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Case Laws
Showing 401 to 420 of 1914 Records
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2016 (12) TMI 1516
CENVAT credit - advertisement service - denial on the ground that such service has no nexus with the output service provided by the appellant namely, authorized service station service - Held that: - Since the service tax paid on the disputed service is in relation to the business activities of the appellant, in my view, cenvat credit cannot be denied on the ground that the same is not conforming to the definition of input service - appeal allowed - credit allowed - decided in favor of appellant.
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2016 (12) TMI 1515
Imposition of penalty - belated payment of duty - Rule 8(3) of the Central Excise Rules, 2002 - whether the respondent is liable to pay penalty under Rule 25 of the Central Excise Rules 2002 for non-payment/delayed payment of interest under Rule 8(3) of the Central Excise Rules 2002? - Held that: - Rule 25 stipulates penalty subject to provisions of Section 11AC Central Excise Act, 1944. In other words for imposing penalty under Rule 25, the short payment must be due to the reasons of fraud, collusion or any willful mis-statement or suppression of facts with an intent to evade payment of duty. As no allegations with respect to suppression of facts are made in the show-cause notice issued to the respondents, penalty under Rule 25 cannot be imposed in this case - appeal rejected - decided against Revenue.
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2016 (12) TMI 1514
Refund claim - excise duty paid wrongly - unjust enrichment - Held that: - Under Section 12B of Central Excise Act, 1944 when the invoice is raised including the excise duty a presumption is raised that the incidence of duty is passed on. But this presumption is a rebuttable one. When the invoice was mistakenly raised including the duty and when excise duty was not collected, there is no question of the burden of duty being passed on.
The appellant paid excise duty wrongly, and the same though included in invoice has not been collected from BHEL. The entry was made debiting the excise duty without actually collecting the excise duty - BHEL has categorically stated that they have not paid the excise duty raised in the invoice which establishes that the duty burden has not been passed on - refund is not hit by unjust enrichment - appellant is eligible for refund - appeal allowed - decided in favor of appellant.
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2016 (12) TMI 1513
Cement and clinker - Reversal of CENVAT credit - Rule 3(5B) of Cenvat Credit Rules - Held that: - the parties below have not examined the documentary evidence. The appellant has also produced these documents in the present appeal also. But in the impugned order, the learned Commissioner (Appeals) has observed that the appellants have not produced any documentary evidence to prove that the provision is made only for partial value of goods for write off. In view of this finding returned by the Commissioner, I am of the opinion that this case needs to be remanded back to the learned Commissioner with a direction to consider the documents and the worksheets and the policy of the company with regard to partial write off - appeal allowed by way of remand.
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2016 (12) TMI 1512
Pre-deposit - Section 35F of the Central Excise Act,1944 - interpretation of statute - Held that: - I find that the wordings employed therein are as clear as daylight. In clause (iii) it is unambiguously prescribed that any person aggrieved by a decision or order referred to Clause (b) of sub- Section (1) of Sec. 35B of Central Excise Act, unless deposits 10% of the duty/penalty or duty and penalty, as the case may be, the appeal shall not be entertained. I do not find any reason to read the said provision in any other manner, so as to come to the conclusion that the Appellant is required to deposit 2.5% and not 10% as prescribed under the said provision, in view of the settled principle of statutory interpretation.
Appeal dismissed - decided against appellant.
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2016 (12) TMI 1511
Attachment of property - factory premises was leased to M/s Siddhnath Exports, an 100% EOU, for the period from 27.03.2000 to 26.03.2006. Since M/s Siddhnath Exports defaulted in payment of confirmed excise duty and penalty amounting to ₹ 4,59,00,617/-, the recovery proceeding of the said amount was initiated from the Appellants - the recovery notice was issued to the Appellant on 11.10.2005 along with M/s Siddhnath Exports for recovery of the outstanding dues under Section 142(1)(c)(ii) of Customs Act, 1962. It is not in dispute that under registered lease deed executed on 27.03.1999, the Appellants had leased their factory, building and plant and machinery to M/s Siddhnath Exports for a period of six years commencing from 27th March 2000, and till 26th March 2006 and stipulated that in any case, the factory was not to be vacated till the export obligation was discharged. However, the said lessee M/s Siddhnath Exports has left their premises before completion of export obligations and expiry of lease period of six years.
Held that: - I find that on the very same issue, the Tribunal has discussed in detail, the legality of the recovery of the outstanding dues from the lessor when the lessee, an 100% EOU, vacated the premises before fulfillment of the export obligations in Rajabali Ismail Rajbara case[2014 (3) TMI 483 - CESTAT AHMEDABAD (LB)] and by majority held that recovery cannot be made from the Lessor by attachment of the property - appeal allowed - decided in favor of appellant.
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2016 (12) TMI 1510
Pre-deposit - Section 35F of the Central Excise Act,1944 - interpretation of statute - Held that: - I find that the wordings employed therein are as clear as daylight. In clause (iii) it is unambiguously prescribed that any person aggrieved by a decision or order referred to Clause (b) of sub- Section (1) of Sec. 35B of Central Excise Act, unless deposits 10% of the duty/penalty or duty and penalty, as the case may be, the appeal shall not be entertained. I do not find any reason to read the said provision in any other manner, so as to come to the conclusion that the Appellant is required to deposit 2.5% and not 10% as prescribed under the said provision, in view of the settled principle of statutory interpretation.
Appeal dismissed - decided against appellant.
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2016 (12) TMI 1509
Rectification of mistake - though the Ld. Commissioner has given correct findings in the impugned order but made serious error inasmuch as he has not imposed penalty under Section 114A and wrongly mentioned the Section 27AB for charging interest instead of Section 28AB - Held that: - From the comparison of operative portion of the order and the findings reproduced above, it is apparent that though Ld. Commissioner has given correct findings in above para regarding the imposition of penalty under Section 114A and for charging the interest under Section 28AB in the operative portion of the order, penalty under Section 114A was not imposed and for charging interest. wrong Section 27AB was mentioned instead of correct Section 28AB. Therefore we are of the view that there is apparent and Serious error made by the Ld. Commissioner in the impugned order. Accordingly, we hold that respondent is liable for penalty equal to custom duty under Section 11A of the Customs Act, 1962 and respondent is also liable for payment of interest in terms of Section 28AB of the Customs Act, 1962 on the Custom Duty of ₹ 1,39,93,825/- - appeal allowed - decided in favor of Revenue.
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2016 (12) TMI 1508
Refund of SAD - certain goods were shown to have been sold prior to the date of payment of SAD - no clarifications could be produced in this regard and the error claimed by respondent as clerical error - Circular No.6/2008-Cus. dated 28.04.2008 - Held that: - The respondent has submitted a Certificate from C.A. who certified the financial records of the respondent. In terms of the Circular of CBEC, in an ordinary course the certificate should have been accepted as a proof. However, since a serious discrepancy was found in the invoices total reliance of the certificate is not accepted. We find that the onus of proving that they have paid ST/VAT on the imported goods lies on the respondent. The respondent has sought to discharge the said onus by C.A. certificate as there is a serious discrepancy noticed in the invoice as pointed out by Revenue. In these circumstances, we set aside the impugned order and remand the matter to the original adjudicating authority and the respondents are directed to submit the C.A. certificate along with all documents relied upon by the C.A. in preparing the said certificate - appeal allowed by way of remand.
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2016 (12) TMI 1507
Condonation of delay of 114 days - delay due to the reasons that at the time of receipt of the order impugned before the Tribunal, the Consultant was out of country, and thereafter, the managing partner was also out of country and it was also the case on behalf of the appellant-assessee that the father of the Consultant was not well and had passed away and even his wife was suffering from breast cancer - Held that: - the learned Tribunal ought to have condoned the delay in preferring the Appeal since there does not appear to be any deliberate delay and/or negligence on the part of the appellant in not preferring the Appeal within the period of limitation. By not preferring Appeal within the period of limitation, as such, the appellant-assessee was not going to be benefited - delay condoned - appeal allowed - decided in favor of appellant-assessee.
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2016 (12) TMI 1506
Implemention of the order passed by the Commissioner of Customs (Appeals-I) - Held that: - the Appeal filed by the Department has been dismissed, by order, dated 30.11.2015. Therefore, this Court cannot adjudicate the correctness of the said order in this Writ Petition, when the petitioner seeks for implementation of the order passed in Order-in-Appeal, dated 14.09.2015. Thus, on the peculiar facts and circumstances of the case, this Court has no other option, except, to direct the respondents to comply with the order passed by the Commissioner of Customs (Appeals-I), dated 14.09.2015 - petition allowed - decided in favor of petitioner.
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2016 (12) TMI 1505
Valuation - Wartsila Reconditioned 18V32LN engine no. 21888 with Napier Trubocharger Reconditioned ABB alternator rated at 7600 KVA with AVR - rejection of declared value - rejection on the ground that the Chartered Engineer's certificate issued in the country of export was not acceptable owing to discrepancy with the year of manufacture on the plate affixed to the engine - Held that: - the pre-shipment inspection report issued by Bureau Veritas was examined, and it clearly states that the original manufacturing date of the engine is 10th October 1994 and that of the alternator is 17th October 1995 with the common base plate having been manufactured on the 2nd of April 1996. While Revenue has no issue in accepting the original manufacturing date of the alternator, they do not accord the same credibility to the manufacturing date of the engine as certified in the certificate. Undoubtedly, both the lower authorities are of the view that the certificate does not reflect the date on the plates affixed to the engine. Even if that were an acceptable proposition, the enhancement of value should have been in accordance with the provisions in the Customs Valuation Rules and not by placing reliance on an expert appraiser as has been done by the original authority.
Reliance was placed in the decision of the case of Essar Graphics (P) Ltd. v. Commissioner of Customs, Chennai [1998 (8) TMI 250 - CEGAT, MADRAS], where it was held that rejection of value cannot be done merely relying on foreign Chartered Engineer’s certificate
Declared value to be accepted - appeal allowed - decided in favor of appellant.
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2016 (12) TMI 1504
Exports of contraband/ restricted goods - Hashish - imposition of penalty u/s 114 of the CA, 1962 - whole case revolves mainly on the statements of the appellant recorded and certain evidences relied upon by the Revenue - it was claimed by appellant that the statements were taken under coercion and duress - Held that: - it is not only appellants statement alone but there are various corroborative evidences such as categorical statement of Shri. Nitin K Bhanushali who clearly stated that appellant is the main person who was involved in the exports of contraband/ restricted goods - further nothing was found in support of appellant, that the allegations are untrue, and violating the principles of natural justice.
Ld. Commissioner in the denovo adjudication process complied with the principle of natural justice holding that Shri. Haresh Gandhi had aided and abetted Shri. Nitin Bhanushali in the illegal exports and passed a reasoned order of imposition of penalty u/s 114 - imposition of penalty upheld - appeal dismissed - decided against appellant.
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2016 (12) TMI 1503
Public charitable trust - import of equipments for diagnostic centre - benefit of Customs Notification No.64/88, dated 1.3.1988 - Held that: - from a reading of the annexures to the writ petition it is apparent that the demand has been raised after a factual satisfaction. That satisfaction is based on inspection, scrutiny and verification of the records and documents provided by the petitioner itself - A conditional exemption is available and can be availed of on tendering proof of satisfaction of the terms and conditions thereof, else the exemption cannot be availed of.
In the instant case, all the terms and conditions of the exemption Notification were made known and voluntarily accepted by the petitioner. It even executed a Bond and also submitted a Bank Guarantee and as noted by us hereinabove - Once being aware of the clear stipulations in the exemption Notification, but failing to satisfy them, the petitioner was not entitled to any exemption. The demand is rightfully raised and deserves to be confirmed.
Petition dismissed - decided against petitioner.
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2016 (12) TMI 1502
Release of detained goods - implementation of order of commissioner of customs - principles of judicial discipline - 4 No's gold bars totally weighting 400 grams of gold - Held that: - Once the appellate authority, namely, the Commissioner of Customs has passed the order on 30.06.2015 and without obtaining any order of the stay of the appeal, the respondent should not keep themselves by disobeying the order passed by the appellate authority.
Reliance was placed in the case of Union of India vs. Kamalakshi Finance Corporation [1991 (9) TMI 72 - SUPREME COURT OF INDIA], where it was held that the respondent failed to respect the order of the Apex Court and failed to implement the order shows contempt of Court - The Hon'ble Apex Court and this Court in various cases very categorically held that the order of the Joint Commissioner of Customs and the Commissioner of Customs (Appeal) clearly shows that the petitioner has not committed any violation, therefore, they should implement the order of the Commissioner of Customs in a true letter and dispute.
Even mere filing of the revision against the order of appellate authority would not empower the respondent to deny release of the goods in question and the respondent have not given any proper explanation as to why no stay order has been obtained against the order of the Commissioner of Customs (Appeals) dated 30.06.2015, even though the said order said to have been challenged by way of further appeal.
Respondent was directed to release the goods - petition allowed - decided in favor of petitioner.
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2016 (12) TMI 1501
100% EOU - Fulfillment of export obligation - installation of machinery - import under EPCG scheme - Notification No. 49/2000-Cus. dated 27.3.2000 - Held that: - Since the appellants have put the goods imported to use and have partially fulfilled the export obligations, it is not proper to deny the benefit due to partial fulfilment of export obligations and demand the entire duty - Secondly, the duty has been demanded without taking into account the depreciated value. This is not correct. In the present case, the capital goods have been put to use by the appellants. Therefore, at the time of de-bonding, duty can be demanded only on the depreciated value - Further, the non-fulfilment of export obligation is on account of the business conditions prevailing at that time and not on account of any mala fide act. In such circumstances, imposition of penalties is not justified - redemption fine and penalties set aside.
The duties of customs are payable at the time of importation of the goods. Admittedly, the capital goods were imported by the appellant on 28.12.2000 and the same has been in the custody of the appellant; therefore, the appellant is liable to pay duty chargeable as on 20.12.2000. Consequently, the plea of the appellant that depreciated value of the machine is to be taken as basis for the duty is not acceptable.
Appeal disposed off - decided partly in favor of appellant.
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2016 (12) TMI 1500
Valuation of imported goods - PVC coated cloth polyester taffeta - mis-declaration of value of goods as similar goods were imported by VIP Industries at a higher rate - Held that: - the goods imported by VIP Industries is not from the same supplier and the quantity by VIP Industries is far less and in kgs. while the goods imported by the respondent are huge for trading purposes - adjudicating authority has held that there is marginal difference between the declared price and the value proposed to be loaded, that the transportation, handling, charges and margin of profit are not based on any standard formula and a slight difference in these charges would substantiate the declared price. Unless there is substantial difference between the declared price and the value determined after market enquiry loading must be avoided and the transaction value can be accepted - impugned order upheld - appeal dismissed - decided against Revenue.
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2016 (12) TMI 1499
Issuance of writ in the nature of certiorari for quashing the impugned arrest notice dated 6.12.2016 - Sections 132, 135(a) of the Customs Act, 1962 - Held that: - in the present case summon was issued on 6.12.2016 under Section 108 of the Customs Act, 1962 to the petitioner to appear on the next date i.e. 7th December, 2016 at 11:30 hours and also to produce the documents and records mentioned in the Schedule at Serial No. 1 to 5 - It is very surprising that on the same day i.e. 6.12.2016 the notice of arrest was also issued to the petitioner by the office of Superintendent (SIIB), Customs Commissionerate, Noida. As such, notice of arrest suffers from non-application of mind, and appear to be arbitrary and unreasonable and is, therefore, liable to be quashed.
Impugned arrest notice quashed - petition allowed - decided in favor of petitioner.
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2016 (12) TMI 1498
Recovery of interest - N/N. 36/97-Cus dated 11/4/1997 - though the appellant was required to execute the bond in respect of duty and interest thereon. However the appellant executed the bond only in respect of duty and there is no mention about interest in the said bond. Even the bond accepting authority has not raised any objection at the time of execution of the bond - Held that: - The identical issue has been decided by the Hon’ble Apex Court in case of Jayaswal Neco Ltd [2015 (8) TMI 243 - SUPREME COURT] wherein Hon’ble Apex Court held that when the bond does not contain the terms of payment of interest, recovery of interest cannot be made, despite there is a condition of executing the bond not only for the duty but also for the interest, in terms of notification - demand of interest set aside - the confirmation of demand and appropriation of amount of duty paid by the appellant are maintained - appeal allowed - decided in favor of appellant.
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2016 (12) TMI 1497
Detention of seized truck and goods - non payment of tax dues - Held that: - The Truck is detained since 15th October 2016, therefore, if the truck is kept idle for a longer period, the condition of Truck shall be deteriorating and it shall not be in the interest of either of the parties. Under the circumstances, the truck can be released on the terms stated hereinabove, which the petitioner has agreed to comply with. The petitioner has agreed to pay/deposit a sum of ₹ 20,00,000/= on or before 24th December 2016 and has also agreed to pay balance amount of ₹ 84,08,325/= with interest; if any on the outstanding amount on or before 20th February 2017 - An undertaking affirmed by the Regional Manager and the authorized signatory of the petitioner-Company to the aforesaid extent is also filed - petition disposed off - decided in favor of petitioner.
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