994 - when the brand name does not belong to any person, then the manufacturers using such brand name are eligible for exemption under Notification No.1/93.
Time barred demand – Held that:- The appellants filed suitable declarations under Rule 174 of the Central Excise Rules and Notification No.1/93-CE, dt.28.02.1993 - It cannot be held that there was any suppression on the part of the appellants with intention to evade duty - The reason given by the first appellate authority that appellants did not declare the use of brand name ‘AVON’ in the declaration filed with the Department amounts to suppression with intention to evade duty, is not correct because the appellants can be under bonafide belief that the brand name ‘AVON’ did not belong to any other person and that they were eligible to small scale exemption – thus, it cannot be considered that the appellants suppressed any information with intention to evade Central Excise duty – Decided in favour of Assessee.
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2013 (11) TMI 1417
Invocation of Rule 6(3) of Cenvat credit rules - Separate account and inventory not maintained for dutiable as well as exempted goods – Held that:- Nowhere in the show cause notices, it is mentioned as to which are the common input or input services in respect of which cenvat credit has been availed and which had been used in or in relation to the manufacture of dutiable and exempted final products - Unless the common inputs and or input services, in respect of which cenvat credit had been availed and which had been used in the manufacture of dutiable and exempted final products are clearly mentioned in the show cause notice, the show cause notice cannot invoke Rule 6(3) of Cenvat Credit Rules and demand an amount to 10% equal to the sale value of the exempted final products.
The Rules 6(2) & 6(3) would not apply when some exempted final products emerge as inevitable and unavoidable waste or by-product, as in such a situation, even if the manufacturer wants, he cannot maintain separate account and inventory - Rule 6(2) and 6(3) cannot be construed to impose an obligation on a manufacturer which is imposable to observe and then go on penalise him, by the demands under Rule 6(3) and imposition of penalty – Relying upon RALLIS INDIA LTD. Versus UNION OF INDIA [2008 (12) TMI 46 - HIGH COURT BOMBAY] - Rule 57 CC of Central Excise Rules, 1944 (which is pari materia with Rule 6(3) of Cenvat Credit Rules, 2004) is not applicable in respect of by-products – Decided against revenue.
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2013 (11) TMI 1416
Demand of Interest on differential duty - Non observance to the provisions of Rule of central excise rules – Held that:- Following Hindustan Insecticides Ltd. Vs. CCE&ST(LTU) [2013 (3) TMI 456 - CESTAT NEW DELHI ] - The interest under Section 11AB on a duty demand confirmed under Section 11A(2) or self-admitted/self-ascertained duty liability under Section 11A(2B) or for delay in payment of duty self-assessed under Rule 6 of Central Excise Rules, 2002 by the due date prescribed under Rule 8 ibid is sum due to the Government, which is recoverable under Section 11 of the Central Excise Act, 1944 and for which there is no limitation period. The show cause notices issued in these cases, even if invoking Section 11A, have to be treated as mere communication to the assessees for recovery of interest under Section 11 - the appellant has not been able to make out a case in favour of the them – Decided against Assessee.
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2013 (11) TMI 1415
Marketability of Goods – optical transmission equipment - clearance for Field Replacement/ Advance Field Replacement/ Rework and Demo - Held that:- Relying upon A.P. State Electricity Board Vs. CCE [1994 (2) TMI 56 - SUPREME COURT OF INDIA] - For goods to be marketable it is not necessary that goods in question should be generally available in the market - Marketability does not depend upon the number of purchasers - Huge machineries as also small parts of one machinery may be designed to the order of one customer and such item may not be useful to others - Still such goods will be considered as marketable.
Valuation of goods – Cost construction method OR value of comparable goods – Held that:- The goods cleared without payment of duty for which duty is now demanded cannot be considered as goods cleared to other units of the appellant for further manufacture of other excisable goods - These are cases of clearances for evasion of duty - thus valuation under Rule 8 will not apply and the value of comparable goods is correctly applied.
Demand of duty on removals for replenishments of short-shipments - clandestine Removal - Held that:- The question whether short shipments and subsequent replacement to make good the short shipment was genuine or not is a question of fact rather than law -The second consignments sent on the pretext of goods short shipped were clandestinely removed - Excise liability does not depend on realisation of money but on manufacture and removal - the appellant has been freely removing goods under the pretext of testing to be done, replacement of defective pieces etc. without payment of duty and proper accounting of the goods after testing etc. – thus in the case of short shipment also this is only a method adopted for clandestine removal and not cases of genuine supplies to make good short shipments.
Extended period of limitation – Held that:- Following Commissioner of Central Excise, Mumbai Versus M/s. Kalvert Foods India Pvt. Ltd. & Ors. [2011 (8) TMI 24 - SUPREME COURT OF INDIA] - The argument of the first appellant that SCN was issued after one year from the date of knowledge and hence time barred is not a legally correct argument - Section 11A of Central Excise Act provides time limit from the ‘relevant date’- Decided against Assessee.
Penalty on employees of the Company - The second appellant and the third appellant are only employees of the first appellant which is a company - Nothing has been brought on record to show that they have personally gained by the duty evaded – thus after imposition of adequate penalty on the first appellant there is no justification to impose penalty on the second and their appellants also – the penalties imposed on second and third appellant set aside.
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2013 (11) TMI 1414
Eligibility for concessional rate under Notification No.1/2011 – PU foam cleared for captive consumption at concessional 1% rate of duty - Held that:- Following SHIVALIK AGRO POLY PRODUCTS LTD. Versus COLLR. OF C. EX., CHANDIGARH [1999 (9) TMI 215 - CEGAT, NEW DELHI] - If credit has been taken but the duty is debited subsequently, benefit of exemption under Notification containing condition regarding non-availment of credit cannot be denied - the appellants are entitled to the benefit of Notification 1/2011 – Decided in favour of Assessee.
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2013 (11) TMI 1413
Selection of comparables – Held that:- The event management division of Saket Projects Limited was taken as comparable - The event management was done by sponsorships in the case of assessee which is evident form various documents placed - Further the segment allocation of expenses also appears to be not reliable - In the case of Saket Projects Ltd. there is functional dissimilarity - When direct comparables are available then segmental results of companies engaged in other business should not be taken as comparable – Decided in favour of assessee.
Non-operating income – Held that:- While computing operating margin under TNMM non-operating income is not to be considered – The TPO is directed to exclude miscellaneous income of ICRA Mannagement Consultancy Services – The nature of such miscellaneous income could not be defined with the documents available – The issue was restored for fresh decision.
Overstated profit of comparable – Held that:- On perusal of the Audit Report of the comparable company - There was an abnormality in the accounts of comparable Education Consultant (P) Ltd. overstating the profit to the tune of ₹ 2.72 crores – This abnormal profit needs to be adjusted while working out the OP/TC in this account of comparables – The issue was restored for fresh decision.
Foreign exchange difference – Held that:- The issue was no more res integra – Following ITAT, Bangalore Bench in the case of SAP Labs India (P) Ltd. vs. ACIT [2010 (8) TMI 676 - ITAT, BANGALORE] - The foreign exchange gain is an integral part of the sale proceeds of an assessee carrying on an export business - This income should not be excluded from the computation of the operating margin of the assessee company – Decided in favour of assessee.
Risk profile and working capital adjustment – Held that:- No risk adjustment can be allowed when the same has not been quantified - The assessee has failed to bring any evidence on record to show that there was any difference in risk profile of comparable companies – If difference in the risk results into deflation and inflation of the financial results of comparables adjustment can be made on this fact - The assessee has also failed to establish any working capital difference – Decided against assessee.
Arms length Range – Held that:- As per amendment inserted by the Finance Act, 2012 retrospectively - Benefit of +/- 5% under the Proviso to section 92C(2) of the Act shall not be allowed for the purpose of computation of arm’s length price – Decided against assessee.
Depreciation on computer peripherals – Held that:- Following Commissioner of Income Tax vs. BSES Yamuna Powers Ltd. [2010 (8) TMI 58 - DELHI HIGH COURT] - Computer accessories and peripherals such as, printers, scanners and server etc. form an integral part of the computer system - The computer accessories and peripherals cannot be used without the computer - Depreciation @ 60% on such items shall be allowed – Decided in favour of assessee.
Professional consultancy fee – Held that:- The DRP has directed the Assessing Officer to verify the claim of the assessee and allow deduction if the TDS has been deducted - The direction of the DRP is upheld – Decided against assessee.
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2013 (11) TMI 1412
Waiver of pre deposit - Cenvat Credit - Job work - demand confirmed on the ground that applicant had availed excess credit in respect of the input services which are used in the processing of the goods, which were cleared on payment of appropriate service and part of the goods are cleared at nil rate of Service Tax by claiming the benefit of exemption Notification No.8/2005-S.T. dt. 1.3.2005 - Held that:- part of the processed goods are cleared at nil rate of Service Tax by availing the benefit of exemption. It is also not disputed by the applicant, that credit has been availed in respect of the common inputs as well as input services, which are used in the processing of exempted as well as the processed goods on which the Service Tax has been paid - applicants are undertaking process which does not amount to manufacture and in view of this the applicants are clearing part of their processed goods on payment of appropriate service tax. In view of this, prima facie the applicant has not made out a case for waiver of service tax. The ratio of the above decision is not applicable to the facts of the present case - Assessee directed to make a pre deposit - Partial stay granted.
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2013 (11) TMI 1411
Denial of cenvat credit - Irregular and illicit credit availed on Rails as capital goods and as inputs - Waiver of Pre-deposit – Held that:- The Applicant had availed the CENVAT Credit on Rails as capital goods and as inputs - the procurement of Rails had been capitalized by the Applicant in their Statement of Accounts and Balance Sheet - the Applicant have not made out a prima facie case for total waiver of pre-deposit of the CENVAT Credit – Assessee directed to deposit Rupees nine lakh as pre-deposit – upon such submission rest of the duty to be stayed till the disposal – Partial stay granted.
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2013 (11) TMI 1410
Inclusion of cost of material used during the provision of services - Repair and maintenance service - Whether an assessee engaged in rendering services of repairs and maintenance to its customers having utilized various articles for providing effective repairs and maintenance would be entitled to avail the benefit of the Notification No. 12/2003-S.T., dated 20-6-2003 in relation to such articles - decision of the Tribunal in the matter of Agrawal Colour Advance Photo System v. CCE (2011 (8) TMI 291 - CESTAT, NEW DELHI (LB)) wherein similar issue had arisen and/has been sought to be referred for decision by a Larger Bench, in the view what is stated above and particularly taking into consideration the divergent views expressed by different Benches of the Tribunal and the Courts on the point in issue and the reference sought to be made in relation to the said issue to the Larger Bench - core of the dispute stands settled by higher authority of the Supreme Court and the Delhi High Court, we do not consider necessary to answer the issues referred for our consideration. The grievance of the appellant is in the circumstances more appropriately decided by the regular Bench which will now consider all relevant decisions presented for its consideration and resolution - Following decision of G. D. Builders And Others Versus UOI And Another [2013 (11) TMI 1004 - DELHI HIGH COURT] - Decided against assessee.
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2013 (11) TMI 1409
Stay application - Waiver of pre deposit - Management, maintenance and repair services - Section 65(64) - Held that:- so far as strengthening/replacement of damaged fencing and maintenance of Border Security fencing is concerned, the adjudicating authority proceeded, on what prima facie appears to be a creative interpretation of the transaction and the relevant provision - where individual residential units are constructed, the transaction falls outside the purview of construction of complex service, defined in Section 65(30a) - service tax assessed under management and maintenance of repair service and construction of residential complex service is prima facie unsustainable for the above reasons and in respect of service tax assessed for works contract; erection, commissioning and installation services and manpower recruitment, since service tax availing the cum duty benefit and abatement entitlement has been remitted.
Tax component assessed under works contract service for false ceiling executed by the petitioner in the conference Hall for military station hqrs. We prima facie find no justification for waiver of pre-deposit on this amount - As service tax on cum duty basis and after availing abatement benefit has been remitted in respect of the other three components, we are of the view that the petitioner has made out a case for waiver of pre-deposit in full and stay of further proceedings for realisation of the adjudicated liability, assailed in the substantive appeal related to this application, pending disposal of the appeal - Partial stay granted.
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2013 (11) TMI 1408
Rectification of mistake - Suppression of Service tax - Assessee contends that there was no allegation for suppression of service tax - Benefit u/s 73(3) - Whether interest paid can invoke penalty imposed - Held that:- for availing the benefit of Section 73(3) what is required is payment of disputed service tax amount before issue of show-cause notice. Explanation (1) is to the effect that interest will be payable. There is no provision that interest should be paid before issue of the show-cause notice as it was there in Section 73(1a) of the Act which stood at the relevant time - Section 73(3) clearly provides that notice shall not be issued in respect of amount so paid implying that if any short-fall is noticed, notice can be issued only for recovering such shortfall and not in respect of tax paid by the assessee before issue of SCN - Therefore, order passed by the Tribunal needs correction - So the Show Cause Notice issued and penalty levied are not maintainable in law - Rectification allowed.
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2013 (11) TMI 1407
Service tax liability - Adjustment of excess duty paid - Rule 6(4A) & (4B) of Service Tax Rules, 1994 - Penalty u/s 76 - Held that:- any excess amount of Service Tax required to be paid by the appellant should be adjusted from the excess duty paid in the subsequent period as outlined in Rule 6 (4A). However, the adjustment mentioned above are subject to the conditions specified under Rule 6 (4B) which, inter alia, according to which any amount in excess of specified amount cannot be adjusted by the appellant. The second condition is that such an adjustment should be intimated to the jurisdictional Central Excise officer within a period of 15 days from the date of such adjustment. The amount adjusted by the appellant was more than the amount specified in the Rule and no intimation was given to the jurisdictional Central Excise officer - Under Rule 6(3), there are no conditions like the value limit to be adjusted or regarding giving intimation of the adjustment to the jurisdictional Central Excise officer.
Appellant had a bonafide belief that the entire amount of Service Tax payable can be adjusted against excess Service Tax paid, therefore, it is a fit case where the provisions of Section 80 of Finance Act, 1994 can be made applicable. Accordingly, penalties imposed upon the appellant under Section 76 of Finance Act, 1994 are set aside - Decided partly in favour of assessee.
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2013 (11) TMI 1406
Interest u/s 75 - Penalties under Sections 76, 77 and 78 - Manpower recruitment or supply agency - Section 65(105)(zr) read with Section 65(68) - manner of service of notice for summons - Violation of Section 37C - Held that:- unproductive enterprise of Revenue in serving summons on the petitioner at its registered address, Revenue legitimately invoked the process of serving the show cause notice under Section 37C by affixing the same at the registered business premises of the petitioner. Additionally, a copy of the notice was also affixed on the residence of the proprietor of the petitioner firm - Prima facie, there was wholesome and substantial compliance with provisions of Section 37C - Decided against assessee.
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2013 (11) TMI 1405
Differential service tax liability - Manpower Recruitment Agency services - Discharge of service tax liability on the entire amounts received - Held that:- show-cause-notice issued to the appellant specifically talks about inclusion of the difference in income shown between the balancesheet and ST-3 returns filed by the appellant. The annexure to show-cause-notice specifically talks about the such difference - invoices which were produced by the appellant do not inspire any confidence to hold that amount which have been paid as salary and wages are reimbursed by the service recipient, since we are unable to come to any conclusion that documents produced by the appellant indicate that there was reimbursement of expenses from the service recipient - Following decisions of Intercontinental Consultants & Technocrats Pvt. Ltd. vs. Union of India [2012 (12) TMI 150 - DELHI HIGH COURT] and Malabar Management Services Pvt. Ltd. vs. Commr. Of S.T. & Modern Business Solutions[2007 (10) TMI 135 - CESTAT, CHENNAI] - Partial stay granted.
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2013 (11) TMI 1404
Discharge of service tax liability - Storage and Warehousing Services - Import of Ammonia - Demand of duty, interest and penalty – Bar of limitation - Held that:- Demand is time barred as extended period is not invokable as no such point was taken by the first audit of their premises done by Revenue. It is observed that appellants have filed the required periodical returns with the department showing the credit taken. It may be true that copies of the documents on the basis which credits are taken are not enclosed with the periodical returns filed with the department. But all the Cenvat credit taking documents are required to be seen by the Revenue during audit exercise to ensure that credit has been correctly taken by an assessee. However, if the improper credit taken is detected by the revenue in the very first audit, still there could be a case for application of extended period in view of the provisions contained in the Cenvat Credit Rules, 2004 - prima facie case for complete waiver of the confirmed dues and penalty on time barred - Following decision of Commissioner of Central Excise, Bangalore vs. M/s. MTR Foods Limited [2012 (10) TMI 165 - KARNATAKA HIGH COURT] - Stay granted.
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2013 (11) TMI 1403
Demand of service tax - General Insurance Business service - Waiver of pre deposit of duty, interest and penalty - CBEC has earlier clarified that the activity is not taxable, later on, after reconsideration, clarified that the activity is taxable - Assessee contends that letter was prospective in nature therefore demand for the earlier period is not sustainable - Held that:- applicants were corresponding with the Board of Customs & Central Excise. Earlier the applicants were asking for exemption from service tax which was declined vide letter dated 05.01.2009. The matter was again taken up with the Board and the Board vide letter dated 24.02.2009 conveyed to the applicants that the applicants are not performing taxable service of General Insurance Business and not liable under the taxable service of General Insurance Business service. The Board has reviewed its earlier decision which was conveyed to the applicants vide letter dated 20.09.2011 whereby it has been decided that the applicants are providing taxable service. Show Cause Notices were issued in view of the letter dated 20.09.2011. In view of the earlier letter dated 24.02.2009, whereby it was conveyed that the applicants are not liable for service tax under the category of General Insurance Business, prima facie, the applicants have a strong case for waiver of pre-deposit of dues - Stay granted.
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2013 (11) TMI 1402
Refund of service tax - Merchant Exporter - refund of service tax paid by them in respect of 13000 MTs of sugar exported by them - Held that:- Foreign Trade Policy is not a mandatory requirement for the purpose of third party exports. Foreign Trade Policy requires an exporter to be identified for the purpose of determination of eligibility for export benefits and for this purpose, the third party exporter is required to be mentioned in all the documents. If the Shipping Bills do not contain the name of third party exporter, the third party exporter who is a Merchant Exporter would not be the exporter in the eyes of law.
Notification No. 17/2009-S.T. dated 7.7.2009, amended subsequently under which refund has been made. According to this notification, exemption for the taxable service which is extended in the form of refund is available in respect of taxable service received by exporter of the goods and used for export of the goods. There is no definition in the notification or in the Central Excise Act. Since the refund is for the export of goods, it would be appropriate to take the definition of ‘exporter’ in the Customs Act for this purpose. In this case, the respondent has fulfilled all the conditions since name of the respondent has figured in the Shipping Bills; the goods have been exported. There is no dispute in this aspect and service has been used for export of goods and service tax has been suffered by manufacturer - Decided against Revenue.
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2013 (11) TMI 1401
Stay application - Denial of CENVAT Credit - Nexus with the output service of ‘Management Consultancy Services and Works Contract services’ - applicability of Rule 6(5) where input services are related to exempted services - Held that:- It is observed from the opening paragraph of the contract dated 27.7.2007 entered between the appellant and M/s. Yes Bank Limited that Sadbhav Infrastructure Project Limited (SIPL for short) has been given alternate names ‘Sadbhav’ or ‘Company’ - it is possible that Yes Bank Limited has provided services to all the group Companies and payment part has been done by the appellant for the purpose of taking cenvat credit. Further, whether the services for which cenvat credit has been taken has got nexus with the output services provided by the appellant needs deeper consideration. Appellant has, therefore, not made out a prima facie case for complete waiver and is required to be put to certain condition - Partial stay granted.
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2013 (11) TMI 1400
Confiscation under Section 115(2) - Mis declaration of goods - Imposition of redemption fine - Onus to prove - Held that:- appellant has to show that the vehicle was used without his knowledge and he did not know the nature of the goods. This submission leads to a conclusion that he did not have the knowledge of the goods being transported which becomes a rebuttable submission only because it is necessary for the department to rebut to show that he had knowledge. In this case, the Commissioner has taken a view that the appellant has to prove beyond doubt that they had no knowledge . This term is used only when a person is being prosecuted and will be subjected to conviction in which case the prosecution is required to prove the guilt beyond reasonable doubt (and not beyond doubt) . Nowhere it can be said that the appellant has to prove beyond doubt that he has not committed an offence - appellant or his agent or driver of the vehicle or person in-charge of conveyance did not have knowledge of nature of the goods being transported - Decided in favour of assessee.
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2013 (11) TMI 1399
Denial of benefit under Notification No. 21/2002-Cus - Classification under Heading 3005 9090 and 8414 5920 of the Customs Tariff Act, 1975 - Assessee claimed the goods are thawer equipment for blood warming and eligible for exemption from duty under Sl. No. 363 A & B - Held that:- Sl. No. 36 of the Table appended to Notification No. 21/2002-Cus. granted concessional rate of duty on the goods namely medical equipments (excluding Foley Balloon Catheters) and other goods specified in List 37. Sl. No. 54 of List 37 of the said Table provides ‘Thawer Equipment for Blood Warming’ - exemption is extended to the Thawer equipment is used for the action of making or becoming warm of the blood - The certificate placed also certified that it is used for convective warming therapy. In our considered view, the Thawer equipment for blood warming is distinct and separate from the present imported goods namely blanket contained blowers for warming of the body of the patient. Therefore, the benefit of the exemption cannot be extended - Decided against assessee.
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9911796707
