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Case Laws
Showing 421 to 440 of 1621 Records
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2016 (5) TMI 1205
Eligibility of Cenvat credit - Debit notes raised for claiming reimbursement of rack handling charges, wagon handling charges and port railway usage charges and service tax thereon paid by them - Held that:- by respectfully following the decision of Hon'ble Apex Court in the case of Indian Farmers Fertilizer Coop Ltd. Vs CCE Ahmedabad [1996 (7) TMI 141 - SUPREME COURT OF INDIA] and also by relying on the decision of Tribunal in the case of Shree Cement Ltd. Vs CCE Jaipur [2013 (3) TMI 79 - CESTAT NEW DELHI], the appellant is eligible for Cenvat credit. - Decided in favour of appellant
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2016 (5) TMI 1204
Entitlement for Nil rate of duty in terms of Notification No.180/88-CE dt. 13.5.1988 - Aluminium products manufactured out of waste and scrap of Aluminium purchased from open market - Held that:- the waste and scrap was procured from open market and not from any particular manufacturer. The goods procured from open market cannot be related to a particular manufacturer. It cannot be presumed that the said waste and scrap has originated without payment of duty. Therefore, it has to be accepted that the waste and scrap used by the appellant for manufacture of their final product is duty paid accordingly, the condition of notification No. 180/88-CE stand fulfilled. Therefore the appellant is entitled for the said exemption notification by applying the decision of Tribunal in the case of Baroda Ferro Alloys & Ind. Ltd. Vs. Commissioner of C. Ex., Vadodara [1999 (11) TMI 385 - CEGAT, MUMBAI]. - Decided in favour of appellant
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2016 (5) TMI 1203
Whether summons issued by the respondent-authority is devoid of any merit and substance - Right to be accompanied by the lawyers - Petitioner is neither a Director nor a post holder in M/s Netshelter Marketing Limited - High Court did not find any reason to entertain the writ petition mainly for the various facts and reasons and therefore dismissed with a cost to deposit reported in [2016 (5) TMI 1156 - JHARKHAND HIGH COURT] - Apex Court dismissed the special leave petition
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2016 (5) TMI 1201
Validity of order passed by the Settlement Commission - Violation of principles of natural justice - Calculation filed at the back of the petitioner and no opportunity granted to the petitioner to explain the same - Held that:- by considering the fact that no opportunity has been granted to the petitioner and therefore, the prayer is allowed the Settlement Commission is directed to consider the additional submissions of the petitioner filed on 22.12.2014 and after granting opportunity of hearing to the petitioner, pass an appropriate order within a period of two months from the date of filing of certified copy of the order. - Petition disposed of
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2016 (5) TMI 1200
Demand of Central Excise duty - confiscation of seized MS Pipes from two different premises; for imposition of penalties under the various provisions of Central Excise Rules, 1944 - correctness of the conclusion drawn by the Original Authority on the duty liability of the main appellant - Held that:- It is apparent that the admission of the main appellant to the limited duty liability, as mentioned and the rejection of their application for settlement of the case has been the main reason for confirmation the whole demand against the main appellant. We find that the Original Authority has to record the various evidences alongwith the reason for admitting such evidences after giving due consideration to the appellant’s plea. When the appellants made request specifically in writing for cross examination of the persons whose statements have been relied upon, the Original Authority's finding on such request has to be recorded. We find the request for cross examination itself has not been recorded. While admittedly non-payment of duty exist in this case, the quantification of non-paid duty has to be arrived at by analyzing the evidences and taking into account the defence submission alongwith their plea for cross examination as sought for by the appellant.
Considering the above we are constrained to observe that the impugned order in the present form cannot be sustained and has to be set aside. We do so accordingly. The case is remanded back to the Original Authority for a fresh decision keeping in view the observations made above. The appellants shall be given due opportunity to present their case and thereafter the Original Authority may decide the case as expeditiously as possible.
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2016 (5) TMI 1199
Imposition of penalty - Rule 25 of the Central Excise Rules, 2002 and Rule 15(1) of CENVAT Credit Rules, 2004 for non-compliance of Rule 8,12 of Central Excise Rules, 2002 - Held that:- with regard to imposition of penalty under Rule 25 of Central Excise Rules, 2002 it is found that the Appellant has paid the tax along with interest even before the issuance of show cause notice and that there has been delay only in payment of duty by the Appellant and not default in payment of duty as alleged. The Appellant have admitted their duty liability in the ER-1 returns but have not paid the duty due to late receipt of money from their customers which have not been disputed by the revenue. Therefore, by applying the decision of Gujarat High Court in the case of Commissioner of Central Excise & Customs vs. Saurashtra Cements Ltd. [2010 (9) TMI 422 - GUJARAT HIGH COURT] which was affirmed by Hon'ble Supreme Court reported in [2014 (1) TMI 264 - SUPREME COURT OF INDIA], the penalty imposed under Rule 25 ibid is set aside.
With regard to imposition of penalty under Rule 15(1) of CENVAT Credit Rules, 2004, it is found that the same has arisen out of the fact that the Appellant had violated Rule 8(3A) of Central Excise Rules, 2002 as regards payment of duty. I find that the law is settled as regards demand of duty/credit restriction on account of Rule 8(3A) of Central Excise Rules, 2002. Since Rule 8(3A) of Central Excise Rules, 2002 has been held constitutionally invalid; I find no other reason as to why CENVAT Credit should not be used for payment of duty. Hence the penalty levied under Rule 15(1) of CENVAT Credit Rules, 2004 is also liable to be set aside. - Decided in favour of appellant with consequential relief
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2016 (5) TMI 1198
Demand of duty - Capacitors cleared by BCEPL without payment of duty under the cover of challans and documents in the name of BCPL - Held that:- on careful consideration of the evidences as analyzed by the Commissioner (Appeals), it is clear that the clearances of excisable goods from the premises of BCEPL could not be attributed to the old stock of capacitors purported to have been cleared in 1994 to the Indore Office of BCPL. There are sufficient evidences to support the conclusion of the lower authorities. Further, the inconsistencies in the pleas made by BCEPL, tends to support the case of non-duty paid clearances.
Period of limitation - Demand of modvat credit - inputs not utilized in the manufacture of final product - Held that:- it is seen that BCEPL have opted out of modvat scheme to avail exemption at the end of financial year 1998-99. Due intimation has been given to the Department. In the impugned order, the demand of modvat credit was set aside on the ground of time bar. It is a fact that the allegation of inputs having not been used in the manufacture of final product before opting out of modvat scheme has been based on the modvat accounts, RG-I and other records maintained by the BCEPL. As pointed out in the impugned order, there is no allegation of clandestine removal of goods on which credits were availed. I agree with the findings of the ld. Commissioner (Appeals) on this issue of demand being hit by time bar.
Demand of modvat credit - wires and cables cleared under various challans - Held that:- the findings of the ld. Commissioner (Appeals) is that these cables and wires have been cleared by BCEPL in connection with installation work for MPEB, at various places. It is an admitted fact that these cables and wires are required for such installation. In the absence of evidences on record to the contrary, there is nothing to indicate that BCEPL have collected amount over and above the invoices raised to MPEB and as such, the demand on wires and cables could not be sustained. I agree with the findings of the ld. Commissioner (Appeals) in this regard.
Reduction of penalty by Commissioner (Appeals) - Section 11 AC of the Act - Held that:- ld. Commissioner (Appeals) examined the applicability of Section 11 AC introduced on 28.09.96. Considering the application of legal provisions during the material time and also considering the findings on duty liability as well as the period involved in such liability, the Commissioner (Appeals) had examined and given his findings in the impugned order. There is no infirmity in the said findings. Similarly, regarding penalties on BCEPL and Shri Ajit Bhandari, the impugned order requires no modification in view of the above analysis and findings. The impugned order is upheld - Appeals dismissed
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2016 (5) TMI 1197
Entitlement for availment of Cenvat credit - receipt of duty paid goods i.e. Oil Slump Body, Cylinder Head & Rover Cylinder - availed Cenvat credit thereon - reissue the same on payment of duty or for export - no manufacturing activity has been undertaken - Held that:- the assesee is entitle to avail Cenvat credit on the duty paid goods even though the said duty paid goods does not undergo manufacturing process. The only condition is that if the duty paid goods is cleared after process which amounts to manufacture, the assesee is required to pay duty on the transaction value and if the goods are cleared without manufacturing process the duty which required to be paid is equal to the Cenvat credit availed. Rule 16 also holds the duty paid goods as inputs therefore the Cenvat credit is admissible.
Entitlement for availment of Cenvat credit - Inward GTA service - goods on which credit was allegedly wrongly taken is not input service - Held that:- the goods are inputs in terms of Rule 16, therefore, the inward transportation of such goods shall be undoubtedly qualified as input service, even as per the interpretation drawn by the Ld. Commissioner, therefore the credit on inward GTA service in respect of transportation of the goods namely Oil Slump Body, Cylinder Head & Rover Cylinder is also admissible. Since we are of the view that Cenvat credit in respect of the goods is admissible in terms of Rule 16 and consequently Cenvat credit is admissible on GTA service, we are not going into other issues raised by the Ld. Counsel. The impugned order is set aside. - Decided in favour of appellant with consequential relief
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2016 (5) TMI 1196
Clandestine removal of goods - Shortage of quantity of MS ingots and MS bar - Demand of duty and imposition of penalty - Section 11 AC of the Act - Contravention of provisions of rules 4, 6, 8, 10, and 11 of the CER 2002 - Held that:- it is found that there is discrepancy in the manner of stock taking. Such manner of stocktaking can give only an estimation and an approximate result. Based on such an approximate calculation which is in the nature of eye estimation, no adverse inference can be drawn against the appellant. It is further evident that the statement recorded of the director on 19/6/08 was recorded in the dead of the night and as such no reliance can be placed on any admissions made in such a statement which can not be said to be freely given. It also indicates the high handedness adopted by the inspection team during the course of inspection and recording of statement. I further hold that deposit of tax does not amount to admission on the part of the appellant. The appellant have neither shown or admitted clearance in the subsequent returns and nor have admitted any clandestine removal categorically. On being questioned, pointedly for the alleged shortage it was stated by the Director, the production figures are reported by the person who is not much educated and as such there are discrepancies due to inadvertence. It further found that revenue have not brought any incidence or corroboration as to clandestine removal of the finished goods. Therefore, the impugned order is set aside. - Decided in favour of appellant with consequential relief
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2016 (5) TMI 1195
Seeking modification in the order to remove the rider of obtaining permission from the learned trial court for each visit to abroad and come back to India - Appeal is pending against adjudication order but the presence of the petitioner is required before the learned trial court during trial court of the case - Held that:- since the petitioner is having good business at UAE and his wife and family are also residing there if permission will not be given to him to visit UAE, then his business may be adversely effcted and his family may also suffered therefore, this petiton deserves acceptance. The learned trial court is directed to decide the application of the petitioner pending before it since 18.1.2016 within two days from the date of receipt of the certified copy of this order and accord him permission and in future, if he wants to go abroad after informing the court, he may be allowed to go abroad whenever necessity arises so that his business may not be affected and he may also take care of his family subject to the condition that trial, before the trial court may not be effected. - Decided in favour of petitioner
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2016 (5) TMI 1194
Validity of order passed by writ court - Clearance of goods covered by the commercial invoice and consignments of Alloy Steel Deformed Bars also forthwith lying in the port of Chennai - Held that:- the proposition, which has been proposed by the writ petitioner that till the contempt is purged the appeal against the writ petition cannot be heard has no merit and, therefore, we reject the said preliminary objection and issue notice to the respondents on merit as well as on I.A.No.5511/2015, I.A.No.6418/2015 and 6425/2015. Appellants are directed to supply the copy of memo of appeal to Shri V.K. Jain, learned counsel for the respondent No.1, so that he may seek further instructions in the matter, within a period of 3 days from today. Looking to the fact that in contempt proceedings order has been passed and in case, if stay is not granted against the appellants then, the impugned order will be executed and both the writ appeals of the department will be rendered as infructuous apart of facing contempt by the writ court. - Interim relief and stay granted
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2016 (5) TMI 1193
Confiscation in lieu of redemption fine and imposition of penalty - Section 114A of the Customs Act, 1962 - Mis-declaration of description of imported goods - Zinc Ash” as “Zinc Dross” - No intention to evade duty - Held that:- the goods imported are Zinc Ash and not Zinc Dross. Therefore, mis-declaration of the description of the goods and non-eligibility for import of the goods under the advance licence mentioned in the Bill of Entry is established. Therefore, we do not find any reason to interfere with the impugned order of the Commissioner of Customs, Kandla. However, we do find that the Adjudicating authority has not extended the benefit of 25% penalty, which the appellants are eligible for as per Section 114A of the Customs Act, 1962. The Appellants are eligible for the same even at the appellate stage as per the decision of the Hon’ble Gujrat High Court in the case of CCE Vs Harish Silk Mills [2010 (2) TMI 494 - GUJARAT HIGH COURT] and CCE Vs G.P.Presstress Concrete Works [2012 (8) TMI 933 - GUJARAT HIGH COURT]. We, therefore, extend the said benefit to the Appellants subject to fulfillment of conditions thereof. The impugned order is upheld with the above modification. - Decided partly in favour of appellant
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2016 (5) TMI 1192
Jurisdiction - Whether the show-cause notice issued by DRI for recovery of erroneously granted drawback in terms of Rule 16 of Customs and Central Excise and Service Tax Drawback Rules, 1995 can be held valid show-cause notice - Held that:- in the case of Era International v. Union of India [2011 (8) TMI 885 - Punjab and Haryana High Court] wherein the Hon'ble Punjab and Haryana High Court following the decision in the case of CC Vs. Sayed Ali [2011 (2) TMI 5 - Supreme Court] has held that the preventive office cannot be the proper officer for issuance of show-cause notice to seize the goods. As no such amendment was made under Rule 16 of Customs and Central Excise and Service Tax Drawback Rules, 1995 in respect of issuance of show-cause notice. In fact, the amendment dated 6.7.2011 was made only in section 28 was retrospective with effect from 16.9.2011 and the circular CBEC dated 31.5.2011 was only for the amendment limited for proper officer under Rule 16 of Customs and Central Excise and Service Tax Drawback Rules, 1995. The said circular did not consider that the DRI officers are to be the proper officers under Rule 16 of Customs and Central Excise and Service Tax Drawback Rules, 1995 but as no retrospective amendment carried out in the said rule so far as conformation of jurisdiction by DRI officers for issuance of show-cause notice is concerned, therefore, the DRI officers have no jurisdiction to issue show-cause notice for recovery of erroneously drawback claim under Rule 16 of Customs and Central Excise and Service Tax Drawback Rules, 1995.
Demand of duty and imposition of penalty - Section 114 of the Customs Act, 1962 - - Fraudulent export of bicycle parts under export execution (sic : promotion) scheme like drawback DEPB etc. - Availed excess drawback claim erroneously - Held that:- the impugned goods was examined at the port of shipment and no single discrepancy was detected in regard to description, quality, quantity or value of the goods. All the consignments were examined found to be correct and the goods were assessed, thereafter let export order was issued. Further, it is found that no incriminating documents found by DRI during the course of search at the residence of various partners or the officers of the appellants. The only allegation against the appellant is that the Consulate General of India at Dubai has given report showing that only small fraction of iron was auctioned by Dubai DHS 31000 equivalent to ₹ 3,10,000/-. It was also found that out of 3 merchants/financiers only one company was not found at the address. The allegation of the Revenue is that the goods overvalued as the goods have been examined at the end of the supplier also. Therefore, it cannot be alleged that the goods were undervalued in the absence of contemporaneous price for the purpose of like kind of goods.
I further find that the Revenue is heavily relied on the statement of Shri Navdeep Goyal representative of shipping agency but he was not made available for cross-examination. Therefore, the said statement cannot be relied on. During the course of investigation, it was found that the appellant exported bicycles parts which were procured from various suppliers who processed the bicycles parts. There is no single evidence on record to show that the appellant has manufactured/ used sub standard raw materials and all the suppliers have admitted that they have provided goods to the appellants. The appellant is a regular supplier/exported various other consignments of bicycles parts of similar nature. No departmental officers were alleged that having conspiracy with the appellants and there is verification report is on record. Therefore, in the absence of any supportive evidence except the report from the Consulate General of India at Dubai which is also not conclusive. In the absence of any such supportive evidence, it cannot be alleged that the appellant has availed excess drawback claim erroneously. Therefore, I do agree for setting aside the demand on merits. - Decided in favour of appellant with consequential relief
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2016 (5) TMI 1191
Whether both the authorities below were justified in dismissing the appeals of the appellant by holding the condition of pre-deposit of 25% as mandatory for the entertainment of appeal - Held that:- the issue stands covered by the decision of this Court in the case of Punjab State Power Corporation Limited v. The State of Punjab and others [2016 (2) TMI 245 - PUNJAB AND HARYANA HIGH COURT]. Therefore by following the same, the order passed by the Deputy Excise and Taxation Commissioner (Appeals) and by the Tribunal are set aside. The matter is remanded back to the Deputy Excise and Taxation Commissioner (Appeals). - Appeal disposed of
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2016 (5) TMI 1190
Imposition of penalty under Section 72(2) of the KVAT Act - Disallowance of input tax credit in respect of goods viz. iron and steel purchased from the registered dealers - Selling dealers were absconding and were involved in bill trading - Held that:- from the various judgments, it is clear that the burden lies on the petitioner to establish that the dealers from whom the petitioner had purchased the goods have remitted the tax collected to the Government. Mere obtaining the registration number by the selling dealers would not suffice to claim input tax credit unless the petitioner has discharged the burden of proof in support of the input tax claimed. No input tax credit could be allowed on the basis of the photostat copies of tax invoices. Availing of input tax credit on photostat tax invoices/bogus invoices in the absence of selling dealer remitting the taxes to the Government and the investigations providing that they are non-existing dealers amounts to violation of the provisions of the Act and attracts levy of penalty under Section 72(2) of the Act. - Decided against the petitioner
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2016 (5) TMI 1189
Demand of purchase tax - Input tax credit disallowed - Whether the Tribunal was justified in ignoring the judgment of M/s Gobind Sugar Mills and following the judgment of M/s Jagatjit Sugar Mills case despite the fact that the issue and facts in Govind Sugar Mills case are almost identical to the issues and facts of the present case and whether the appellant is liable to pay tax on the purchase of sugarcane under the provisions of Punjab General Sales Tax Act, 1948, when the Punjab Sugarcane (Regulation of Purchase & Supply) Act, 1953 is in force which is a special Act - Held that:- the issue stands concluded against the appellant by this Court in the case of M/s AB Sugars Ltd. v. State of Punjab and another [2015 (8) TMI 62 - PUNJAB & HARYANA HIGH COURT]. Therefore, by following the same the appeal is concluded. - Decided against the appellant
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2016 (5) TMI 1188
Non-applicant marking a letter - Held that:- This court cannot come to a conclusion that the official liquidator is in possession of the original bills, vouchers and receipts evidencing expenses of ₹ 1,33,501/- or the deposit slips in the name of the company in liquidation to an extent of ₹ 79,900/-.
Consequently, in the obtaining facts of the case, find no force in the application. The same is dismissed. However, as stated above qua the letter dated 26-11-2010, the non-applicant No.1 shall be free to take proceedings under Section 65 of the Evidence Act which shall when the occasion arises, be addressed in accordance with law of its merits.
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2016 (5) TMI 1187
Revision u/s 263 - amount received from the insurance company as well as the clients - Held that:- The crux of the issue is that the fact that there was no loss of revenue has to be conclusively demonstrated. In the present case, one cannot come to a conclusion that there was no loss of revenue without verification of the assessment records for the assessment years 2006-07, 2007-08 and 2008-09. The ld.CIT had only set aside the issue to the file of the AO to verify this fact from the assessment records for the years 2006-07, 2007-08 and 2008-09. Hence, the ratio laid down by the Hon’ble Karnataka High Court in the case of Infosys Technologies Ltd.(2012 (1) TMI 76 - KARNATAKA HIGH COURT ) is squarely applicable to the facts of the case. Where the issue was not examined by the AO the ld.CIT was justified to remand the issue to the file of the AO for de novo verification.
Assessee-company could not demonstrate before us that this issue was examined by the AO during the course of assessment proceedings. Hence, we are of the considered opinion that the order passed by the ld.CIT , in exercise of his power vested under the provisions of sec.263 of the Act, is proper and valid in law and the ld.CIT is justified in assuming jurisdiction u/s 263 of the Act. - Decided against assessee.
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2016 (5) TMI 1186
Revision u/s 263 - lack of enquiry by the AO - Held that:- A perusal of order passed by the AO under section 143(3) clearly shows that there is no discussion whatsoever on the various issues pointed out by the ld. CIT in the notice issued under section 263. The ld. Counsel for the assessee also has not been able to bring anything on record to show that the enquiries as warranted in the facts and circumstances of the case were actually made by the AO during the course of assessment proceedings. The mere fact that the errors on the part of the AO in not conducting enquiries in respect of relevant issues while completing the assessment were pointed out by the ld. CIT on the basis of details and documents available on record by itself cannot prove that such enquiries were actually conducted by the AO during the course of assessment proceedings. There is nothing brought on record to show that such enquiries were indeed conducted by the AO.
We therefore, find ourselves in agreement with the ld. DR that it was a case of lack of enquiry on the part of the AO while completing the assessment under section 143(3) and such lack of enquiry made the assessment order passed by the AO under section 143(3) erroneous as well as prejudicial to the interest of the Revenue giving jurisdiction to the ld. CIT under section 263 to set aside the same with a direction to the AO to make the assessment afresh. We therefore, uphold the impugned order of the ld. CIT passed under section 263 - Decided against assessee.
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2016 (5) TMI 1185
Disallowance of claim of expenses incurred against the professional receipts received from “Resonance Institute”, Kota - Held that:- The assessee has not produced any evidence either before the Assessing Officer or CIT(A) and also not before us. Therefore, we set aside this issue to the Assessing Officer to verify the expenses as claimed by the assessee. The assessee is also directed to produce all the evidences before the Assessing Officer to complete the set aside proceedings. Accordingly, both the appeals of the assessee for both the assessment years are set aside to the Assessing Officer for de novo. - Decided in favour of assessee for statistical purposes only.
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