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Case Laws
Showing 401 to 420 of 1558 Records
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2017 (2) TMI 1160
CENVAT credit - the appellant had shifted/transferred used capital goods from their Lambha factory to their another factory at Odhav, without reversal of the credit at their Lambha unit - Held that: - Appellant fairly accepts to reverse the credit at Lambha Unit and avail at Odhav and regularize the procedural lapse. The Appellant is accordingly directed to do so and intimate the department accordingly - demand upheld for normal period.
Penalty u/s 11AC of CEA,1944 read with Rule 15 of CCR,2004 - Held that: - the appellant under the bonafide impression did not reverse the credit after due intimation of removal of the capital goods to the Dept. In these circumstances, penalty u/s 11AC of CEA,1944 read with Rule 15 of CCR,2004 is not attracted.
Appeal disposed off - decided partly in favor of appellant.
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2017 (2) TMI 1159
Levy of ADD - Plain Medium Density Fibre Board having thickness of 6 mm and above - import from Indonesia and Vietnam - Held that: - the DA arrived at the ex-works export price and thereafter dumping margin. The grievance of the appellant is that full particulars of the document verification have not been made available to them. We note that the DA cannot make available sensitive cost data of the exporting company. The same is protected by the provision of Rule 7 of AD Rules.
If the DA has formed a opinion regarding correctness of the claim made by the party about confidentiality then he is within his rights to withhold such information and make available only the general non-confidential summary relevant for investigation. We find no infirmity in the proceedings by the DA in arriving at the quantum of definitive anti dumping duty on subject goods.
Escaping from the condition of period of limitation by filing cross appeal - Held that:- Section 9C (5) of Customs Tariff Act, provides for constitution of special Bench of three Members headed by the president, to decide the case of anti dumping duty. Whereas appeal u/s 129A of Customs Act is heard by a single or a division Bench. The court fee applicable for the appeal under Customs Act as well as under Customs Tariff Act for anti dumping duty are different. The appeal against determination of anti dumping duty is clearly provided u/s 9C of the Customs Tariff Act.
An appeal u/s 9C of Customs Tariff Act is required to be filed within the time prescribed to challenge the determination or imposition of anti dumping duty. There is no provision of filing cross objection to be treated as a separate appeal under the said section. The provisions of Section 9A (8) only applies "as far as may apply". When there is a specific provision under Customs Tariff Act for filing appeal against anti dumping duty, the provisions of said section should only apply.
Appeal dismissed - decided against appellant.
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2017 (2) TMI 1158
Valuation of imported items - disposable cap and Halogen Lamps - Held that: - The material data of comparable goods as per the information NIDB data base is available with the authorities for assessment. The same has not been contested also by the appellant. The value declared by the appellant is lesser than NIDB data by only a small margin. Re-determination of value as per NIDB data is not contested by the appellant. We find there is no legal justification to conduct a market enquiry especially in the presence of comparable data authenticated in NIDB for identical goods for material period. Even otherwise the details of market enquiry should have been made available to the appellant for his response so that a due decision can be arrived at. The same has not been done - The value of imported goods shall be determined in terms of data recorded in the impugned order based on NIDB.
Import of undeclared items - prohibited items - measuring tapes having dual markings - Held that: - The appellant cannot totally escape the responsibility for such import of undeclared item. However, considering the type of items imported and there being ordered to be absolutely confiscated, the penalty may be reduced to ₹ 2,00,000/-.
Appeal disposed off - decided partly in favor of appellants.
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2017 (2) TMI 1157
Valuation of imported item - ladies shoes, men's shoes, bags etc - related party transaction - whether the importer and the Foreign Supplier are related persons in terms of Rule 2(2) of the Valuation Rules 2007, and whether the transaction is influenced by the relationship? - Held that: - looking into the agreement between the appellant and the related foreign supplier, original adjudicating authority, came to the conclusion that the transaction value may be accepted. He has also given reasons for such conclusion - appeal was filed before Commissioner (Appeals), who, was of the the original authority should call for additional information/data/document from the importer and remanded the matter to the original authority for passing denovo orders - matter allowed by way of remand.
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2017 (2) TMI 1156
ITC - Penalty - Rectification Petition - Held that: - the petitioner indicated that other material, in the form of original tax invoices issued by the dealers and ledger extract of the suppliers, were available, to substantiate its claim, notwithstanding the fact that the commodity code had not been mentioned.
In so far as the tax imposed qua sale of tangible assets was concerned, it was indicated that the assets worth ₹ 5,78,98,000/- were disposed of by its registered office in Bangalore (now Bengaluru) and, therefore, the applicable tax had been paid under Karnataka Value Added Tax Act.
As regards the sale made to SEZ Units/developers was concerned, it was claimed that exemption was sought under G.O.Ms.No.193 dated 30.12.2006. The petitioner attempted to dispel the impression gathered by respondent No.1 that the petitioner was seeking to take benefit under Section 18 of the 2006 Act.
There was an apparent error made with respect to the adjustment of TDS, the impugned order needed to be recalled and, accordingly, an opportunity could have been given to the petitioner to place the relevant material on record qua other issues as well - Matter remanded back to redo the assessment.
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2017 (2) TMI 1155
Detention of goods - local sale - detention on the ground that the subject goods were not accompanied by on-line Form JJ - whether the respondent could have detained the goods for want of on-line form JJ, when goods were being ferried for local sale? - Section 67-A of the 2006 Act - Held that: - The goods in issue were the notified goods, they were not entering the state from a place outside the state - Section 67-A of the 2006 Act had no application, and therefore, the petitioner could not have been called upon to produce on-line Form JJ, which is, the Form prescribed for advance inward way bill - petition allowed - decided in favor of petitioner.
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2017 (2) TMI 1154
Auction sale - Notification of incumbrances on the property sold - Held that:- When rules permit sale, with encumbrance and without, contention of the learned counsel for the appellant that the sale should be free from encumbrance, cannot be accepted. On the facts and circumstances of the instant case, what is required to be considered by us, is whether the Bank has notified the encumbrances on the property sold.
In the light of the above we are unable to accept the contentions of the bank that by imposing a condition, "as is where is" and "as is what is", the Bank has no obligation to mention in the auction notice, the encumbrance of the property, sought to be sold and it is suffice to contend that in the auction notice, the Bank has clearly stated that the property sold was in "as is where is" and "as is what is" condition and that the same would satisfy the requirements of Rule 8(6) of the Security Interest (Enforcement) Rules, 2002, which states that the authorised officer shall state the description of the immovable property to be sold, including the details of the encumbrances known to the secured creditor. In Jai Logistics's case (2010 (7) TMI 1118 - MADRAS HIGH COURT ), defence of the Bank that the encumbrance was not known to them, and hence, could not be published on the sale notice, to sustain the order of forfeiture, was not accepted by this Court.
On the facts and circumstances of the case, the Bank may be right in contending that physical possession need not be taken before bringing the mortgaged property for auction, but they cannot shirk their duty to hand over possession to the auction purchaser. If the bank was not in a position to take physical possession, before sale, then recourse ought to have been taken under Section 14 of the Act and under the scheme of the Act, the Bank cannot be permitted to contend that there is no statutory obligation, on its part, to put the auction purchaser in possession.
Ordinarily, a sale is completed, on receipt of the entire sale consideration and handing over possession. But if encumbrance is specifically mentioned in the sale notice and if the auction purchaser with eyes open, had purchased the property, then there could be a cause to contend that it is the purchaser, who had taken the risk. While issuing a sale notice, it is the duty of the Bank to mention all the encumbrances in the property. The condition, "as is where is" or "as is what is" may indicate that when the property is sold, everything is not clear. But at the same time, the purchaser cannot be expected to know that the property sold was already mortgaged to another bank, viz., Nedungadi Bank and that there was a decree in O.S.No.328 of 1999, dated 10.07.2000, on the file of Subordinate Judge, Poonamallee.
Though the appellant has taken a demand draft dated 02.09.2009 in favour of Punjab National Bank, the respondent herein and also sent a telegram that he was ready to hand over the draft, subject to the bank handing over vacant possession of the property and time for remittance was granted up to 22.02.2009, bank has stuck to its stand of 'as is where is' or 'as is what is' condition and not committed to hand over physical and vacant possession of the auctioned property, which in our view is contrary to the scheme of the Act. In the light of the above discussion and decisions, forfeiture of the amount is erroneous. Appellant has made out a case for interference.
In the result, order made in W.P. is set aside. The respondent bank is directed to refund, a sum of ₹ 3,30,000/- to the appellant, with interest at the rate of 9% per annum, within a period of four weeks, from the date of receipt of a copy of this order.
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2017 (2) TMI 1153
Refund claim - N/N. 41/2007-S.T., dated 6-10-2007 - CHA services - denial on the ground that CHA has not produced his licence to show that he was acting as Customs House Agent and as such the services rendered by him cannot be considered to be Customs House Agent Services - Held that: - the Service Tax stands admittedly deposited by the said service provider under the CHA services and no objection was raised by the Revenue at that particular point of time. The fact that he is a member of the Bombay Customs House Agents’ Association is also not being disputed by the Revenue. In such a scenario, the refund of Service Tax paid on the services received from the CHA cannot be denied - appeal dismissed - decided against Revenue.
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2017 (2) TMI 1152
Whether the sponsorship of the Indian Premier League would amount to the sponsorship of a sporting event for the period under dispute? - Held that: - the said services get classified under the definition of sponsorship services on a finding that appellant is paying an amount to BCCI for being sponsorer of a team - It is a case of the appellant that Indian Premier League is sports event, hence not taxable under sponsorship services.
Whether the service tax amount received by the appellant from their other branches has been deposited by the appellant with the Government or otherwise? - Held that: - the said provision will apply only in respect of the collection of any amount from the recipient of the taxable services, in excess of the service tax assessed or determined and paid. It is undisputed in the case in hand that appellant had discharged the correct amount of service tax from place where they were supposed to discharge the service tax liability. Collection or otherwise of the service tax from their own circles cannot be equated to collection of service tax in excess of the amount paid or determined.
Appeal allowed - decided in favor of appellant.
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2017 (2) TMI 1151
Liability of tax - who is the person liable for payment of service tax for the services rendered by PWCDA, London to KPTCL? - whether the appellants office in India can be considered as the local address of the appellants subsidiary in London? - Held that: - Since PWCDA London is a non-resident service provider, in terms of the CBEC circular, the service receiver in India is liable to pay service tax. Since the appellant is not the service receiver, liability for service tax payment cannot be enforced on them. The position does not change because of the fact that the appellant was earlier discharging such service tax liability as per the authorisation given in their favor by the subsidiary company upto its withdrawal on 27.10.2003 - demand of service tax made on the appellant is without justification.
The demand has also arisen on account of the inability on the part of the appellant at the time of investigation to produce the original documents such as invoices and TR 6 challans evidencing the payment of service tax. The appellant has submitted that there are now in a position to submit the original documents for verification. Since the learned DR has also no objection, we remand the matter to the original adjudicating authority for verification of the original documents.
Appeal allowed in part and part matter on remand.
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2017 (2) TMI 1150
Refund claim - Rule 5 of the CCR, 2004 - rejection on the ground that the output service i.e. IT service was made liable for payment of service tax only with effect from 16.5.2008, whereas the refund claims are pertaining to the period prior to 16.5.2008 - time limitation - Held that: - appellant cannot be denied the refund of accumulated CENVAT credit only on the ground that software services were made liable to payment of service tax only w.e.f 16.5.2008.
Time limitation - Held that: - refund claims should be considered as filed within time as long as they have been filed within the period of one year from the date of receipt of the consideration for the services exported.
Matter on remand to decide that the nexus between the input services with the service exported as well as verification whether the claims have been filed within the period of one year from the date of receipt of consideration - appeal allowed by way of remand.
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2017 (2) TMI 1149
Business auxiliary services - Appellant had accrued certain benefits under foreign trade policy under the target plus scheme during the relevant period which entitled the appellant to transfer the sale benefits to any other entity by mentioning their name on the documents like invoice and shipping bills. It is the case of Revenue that appellant having received 1% of FOB value from Adani Exports Ltd, the said amount is liable to be taxed under business auxiliary services under the category of production or processing of goods on behalf of client.
Held that: - Revenue wants to include the amount received by appellant under the category of production or processing of goods for or on behalf of client which we find incorrect and unsustainable, for the simple reason that there is nothing on record to show that Adani Exports Ltd., is getting the diamond jewellery manufactured by appellant; nor there is any agreement brought on record to show that Adani Exports Ltd., had in fact placed an order with the appellant for manufacturing and export of diamond jewellery. In the absence of any such evidence to indicate that Adani Exports Ltd., had availed the services of appellant for production or processing of goods, we find that the impugned order holding that appellant is producing or processing of goods on behalf of Adani Exports Ltd., is unsustainable.
The appellant herein themselves cannot claim the commission for the activity undertaken by them.
Appeal allowed - decided in favor of appellants.
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2017 (2) TMI 1148
Classification of service - Business auxiliary services - use of electronic device to provide the service - Held that: - activity of Billing in the process of sale of goods produced or provided by or belonging to the client would be covered in the clause (vii) of the Section 65(19) as business auxiliary service . Clause (i) read with clause (vii) includes in its ambit the activity of billing - In the instant case the activity of the appellant is clearly that of generating bills for MSEDCL and is squarely covered in the definition of business auxiliary service clause (vii) as billing - the prime purpose of the activity is to generate bills and it is only incidental that electronic programmable devices are used for this purpose. The use of this device cannot change the nature of the services - the service provided by the appellant falls under the category of business auxiliary service and not information technology service or business support service.
Extended period of limitation - Held that: - Recording of a statement during the investigation cannot be considered as disclosure of information. The appellants were engaged in providing the service much before the recording of statement and they had not voluntarily come forward to pay service tax on the service or to disclose the full details to the Revenue - extended period rightly invoked.
Benefit of N/N. 12/2003-ST and/or exclusion of the cost of material used during the provision of service - Held that: - To avail the notification they have to prove that they had sold the goods during the provision of service to the client and produce necessary evidence like payment of VAT to establish the same.
Abatement of the value of the goods and material consumed - pure agent or not - Rule 5(2) of the Service Tax (Determination of Value of Taxable Services) Rules, 2006 - Held that: - as the appellants are service providers to MSDECL and service tax is payable on the value recovered by the appellants from the service receiver. The claim of deduction, if any, has to be supported by N/N. 12/2003-ST or the Service Tax (Determination of Value of Taxable Services) Rules, 2006. It is seen that the appellants do not qualify for any such deduction.
Appeal dismissed - decided against appellant.
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2017 (2) TMI 1147
Classification of goods - carpet - classified under sub heading 5703.90 of the First Schedule to the Central Excise Tariff Act, 1985 or under sub heading 5703.20? - Held that: - on going through the sub heading sub heading 5703.90 note 2(B) (ii) of Section XI of the Central Excise Act, 1985 wherein the textile products consisting of a ground fabric and a pile or looped surface no account shall be taken of the ground fabrics in the description of the goods or in the process of manufacture - the goods in question do not consist of a ground fabric and a pile or looped surface which is essential condition to specify the product in the sub heading note 2(B) of Section XI of the CEA, 1985. In the absence of such evidence sub heading note 2 (B) Section XI of the CEA, 1985 is not applicable to the facts of this case - appeal dismissed - decided against Revenue.
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2017 (2) TMI 1146
Imposition of penalty u/r 25 - the appellant has defaulted in payment of duty liability - Held that: - the appellant is defaulted in the making the payment of duty in time two times i.e. June 2003 and October, 2003. For the default of June 2003, the appellant paid duty along with interest but for October, 2003, the appellant paid the duty on pointing out by the Department. But no penalty has been imposed on the appellant for the default for the period October, 2003. In this circumstances, the appellant is on better footing for the default of June, 2003 by passing duty along with interest. Further in the show cause notice, there is no allegation against the appellant that they have not paid the duty for the month of June, 2003 by way of fraud, collusion, wilful misstatement, suppression of facts or within an intent to evade payment of duty - penalty set aside - appeal allowed - decided in favor of assessee.
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2017 (2) TMI 1145
Benefit of N/N. 214/86 dated 25.03.86 - denial on the ground that the sister concern has taken benefit of N/N. 49-50/2003 dated 10.06.2003 - Held that: - As per CCR, 2004, when the assessee manufacturing dutiable goods, the assessee is entitled for benefit of input used in manufacturing of dutiable goods - as the respondent is paying duty in their final product, the respondent is entitled to take cenvat credit on inputs used in manufacturing of their final product.
Penalty u/s 11AC - Held that: - there is no allegation that the respondent was having mala-fide intention not to pay duty, as per provisions of Section 11AC of the Act. As contents of the Section 11AC are missing, therefore, the Ld. Commissioner (A) has rightly dropped the penalty against the respondent.
Appeal dismissed - decided against Revenue.
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2017 (2) TMI 1144
Jurisdiction - whether the appeals pertaining to payment of drawback as provided in Chapter - X of the Customs Act, 1962 and the rules made thereunder including those for condonation of delay in submitting brand rate applications are maintainable before the Appellate Tribunal under the Central Excise Act, 1944? - In view of the differing decisions of the Tribunal in entertaining the appeals pertaining to drawback matters, the issue is placed before Hon’ble President for referring it to the Larger Bench to decide the issue - matter on remand.
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2017 (2) TMI 1143
Valuation - related party transaction - Held that: - the respondents were not clearing their entire production to the Gear Division of their own Company or to their sister concern M/s Sadhu Overseas - the respondents were also selling the goods (more than 65% their production) to independent buyers such as M/s Maruti Udyog Ltd. etc. In this background, we find that the Commissioner (Appeals) has correctly applied the decision of the Larger Bench of the Hon’ble Tribunal in the case of M/s Ispat Industries Vs. CCE, Raigad [2007 (2) TMI 5 - CESTAT, MUMBAI], wherein the Hon’ble Tribunal held that The provision of rule 4 are in any case to be preferred over the provisions of Rule 8 not only for the reason that they occur first in the sequential order of the Valuation Rules but also for the reason that in a case where both the rules are applicable, the application of rule 4 will lead to a determination of value which will be more consistent and in accordance with the parent statutory provisions of Section 4 of the Central Excise Act, 1944 - appeal dismissed - decided against Revenue.
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2017 (2) TMI 1142
Time limitation - area based exemption - for the period March, 2010 to October, 2011, the show cause notice has been issued by invoking extended period of limitation i.e. on 30.11.2012 - whether the facts and circumstances of the case, the extended period of limitation is invokable or not? - Held that: - The declaration given by the assessee were examined and the Range Superintendent held that the appellant is entitled for exemption under N/N. 50/2003 ibid. In that circumstances, it cannot be said that the appellant has suppressed the fact of manufacturing of Red Oxide from the department. Therefore, the change of suppression of facts is not sustainable against the appellant - the SCN is not maintainable which has been issued by invoking extended period of limitation - appeal allowed - decided in favor of appellant.
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2017 (2) TMI 1141
Refund - appellant filed a refund claim on excise duty paid during the period 01.01.2009 to 11.01.2009 on the ground, they had commenced the production only on 12.01.2009 - capacity based duty paid on Pan Masala Packing Rules, 2008 - Held that: - The similar issue came in the Hon’ble High Court of Punjab & Haryana in the case of Godwin Steels (P) Ltd. Vs. CCE, Chandigarh [2010 (5) TMI 322 - PUNJAB & HARYANA HIGH COURT], where it was held that Factory started production from middle of the month, therefore, it was wholly unjust for the department to recover the duty for the whole month - as no production was started till 12.01.2009, therefore, appellant is entitle for refund of duty for the period 01.01.2009 to 11.01.2009 paid by them - appeal allowed - decided in favor of appellant.
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