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Showing 421 to 440 of 938 Records
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2011 (8) TMI 963
Winding up - company unable to pay its debt – creditors advanced loan to company – in repayment company handed over to the creditor cheques, all the cheques were dishonored – Held that:– there was sharp decline in the sales of company, company has no defence to the claim of the petitioning creditor. Winding up petition allowed
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2011 (8) TMI 962
Diversion of money - Arbitration clause - arbitration proceedings - joint venture agreement - the appellants initiated/participated substantially in various litigation proceedings. - held that:- in compliance of the order of the Company Law Board, the appellants offered to pay the amount of Rs. 545.52 lakhs as the sum refundable to N. Athappan in full settlement. The waiver is clearly implicit from the acts of the appellants, which indicates their intention not to proceed with the arbitration. On the facts and circumstances of the case and in view of the pitched battle of litigations between the parties, the learned single judge rightly held that there is a waiver by estoppel and that the arbitration clause in JVA has become "inoperative".
Criminal proceedings - injunction - held that:- On the mere fact that OARC and ORE have included several causes of action, the prayer in respect of the JVA does not make it scandalous or frivolous. Nothing can be scandalous which is relevant for the determination of the suit. In our considered view, the learned single judge was not right in striking off the words "joint venture agreement dated January 30, 2004" including the investment of the second plaintiff in Cheran Enterprises P. Ltd., in the relief "A" to the plaint. In the light of our findings in O. S. A. Nos. 2 to 5 of 2009, the order of the learned single judge in Application No. 5848 of 2007 in C. S. No. 709 of 2007 is liable to be set aside and O. S. A. No. 258 of 2009 is allowed.
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2011 (8) TMI 961
Winding up petition – respondent availed the transport service of the petitioner on credit - amount due was not paid in spite of repeated requests - respondent, having admitted its' liability, did not pay the amount due – Held that:- respondent-company took the plea that Mr. Ravi Shankar earlier worked as regional manager in the petitioner firm and he had no authorisation on behalf of the respondent-company to admit the liability on its behalf towards the petitioner firm. petitioner has not delivered the material to the consignee. consignment which is required to be delivered to M/s. Paramount Communications met with a fire accident in transit. When once the goods are entrusted to the petitioner for transportation, he is bound to take reasonable care till delivery is affected to the consignee. According to the respondent, the worth of consignment entrusted to the petitioner for being delivered to paramount communications is Rs. 6 lakhs. There is a serious dispute as to whether the consignment entrusted to the petitioner is involved in the fire accident while on transit. Invocation of winding up proceedings, in the given facts and circumstances, is misconceived. company petition is dismissed
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2011 (8) TMI 960
Refund claim - whether the claim for refund of the CENVAT credit facilities should be made before the expiry of the period of one year from the relevant date - Rule 5 of CENVAT credit - there is no specific relevant date is prescribed in the notification No.5/2006-CE(N.T.) dated 14.03.2006 - Held that: - the relevant date should be the date on which the export of the goods was made and for such goods - refund of CENVAT credit is claimed after one year from the date of export - The respondent would rely upon a judgment of the Gujarat High Court reported in (2008 (7) TMI 208 - HIGH COURT GUJARAT ) [Commissioner of Central Excise and Customs, Surat-I v. Swagat Synthetics] - That was a case relating to Sub-Rule (13) of Rule 57F of Central Excise Rules, 1944 - Therefore, the order of CESTAT holding that the limitation is not applicable to the facts in question to the case has to be set aside. - Decided in favor of revenue.
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2011 (8) TMI 959
Stay - Demand and Penalty - service tax of Rs.21,93,683/- stands confirmed and penalty of equivalent amount against the applicants on the ground that during the period from 1.7.2003 to 31.3.2007, they have provided the services of erection, installation and commissioning to M/s.BSNL and have not paid any service tax on the same. As per the appellants, the services provided by them were civil works i.e. preparation of base, digging/constructing foundation for erection of towers and no services of erection, installation and commissioning were involved - The demand also stands agitated on the point of time bar inasmuch as the show cause notice for the relevant period was issued on 28.4.2008 - including the aspect of time bar and poor financial condition of the appellants, we direct the applicants/appellants to deposit 15% of service tax within eight weeks and report compliance to the Commissioner (Appeals) - The Commissioner (Appeals) after ascertaining the compliance with the above order shall decide the appeals on merits.
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2011 (8) TMI 958
Smuggling activity - Custom House Agents License Regulation, 2004 - Since, the Appellant had handled three consignments in May 2010 of an importer who later on filed Bills of Entry in his own name and in such Bills of Entries some discrepancies (not clearly specified by Revenue) has been detected - Note that the license of the Appellant has remained suspended for almost one year and the Revenue had ample opportunity to conduct necessary investigation against any involvement by the Appellant - View that continuing suspension of the licence will be unduly harsh based on the evidence that has been so far brought to the notice of the Tribunal - Therefore, the suspension of their license should be revoked and we order accordingly - It is made clear the Revenue is at liberty to issue notice under Regulation 22 for revocation of license of the Appellant, if their involvement in any smuggling activity can be proved by acceptable evidence - Decided in favour of assessee.
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2011 (8) TMI 957
Search and seizure - Penalty - Confiscation - Director of the appellant Company is in appeal against the personal penalty of Rs. One lakh imposed on him. Learned counsel submitted that penalty under section 11AC of Central Excise Act imposed on the appellant company has also been paid - Having regard to the quantum of duty evaded and attitude of the appellants and facts and circumstances of the case, I consider it appropriate that penalty on the Director has to be reduced and lenient view is required to be taken - penalty imposed on the Director is reduced to Rs. 25,000
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2011 (8) TMI 956
Refund claim - the refund claim arising as a result of sanction of refund order, such claims are not to be rejected on the issue of limitation. One such reference can be made to a latest order of the Tribunal in the case of Opel Alloys Pvt. Ltd. vs. Commissioner of Central Excise, Ghaziabad reported as [2009 -TMI - 76196 - CESTAT, NEW DELHI] - It stands held that, after considering various precedent decisions that the amounts deposited during the course of investigation and appropriated by the adjudicating authority on confirmation of demand, are required to be refunded without deciding the same on the terms of limitation, when such confirmation orders are set aside by the higher authorities
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2011 (8) TMI 955
Quantum of redemption fine and penalty - Section 115 deals with confiscation of conveyance and only lays down the maximum limit for imposing the redemption fine as the market price of goods sought to be smuggled and does not mandate the fixing of redemption fine equivalent to the market price of the goods less duty payable - For fixing the redemption fine, various factors have to be taken into consideration-The Commissioner (Appeals) have already, after taking into account various expenses incurred by the respondent arrived at a finding of nominal margin of profit of Rs.500/- per machine - As such, the profit earned by the respondent was on the lower side and even if the entire margin of profit is wiped out the redemption fines confirmed by the Commissioner (Appeals) are much on the higher side. Similarly, the penalty reduction to Rs.20,000/- cannot be faulted upon inasmuch as there was no mis-declaration of description of the goods - Decieded in favour of assessee.
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2011 (8) TMI 954
Waiver of pre-deposit - refund - wrongly taking credit suo motto by the applicant – Held that:- applicant was eligible for refund of Rs.25/- lakh was settled way back in 2006 and that the Tribunal vide order dated 3.12.2009 held that the department was not entitled to adjust the interest amount from the refund of Rs.25/- lakh sanctioned on 8.1.2008. It has not been shown by the department that they have challenged the order of the Tribunal dated 3.12.2009 and got it set aside or got it stayed. pre-deposit waived
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2011 (8) TMI 953
Whether appellant entitled to CENVAT credit of the service tax paid on "Clearing and Forwarding Agent's Service" (CFA services) availed by them for clearing their final product from factory to port for export – Held that:- CENVAT credit on CFA service was admissible where the place of removal was port and the goods cleared and forwarded by the CFA were exported. order is set aside and this appeal is allowed
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2011 (8) TMI 952
Transfer Pricing adjustments - Arms length price (ALP) - u/s 92CA - software development and IT enabled services - selection of comparable - products are generally sold on license basis wherein the right to use the software is transferred without giving the source code. - arithmetic mean of these comparables - held that:- TPO himself has rejected the companies which are making losses as comparables. This shows that there is a limit for the lower end for identifying the comparables. In such a situation, we are unable to understand as to why there should not be an upper limit also. What should be upper limit is another factor to be considered.
Size matters in business - A big company would be in a position to bargain the price and also attract more customers. It would also have a broad base of skilled employees who are able to give better output. A small company may not have these benefits and therefore, the turnover also would come down reducing profit margin. Thus, as held by the various benches of the Tribunal, when companies which are loss making are excluded from comparables, then the super profit making companies should also be excluded. - companies having a turnover of ₹ 1.00 core to 200 crores have to be taken as a particular range and the assessee being in that range having turnover of 8.15 crores, the companies which also have turnover of 1.00 to 200.00 crores only should be taken into consideration for the purpose of making TP study.
What is the data to be considered by the TPO at the time of determining ALP? - Whether the assessee should be given an opportunity to rebut the material sought to be used by the TPO? - held that:- it is clear that the Act has not provided for any cut off date upto which only the information available in public domain has to be taken into consideration by the TPO, while making the TP adjustments and arriving at arm's length price. The assessee as well as the revenue are both bound by the Act and the Rules there under and therefore, as provided under the Act and Rules they are supposed to be taking into consideration, the contemporaneous data relevant to the previous year in which the transaction has taken place.
When he is making the search for a relevant comparable, the TPO can issue notices to the parties whom he considers as relevant to gather requisite information and on being satisfied with regard to relevancy of the material which can be used against the assessee only then the assessee has to be given an opportunity of presenting its objections. Thus, the TPO need not inform the assessee about the process used by him for issuing the notices u/s 133(6) nor is he under any obligation to furnish the entire information to the assessee.
All the comparables have to be compared on similar standards and the assessee cannot be put in a dis-advantageous position, when in the case of other companies adjustments for under utilization of manpower is given. The assessee should also be given adjustment for under utilization of its infrastructure. The AO shall consider this fact also while determining the ALP and make the TP adjustments.
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2011 (8) TMI 951
Demand of duty, interest and penalty - whether activity of pickling, cutting, drawing and polishing have emerged a new distinct commodity except the conversion of M.S. round into bright bars – Held that:- in the case of Vee Kayan Industries (1994 - TMI - 44247 - SUPREME COURT OF INDIA - Central Excise) M.S. round into bright bars does not amount to manufacture, the same has been clarified by the Board Trade Notice No. 15/2004, dated 16-6-2004. The activity of drawing of M.S. round bars into bright bars is an activity of manufacture has specifically brought into statute book w.e.f. 18-4-2006. Therefore we are concluding that during the impugned period i.e. from 1-4-1994 to 30-9-1995, the activity undertaken by the appellants i.e. conversion of M.S. round bars into bright bars through an activity of pickling, cutting, drawing and polishing does not amount to manufacture. When there is no manufacturing activity, no excise duty is payable. Therefore, the demands are not sustainable, when demand are not sustainable, the question of demanding interest and imposition of penalty also does not arise. Therefore the impugned order is set aside. The appeals are allowed
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2011 (8) TMI 950
Import - valuation and environmental concern - Import of Secondhand Digital Multifunction Printing and Copying Machines and secondhand Photocopier Machines and it accessories, parts and consumables. - Enhancement of duty -the third respondent and had issued the Standing Order No.13/2011, dated 14.6.2011 relating to the valuation of the second hand goods in general followed by note instruction, dated 14.6.2011 to all concerned specifically relating to the import of the old and used photocopiers and multifunction machines alone prescribing various modalities and cumbersome procedure. If these procedures are followed, the clearance of goods out of customs will become next impossible.
It was stated that only the Central Board of Excise and Customs alone are competent to issue instructions with a view to maintain uniformity in assessment under Section 151-A of the Customs Act. Therefore, the Standing Ordrs and the note instructions issued by the third respondent are without jurisdiction. - held that:- Standing Orders and note instructions, do not call for any interference. - Decided against the importer.
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2011 (8) TMI 949
Remission of duty on the imported duty - Damage due to rain - Section 22 or 23 - Tribunal on consideration of the entire material on record held that the case falls under Section 23 of the Act and not under Section 22 of the Act as held by the lower authorities and therefore, it set aside the orders passed by the lower authorities and granted remission of duty as contemplated under Section 23 of the Act.
Held that:- if the imported goods are damaged or deteriorated to the extent of the damage or deterioration of the goods, the liability to pay duty abates by operation of law. If the goods imported are lost or destroyed or abandoned then the case for remission of the duty payable is made out. If the goods are lost or abandoned the assessee is expected to bring to the notice of the authorities the factum of the goods being lost or destroyed and seek for remission of the duty payable under the Act. If the goods are there but it is of no use and the assessee wants to abandon the goods, then the request should be for relinquishment of the title to such goods. Once such a relinquishment of title to the goods is made by the assessee then the said goods become the property of the Department and as a consequence of which no duty is payable by the importer. - Decided in favor of assessee.
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2011 (8) TMI 948
Refund has been sanctioned but credited to Consumer Welfare Fund as per provisions of Section 27(2) of the Customs Act - it is inferred that Chartered Accountant’s certificate by itself are not conclusive proof of not passing the burden of duty incidence to their ultimate customers. I find that many inputs are used for manufacture of tyre and it is obvious that cost of every input contributes towards the cost of a tyre - During the hearing the Counsel for the Appellant submits that they had produced as much evidence as possible and they are at their wit’s end as to what other evidence could be produced, to prove that the incidence of the impugned duty was not passed on to the consumer - It is clear from the data given above that from 8-6-98, that is when prices were declared after taking into consideration the changes made in the 1998 budget the prices have come down - The burden of proving that the incidence is not passed on is on the Appellant - Appeal is rejected
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2011 (8) TMI 947
Petitioner inter alia seeks unconditional release or the provisional release of 7 cranes seized by the Respondent and challenges the action of the Respondent - From the material on record, it has also emerged before the Court that the Petitioner has deposited an amount of Rs. 80,00,000/- with the Respondents when he was called for investigation by the Directorate of Revenue Intelligence - According to the Revenue, the documents show that the cranes were imported at highly under valued prices ranging from Rs. 40/- to Rs. 45/- per kg of the weight of the cranes as opposed to the actual transaction value - On the material which has emerged during the course of investigation and which has been adverted to in the affidavit in reply, the Petitioner cannot be allowed to seek unconditional release of the seized goods - Held that: the ends of justice would be met, if a direction is issued to the effect that the Petitioner shall furnish a bank guarantee of Rs. 40,00,000/- of a Nationalised Bank, and a P.D. bond to the satisfaction of the adjudicating authority, as a condition precedent for the provisional release of the goods. Upon furnishing of a bank guarantee and bond as directed hereinabove, the Respondent shall provisionally release the balance 7 cranes - Petition is allowed
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2011 (8) TMI 946
Non printing of MRP on footwear - exemption upto Rs. 125/- per pair - Notification No. 6/02 as amended by Notification No. 23/04 dated 9-7-2004 and Notification No. 5/06, dated 1-3-2006 introduced w.e.f. 9-7-2004 - The case of the Revenue is that as per the conditions of the above mentioned notifications, the footwears having sale price not exceeding Rs. 125/- per pair are entitled for full exemption - It is also submitted that as per the instructions issued by the Board, the footwear is to be treated as manufacture for the purpose of column 4 of RG-I as soon as the uppers and soles are assembled and joined - In the present case as 18061 pairs found in fully finished condition in the factory without printing of retail sale price hence the appellant availed the benefit of notification wrongly for the past period i.e. from 9-7-2004 - The Revenue only confiscated 18061 pairs which were not marked with retail sale price - Held that: footwears were still in factory and from the statement of excise clerk that there are some technical difficulties in printing the MRP it cannot be concluded that the shoes under seizure were going to be cleared without printing the MRP - Appeal is allowed
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2011 (8) TMI 945
Depreciation on spare parts - Revenue denied depreciation on ground that spare parts are not a capital asset - Held that:- Issue stands in favor of assessee in assessee's own case in preceding assessment year. See CIT v. Insilco Ltd. [2009 -TMI - 32655 - DELHI HIGH COURT] - Decided in favor of assessee.
Depreciation on electrical wiring - Revenue contended that electrical wiring etc. were not "machinery or plant" but were a part of the factory or other buildings for the purpose of deciding the rate of depreciation - Held that:- From the order of the AO, it becomes clear that his finding is that wiring etc., on which higher depreciation is claimed, are old assets. However, the submissions of the Revenue counsel tend to show that these assets were installed alongwith machinery or plant in this year. None of the lower authorities has applied the mind as to whether the cables and wiring were integral part of the machinery or buildings. Facts have not been fully ascertained in this matter. Matter restored to the file of the AO for determining the year of installation of wiring etc. and the appropriate head under which the wiring etc. should be classified.
Interest u/s 234B - Held that:- MAT credit should be allowed before arriving at the amount on which interest is charged u/s 234B and 234D. See CIT v. Jindal Exports Ltd(2003 -TMI - 52119 - Tribunal)
Transfer Pricing - ALP - assessee chose comparable uncontrolled price ("CUP" ) method to justify the value of international transactions with the AEs - Revenue contended CUP method to be inappropriate - Held that:- CUP method adopted is appropriate since there is no instance of uncontrolled sale either to Germany or to South American countries where the goods were actually shipped by the assessee on CIF basis. In these circumstances, we think it fit to restore the whole matter to the file of the AO for fresh determination of the ALP of international transactions with AEs. by applying an appropriate method.
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2011 (8) TMI 944
Maintainability of Settlement applications - Revenue contended that the settlement applications were not maintainable, since there were no pending proceedings on the date on which the settlement applications were filed - further contended that that there could be no question of proceedings, where no return had been filed; there was no direction on the assessee to file a return; and the statutory time limit prescribed by Section 153(1) for making an assessment u/s 143 or 144, had expired - Held that:- It is held that irrespective of whether returns were filed or not, a case would be deemed to be pending but only for twenty one months from the end of the assessing year in question, i.e. the period within which an assessment could have been made. Once the aforesaid time period expires, it cannot be said that the proceedings are pending.
If the time period to make an assessment had not expired on the date on which the settlement application was made, the commission might entertain and proceed with the same, irrespective of whether income tax returns had been filed or not. However, where the period of twenty one months from the end of the assessment year expired on the date of making of the application, the settlement application cannot be proceeded with.
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