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Showing 421 to 440 of 1387 Records
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2016 (2) TMI 968
Valuation of goods - the decision in the case of M/s. Kelvin Infotech Pvt. Ltd. Versus Commissioner of Customs, Central Excise & ST, Meerut and Commissioner of Customs, Central Excise & ST, Meerut Versus M/s. Kelvin Infotech Pvt. Ltd. [2014 (11) TMI 164 - CESTAT NEW DELHI] contested - Held that: - The civil appeals are dismissed on ground of delay.
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2016 (2) TMI 967
Penalty under section 271C r.w.s. 274 - failure to deduct tax at source out of interest paid/credited to four deductees as required under section 194A - ITAT confirms CIT(A) order in deleting penalty - Held that:- As decided in CIT (TDS) v. State Bank of Patiala Sectt. Shimla ( 2015 (1) TMI 473 - HIMACHAL PRADESH HIGH COURT ) that no tax at source is required to be deducted in view of section 194A(3)(iii)(f) of the Act in respect of payments made to any societies which are wholly financed by the Government and the Central Government had issued notification exempting those societies. Learned counsel for the Revenue was not able to demonstrate that the approach of the Commissioner of Income-tax (Appeals) and the Tribunal was erroneous or perverse or that the findings of fact recorded were based on misreading or misappreciation of evidence on record warranting interference by this court. - Decided against revenue
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2016 (2) TMI 966
Amendment in registration certificate - in the same plot number, they have taken another premises called as plot no. 53/1, NIT, Industrial Area, Faridabad which has required to be added in the certificate - whether the denial of amendment in registration certificate and imposition of penalty justified? - both the premises of the appellants are part of plot no. 53. In fact both the premises are in one plot and a private road has been constructed therein for to access the other owners of the plot - Held that: - By constructing a private road as per Rule 9(3) of Central Excise Rules, 2002, a person is required for separate registration as per 3.2 of Chapter 2 of the said rules - the appellant is having registration certificate for plot no. 53/19 and premises no. 53/1 is the integral part of plot no. 53 both the units have been separated by a private road and not by public road. Therefore, the appellant is not required for separate registration of both the premises separately. In these circumstances, the appellant has complied with the condition of Rule 9 of Central Excise Rules, 2002 and no separate registration is required. The ld. Commissioner (A) have only denied the registration on the premises that the amendment has been granted by Assistant Commissioner and not by the Commissioner of Central Excise. This cannot be the ground for rejection of amendment in registration certificate.
The order of revocation of amendment in registration is contrary to law - appeal allowed.
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2016 (2) TMI 965
Denail of CENVAT credit - non-maintenance of records of sales returns - Rule 16 of the Central Excise Rules, 2002 - as per Rule 16 of the Central Excise Rules, 2002 the assessee is required to maintain record as well as sale returns and on the basis of that assessee is entitled to take Cenvat credit - Held that: - the document on the strength of which the appellant has taken Cenvat credit of sale returns the said document is sufficient for maintaining the record. Further, I find that the appellant produced relevant record of maintenance of sale returns before the adjudicating authority which has not been considered. In that circumstances, Cenvat credit cannot be denied. Therefore, I hold that appellant has availed Cenvat credit later on sale return/documents at the time of return of goods. In these circumstances, impugned order deserves no merits hence set aside. Appeal is allowed with consequential relief, if any.
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2016 (2) TMI 964
Demand - goods warehoused in public bonded warehouse under Section 60 - failure to clear the goods within the stipulated period - request for extension of bond period - Held that: - the facts of the case are not in dispute. Further against the order of ld. Commissioner (Appeals) for consideration of their application for extension of time was challenged by the Revenue before this Tribunal. In that circumstance, it was not the fault of the respondent. Therefore, the ld. Commissioner (Appeals) has rightly held that for the intervening period the respondent are not liable to pay interest. Therefore, I do not find any infirmity in the impugned order. In these circumstances, the impugned order is upheld and the appeal filed by the Revenue is dismissed.
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2016 (2) TMI 963
CENVAT credit - Whether the input tax credit can be allowed on furnace oil (Petroleum Product) the primary use of which has fuel only? - the HVAT Act, 2003 - whether the assessee had been using the petroleum based products as a fuel or not? - Held that: - the petroleum product and natural gas when used as fuel or when the same are exported out of State, no input tax credit will be available to the dealer. It has been categorically recorded by the Tribunal that there is no mention in the assessment order of any petroleum products purchased inside the State and used in manufacture whether as fuel or otherwise. The record however shows that the petroleum products had been purchased inside the State at concessional rate of tax. There is no finding to the effect that the furnace oil was used as fuel by the company. In the absence of any clear finding recorded by the revisional authority that the furnace oil was used as fuel by the assessee, the revisional order regarding disallowance of input tax credit on purchase of furnace oil could not be legally sustained. For the assessment year 2005-06, under similar circumstances, the matter had been remanded to the revisional authority by the Tribunal to consider the contention of the assessee that it had used furnace oil for greasing and coating of discs and not as fuel by producing its books of account and other relevant documents - the matter requires to be remanded to the revisional authority i.e. DETC to pass fresh order after examining the evidence on record in accordance with law - appeal disposed off.
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2016 (2) TMI 962
Works contract - real estate project developer who is engaged in the construction and sale of residential flats, buildings and infrastructure facilities all across the country - Whether on the facts and circumstances of the case, the Ld. Tribunal was justified in holding that the appellant is engaged in the works contract and is thus liable to be registered under the provisions of the Punjab VAT Act, 2005? - Whether the appellant is liable to be registered under the provisions of the Act or not? - Held that: - the appellant who is a works contractor is required to pay VAT on the material used for carrying out the works contract in respect of the sale of flats on the amount of material incorporated therein after the date of sale of the flat. Accordingly, it was also not disputed that as a consequence, the appellant would be required to be registered under the provisions of the Act - the issue involved herein stands already concluded against the appellant in the case of K. Raheja Development Corporation Vs. State of Karnataka [2005 (5) TMI 7 - Supreme Court] where it was held that Activity of construction / development by a Builder would constitute Work Contract in certain circumstances - the substantial questions of law are answered against the assessee - appeal is dismissed.
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2016 (2) TMI 961
Imposition of penalty u/s 76 and 78 of the Act - invocation of Section 80 of the Act - services of cable operator and Broadcasting Agency - The services of cable operator were brought under the service tax net w.e.f. 16.8.2002 whereas services of Multi System Operator became taxable w.e.f. 10.9.2004. The respondent found that the appellant during the years from 2001-02 to 2004-05 had rendered above said services but failed to pay service tax amounting to ₹ 11,46,537/- - whether imposition of penalty justified? - Held that: - While considering the scope and ambit of Sections 76 and 78 of the Act, this Court has held in Commissioner of Central Excise vs. M/s Pannu Property Dealers, Ludhaina case [2010 (7) TMI 255 - PUNJAB AND HARYANA HIGH COURT] that Sections 76, 77 and 78 of the Act, do not envisage imposition of simultaneous penalties. This apart, the matter relating to short payment of tax as well requires to be re-examined by the Tribunal - without expressing any opinion on the merits of the appeals and as to the rights of the parties, the appeals are allowed, the impugned orders passed by the Tribunal are set aside and the matters are remanded to the Tribunal, for adjudication afresh on all the issues in accordance with law.
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2016 (2) TMI 960
Levy of interest - imposition of penalty u/r 25 read with Section 11AC - the appellant was clearing the goods by paying duty on inputs and later on supplementary thereon was also paid - whether the levy of interest and penalty on intervening period justified? - Held that: - u/r 25 of CER, 2002 and read with Section 11AC, a penalty is imposable on the assessee, if it is a case of fraud, collusion, wilful mis-statement and suppression of facts for contravention of the provisions of Rules/Act with an intent to evade payment of duty.
In the impugned order, the Commissioner (Appeals) observed that no duty has been demanded and no allegation of mala fide intention has been established, the allegations raised in the show cause notice are of technical nature and therefore, reduced the penalty imposed on the appellant. In fact there is finding of the Commissioner (Appeals) that there is no allegation of mala fide intention or has not been challenged by the Revenue. In that circumstance, no penalty is required to be imposed on the appellant. Therefore, the impugned order imposing penalty is set aside - appeal is allowed.
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2016 (2) TMI 959
Valuation - Addition of profit - the decision in the case of TAMILNADU NEWSPRINT & PAPERS LTD. Versus COMMISSIONER OF C. EX., TRICHY [2009 (3) TMI 788 - CESTAT, CHENNAI] contested - Held that: - Since the tax effect is insignificant, we are not inclined to entertain this appeal - The appeal is dismissed leaving the question of law open.
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2016 (2) TMI 958
Correct classification of an accessory used in an Intravenous set called latex bulb - the decision in the case of COMMISSIONER OF C. EX., CHENNAI Versus JAIN RUBBER (P) LTD. [2009 (3) TMI 369 - CESTAT, CHENNAI] contested - Held that: - The tax effect in this appeal is just about ₹ 78,000/-. We, therefore, do not see any reason to entertain this appeal. The appeal is dismissed on that ground alone. The questions of law raised are left open.
The show cause notices, if any, issued for the subsequent Assessment Years may be decided by the competent authority on their own merits and in accordance with law.
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2016 (2) TMI 957
Extended period of limitation - charge of suppression - the decision in the case of M/s. HMM Coaches Limited Versus CCE, Panchkula [2016 (2) TMI 143 - CESTAT NEW DELHI] contested - Held that: - We find no reason to interfere with the impugned judgment particularly in view of the submission recorded in paragraph 4 of the impugned judgment and order - The appeal is accordingly dismissed.
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2016 (2) TMI 956
Whether the respondent writ petitioner was eligible to duty drawback on furnace oil which was utilised in the process of manufacture of its product? - interpretation of statute - the Ministry had issued a circular on 2-5-2005 clarifying the position relating to the duty drawback of HSD/furnace oil. It is from 5-5-2005 that the All Industry Rates of Duty Drawback came into force - Held that: - the picking up of 5-5-2005 as a relevant date for giving the benefit of duty drawback for furnace oil to the manufacturer cannot be treated as an arbitrary fixation of a cut off rate.
The inputs consumed in production are inputs physically incorporated, energy, fuels and oil used in the production process and they have to be treated as consumed in the course of their use to obtain the exported product. The fact of the matter remains that the Government had a policy in force which was contrary to what is noted herein above. Nobody had challenged that policy that had run its way through. It was thereafter that this aspect of the matter was examined by the committee constituted for formulation of All Industry Rates of Duty Drawback and the said committee has then observed that this is an outmoded approach towards understanding the scope of manufacturing process. That being so, the Government had taken up conscious policy decision and had issued the circular dated 2-5-2005 leading to Ext.P11 clarification whereby it expressed a policy contrary to the then prevailing policy and this is to the effect that HSD/furnace oil shall be eligible for duty drawback. Obviously therefore, the benefit of such provision in Ext.P11 would operate only from 5-5-2005. It cannot relate to any period before that. Similarly, no applications filed and pending for consideration before 5-5-2005 could have been ordered to be considered - appeal allowed.
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2016 (2) TMI 955
Withdrawal of appeal - monetary limit relating to the matter is less than ₹ 15,00,000/- - the decision in the case of RELIANCE ENGINEERS LTD. Versus COMMISSIONER OF CUSTOMS, CHENNAI [2008 (5) TMI 181 - CESTAT, CHENNAI] contested - Held that: - liberty may be granted to the Appellant/Department to revive the Civil Miscellaneous Appeal, if it is found that it had been withdrawn, inadvertently, even though it falls under the exceptions mentioned in the relevant circular issued by the Central Board of Excise & Customs - appeal dismissed
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2016 (2) TMI 954
Import of Chiller Unit which contained the restricted substance, namely, R-22 - the case of INTERNATIONAL COMPONENTS INDIA LTD. Versus COMMR. OF CUS., CHENNAI [2010 (3) TMI 637 - CESTAT, CHENNAI] referred where it was held that appellants imported a Chiller Unit, which is a component of the Injection Moulding Machine under a license granted to the appellant-EOU machinery is not of the category specified under the list of restricted equipment, hence no fine or penalty.
The present Civil Miscellaneous Appeal stands dismissed, as withdrawn. It is made clear that the questions of law, which may arise for the decision of this Court, in the present Civil Miscellaneous Appeal, are left open to be considered and decided in appropriate cases, in accordance with law. It is also made clear that it would be open to the Appellant/Department to revive the Civil Miscellaneous Appeal, if it is found that it had been withdrawn, inadvertently, even though it falls under the exceptions mentioned in the relevant instructions issued by the Central Board of Excise & Customs, within a period of twelve weeks from today. No costs. Consequently, connected Miscellaneous Petition is closed.
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2016 (2) TMI 953
Confiscation of the finished goods found excess at the time of investigation - the quantity of 21.99 MT of MS Ingots were in excess - Held that: - the ground of challenging the impugned order is that the stock taking of 2372 pieces of ingot could not have been done within the period of 5 hours which is not practically possible. Therefore, the excess of stock found was merely eye estimation and stock taking was done on average basis. As no physically stock taking was done therefore, the allegation of excess stock found and the same has not been recorded in the statutory record is not sustainable. In that circumstance, I hold that the duty cannot be demanded from the appellant on the ground of stock goods found in excess. In these circumstances the goods are not liable for confiscation consequently the redemption fine and penalty imposed on the appellant is set aside and the appeal is allowed with consequential relief, if any.
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2016 (2) TMI 952
Demand of duty on seized goods - Held that: - the seized goods are in the custody of the Revenue and never owned by the appellant, in that circumstances, duty cannot be demanded from the appellant when the appellant themselves have submitted that they are not owner of the goods and they have given explanation thereto that they are selling goods in cash. In that circumstances, I hold that duty demand and imposing of penalty on the appellant is not sustainable. With these terms, the impugned order. Qua demanding duty from the appellant and imposing penalty thereon is set aside - appeal allowed.
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2016 (2) TMI 951
Refund claim - The appellant is paying duty on captive consumption on the activity of galvanising of bars, rods and channels as per Rule 8 of the Valuation Rules, i.e., cost of raw material plus 10%. Later on, as per CAS-4 they have paid excess to the duty, they filed refund claim - The refund claim was sanctioned but same was adjusted against a demand confirmed against the appellant vide order-in-original No. 6/CE/Comm/BK/RTK/2011, dated 3-5-2011 on the ground that the confirmed demand is pending against the appellant and the same is adjusted - Held that: - the demand of ₹ 2,26,34,220/- has been stayed by this Tribunal, in that circumstances, the authorities below by no stretch of means were having any power to adjust the amount of refund sanctioned to the appellant against the demand which has been stayed, this shows that the departmental officers have no respect to the orders passed by this Tribunal. In fact, in a case where the stay has been granted by this Tribunal, there is no such demand against the appellant till the final decision given by this Tribunal. Therefore, the impugned order passed by the authorities below is contrary to law. In that circumstances, same is set aside. Appeal is allowed with direction to the adjudicating authority to give the refund claim of the appellant within fifteen days on receipt of the order.
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2016 (2) TMI 950
Denial of Cenvat credit on goods returned by the buyers as defective - Held that: - The documents evidence of receiving back the defective goods by the appellant are on record. On the basis of these documents, the appellant is maintaining one register namely Sales Return Register, in that register, they are entering all the sales returns. There is no such provision in the Central Excise Rules that appellant is required to enter of the sales return in the input register only. The only requirement is that appellant has to maintain the records of the sales returns which appellant is maintaining. Therefore, I hold that appellant is entitled for Cenvat credit on goods received by them, it is also an admitted fact that on receipt of the goods the appellant have reprocessed the said goods and the same were cleared on payment of duty. Therefore, the impugned order is not sustainable in the eye of law. Accordingly, same is set aside - appeal allowed.
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2016 (2) TMI 949
100% EOU - Debonding of EOU - whether the assessee had rightly paid the duty at the time of debonding from hundred percent EOU to EPCG Scheme and had debited an amount of ₹ 28,97,553/- towards payment of duty on indigenous capital goods and raw materials lying in the stock on the date of debonding and partly by way of the challan ER 7 rightly under the provisions of Rule 11(3) of Cenvat Credit Rules, 2004? - Held that: - there was no requirement of consideration of the refund claim under the provisions of N/N. 5/2006-C.E. Accordingly I set aside the remand order of the Commissioner (Appeals).
I further hold that the appellant is entitled to refund of the amount of ₹ 28,97,553/- which was rightly paid at the time of debonding by debit to Cenvat and the appellant was subsequently made to deposit the same again, in cash and for which a refund claim was filed within the period of 12 months from the date of payment being 24-12-2007. Accordingly the appellant-assessee is entitled to refund of the said amount and I direct the Adjudicating Authority to grant the refund within a period of 45 days - appeal disposed off - decided partly in favor of assessee and partly in favor of Revenue.
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