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Showing 401 to 420 of 1052 Records

• 2011 (4) TMI 1153
  

  Waiver of pre-deposit - clearing and forwarding service – Held that:- Applicant is neither warehousing the goods, nor dispatching the same on the instruction the principal, nor issuing any invoice on behalf of the principal, merit in the Application. Therefore, predeposit of the Service tax, interest and penalties is waived and recovery of the same stayed during pendency of the Appeal, Stay Petition is allowed

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• 2011 (4) TMI 1152
  

  Waiver of pre-deposit of Service Tax – Held that:- Applicant has provided only cranes on hire and this service is in relation to the supply of tangible goods including machinery, equipment and appliances for use, without transferring right of possession and effective control of such machinery, equipment and appliances, and this service comes under the scope of Service Tax with effect from 16-5-2008, Applicant has a strong prima facie case in their favour. Therefore, pre-deposit of the Service Tax, interest and penalties is waived and recovery of the same stayed during pendency of the Appeal. Stay Petition is allowed

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• 2011 (4) TMI 1151
  

  Waiver of pre-deposit - clearing and forwarding agent’s service - Commissioner (Appeals) directed the Applicant to deposit a sum of Rs. 18,97,064.00 for hearing of the appeal before him. As the Applicant failed to comply with the condition of the Stay Order, the Appeal filed by the Applicant was dismissed for non-compliance under the provisions of Section 129E of the Customs Act, 1962 - Held that:- Commissioner (Appeals) has not gone into the merits of the appeal as the appeal was dismissed for non-compliance to the condition of the Stay Order passed by him. Hence, the impugned Order is set aside and the matter is remanded to the Commissioner (Appeals) to decide the Appeal on merits without asking for any pre-deposit

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• 2011 (4) TMI 1150
  

  Demand of Service tax - respondents are providing site formation and clearance, excavation and earth moving and demolition services - Revenue wants to impose a service tax on respondents as provider of cargo handling services – Held that:- in the case of Warner Hindustan Ltd. (1999 - TMI - 45233 - SUPREME COURT OF INDIA), Revenue can not make out a new case at Tribunal stage and it is not permissible for the Tribunal to consider a case laid for the first time in appeal, no merit in the appeal is dismissed

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• 2011 (4) TMI 1149
  

  Whether in the absence of realization of foreign exchange the appellant shall be entitled to the benefit of Notification No.41/2007 dated 06/10/2007 – Held that:- appellant having failed to produce any evidence of realization of foreign exchange and the appellant not producing any material evidence to show that the free samples otherwise are eligible for rebate for service tax on courier service, the relief claimed is not tenable. No claim can be entertained mechanically without fulfillment of mandate of statute, the appeal is dismissed

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• 2011 (4) TMI 1148
  

  Penalty imposed under Section 78 of the Finance Act – Held that:- no intention on the part for evading service tax as no evidence to this effect has been relied upon. The Commissioner (Appeals) has upheld penalties under Sections 75A, 77 and 76 of the Finance Act. It appears that the respondents have not filed any appeal. The grounds of appeal do not disclose any material to support allegation of evasion of service tax intention to evade payment of tax, no justification to interfere with the order of the Commissioner (Appeals) in setting aside the penalty under Section 78, appeal by the department is rejected

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• 2011 (4) TMI 1147
  

  Waiver of pre-deposit - demand has been confirmed by treating the commission amount received by the assessee who are registered for banking and financial services and engaged in the business of financing commercial vehicles, cars, two wheelers etc., from vehicle dealers, as taxable under the category of “Business Auxiliary Service” - service provided by the assessee would be covered by the definition of “commission agent” and prima facie is classifiable under the category of “Business Auxiliary Service” – Held that:- no prima facie case for total waiver has been made out, directed pre-deposit of Rs. 20,00,000/- (Rupees Twenty lakhs only) towards tax and on such deposit, the pre-deposit of balance amounts in dispute shall stand dispensed with and recovery thereof stayed pending the appeal

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• 2011 (4) TMI 1146
  

  Whether the assessee is liable to pay service tax - question relates to payment of rate of duty/tax – Held that:- question falls squarely within the exception carved cut in Section 35G, ‘an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment’, and the High Court has no jurisdiction to adjudicate the said issue, appeal is rejected as not maintainable

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• 2011 (4) TMI 1145
  

  Whether the transfer of technical knowhow or assistance is excisable to service tax which falls within the phrase “Rate of duty” - Held that:- Court has no jurisdiction to go into the same. It is only the Apex Court under Section 35L of the Act which is competent to decide the aforesaid question of law, this appeal is rejected as not maintainable reserving liberty to the revenue to prefer an appeal to the Apex Court

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• 2011 (4) TMI 1144
  

  Seizure – smuggled goods – Held that:- no mark of country of origin on the goods and it is only on the basis of trade opinion of M/s. Bharat Trading Co. that the department alleges that the goods are of third country origin, Since the goods are not covered by Section 123 of Customs Act, 1962, the burden of proving that the same are smuggled is on the department, which has not been discharged, confiscation of the goods and imposition of penalty on the appellant is not sustainable, appeal is allowed

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• 2011 (4) TMI 1143
  

  Writ petition - petitioners seek a direction to the second respondent not to encash the bank guarantees until the statutory period of limitation prescribed for preferring appeals expires or if appeals have been preferred, until the stay petitions preferred in the appeals are disposed of - respondents submitted, on instructions, that in view of the directions issued by this Court in Ext.P1 judgment and Ext.P3 order, the second respondent will not encash the bank guarantees until the statutory period of limitation prescribed for filing appeals from Exts.P4 and P5 expires and will encash the bank guarantees only if the petitioners do not prefer appeals within the said period, writ petition disposed of

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• 2011 (4) TMI 1142
  

  Condonation of delay - respondent points out that the appeals filed by them, all directed against Order-in-Original No.189/2009 dated 30.12.08 passed by the Commissioner of Customs (Adjudication), Mumbai) were allowed by way of remand vide Order No. A/146 to 200/09/CSTB/C.II dated 13.8.09 and, therefore, the Revenue's appeal is also liable to be disposed of likewise - appeal allowed by way of remand, Revenue's appeal stands disposed of

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• 2011 (4) TMI 1141
  

  Seizure and confiscation - redemption fine and penalties - search - statement was recorded wherein it was stated that he has lost the original IEC and has not lodged any compliant with the police department. He further submitted that he is working for some person on commission basis and he is not the real importer of the said goods imported under the impugned bill of entry, these goods pertain to one Shri Atul Sanpal - appellants submits that it is admitted fact that the goods were imported by M/s. Sharp Enterprises for Shri Atul Sonpal- Held that:- no violation of the provisions of Customs Act, order is set aside, appeals are allowed

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• 2011 (4) TMI 1140
  

  Refund of certain excess amounts of duty paid by them, without the bar of unjust enrichment – Held that:- in the case of Priya Blue Industries Ltd. (2004 - TMI - 47045 - SUPREME COURT OF INDIA) held a refund claim to be not maintainable in the absence of successful challenge to the assessment on the basis of which the duty was paid by the assessee, without successful challenge to assessment of goods, the assessee cannot claim refund of any amount of duty which is claimed to have been paid wrongly, appeals are dismissed

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• 2011 (4) TMI 1139
  

  Stay application - CHA licence - Commissioner of Customs, Chennai, has prohibited the appellants from carrying out their business in Chennai Customs jurisdiction, with immediate effect and until further orders – Held that:- Commissioner has the power under Regulation 21 to issue an order of prohibition prohibiting a CHA from working in one or more sections of the custom house, order of prohibition does not warrant to be stayed during pendency of the appeal apart from the fact that prima facie, stay application is dismissed

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• 2011 (4) TMI 1138
  

  Custom House Agents Licence – Held that:- adjudicating Commissioner’s action in revoking a licence, granted by another Commissioner of a different jurisdiction is also prima facie contrary to the Board’s Circular No. 9/2010-Cus. dated 8-4-2010, which in paragraph 5.2 clarifies that necessary action for suspension or revocation of CHA licence should be initiated only by the Commissioner who had issued the licence, stay the operation of the impugned order during pendency of the appeal and allow the stay petition filed by the appellants, appeal is also allowed

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• 2011 (4) TMI 1137
  

  stay application - pre-deposit of duty demand, interest and penalty - Under the SSI exemption notification during the relevant period, the first clearances in a financial year of value upto Rs. 1,00,00,000/- were fully exempt from duty. During scrutiny of ER-3 return for the quarter ending March 2007, it was found that while their sales upto 18-1-2007 were of total value of Rs. 1,00,00,000/- during the period from 19-1-2007 to 31-3-2007, they had cleared 8598.70 sq. mtrs. marble slabs of total value of Rs. 16,38,277/-, on which duty amounting to Rs. 2,64,063/- was chargeable, but this quantity had been cleared without payment of duty – Held that:- in the case of Aman Marble Industries Pvt. Ltd. (2003 - TMI - 46675 - SUPREME COURT OF INDIA), the marble slabs made out of marble blocks were not excisable and the same became excisable only w.e.f. 1-3-2006 when Chapter Note 6 was introduced in para 25, requirement of pre-deposit of duty demand, interest and penalty is waived, stay application is allowed

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• 2011 (4) TMI 1136
  

  Refund - original authority after sanctioning the refund adjusted which was reportedly pending from the appellants - According to the appellants there was no valid demand pending as arrears – Held that:- appeal was against appropriation of 3,78,019/- treating the same as arrears pending against the appellant, in the absence of evidence showing that there were confirmed demands pending against the appellant, adjustment of Rs. 3,78,019/- out of refund sanctioned was not legal and proper. The amount so adjusted should be released, appeal is allowed

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• 2011 (4) TMI 1135
  

  Determination of installed capacity - total number of Hot air stenters - Held that:- Rules framed under Notification No.42/98 is not having acceptable method to arrive at the capacity of production, which is absolutely necessary to levy and collect duty of excise under Section 3A of the Act. So, the said rules cannot be adopted for determination of excise duty as they cannot level the correct capacity of production of the factory for the purpose of levying excise duty. So, the Rule 3 of the Rules issued in the Notification No.42/98 cannot be sustained as they are ultra vires Section 3A of the Act, proceedings against the  respondents are not sustainable, appeals filed by the Revenue are dismissed

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• 2011 (4) TMI 1134
  

  100% EOU - appellant received 737 drums/barrels of finished goods from their Berhampur warehouse. Out of these, 566 drums of finished goods became unfit for human consumption - petitioner submit that the appellant intimated about spoiled goods in 737 drums well in advance and, as the department delayed inspection, the appellant had to destroy the same along with 198 more drums received subsequently because of the objection of the villagers regarding sanitation problems – Held that:- Commissioner can arrive at his satisfaction only when necessary evidence is produced by the assessee. Admittedly the analytical report covers 566 drums and there was no such analytical report for the other drums including 198 drums. It appears the adjudicating as well as appellate Commissioners let off the appellant in respect of 737 drums for which intimation was given. In so far as 198 drums were concerned, the appellate Commissioner as well as CESTAT came to the correct conclusion after appreciating the factual background, appeal is misconceived and is accordingly dismissed

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