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Case Laws
Showing 421 to 440 of 1234 Records
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2012 (9) TMI 824 - CESTAT, AHMEDABAD
Non-declaration of gold in the baggage of the passenger - appeal to tribunal rejected on lack of jurisdiction - Held that:- When the goods are brought into India from a place outside India (in this case, baggage) till they are cleared for home consumption, they are considered as imported goods. In this case, before the clearance has taken place from the airport, the goods have been seized. The definition of the importer also provides that the person is considered to be importer till the goods are cleared for home consumption and when he holds himself to be an importer or the owner of the goods. In terms of above provisions, it becomes quite clear that in this case, whatever is brought by a passenger from abroad is considered as baggage and the passenger is required to make a declaration under Section 77 and till the goods are declared and cleared from Customs area (airport) after declaration, the goods remain imported goods and the person remains the importer. Going by this analogy also, the goods in this case can be considered as imported goods only and as already mentioned earlier, Section 129A provides that the Tribunal has no jurisdiction in respect of any goods imported or exported as baggage - the appeal has to be rejected as not maintainable on the Tribunal having no jurisdiction and since the jurisdiction lies with Government of India Registry is directed to transfer the file to GOI for necessary action.
Since the goods under seizure are rough as well as cut and polished diamonds, they would be correctly classifiable under Heading No. 71.02 of the Customs Tariff for the purpose of levy and we hold accordingly.
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2012 (9) TMI 823 - CESTAT, BANGALORE
Penalty - smuggling of foreign currency or gold biscuits into India. - confiscation of gold biscuits – Held that:- Appellant from whose possession the gold biscuits were seized is the person physically associated with the contraband - There is preponderance of evidence on record to indicate that Haris was carrying the gold biscuits at the instance of the appellant for a monetary consideration - appellant also could not adduce evidence of licit nature of the goods. Hence he can be held to have rendered the goods liable to confiscation under Section 111(d) of the Act - quantum of penalty can be reduced
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2012 (9) TMI 822 - CESTAT, BANGALORE
Whether the quantity of coke lost in transit or by handling should be charged to differential duty of Customs or to Anti-Dumping duty – exemption from payment of Anti-Dumping duty and also claiming the benefit of concessional rate of duty - The benefit was availed subject to the condition that the imported material should be used in the manufacture of excisable goods falling under Chapter 72 - Held that:- It could not be said that any portion of the imported LAM Coke had not been imported for the intended purpose - percentage of handling losses/ground losses, when taken together, appeared to be well within reasonable limits and hence liable to be ignored
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2012 (9) TMI 821 - CALCUTTA, HIGH COURT
Demerger - challenge the principle of res judicata - prayer for correction of the drawn up order as according to them, since jute division stood transferred by demerger, the North Mill also came through such demerger, subject to the agreement for sale. Since sale was frustrated in absence of permission from the Land Ceiling Authority, it should retain with them. However, because of the mistake crept in the order so drawn up, it would need correction. - Held that:- the parties to the arbitration proceeding and the company proceeding are different, having Gloster a common feature. Section 11, on a close reading, would depict two requisites, the matter in issue, must be the same and both the proceedings must be between the same parties. The decision in the other Court might have a persuasive value in the latter proceeding. However, it would not operate as res judicata as parties were not same that would take care of the plea of res judicata
The jute business and cable business as of 1992 would be divided between two groups of Bangurs through demerger.
We thus allow prayer (a) to the extent that the order dated May 31, 1998 as drawn up be corrected by incorporating the following words, “and all other the property, rights and powers of the transferor company in jute division”.
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2012 (9) TMI 820 - CESTAT CHENNAI
Time limit for availing Cenvat credit - Credit availed in the year 2009 for the period from October 2004 to March 2009 - Held that:- No where in the Central Excise Act as well as in the Cenvat Credit Rules not prescribed any period in which credit has to be taken. Although it is mentioned in the Cenvat Credit Rules that assessee can take the credit immediately, but there is no prescribed time limit. - in favour of assessee.
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2012 (9) TMI 819 - GUJARAT HIGH COURT
Refund of accumulated CENVAT credit - CESTAT committed an error in ignoring Notification No.5/2006-CE (NT) dated 14.3.2006 in allowing the claim - Held that:- Considering the Circular No. 390/Misc./163/2010-JC dated 17.08.2011 no appeal shall be filed in the High Courts if the duty involved does not exceed ₹ 10 lakhs with or without penalty and interest. No other circular has been issued by the Ministry of Finance, Department of Revenue, Central Board of Excise & Customs, authorizing the Department to file appeal where the amount is less than ₹ 10 lacs.
While it is true that the present appeal was filed and notice was issued prior to the circular dated 20.10.2010 where appeal shall be filed in the High Courts if the duty involved does not exceed ₹ 2 lakhs with or without penalty and interest. In that light, it is not being disputed that the issues involved and the questions formulated in this appeal need not be decided as the amount involved in the appeal is ₹ 60,774/-.
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2012 (9) TMI 818 - CESTAT, NEW DELHI
Review Order – alleged that Review Order is also undated by one of the Commissioner not disclosing whether he has at any point of time participated in the decision making process – Held that:- Cases after cases of Revenue is coming up with casual approach to law and without disclosing the reason why the order-in-appeal neither legal nor proper - Revenue has proceeded on the premises that on 2-2-2009 it has been given time to cure the defect by 9-2-2009 as the next date fixed is 18-2-2009. The aforesaid premise is factually incorrect as the appeals were dismissed vide order dated 2-2-2009 (A.4). In any case once the fundamental element of formation of opinion of filing the appeal is missing then no appeal is deemed to be instituted in the eyes of law – appeal dismissed
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2012 (9) TMI 817 - KARNATAKA HIGH COURT
Denial of cenvat credit – assessee is ineligible to avail Cenvat credit as the said Cenvat credit was availed after a lapse of six months of the date of issue of bill of entry - manufacturer who receives the inputs in the factory under cover of “Bill of Entry” from what date the period of six months specified in sub-rule (5) of Rule 57(G) is to be calculated – Held that:- though we accept the finding of the Larger Bench that Bill of Entry is a document issued as provided under Rule 57G, insofar as the date from which the limitation is to be computed for the purpose of sub-rule (5) of Rule 57G is concerned, it would be the date on which the order under Section 47(1) of the Act that is ‘out-of-charge’ order is handed over to the importer. - matter remanded to the original authority to verify the dates and find out whether the claim for credit was made within six months from the date of such order being handed over to the importer and then pass an appropriate order
This case is a glaring example of how precious judicial time is wasted because of the lethargy of the department in not bringing to the notice of the Tribunal and the Larger Bench of the Tribunal the notification that was issued as far as back in the year 1996. It is time that appropriate steps are taken and a responsibility be fixed on the concerned officials and the officials will keep in mind the circular issued by the Board and pass orders in terms of the circular and not play hide and seek game with the judicial authority which is evident in this case.
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2012 (9) TMI 816 - CESTAT, BANGALORE
Whether biris manufactured by assessee are manufactured with or without the aid of machines - Manufacturers of handmade labelled biris - higher rate being applicable to biris manufactured with the aid of machines – Held that:- Where the packing materials were manufactured with the aid of machines - manufacture of packing materials through job worker using machines will not tantamount to use of machines in the manufacture of biris – In favor of assessee
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2012 (9) TMI 815 - CESTAT, NEW DELHI
Clandestine removal of goods – alleged that clandestine removal of the goods in the connivance with the dealers and transporters – Held that:- Finding by the Commissioner is that there was no excess quantity of tobacco (input) found in the appellants premises nor the shortage thereof - there is also finding that the entire premises of the appellants factory was inspected - cash recovered from the premises there is also no attempt on the part of the adjudicating authority to ascertain its link with the proceeds of the goods alleged to have been clandestinely removed. The link cannot be established on mere assumption. There must be some material on record which is to be ascertained by analyzing the same - findings which are arrived at by the Commissioner are merely based on assumption without proper analysis of the materials on record. Hence, the same are not sustainable - confirmation of demand and/or imposition of penalty cannot arise - order is quashed and set aside and the matter is remanded for consideration thereof afresh.
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2012 (9) TMI 814 - CESTAT, NEW DELHI
Waiver of pre-deposit – consignment wise payment of duty in cash - rule 8(3A) - alleged that Appellant did not pay the duty payable by cash, as per their ER-1 return by the due date - Neither did they pay it with interest – Held that:- Department has not taken the initiative to make use of the provisions regarding confiscation since no seizure has been effected. So the only consequence will be penalty - there is no case for demanding the duty paid through Cenvat credit to be paid again through cash/PLA - there is no case for imposing penalty equal to duty defaulted - Appellant should make a deposit of Rs. 10,000/- towards penalty and interest payable
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2012 (9) TMI 813 - GUJARAT HIGH COURT
Whether CESTAT was right in invoking the provisions of Section 73(1A) and setting aside the penalty levied in excess of 25% - Revenue contended that once show cause notice has been issued then the assessee is required to make payment of penalty, even if before the issuance of show cause notice, service tax and interest has been deposited - Held that:- Board's Circular No.137/167/2006-CX dated dated 03.10.2007 has considered the proviso to section 73 that where a person has paid service tax in full together with interest and penalty under sub-section (1A), the proceedings in respect of such person to whom notices are served under sub-section (1) shall be deemed to be concluded. In the instant case was not contesting the Service Tax liability and had deposited the entire service tax and interest much before the issuance of show cause notice and discharged 25% of the amount of service tax liability, and at that time, neither any penalty was levied by the appellant nor any quantum of penalty was fixed. Therefore, the assessee has not committed any illegality in not depositing any penalty amount. Penalty levied against the assessee in excess of 25% u/s 76 and 78 of the Finance Act, 1994, has rightly been set aside by the Tribunal
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2012 (9) TMI 812 - CESTAT, CHENNAI
Rejection of appeal on ground of limitation - condonation of delay - OIO received on 30.12.2009, appeal filed with Office of the Commissioner of Service Tax, Chennai inadvertently on 12.3.2010 without filing the same before the Commissioner (Appeals) - appeal came before Commissioner (Appeals) on 2.1.2012 - delay of more than 2 years - Held that:- According to section 85 of the Finance Act, 1994, learned first appellate authority has no power to condone delay beyond the statutory period of three months plus the discretionary period of another three months under the proviso to sub-section 3(3) of section 85 of Finance Act, 1994. Accordingly, any appeal coming to his record beyond prescribed period of limitation fails to be maintainable being barred by limitation. Therefore, Commissioner (Appeals) was right to confine his jurisdiction to section 85(3) of the Finance Act, 1994 to dismiss the appeal of the appellant.
Tribunal has no power to drag Revenue to litigation reviving a litigation which came to an end with the passage of time. There is nothing on record to show bona fide of appellant's averments when record of Commissioner of Service Tax does not contain the appeal papers said to have been filed in his office under an acknowledgement. Appellate authority also has no power to take shelter of section 5 of the Limitation Act at all. Accordingly, appeal is liable to be dismissed - Decided against assessee
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2012 (9) TMI 811 - CESTAT BANGALORE
Cenvat credit - input services utilized for authorized motor vehicles service center and business auxiliary services - trading activity - appellant had taken CENVAT credit on several services, which according to the revenue related to the sale of motor vehicles and not to the services provided by them – Held that:- Revenue denied cenvat credit on various input services such as transportation charges, pre-delivery inspection charges, warehousing charges, advertisement charges and hotel expenses.
The credit in respect of the services other than advertisement expenses and hotel expenses are allowed and with regard to services relating to hotel expenses and advertisement expenses, the demand within the normal period of limitation is upheld.
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2012 (9) TMI 810 - SUPREME COURT
Condonation of delay - Held that:- The High Court was justified in condoning the delay in filing the appeal by the Defendant and further directing the Defendant to deposit certain amounts - while disposing of the appeal the Plaintiff to withdraw a sum of Rs.2,50,000/- deposited by the Defendant before this Court. However, he is restrained from withdrawing any amount deposited by the Defendant before the Trial Court.
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2012 (9) TMI 809 - SUPREME COURT
Right to Information Act - eligibility criteria for appointment to the posts of Chief Information Commissioners and Information Commissioners, both at the Central and the State levels - petitioner challenged to the constitutionality of Section 12(5) and (6) and Section 15(5) and (6) of the Act of 2005 stating that the eligibility criteria given therein is vague, does not specify any qualification, and the stated ‘experience’ has no nexus to the object of the Act - Held that:- The Chief Information Commissioner and members of the Commission are required to possess wide knowledge and experience in the respective fields. They are expected to be well versed with the procedure that they are to adopt while performing the adjudicatory and quasi judicial functions in accordance with the statutory provisions and the scheme of the Act of 2005. They are to examine whether the information required by an applicant falls under any of the exemptions stated under Section 8 or the Second Schedule of the Act of 2005 particularly, sub-sections (e), (g) and (j) have been very widely worded by the Legislature keeping in mind the need to afford due protection to privacy, national security and the larger public interest. All these functions may be performed by a legally trained mind more efficaciously. The most significant function which may often be required to be performed by these authorities is to strike a balance between the application of the freedom guaranteed under Article 19(1)(a) and the rights protected under Article 21 of the Constitution.
In terms of sub-Section (5), besides being a person of eminence in public life, the necessary qualification required for appointment as Chief Information Commissioner or Information Commissioner is that the person should have wide knowledge and experience in law and other specified fields. The term ‘experience in law’ is an expression of wide connotation. It pre-supposes that a person should have the requisite qualification in law as well as experience in the field of law. However, it is worthwhile to note that having a qualification in law is not equivalent to having experience in law and vice-versa. ‘Experience in law’, thus, is an expression of composite content and would take within its ambit both the requisite qualification in law as well as experience in the field of law.
Thus the provisions of Sections 12(5) and 15(5) of the Act of 2005 are held to be constitutionally valid, but with the rider that to hold and declare that the expression ‘knowledge and experience’ appearing in these provisions would mean and include a basic degree in the respective field and the experience gained thereafter.
As opposed to declaring the provisions of Section 12(6) and 15(6) unconstitutional it would be preferred to read these provisions as having effect ‘post-appointment’. In other words, cessation/termination of holding of office of profit, pursuing any profession or carrying any business is a condition precedent to the appointment of a person as Chief Information Commissioner or Information Commissioner at the Centre or State levels.
The Information Commissions at the respective levels shall henceforth work in Benches of two members each. One of them being a ‘judicial member’, while the other an ‘expert member’. The judicial member should be a person possessing a degree in law, having a judicially trained mind and experience in performing judicial functions. A law officer or a lawyer may also be eligible provided he is a person who has practiced law at least for a period of twenty years as on the date of the advertisement. Such lawyer should also have experience in social work.- Chief Information Commissioner at the Centre or State level shall only be a person who is or has been a Chief Justice of the High Court or a Judge of the Supreme Court of India & the appointment of the judicial members to any of these posts shall be made ‘in consultation’ with the Chief Justice of India and Chief Justices of the High Courts of the respective States.
Under the scheme of the Act of 2005, it is clear that the orders of the Commissions are subject to judicial review before the High Court and then before the Supreme Court of India. In terms of Article 141 of the Constitution, the judgments of the Supreme Court are law of the land and are binding on all courts and tribunals. Thus, it is abundantly clear that the Information Commission is bound by the law of precedence, i.e., judgments of the High Court and the Supreme Court of India. In order to maintain judicial discipline and consistency in the functioning of the Commission, we direct that the Commission shall give appropriate attention to the doctrine of precedence and shall not overlook the judgments of the courts dealing with the subject and principles applicable, in a given case - Writ partly allowed.
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2012 (9) TMI 808 - SUPREME COURT
Appeals against the order of High Court wherein Court has refused to interdict the proceedings pending in the Court of District Judge filed by the respondents herein on ground that provisions of Order II Rule 2 of the CPC would be applicable only when the first suit is disposed of - agreement to sale of land and superstructures thereon between plaintiff and respondent - plaintiff seeking a decree on 29.05.07 against the defendant for execution and registration of the sale deeds in respect of the same property and for delivery of possession thereof to the plaintiff in respect of the which plaintiff had earlier filed on 27.07.2005 seeking the relief of permanent injunction.
Held that:- In the present case second set of suits were filed during the pendency of the earlier suits. High Court following the judicial discpline, held that the provisions of Order II, Rule 2(3) will not be attracted. However, we are unable to agree with the same in view of the object behind the enactment of the provisions of Order II Rule 2 of the CPC, namely, that Order II Rule 2 of the CPC seeks to avoid multiplicity of litigations on same cause of action. If that is the true object of the law, the same would not stand fully subserved by holding that the provisions of Order II Rule 2 of the CPC will apply only if the first suit is disposed of and not in a situation where the second suit has been filed during the pendency of the first suit. Rather, Order II, Rule 2 of the CPC will apply to both the aforesaid situations.
In view of aforesaid, present appeals deserve to be allowed. Accordingly order of High Court is set aside. Consequently, we strike off the plaint in O.S.Nos.202 and 203 of 2007 on the file of District Judge, Thiruvallur.
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2012 (9) TMI 807 - ITAT MUMBAI
Indo-Swiss DTAA - assessee, a Swiss company, operated India specific websites providing an online platform for facilitating the purchase and sale of goods/services to users in India - entered into a Marketing Support Agreement with eBay India and eBay Motors which are eBay group companies in connection with its India specific websites - assessee contended that such revenue from the operations of its websites was not taxable as business profits as per Article 7 of the Indo-Swiss DTAA since it did not have a PE in India as per Article 5 – AO contended that assessee had connection in India as eBay India and eBay Motors were group companies rendering services to it and the entire income of Indian companies was derived from such services and accordingly held income to be taxable as 'Fee for Technical Services' – CIT(A) however, in the absence of the assessee furnishing any supporting evidence to prove the genuineness of the claim of expenses, invoked Rule-10 and held that 10% of the revenue to be taxed as business profits.
The term 'managerial services' refers to managing certain affairs, a quid pro quo for which will be described as fees for technical services. Assessee becomes entitled to the user fee when there is a successful completion of sale between the buyer and seller through its website. The assessee's websites are analogous to a market place where the buyers and sellers assemble to transact. By providing a platform for doing business, the assessee can, by no standard, be considered as having rendered any managerial services either to the buyer or to the seller, for which it received fee from the seller, hence it is in nature of 'Business profits'.
There is no dispute about the fact that eBay India and eBay Motors are providing their exclusive services to the assessee. It has been fairly admitted that these two entities have no other source of income except that from the assessee in lieu of the provision of service as set out above. In view of the fact that eBay India and eBay Motors are exclusively assisting the assessee in carrying on business in India, they definitely become dependent agents of the assessee. The next question, however, is whether or not these dependent agents constitute permanent establishments of the assessee as per conditions of Article 5(5).
Clause (ii) of Article 5(5) has no application in this case because there is no requirement on the part of eBay India or assessee to maintain any stock of goods or merchandize on behalf of the sellers. Clause (iii) is also not applicable since eBay Motors is not required to manufacture or process the goods or merchandise on behalf of the assessee. As per Clause (i), it is to be seen whether eBay India and eBay Motors do or habitually exercise 'an authority to negotiate and enter into contracts for or on behalf of the assessee.' Simply by providing marketing services to the assessee or making collection from the customers and forwarding the same to the assessee, it cannot be said that eBay India entered into contracts on behalf of the assessee. Neither there is any mention in the assessment order nor the Revenue has specifically pointed out towards any contract entered into by eBay India or eBay Motors, during the discharge of their functions or otherwise, for or on behalf of the assessee. Thus the test laid down as per clause (i) of Article 5 (5) also fails in the present case.
Therefore, though eBay India and eBay Motors are dependent agents of the assessee, but do not constitute 'Dependent agent PEs' of the assessee in terms of Article 5. Further, these concerns cannot be treated as the PEs of the assessee in terms of Article 5(2)(a) of the DTAA. Since the assessee has no PE as per Article 5, there can be no question of computing business profits of the assessee as per Article 7 in relation to the revenue generated from India – Decided in favor of assessee
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2012 (9) TMI 806 - SUPREME COURT
Plea against rectification order passed u/s 154 - application u/s 154 moved by assessee to carry forward and set off unabsorbed depreciation and losses of earlier AYs - DCIT while determining the taxable income, reduced the deduction admissible u/s 80HHC allowed in the original assessment order by reducing the unabsorbed depreciation and brought forward losses for the earlier AYs from current year's business profits for determining "profits of the business" - assessee contesting the re-computation of deduction u/s 80HHC(3)
Held that:- Section 154 finds place in Chapter XIV which deals with PROCEDURE FOR ASSESSMENT. If one examines the scheme of Chapter XIV, it becomes clear that the said Chapter not only deals with assessment and re-assessment, it also deals with re- computation. The object of re-computation is to assess (quantify) the correct taxable income. Such re-computation of a correct taxable income is a matter of procedure. In order to arrive at a correct amount of taxable income, DCIT had to compute deduction u/s 80HHC(3) which had to be deducted from the gross total income - Decided against assessee
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2012 (9) TMI 805 - SUPREME COURT
Deduction u/s 36(1)(vii) - bad debts - period prior to 1st April, 1989 - Held that:- Deduction for bad debts required satisfaction of two conditions at the relevant time, namely, that (a) bad debt must be established to have become bad in that year; and (b) bad debt should have been written off in the books of account of that year. In present case, appellant satisfied both the conditions for claiming deduction for bad debt u/s 36(1)(vii) r.w.s.36(2)(i)(b). Firstly, the appellant is a State Public Sector Undertaking; and secondly, the appellant was the promoter of M/s. V Ltd. Assessee in the course of business of promoting industrial development in the State of Kerala, had promoted M/s. V Ltd. As a promoter, it was in a position to find out whether M/s. V Ltd was in a position to carry on business in future.
Thirdly, M/s. V Ltd was a typical Public/Private partnership(PPP). None of these aspects have been considered by the Tribunal as well as by the High Court. Lastly, the Reference Application was made in February, 1988; declaration was made in February, 1988, by BIFR that M/s. V Ltd has become a sick Company. Till the end, the Company could not even be revived. It has been wound up. In the circumstances, applying the commercial test and business exigency test, we are of the view that both the conditions u/s 36(1)(vii) r.w.s. 36(2)(i)(b) are satisfied. Deduction thus allowed - Decided in favor of assessee
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