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Case Laws
Showing 401 to 420 of 639 Records
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2010 (6) TMI 406
Penalty - assessee defaults in payment of duty beyond 30 days - provisions of Section 11AC are not attracted since the goods have been cleared in contravention of Rule 8(3A), the provisions of Rule 25 applicable - provision of Section 11AC are not attracted and there was only delay in payment of duty and there was no clandestine removal, there is enough justification for reduction of penalty
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2010 (6) TMI 405
Loss on sale of shares - Tribunal upheld the action of the Assessing Officer of treating the loss on sale of shares as capital loss ignoring the fact that instead of showing the shares as `stock-in-trade' in the balance-sheet it was shown by the assessee under the head `investments' – different view not to be taken for subsequent year – no substantial question of law – Appeal dismissed
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2010 (6) TMI 404
Additions u/s 44AD - cash credit - ₹ 14,95,300 - busines receipt - Section 44AD of the Act was inserted by Finance Act, 1994 w.e.f. 1.4.1994. Sub-section (1) of Section 44AD clearly provides that where an assessee is engaged in the business of civil construction or supply of labour for civil construction, income shall be estimated at 8% of the gross receipts paid or payable to the assessee in the previous year on account of such business or a sum higher than the aforesaid sum as may be declared by the assessee in his return of income notwithstanding anything to the contrary contained in Sections 28 to 43C of the Act. This income is to be deemed to be the profits and gains of said business chargeable of tax under the head "profits and gains" of business. However, the said provisions are applicable where the gross receipts paid or payable does not exceed ₹ 40 lacs. - Held that: - Once under the special provision, exemption from maintaining of books of account has been provided and presumptive tax @ 8% of the gross receipt itself is the basis for determining the taxable income, the assessee was not under obligation to explain individual entry of cash deposit in the bank unless such entry had no nexus with the gross receipts
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2010 (6) TMI 403
Demand – Excess and shortage – partner admitting offence of illicit clearance - cross examination, one of the panchnama witnesses stated that he entered the premises only on 6-9-97 at 16.00 hrs whereas according to the Panchnama, the search was over at 14.30 hrs - The investigating officer during cross examination could not explain as to how the fabrics received under 3 challans on 4-9-97 could be treated as processed and cleared without payment of duty - Panchnama does not connect the appellants/invoices with grey fabrics found short - merchant manufacturers in response to the show cause notice had stated that no goods were received by them without Central Excise invoices and they were not part of the activity of duty evasion - Panchnama was defective, no proper procedure followed for measuring; no explanation is coming regarding Annexures A and B, result of cross examination of panchnama witness, inability of investigating officer to explain the methodology and their inability to explain how the grey fabrics received under 3 challans on 4-9-97 could be processed and cleared on the very same day – Appeal rejected
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2010 (6) TMI 402
Recovery – Adjustment from refund - Section 11 of the said Act provides that in respect of duty and any other sums of any kind payable to the Central Government under any of the provisions of the said Act or of the rules made there under, the officer empowered under the provision of law could require the payment of such sums or may deduct the amount so payable from any money owing to the persons from whom such sums may be recoverable or due - Deputy Commissioner in the matter in hand was justified in adjusting the amount due to the Government from the amount refundable to the respondents - Commissioner (Appeals) having erred in ignoring the statutory provision and factual aspects of the matter which were required to be considered
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2010 (6) TMI 401
Cenvat credit – Capital goods - M.S. Channels, parallel flange beam, parallel flange column and M.S. angle have been used only for fabricating supporting structures - respondents are not eligible for credit as held by the original authority - order of the Commissioner (Appeals) allowing the credit is not proper Demand – Limitation – cenvat credit - Tribunal in belief that the impugned items were capital goods was bona fide - order of the original authority, no material available to show that the respondents failed to furnish any relevant information which was required under the law - question of suppression or misstatement justifying invocation of extended period does not arise - imposition of penalty does not arise
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2010 (6) TMI 400
Interest – cenvat credit – Input sent for job work - inputs cleared for processing under Rule 4(5) of the Cenvat Credit Rules, 2002, have all been received back, after 180 days - claim of the appellants that they had sufficient credit in their account is true, then there is no justification for ordering recovery of interest - factual verification as to whether there was sufficient credit in the accounts of the appellants so as to refrain from ordering recovery of interest, the matter requires to be sent back – Matter remanded
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2010 (6) TMI 399
Exemption from Education cess - notification No. 32/2005-Cus - notification provides for exemption from customs duty subject to the condition that the duty amounts are debited in the relevant tax credit certificate or DEPB scrip - Under these circumstances, reliance placed by the Commissioner (Appeals) on the decision of the Tribunal in the case of CC Mumbai v. Reliance Industries Ltd - availment of drawback on cenvat credit are not relevant - decisions of the Commissioner (Appeals) based or the precedent decisions of the Tribunal and the same have been correctly applied – no reason to interfere in the impugned orders
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2010 (6) TMI 398
Penalty on CHA – Abetment in fraud – CHA entered into a conspiracy with the importer to get the goods cleared without payment of duty against an Advance Licence and subsequently, the goods were diverted in the local market - no evidence on record to show that the Appellants were aware of the fact that the Licence was tampered and the status of the importer was changed to manufacturer/exporter - goods were cleared and after clearance of the goods, the same were handed over to the transporter as per instructions of the importer - omission pointed out by the Revenue for evasion of the duty, not make the Appellants liable for imposition of penalties under Section 112(b) of the Customs Act - imposition of penalties on the appellants not substantiated
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2010 (6) TMI 397
Cenvat credit – Supplementary invoice – Additional recover from manufacturer - additional amount of duty became recoverable from the supplier manufacturer only subsequent to the taking of credit by the assessees on the strength of three supplementary invoices, the restriction contained in under Rule 9(1)(b) is not attracted against the assesses so as to sustain the duty - set aside order and allow the appeal
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2010 (6) TMI 396
Issues:
1. Addition of unrecorded purchases.
2. Deletion of addition made by the Assessing Officer.
3. Justification of the Income-tax Appellate Tribunal's decision.
4. Admissibility of fresh evidence.
5. Compliance with rule 46A of the Income-tax Rules.
Analysis:
Issue 1: Addition of unrecorded purchases
The case involved an appeal by the Department against the order of the Income-tax Appellate Tribunal regarding unrecorded purchases by an assessee engaged in manufacturing incense sticks. The Assessing Officer had added an amount as unrecorded purchases, which was reduced by the Commissioner of Income-tax (Appeals) to a lesser sum. The Tribunal allowed the assessee's appeal, deleting the entire addition. The Department contended that certain bills were not found during the survey, and new material submitted should have led to a remittal to the Assessing Officer. The respondent argued that though sales were unrecorded, vouchers were later submitted, justifying the Tribunal's decision.
Issue 2: Deletion of addition made by the Assessing Officer
The Commissioner of Income-tax (Appeals) had deleted an amount added by the Assessing Officer based on available bills at the time of survey, which were signed by an Inspector. The Commissioner found the purchases genuine and directed the Assessing Officer to delete the addition. The High Court agreed that the addition was rightly made by the Assessing Officer, as the bills were available and entered in the purchase register. The deletion of the amount by the Commissioner was found to be based on cogent reasons.
Issue 3: Justification of the Income-tax Appellate Tribunal's decision
The Tribunal had deleted the addition of unrecorded purchases, and the High Court found this decision unjustified. While the purchases were found genuine and entered in the books, the unrecorded sale of a specific amount lacked supporting bills during the survey. The Tribunal did not provide reasons to disagree with the finding of the Commissioner of Income-tax (Appeals), leading to the restoration of the Commissioner's order.
Issue 4: Admissibility of fresh evidence
The second substantial question of law raised the issue of confirming the Commissioner's order based on fresh evidence, potentially contravening rule 46A of the Income-tax Rules. The High Court found that the bills were signed by the Inspector, and considering them did not cause prejudice to the Revenue, leading to the allowance of the appeal.
In conclusion, the High Court upheld the addition of certain unrecorded purchases, disagreed with the deletion made by the Tribunal, and restored the Commissioner's order regarding the unrecorded sale. The decision was based on the availability of bills and proper appreciation of the facts, ensuring compliance with the Income-tax Rules.
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2010 (6) TMI 395
Cenvat credit of service tax – Input service used in dutiable and exempted goods – Demand of 10% of value of exempted – cenvat credit in respect of common input services reversed before adjudication order – As per section 73 of Finance Act, 2010 amending Cenvat Credit Rules, 2004 reversal of amount equal to credit on input services used in exempted goods is sufficient compliance if rules 6(4) – Such retrospective amendment covers issue in favour of assessee – Demand 10% set aside
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2010 (6) TMI 394
Cenvat credit – Inputs from non-registered dealers - input received by the appellant were not duty paid or were not received by them or do not stand utilized in the manufacture of final product - denial of credit on the irregularities treated as technical, neither justified nor warranted
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2010 (6) TMI 393
'Patent or Proprietary medicaments - Vitcofol Syrup, which contains ferrous fumarate as the main ingredient along with two vitamins in small quantities, we have found enough evidence of prophylactic or therapeutic property of the main ingredient depending on the dose. Indian Pharmacopoeia says that ferrous fumarate in a dose of 200 mg daily has prophylactic property and in a dose of 400 to 600 mg daily has therapeutic property - Vitcofol Syrup answers the description of goods given under SH 3003.10 of the Tariff Schedule. We classify the item accordingly
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2010 (6) TMI 392
Cenvat credit – Inputs for Hosiery goods - invoices issued by the consignment agents much prior to 31-3-2003 - appellants claimed the credit in respect of the yarn contained in the finished products as on 1-3-03 and there is no evidence on record that the goods manufactured out of the yarn received in August, October, 2002, were still in the stock - appellant has to file one declaration under Sub-rule (1) claiming the credit in respect of inputs on actual basis showing documents evidencing actual payment of duty and other declaration under sub-rule (2) where the documents are not available with the manufacturer for deemed credit and the declarations are to be filed on or before 15th June, 2003 as provided under sub-rule (4) - declaration under sub-rule (1) of Rule 9A was filed after due date and the appellants failed to produce the necessary documents showing payment of duty – Appeal dismissed
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2010 (6) TMI 391
Confiscation of the conveyance - show cause notice was issued for imposition of penalties on the driver and the owner of the truck - no knowledge or intention attributable on the part of the owner of the truck and the driver, his agent, in the clandestine removal of the goods - It was not been shown that the Department has filed any appeal against the order of the original authority in not imposing any penalty on the owner and the deriver of the truck - grounds of appeal also no where disclose any materi attributing knowledge or intention on the part of the driver or owner of the vehicle - order of the Commissioner (Appeals) in the setting aside the confiscation of the truck calls for no interference
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2010 (6) TMI 390
MS streetlight tabular poles – Excisability - appellants manufactured a new marketable product namely MS street light tubular poles which is different from pipes and tubes – Excisable Penalty - appellants suppressed the fact of manufacture and have manipulated invoices suppressing the actual value and the length of the poles - liable to penal action - imposition of penalty
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2010 (6) TMI 389
Demand of interest - period related is April 2005 to September 2005, the investigation took place on 19/20-9-2005 and the assessee paid the duty immediately on pointing out by the department but the department did not issue the show cause within one year which was issued only on 8-12-2006 - no allegation in the show cause notice with regard to suppression of facts, misstatement, fraud, collusion etc. Hence the show cause notice issued beyond one year time barred
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2010 (6) TMI 388
Penalty – Revision order enhancing penalty - findings as regards the offending transactions of the appellant contained in the order of the original authority do not indicate that the assessee had wilfully evaded the payment of service tax - appellant paid service tax due before the issue of show cause notice - enhancing of penalty by the Commissioner in revisionary proceedings is not sustainable
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2010 (6) TMI 387
Skip Loaders – classification of the vehicle - specialized equipment did not come into existence as a separate identifiable article, but was born only as a fixture of the specialized vehicle - Commissioner considered the activity taken over by the respondent in detail i.e. the equipment is fabricated and fitted on the chassis and supplied to Municipal Corporation, who use the Skip Loader for collection and carrying city garbage stored in specially designed containers placed on road - no independently marketable goods come into existence - respondent's contention that the vehicle classifiable under Chapter heading 87.04, that contention was rejected holding that collection of garbage cannot be treated as transport of goods and classifiable the Dumper Placer as 'special purpose vehicle' under Chapter Heading 87.05 - assessee was eligible for the benefit of exemption Notification No. 162/86-C.E - respondent eligible or the benefit of the exemption - no infirmity in the order passed by the Commissioner and the same upheld - appeal filed by the Revenue rejected
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