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Case Laws
Showing 441 to 460 of 1967 Records
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2014 (1) TMI 1529
Pricing adjustment from total Advertisement, Marketing and Promotion (AMP) expenses - Held that:- Relying on the decision in LG Electronics India Pvt. Vs. ACIT [2013 (6) TMI 217 - ITAT DELHI] - The expense in connection with the sales which do not lead to brand promotion cannot be brought within ambit of 'Advertisement, Marketing and Promotion expenses' for determining the cost/value of international transactions' - The expenses which are in the nature of discount are outside the purview of total composition of AMP expenses for the purposes of determination of their ALP - Decided in favour of assessee.
Component of AMP expenses - Held that:- The amount was in the nature of reimbursement of salary paid to sales staff of dealers/distributors, but no material has been shown to substantiate this contention - The correct nature of this amount is not clear - The issue has been restored for fresh adjudication for ascertaining the correct nature of this amount.
Disallowance as per section 37(1) - Held that:- The overall AMP expenses are required to be processed as per the mandate of the LG Electronics [2013 (6) TMI 217 - ITAT DELHI] to find out the amount spent towards brand building for the foreign AE and then making addition by way of TP adjustment with appropriate mark-up - The total AMP expenses are segregated into two classes, one benefiting the assessee's business and two, benefiting the foreign AE by way of promotion of the brand.
Once the total amount of AMP expenses is processed through the provisions of Chapter X of the Act with the aim of making TP adjustment towards AMP expenses incurred for the foreign AE, or in other words such expenses as are not incurred for the assessee's business, there can be no scope for again reverting to section 37(1) qua such amount to make addition by considering the same expenditure as having not been incurred `wholly and exclusively' for the purposes of assessee's business. - The AO was not justified in observing alternatively that a sum of ₹ 180 crore and odd is not allowable as per section 37(1) of the Act - The issue has been restored for fresh adjudication.
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2014 (1) TMI 1528
Unexplained investment - Held that:- the assessee had been providing short-term advances to various third parties and the amount being returned back by the parties was again being given to others - Relying on the decision in ITO vs Madan Lal Mittal [2006 (5) TMI 305 - ITAT DELHI] - The peak credit could be added in such circumstances - The same amount cannot be taxed multiple times - Decided against Revenue.
Excessive deduction u/s 80C - Held that:- The CIT(A) has not considered the issue in proper manner - There was a fresh evidence before the CIT(A)which has not been confronted to the AO - The issue has been restored for fresh adjudication.
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2014 (1) TMI 1527
Import of fitness equipment - Under valuation of products - appeal against the order of Customs and Central Excise Settlement Commission - Held that:- Commission did not consider the submissions of the parties at all while dealing with the import from the US, in calculating the freight and insurance component. Para 19 of the impugned order shows that the Commission accepted the petitioner’s argument on this score. However, what are the reasons that impelled the Commission to reject the petitioner’s submissions in para 22 are not known. This opinion betrays an ex-facie error. This does not amount to the petitioner ventilating the grievance by which it is seeking to dissect the findings of fact choosing to retain what is in its favour and rejecting what is not. Simply put, the Commission’s order is silent on the aspect with what the petitioner is aggrieved.
Consignments which are in respect of identical goods though from different sources, while there could arguably be justifiable reasons to take a differential approach, in the absence of any spelt-out or considered reasons discernable to the Court or reader, such differential treatment would amount to discrimination – plainly clothing this Court with jurisdiction on this score - matter is accordingly remitted to the Commission limited on this aspect. The Commission shall indicate its position after giving notice to the parties and granting such hearing as is warranted in law - Decided in favour of assessee.
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2014 (1) TMI 1526
Duty Drawback - restriction to allow Cenvat Credit - Merchant exporter - readymade garments purchased from the open market - Circular No. 54/2001-Cus dated 19.10.2001 and Circular No.16/2009-Cus dated 25.05.2009 - Whether the demand is to be sustained in view of para(iv) of Circular 17/97-Cus. and para (vi) of Circular 64/98 though these are not relied upon in SCN - Held that:- We are not inclined to confirm such huge liability for past periods based on Circulars which were in the knowledge of the department and which were not implemented. We would like to rely more on the legal provisions. The only legal provision relied upon is Rule 3 of the drawback Rules. We agree with the interpretation to this Rule given by the Board in Circular 16/2009-Cus. The argument that this interpretation is applicable from date of issue of Circular 16/2009-Cus. Is repugnant to logic because the Rule has remained the same except for amendment on 13-7-2006, to take care of incidence and rebate of Service Tax - Following decision of COMMISSIONER OF CUSTOMS (EXPORT) Versus KULTAR EXPORT [2012 (10) TMI 79 - DELHI HIGH COURT] - order, disallowing Central Excise portion of the drawback, in terms of the adjudicating authority and revisional order is hereby set aside - Decided in favour of assessee.
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2014 (1) TMI 1525
Change in classification of goods - Assistant Commissioner followed the non-speaking order passed by the Commissioner - Held that:- It is seen that neither the order of the Assistant Commissioner passed on the Bill of Entry is appealable before the Tribunal inasmuch as the appeal against the same lies before the Commissioner (Appeals), nor the note-sheet order of the Commissioner which stands followed by the Assistant Commissioner is in appealable form. In any case, we note that the Assistant Commissioner has simply followed the note-sheet instructions of the Commissioner without grant of any opportunity to the appellants to contest the same. As such we deem it appropriate that the proper officer passes a fresh assessment order after extending an opportunity to the appellant to contest the same - Decided in favour of assessee.
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2014 (1) TMI 1524
Restoration of appeal - COD clearance not taken - Held that:- no clearance is required to be taken for pursuing appeal before the Tribunal, the fact that Revenue had not applied for such clearance, will not change the legal position. It is also admitted that there is no time limit for applying to the Committee on Disputes for seeking such clearance. As such, the above fact will not make any difference - Appeal restored.
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2014 (1) TMI 1523
Demand of Additional Duty of Customs u/s 116 - Import of HSD oil - Benefit of Notification No. 43/2002-Cus., dated 19-4-2002 - Held that:- On a perusal of Notification No. 43/2002-Cus., we find that it did not grant exemption from payment of additional duty of Customs leviable under the Finance Act, 1999 as rightly held by the authorities below. As an exemption notification has to be strictly construed, the grounds raised in this appeal are untenable - Decided against assessee.
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2014 (1) TMI 1522
Winding up of company - Inability of PPCL to pay its debts in terms of Section 434(1)(a) - HDFC had not yet amended the petition to bring it under Section 434 (1) (c) of the CA - Held that:- there is no pleading that the notice was sent at the registered office of PPCL by speed post and was not returned unserved and that, therefore, it should be deemed to have been served on PPCL. Consequently, it is not possible for the Court to proceed on that basis and conclude that the company should be deemed to be unable to repay its debts. It cannot be said that the requirement of Section 434 (1) (a) of the CA has been satisfied in the present case - There was sufficient time for HDFC to have done so considering that the DB’s order was passed more than two months ago. Further, there was sufficient time for HDFC to have filed an application to amend the petition on the basis of the information available in the balance sheet of PPCL as on 31st March 2010 and reserve its rights to add further averments on the basis of the information it could have sought from PPCL through the Court - HDFC has not been able to make out a case for proceeding against PPCL under Section 434 (1) (a) of the CA. The orders dated 15th February 2013 and 1st May 2013 are recalled - The OL is directed to restore the possession of the premises, assets and records taken over by him to PPCL through its Managing Director within one week - Decided against Petitioner.
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2014 (1) TMI 1521
Waiver of pre deposit - Whether the Hon'ble Tribunal was justified in demanding Rs. One lac in compliance of section 35F of the Central Excise Act 1944 on the Application pending before the Commissioner (Appeals) specially when the Commissioner (Appeals) had dispensed with the condition of predeposit prior to remand - Held that:- appellant had an order of dispensation of pre-deposit of the amount in its favour during the pendency of the proceedings before the Commissioner (Appeals). The Tribunal found it appropriate to remand the proceedings back to the Commissioner (Appeals) for reconsideration. Save and except recording the submission of the revenue that a direction for deposit should be made, the Tribunal has not furnished any independent ground for modifying the position which obtained during the pendency of the proceedings before the Commissioner (Appeals). Hence, though the Tribunal undoubtedly did have the power under Section 35-C to issue an appropriate direction while remanding the proceedings, no reason has been furnished by the Tribunal for ordering the deposit - Commissioner (Appeals) directed to decides the appeal on merits - Decided party in favour of assessee.
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2014 (1) TMI 1520
Availment of CENVAT Credit - Area of the factory as well as the consumption of electricity does not suggest manufacturing of the final products, as shown by the petitioner, for which CENVAT Credit is availed - Non compliance of pre deposit order - Held that:- There is no quarrel to the proposition that it is within the discretionary powers of the Tribunal to grant total waiver of the duty demanded and the penalty levied provided it records the reasons relating to undue hardship of the applicant as well as safeguard the interest of the revenues. If the decision of the Tribunal is accepted by the department in some other cases and have been uniformly applied, taking a different view, without indicating the factual difference and/or the special facts may lead to unsettle the settled proposition.
From the show cause notice as well as the finding made by the Tribunal it would be evident that the authorities found that there is existence of a factory with plants and machinery. What is stated by the department is that the aforesaid plants, machinery and other infrastructure cannot support the manufacturing activities to such a large extent as has been shown by the petitioner to have been done during the relevant period. Therefore, in view of the aforesaid facts, this Court does not find that it could at all be said that there was never any manufacturing activities undertaken by the petitioner in the said factory but leads to presumption that some manufacturing activities have been undertaken and in absence of any cogent and counter evidence it would further lead to a presumption that the closure was made, as has been contended by the petitioner - approach of the Tribunal, in dealing with the application for waiver of the pre-condition deposit, is not at all appreciable. This Court, therefore, quashes and sets aside the order dated 24th February 2012. Since the second order dated 15th May 2012 is dependent upon the order dated 24th February 2012, the same cannot stand independently and is also accordingly quashed and set aside - Decided in favour of assessee.
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2014 (1) TMI 1519
Insertion of Explanation in the notification - Whether Retrospective of Prospective - Whether Clarificatory or declaratory - Whether the Tribunal is right in holding that the Explanation to Notifications 16/97CE dated 1.4.97 and 38/97 dated 27.6.97 would have prospective effect, in spite of settled position of law that any Explanation to a Rule or Section is only clarificatory in nature and would have retrospective effect - Held that:- inputs as well as the finished goods manufactured by the assessee answer the description of the 'specified goods' - for the purposes of computing the aggregate value of clearances under the notification, the clearances of excisable goods which are chargeable to 'nil' rate of duty or which are exempted from the whole of duty of excise leviable thereon by any notification issued under sub-rule (1) of Rule 8 of the Rules shall not be taken into consideration. In this case, as the finished goods are, admittedly, exempted under Notification Nos.155/1986, 160/1986 and 124/1988, the value of the exempted finished goods will have to be excluded in arriving at the aggregate value for the purposes of the notification.
Rationale behind the insertion is that when the specified goods are chargeable to nil rate of duty or exempted under any notification, as the case may be, the specified goods used as inputs are not treated as exempt under clause (c) of Paragraph 3, in which event, they should form part of the aggregate value of clearance. Thus the question of further relief being granted by excluding the inputs from the aggregate value was sought to be set right, so that the notification prescribing the slabs would be more meaningful, but till such time such insertion was made and in the absence of any specific provision restricting the scope on the specified goods with reference to their chargeability to nil rate of duty or exempt from the whole of duty under any other notification, paragraph 3, as it existed during the relevant point of time, cannot, in any manner, be read down - notification No.69 of 1997 dated 03.12.1997 inserting clause (f) in Explanation to paragraph 5 is only prospective in nature and consequently would not be of any relevance to the case on hand - Decided against Revenue.
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2014 (1) TMI 1518
Demand of license fees - Petitioner at the time of application for grant of liquor licence had submitted a plan wherein the areas including the bar area were distinctly shown. On the basis of the said application, the licence in the category of L-5 was granted and the licence specifically mentioned "Orbit Bar" attached to dining hall of "Orbit, Mandarian and Gulnar Restaurants" - However, Orbit Bar was located on the ground floor in the centre of Hotel Janpath and on three sides around the Bar, there was space for restaurants and on the fourth side there was a passage. The entire area where the bar and the restaurants were situated were interconnected and there was no door fixed to separate them from each other - Collector of Excise held that the licencee was required to deposit licence fee for two other restaurants.
Held that:- Order dated 08.05.1992 and the consequent memorandum dated 09.06.1992 are not sustainable. The order dated 01.04.1985 was passed pursuant to the first show cause notice that had proposed two actions. Firstly, deletion of two out of three restaurants and secondly recovery of additional licence fee for the period the three restaurants were run by the petitioner as attached to the ORBIT Bar in terms of the licence granted by the respondents - Collector of Excise only deleted names of the two restaurants that had been inadvertently allowed and treated as attached with the 'Orbit Bar'. No penalty or direction for payment of any licence fee for the said two restaurants was passed.
Adjudicating authority upon examination and due consideration, did not think and consider appropriate to levy penalty, or direct deposit of any additional licence fee. To this extent proceedings were dropped, in favour of the petitioner. Apparently the authority felt that the error or mistake was of the department and no fault could be attributed to the petitioner. The order dated 01.04.1985 was complied with and had become final. The order did not find wrong doing on the part of the petitioner but holds that the restaurants were added inadvertently - while the presence of two parties besides the deciding authority will prima facie and in the absence of any other factor impose upon the authority the duty to act judicially, the absence of two such parties is not decisive in taking the act of the authority out of the category of quasi-judicial act if the authority is nevertheless required by the statute to act judicially.
The Collector of Central Excise while adjudicating upon the first show-cause notice was clearly performing quasi judicial function. There is no power of review conferred upon the Collector of Central Excise to review the order dated 01.04.1985 of the nature passed on the first show-cause notice. The collector thus could not have issued a second show cause notice and that also after a gap of about 5 years. The first show-cause notice required the Petitioner to show-cause as to why additional license fee be not charged but the same was not charged and this amounted to dropping of the show-cause notice to that extent. The Order dated 01.04.1985 also records that the three restaurants were inadvertently attached to the bar - order dated 08.05.1992 and the consequent demand raised by the respondents vide memorandum dated 09.06.1992 are not sustainable and are hereby set aside. In case, the petitioner has paid or deposited any amount pursuant to the interim order of this Court dated 19.06.1992 for stay of the memorandum dated 09.06.1992, the petitioner shall be entitled to refund of the same with interest @ 12% per annum - Decided in favour of assessee.
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2014 (1) TMI 1517
Availment of CENVAT Credit - Whether the items Panel Board and PVC Cables which do not participate in the manufacturing process can be said to fall within the definition of Capital goods under Rule 57 Q of the Central Excise Rules, 1944, at the relevant time and accordingly availed credit as provided under the said Rule - Held that:- "goods" which are mentioned in the question referred to us would come within the term "capital goods" envisaged in this provision and therefore the assessee is entitled for the MODVAT credit on these items. Indeed the definition of "capital goods" is comprehensive in nature and therefore we do not have any scintilla of doubt in our mind that Panel Board and PVC cables which do not participate in the manufacturing process and are only used for producing or processing of any goods or for bringing about any change in any substance for the manufacture of final product would be included in "capital goods" and hence the assessee is entitled for MODVAT credit on these items - Following decision of CCE v. Jawahar Mills Ltd. [2001 (7) TMI 118 - SUPREME COURT OF INDIA] - Decided against Revenue.
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2014 (1) TMI 1516
Demand of service tax - Receipt of consulting engineer service or work order - Held that:- as per the provisions of Section 65(31) of the Finance Act, 1994, ‘consulting engineer' means any professionally qualified engineer or an engineering firm who either directly or indirectly render any advice, consultancy or technical assistance to a client in one or more disciplines of engineering - provider of service has not provided any advice on consultancy or technical assistance rather as per the work order, the provider of service has undertaken the activity of cleaning of para xylene plant and the activity undertaken by the service provider involves radiation and convection using equipments like spraying ejector, steam ejector, nozzles with hoses and air compressors - Decided against Revenue.
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2014 (1) TMI 1515
Expenses as NPV of compensation paid to the Forest Department for utilization of forest land for non-forest purpose - Held that:- Decision on T.N. Godavaram Thirumalpad –vs.- Union of India [2005 (9) TMI 591 - SUPREME COURT] followed - Though NPV payment is a one-time payment, the same was not made to acquire any asset - Forests are vital components to sustain life support system on the earth - There is an absolute need to take all precautionary measures when forest lands are sought to be directed for non-forest use - The User Agency be required to make payment of Net Present Value (NPV) of such diverted land so as to utilize the amounts so received for getting back in long run the benefits which are lost by such diversion - The Ministry of Environment and Forests formulated a scheme providing that whenever any permission is granted for change of use of forest land for non-forest purposes, there should be compensatory afforestation - The responsibility of the same should be that of user agency - The money so received towards NPV should be used for natural assisted re-generation, forest management, protection, infrastructure development, wildlife protection and management, supply of wood and other forest produce saving devices and other allied activities.
Such payments of NPV as compensation were levied for rendering service which the state considers beneficial in public interest - It is a fee which falls in entries 47 of List-III of 7th Schedule of the Constitution - The fund set up is a part of economic and social planning which comes within Entry 23 of List III and the charge which is levied for that purpose would come under Entry 47 of List III - Levy of NPV is a fee that means every mining agency using and converting forest land to non-forest purpose has to pay a fee for continuing carrying on of the business.
The said payment is not a voluntary one and it is a payment on the basis of the direction given by the Government of India, Ministry of Mines, under which the assessee-company comes - When a payment is made as per specific direction of Government of India, it is in the business interest of the assessee-company - This payment is a statutory requirement and the expenditure has been considered wholly and exclusively for the purpose of business and has got a direct connection with the business activity of the Company - The same was allowable as business expenditure under section 37(1) of the Act – Decided against Revenue.
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2014 (1) TMI 1514
Violation of principle of natural justice - Exercise of Revisional jurisdiction - Opportunity of hearing not granted - Held that:- Sub-section 1 of Section 63A of the Act categorically states that before passing any order in exercise of revisional jurisdiction, the person concerned must be given an opportunity of being heard and after making or causing to be made such inquiry as he deems necessary pass such order thereon as the circumstances of the case justify, including an order enhancing or modifying the assessment or cancelling the assessment or directing a fresh assessment ought to be ordered - in response to the notice issued by the 1st respondent, the petitioner’s representative appeared and sought time for producing the details and records before the authority. It is also noted that 20 days time was granted. But no specific date for producing the necessary documents was fixed. In fact time was granted on 07.10.2013 and the impugned orders have been passed on 29.10.2013 whereas the petitioner had sought time till the end of October 2013 to produce the details and records before the authority. Possibly, if the matter was taken up for consideration on a particular date in October or later, by then, the petitioner would have appeared and produced the materials. As the impugned orders have been passed on 29.10.2013, petitioner was not in a position to put forth his case along with the details and records before the 1st respondent. Therefore, the impugned order have been passed without considering the case of the petitioner and neither looking into the records that were to be submitted by the petitioner and hence would have to be quashed - Decided in favour of assessee.
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2014 (1) TMI 1513
Rejection of application for issuance of Form-C - Held that:- Moreover, since the supply of form depends on the discretion of the Sales-tax Officer, guided by the genuine requirement of a dealer, we cannot compel the Sales-tax Officer to issue forms to the petitioner which in the opinion of the Sales-tax Officer are not genuinely required by him. Moreover, the petitioner has an alternative remedy by way of appeal in case he is not satisfied with the order of the Sales-tax Officer with regard to the number of forms to which he is entitled. If the petitioner can satisfy the appellate authority that his genuine need for the forms is greater than sanctioned by the Sales-tax Officer and also that the forms previously issued to him had been properly accounted for, the Appellate Authority can give him the necessary relief.
proper course for the petitioner is to approach the Appellate Authority. We make it clear that in the meantime, if the petitioner bona fide utilises the forms already issued to him and if he genuinely needs more forms, he can make a demand from the Sales-tax Officer - petitioner's application for issuance of Form-C has been rejected. The petitioner was issued a show cause dated 11.04.2011, as to why its application for issuance of Form-C be not rejected. The petitioner submitted its reply on 11.04.2017, to the show cause notice, and rushed to the Court by filing the instant writ petition on 13.04.2011. The Assistant Commissioner, Commercial Tax, Sector-5, Sonbhadra - respondent no.2, has not taken any decision on the petitioner's reply so far - writ petition is premature as the Authority has not given any reason , on which the court may adjudicate the rights of the petitioner - Decided against assessee.
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2014 (1) TMI 1512
Intellectual property rights service - Service tax on Royalty amount not paid - Penalty u/s 76, 77 & 78 - Commissioner deleted penalty u/s 80 - Held that:- It is seen that the original Adjudicating Authority has confirmed service tax demand by invoking extended period under proviso to Section 73 (1) on the basis of finding that the non-payment of the service tax was attributable to their intention to evade the tax. This finding of the Additional Commissioner has not been challenged by the appellant. Once such finding is given, there would be no scope for the conclusion that the appellant did not discharge the service tax liability due to bonafide reasons. Confirmation of service tax demand by invoking proviso to Section 73 (1) and waiver of penalty by invoking Section 80 do not go hand in hand - Decided against assessee.
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2014 (1) TMI 1511
Waiver of pre deposit - Demand of service tax - Denail of CENVAT Credit - Credit taken on construction service - Held that:- The service considered for the purpose of denial of service tax credit is construction service - the construction service is one of the services listed in the 26 services on which service tax credit had been taken and was held to be admissible - Therefore appellants have made out a prima facie case and accordingly the requirement for pre-deposit is waived and recovery is stayed during the pendency of the appeal - Following decision of Navaratna S.G. Highway Prop. Pvt. Ltd. vs. CST [2012 (7) TMI 316 - CESTAT, AHMEDABAD] - Stay granted.
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2014 (1) TMI 1510
Denial of Cenvat credit on Input service tax – Held that:-The appellant is not making any grievance about depositing the amount, there was no reason to grant waiver of pre-deposit of the CENVAT credit denied - The issue involved is one of interpretation - the appellant directed to make a pre-deposit of the entire amount of CENVAT credit denied – stay not granted.
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