|
Advanced Search Options
Case Laws
Showing 441 to 460 of 1266 Records
-
2012 (10) TMI 835
Limitation u/s 11B - rejection of refund claim of demand of service tax paid - demand raised on ground of short duty paid without adjusting excess duty paid in other quarters - Held that:- It is observed that petitioner deposited the duty on billing basis without actual collection, but within the time limit provided for depositing the duty on actual collection. In such case, u/s 68(3), the time available to a service provider such as the petitioner for depositing with the Government service tax though not collected from the service recipient was 75 days from the end of the month when such service was provided. Section 68(3) never provided that the same cannot be paid by the 15th of the month following the end of the month when such service was provided. Thus, if the petitioner deposited such duty with the Government during a particular quarter on the basis of billing without actual collection, he had discharged his liability under sub-section (3) of section 68. Thereafter, on an artificial basis, the Assessing Officer could not have held that he ought to have deposited same amount once all over again in the following quarter. This is fundamentally flawed logic on the part of the Assessing Officer.
Further, to accept such formula adopted by the Assessing Officer would amount to collecting the tax from the petitioner twice. Before raising demand under the head of duty short paid, the Assessing Officer should have granted adjustment of the duty already paid by the petitioner towards the same liability.Under the circumstances, question of applying limitation under section 11B of the Act would not arise since we hold that retention of such service tax would be without any authority of law.
Issuance of unjust enrichment - held that:- A question of unjust enrichment is wholly irrelevant. It is not refund of a duty which is found upon completion of assessment excess paid that the petitioner is asking for. It is a duty which the petitioner has already paid separately and second time under insistence of the department which he is asking for being refunded. Under the circumstances, the question of unjust enrichment cannot be applied. - Decided in favor of assessee
-
2012 (10) TMI 834
Food Safety and Standards Act, 2006 - imported consignment of Crude Palm Oil (Edible Grade) - Interim order to allow the petitioner to clear the imported consignment – petitioner submitted that goods are conform to the standards laid down under the Food Safety and Standards Act, 2006 and the applicable regulations – Held that:- Petitioner is also entitled to an order of injunction restraining the respondent and each of them, their officers and subordinates from causing any delay or further delay in allowing the petitioner to process the imported consignment – interim order passed
-
2012 (10) TMI 833
Validity of show cause notice - Held that:- It is not a mere formality, but a statutory right to oppose the decision for extension of time. Issuance of a notice of three day has defeated the right of the petitioner to effectively defend its case. The petitioner had not only submitted reply, but also requested for more time, so as to represent the case before the department. The department in hurry to pass the order before six months, passed an exparte order, by considering the objection filed by the petitioner, without giving an opportunity of personal hearing. The impugned order therefore on the face of it is in violation of principles of natural justice - alternative remedy of statutory appeal cannot be a bar to maintain this writ petition - Writ petition is allowed. Impugned order is set aside. The petitioner shall be entitled to release of goods subject to payment of admitted duties and right of department to hold enquiry and impose duties & penalties under Section 124 of the Act -Connected Miscellaneous Petition is closed - No costs.
-
2012 (10) TMI 832
Definition of the term Domestic Industry - anti dumping duty on Soda Ash - held that:- between 1999 and 2010 in respect of the producers who are related to the exporters or importers of the dumped articles, or who are themselves importers, the term “domestic industry” was liberally construed by giving discretion to the Designated Authority treating such persons as forming part of the domestic industry.
In the amendment which was brought in with effect from 27-2-2010, on a reading, it is clear that the first portion of the definition of the domestic industry, which relates to the domestic producers as a whole whose collective output constitutes the major portion of the total domestic production, remains intact.
Insofar as it relates to the producers who are related to the exporters or importers of the dumped article or who are themselves importers of the dumped articles, the law-makers made it very clear that while construing them as domestic industry, the Designated Authority “may be construed as referring to the rest of the producers only”.
The term “may be construed as referring to the rest of the producers only” on a bare and literal interpretation, in our view, should be construed only in respect of the producers who are related to exporters or importers, or producers who are themselves importers, and simply because the term “only” is construed, it cannot be taken to the first portion of the definition.
The word “only” under Rule 2(b) of the Rules need not be concentrated much and in our view it has no significance as such.
While it is true that the international agreements like WTO and GATT may not be the absolute and only source for interpreting the Indian Law, so long as there is no contradiction between the definition of the agreement in the international law and the terms of the Indian Law, there is absolutely no prohibition for this Court to take note of the terms of the international agreements for the purpose of better appreciation of the term.
The term “domestic industry”, as it was amended on 27-2-2010, has not taken away the discretionary power of the Designated Authority and the Designated Authority is entitled to proceed further.
As elicited above, under Rule 5(3)(a) proviso, there is a prohibition against the Designated Authority not to investigate when the domestic producers expressly supporting the application account for less than 25% of the total production of the like article by the domestic industry. But under the first portion of the term “domestic industry” defined under Rule 2(b) of the Rules, elicited above, it is very clear that the collective output of the entire manufacture put together totally must constitute the major proportion of the total domestic production. While so, on the admitted fact that M/s. DCW Limited is the only producer of Soda Ash in the country, even though it has produced only 4%, by a combined reading of Rule 2(b) and Rule 5(3) proviso, M/s. DCW Limited must be considered as a domestic industry.
The writ petition against the preliminary finding published by the Designated Authority is maintainable
-
2012 (10) TMI 831
Offence under Section 135A of the Customs Act – confession of the co-accused – Petitioner contends that the statement of the Petitioner recorded under Section 108 of the Customs Act is exculpatory in nature and the statement of Virender Singh Batra, recorded under Section 108 of the Customs Act, 1962 cannot be relied upon for the purpose of framing charges as he was not examined as a witness in terms of Section 244 Cr.P.C in the complaint case – Held that:- Confession of the co-accused is admissible only under Section 30 of the Evidence Act. One of the essential requirements of the said provision is that the two accused should be tried jointly. Since the confession of the co-accused is not admissible as he is not being jointly tried with the Petitioner and besides this piece of evidence there is no other evidence, no charge can be framed against the Petitioner for offence under Section 135A of the Customs Act - order directing framing charge and the consequent order framing charge against the Petitioner for offence under Section 135A Customs Act are set aside
-
2012 (10) TMI 830
Refund claim – benefit of Notification No. 21/2002-Cus. – Held that:- There is no ‘contest’ or ‘lis’ between the appellant and the department at the time of clearance of the goods - payment of higher rate of duty by the appellant is by way of inadvertent mistake without taking the benefit of notification - benefit of said notification, was available to the importer - it is clear case of payment of higher duty due to ignorance - appellants are entitled to refund of excess duty paid by them
-
2012 (10) TMI 829
Reduction of Equity Share Capital of Company – Held that:- As Petitioner has followed the required procedure as contemplated under Sections 100 and 101 of the Act for the proposed reduction of capital. The Court also finds that Article 8 of the Articles of Association of the petitioner-Company permits reduction of capital. It also appears that as there was no outlay of funds, the interest of the creditors is not adversely affected, therefore, the procedure as contemplated under Section 101(2) of the Act is not required to be followed that the petitioner has effectively met with the observations made on behalf of the Registrar of Companies in its affidavit-in-rejoinder and further affidavit.
No adverse material has been pointed out by the Registrar of Companies against sanction of the reduction of share capital - Reduction of the paid up share capital proposed by the petitioner is hereby sanctioned. No further publication in the Government Gazette is required - Accordingly, the petition is allowed, in the above terms - Petitioner Company is directed to pay Rs.7500/- to Mr. Y.V. Vaghela, learned Central Government Standing Counsel, appearing on behalf of the Regional Director.
-
2012 (10) TMI 828
Scheme of Amalgamation - contravening the Provisions of Section 295 as the company has granted a loan to Ms. Manju Goel, relative of director - Held that:- Mr. Anuj Goyal, Director of Transferor Company No.1 filed an affidavit in response to the affidavit filed by Regional Director stating that that the above non-compliance has occurred inadvertently and due to oversight; without any mala-fide intention on the part of the Board of Directors of the Transferor Company No. 1. also whole amount of Rs. 15,80,000/- has been repaid on 09.11.2011 by Ms. Manju Goel to the Transferor Company No. 1 and the Transferor Company No. 1 has filed a compounding application under section 621A r.w.s. 295 in respect of the loan given by the Transferor Company No. 1 to Ms. Manju Goel.
In view of the submissions made at the bar and the settled law on the subject, the objection raised by the Regional Director is rejected and the Scheme is sanctioned subject to and without prejudice to the liability, if any, in the civil and criminal proceedings in respect of past transactions. It is further clarified that the proceedings pending before the ACMM, Tis Hazari, Delhi against the transferor company and/or its Board, Directors and management etc. shall continue and the liability, if any, of the Board, Directors, Management etc., in the said proceedings would continue as if the Scheme has not been made - No objection has been received to the Scheme of Amalgamation from any other party by either of the Petitioner Company or the counsel neither the Petitioner Companies nor the counsel has received any objection pursuant to citations published in the newspapers, Consequently, sanction is hereby granted to the Scheme of Amalgamation under sections 391 and 394 of the Companies Act, 1956.
-
2012 (10) TMI 827
Waiver of pre-deposit of amount of penalty - in-eligible CENVAT Credit- Held that:- Appellant is not disputing the in-eligible CENVAT Credit availed by them and has reversed the same along with interest - to that extent order of first appellate authority is upheld and appeal of the appellant is rejected on merit.
Penalty - Held that:- appellant had a CENVAT Credit of more than Rs.Two Crores from the time the audit party pointed out the in-eligible CENVAT Credit of Rs.4,49,426/-. If that be so, visiting the appellant with the penalty under the provisions of Rule 15(2) of CENVAT Credit Rules, 2004 read with Section 11AC of Central Excise Act, 1944, seems to be unwarranted as the appellant would not have any reason to utilize the amount as he has enough balance in CENVAT - penalty imposed on the appellant is unwarranted and needs to be set aside and appeal is allowed.
-
2012 (10) TMI 826
In-eligible CENVAT Credit of the Service Tax paid on courier/telephone services - the appellant having accepted that they are not eligible for availing CENVAT Credit, the interest liability arises and they are liable to pay interest on the CENVAT Credit availed.
Regarding penalty - held that:- the appellant has reversed the CENVAT Credit which has been pointed out as erroneously taken in August and September 2008 itself. It is also to be noted that the credit which has been availed on courier/telephone/security services, if would have been contested on merit they may have succeeded, as these services are eligible for availing CENVAT credit of Service Tax paid. - penalty set aside.
-
2012 (10) TMI 825
Rejection of appeal as time bar - Held that:- The order was first issued under speed post and was received back to the Revenue with postal remarks that there is no firm at the given address. As such, even if the order would have been issued under registered post, the same would have came back with the same postal ground. It stands admitted by the appellant that they have closed their factory in the year 1999 and the proceedings against the appellant were initiated by way of issuance of show cause notice in April, 2006. The appellants never bothered to give complete new address for communication purpose. Thus finding favour with Revenue action having pasted the order on the factory gate on 5.12.07 for fulfilling the legal obligation placed upon them in terms of section 37C.
The appellant had not made any averment to show that only first page of the order was pasted. Also it is seen that appellant having addressed a letter in December, 2007, for supply of copy of impugned order never further made any efforts to procure a copy immediately. He having came to know that order stand served upon them in December, 2007 and the appellant being aware that an appeal has to be filed within a period of 60 days from the date of receipt of order, made no further efforts for procurement of the order - as the Commissioner (Appeals) has no power to condone the delay beyond the period of 30 days he has rightly rejected it - against assessee.
-
2012 (10) TMI 824
Manufacture - movable versus immovable - marketability of goods - erection at the site – manufacturing of trusses, purlins, bracings, crane girders – Works contract - Held that:-
When a part of structure is prepared and disassembled, the members thereof will be angles, rods etc., prepared for use in such structure. These are not angles, or plates merely cut or drilled without reference to a particular structure. The later part of Heading 73.08 would apply to the members such as plates, rods, angles, etc., that are prepared for use in structures or their parts in their pre-assembled or disassembled state of an identifiable article of the types of the parts of structures covered under Heading 73.08.
The goods manufactured by the assessee it is excisable and duty is leviable. Since this circular is issued in exercise of powers under Section 37B of the Act is binding and the legality and clarity is visible.
there was a manufacture of excisable goods by M/s. Richardson & Cruddas Ltd. out of the raw materials supplied by the M/s. Ahmedabad Electricity Company Limited. The Board’s circular clearly clarifies the excisability and marketability and removes the doubt regarding the excisability or dutiability of immovable properties in terms of Rule 2(a) of Rules of Interpretation of Central Excise Tariff. It also makes a clear distinction though the inputs, parts or components which are specified excisable products will remain dutiable and identifiable at the time of their clearance from the factory or place of manufacture.
If the person sought to be taxed comes within the letter of the law he must be taxed, however great the hardship may appear to the judicial mind to be.
-
2012 (10) TMI 823
Demand of duty and penalty – confiscation - materials outside the premises – Held that:- Since construction activities were going on, the materials could not be accommodated in the premises - assessee has paid duty on the goods along with interest. Since duties and interest has been paid without any ingredient of intention to evade, present confiscation was unwarranted - Act of confiscation is penal in nature. Provision relating to that cannot be loosely invoked without motive being tested by evidence - interest not being disputed by the assessee, the confiscation is held to be bad.
Penalty - certain procedural irregularities having been noticed. The appellant need not be penalised to the fullest extent of the duty leviable. Keeping in view that there is no cogent reason brought by Revenue to deny concession in penalty, the appellant is directed to pay penalty to the extent of 25% of the duty demand
-
2012 (10) TMI 822
Benefit of export - Manufacturing of Bulk Drugs – The applicant while accepting statutory applicability of all the relevant Rule/Notification/Circular is basically impressing upon whatever act of omission and commission, whichever occurred in this case is only of a nature of procedural error which is liable to be condoned and such substantial benefit of exemption from duty should not be denied in this case of exports.
Held that:- whatever may be the internal/personal agreement between different parties/agents etc. the act of duty free clearance in this case was statutorily required to be done in the manner of provision of applicable Rules/Regulations and all legal documentations should be done accordingly.
Once a specific category has been chosen then the individuals becomes liable and bound by respective regulatory procedure which (admittedly) stands violated in this case - Benefit of export not available to the assessee.
-
2012 (10) TMI 821
Rebate claims - applicant had filed the copies of the AREs-1 which were not certified by the concerned Customs Authorities regarding export of the goods - Held that:- Non-submission of statutory document of ARE-1 and not following the basic procedure of export goods as discussed above, cannot be treated as just a minor/technical procedural lapse for the purpose of granting rebate of duty - rebate claim is not be sanctioned in the absence of original and duplicate ARE-1 as the same is not admissible under Rule 18 of Central Excise Rules, 2002 read with Notification No. 19/2004-C.E. (N.T.) - rebate claim rejected
-
2012 (10) TMI 820
Rebate claim filed after one year – time limit – Held that:- In the case of Kirloskar Pneumatics Company (1996 (5) TMI 87 - SUPREME COURT OF INDIA ) Writ jurisdiction cannot direct the custom authorities to ignore time limit prescribed under Section 27 of Customs Act, 1962 even though High Court itself may not be bound by the time limit of the said Section - Custom authorities, who are the creatures of the Customs Act, cannot be directed to ignore or cut contrary to Section 27 of Customs Act - Section 11B of the Central Excise Act, 1944 provides for the time limit and there is no provision to extend this time limit - rebate claims are clearly time barred as they were filed after the time limit of one year as specified under Section 11B of Central Excise Act, 1944 - time barred rebate claim rejected
-
2012 (10) TMI 819
Condonation of delay of 405 days - rejection of the assessees’ refund claims - submission of the assessee that against the impugned orders challenged in the present appeals, the assessee preferred Writ Petition which stood dismissed on the ground of availability of alternative remedy before the Tribunal, they submit that the delay was not deliberate but only due to above reasons – Held that:- Assessee has not put forth bona fide reasons for condonation of delay and further the delay could easily be avoided by the assessee acting with normal care and caution - sufficient cause has not been made out for condoning the delay - COD applications dismissed
-
2012 (10) TMI 818
Duty liability – alleged that though the Government of India has issued a letter converting Levy Sugar Sale into Free Sale Sugar on 29-11-1999, the respondents discharged the duty liability almost one year and nine months after the order was issued by the Government of India – Held that:- Order of the Government of India issued in October, 1997 for supply of the sugar on loan basis under levy quota and the order dated 29-11-1999 converting the said supply into free sale sugar quota was known to the department inasmuch as copies of these orders have been endorsed to the department. Therefore, the department cannot allege suppression on the part of the respondent assessee
Penalty – Held that:- Department was in the knowledge of the whole transaction inasmuch as the Government of India’s orders have been communicated to the department - question of imposition of penalty under Section 11AC does not arise - reduction of penalty cannot be faulted
-
2012 (10) TMI 817
Deduction of Interest claimed - Held that:- Borrowings on which the interest has been claimed as a deduction are in fact capital of the assessee and brought only under the nomenclature of loan for tax consideration. Debt capital is required to be re-characterized as equity capital. However, the Tribunal held that in India as the law stands there were no rules with regard to thin capitalization so as to consider debt as an equity. It is only in the proposed Direct Tax Code Bill of 2010 that as a part of the General Anti Avoidance Rules it is proposed to introduce a provision by which a arrangement may be declared as an impermissible avoidance arrangement and may be determined by recharacterzing any equity into debt or vice versa. There were at the relevant time and even today no thin capitalization rules in force. Consequently, the interest payment on debt capital cannot be disallowed – As no substantial question of law is involved - Appeal is admitted
-
2012 (10) TMI 816
Whether reimbursement of traveling expenses taxable as fees for technical services – Assessee is a non-resident, received a sum in lieu of reimbursement of traveling expenses – AO argued that such reimbursement is taxable as fees for technical services – Held that:- Following the decision in case of SIEMENS AKTIONGESELLSCHAFT (2008 (11) TMI 74 - BOMBAY HIGH COURT) that reimbursement of expenses is not liable to tax. Therefore, reimbursement does not have any element of income comprised therein and hence not liable to tax. In favour of assessee
Whether payment of living allowance by the Indian company to expatriates as fees for technical services – Non-resident assessee deputed its personnel for rendering services to Indian companies – Indian company reimburse the living allowances as per the agreement - AO included this amount in fees for technical services – Held that:- Reimbursement does not have any element of income comprised therein and hence not liable to tax. In favour of assessee
............
|
9911796707
