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Case Laws
Showing 441 to 460 of 1387 Records
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2016 (2) TMI 948
Review petitions - Valuation - inclusion of 1% of the F.O.B. value of goods on account of loading, unloading and handling charges - the decision in the case of Wipro Ltd. Versus Assistant Collector of Customs & Others [2015 (4) TMI 643 - SUPREME COURT] contested - Held that: - we have carefully gone through the review petitions and the connected papers. We find no error, much less apparent, in the judgment impugned. The review petitions are, accordingly, dismissed.
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2016 (2) TMI 947
Entitlement of exemption - benefit of N/N. 21/02-Cus., dated 1-3-02 - concessional rate of duty - the decision in the case of GIAVUDAN INDIAN PVT. LTD. Versus COMMISSIONER OF CUSTOMS, BANGALORE [2009 (12) TMI 786 - CESTAT BANGALORE] contested - Held that: - we entirely agree with the view taken by the Commissioner and upheld by the Tribunal that the appellants were not entitled to the exemption claimed for the products imported by them - appeal dismissed.
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2016 (2) TMI 946
Condonation of delay - service of SCN - Held that: - the Show Cause notice dated 5.4.2001, or the personal hearing intimations the impugned Order-in-Original Ct. 31.1.2002 could not be served or brought to the knowledge of the Appellant despite efforts made by the department. It is also a matter of record that the department found that the appellant and his son had left the premises mentioned in the Show Cause Notice or the Order- in-Original and thus the same could not be served by any regular mode. It is also borne out from records before us that the appellant was abroad in the entire period from issuance of show cause notice till passing of the impugned Order - reliance placed on the decision of the case Navbharat Enterprises Ltd vs CC (Import) [2015 (3) TMI 27 - BOMBAY HIGH COURT] where it was held that if there was doubt and which could be inferred from the records and information provided to the Assessee by the Revenue after he invoked the Right to Information Act 2005 then, the Tribunal should have condoned the delay and in all fairness and in the interest of justice. Eventually if the Assessee cannot be faulted or being negligent or reckless in pursuing the remedy, then, the delay could have been condoned by compensation of payment of costs.
Condonation of delay allowed subject to payment of cost of ₹ 5,000/- - appeal allowed - decided in favor of appellant.
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2016 (2) TMI 945
Shortage in stock of finished goods - MS Ingots - clandestine removal - Held that: - I hold that in the facts and circumstances and the valuation method adopted by the inspection team, there is bound to be variation of the stocks value determined with the book records. Further the contention of the appellant that they record production on estimated weight basis and actual weighment of the ingots is done only at the time of removal, have not been found to be untrue. In the case of MS Ingots, the variation in the physical quantity of MS Ingots and book records is about 15% and in the case of sponge iron, is about 11%. Such variation is considered to be normal in the facts and circumstances. Accordingly I hold that no case of clandestine removal of finished goods and raw material is made out.
CENVAT credit - Held that: - it is evident from the statement recorded on the date of inspection that there is no element of mala fide in taking of credit. Accordingly no penalty is imposable for the same.
Levy of interest - Held that: - following the ruling of Hon’ble Karnataka High Court in the case of CCE, Bangalore v. Bill Forge Pvt. Ltd. [2011 (4) TMI 969 - KARNATAKA HIGH COURT], I hold that interest is not payable on the amount of credit so, reversed which was not utilized before reversal. Accordingly I remand to the Adjudicating Authority on this. If it is found that the appellant have utilized any part of Cenvat credit, during the period the credit was lying available, interest for such user will be payable.
Appeal disposed off - decided partly in favor of appellant.
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2016 (2) TMI 944
Addition u/s 69C - Held that:- Since the appellant company along with the other companies are all ‘in-house’ to the Thapar- Dhingra group and there is a widespread web of inter se transactions amongst them, keeping their separate juridical identity in mind, the ends of justice will be met if in each case, addition of the peak of financial transaction, as worked out from the relevant cash book of each entity, is made. Therefore, the addition made by the Assessing Officer needs to be revisited. It may be mentioned that while the rejection of the books and the book results by the Assessing Officer is confirmed, reliance is being placed on the transactions traversing the cash book, irrespective of their notations, since amongst the inflow and outflow of cash, tax payments made by the appellant are independent and verifiable. Consequently, no separate addition is required to be made on account of purchases or expenditure. The Assessing Officer is directed to work out the peak from the entries in the cash book, including bank transactions, of the appellant for the relevant year and make a singular addition of the said amount, as unexplained investment/expenditure - Decided against revenue
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2016 (2) TMI 943
Service tax liability - manpower recruitment and supply agency services - supply of labour for harvesting and transportation of sugar cane to the sugar factory - Held that: - the issue is no more res integra as the Hon’ble High Court of Bombay in the case of Commissioner of Customs, Central Excise & Service Tax vs. Godavari Khore Cane Transport Co. P Ltd.[2015 (3) TMI 483 - BOMBAY HIGH COURT] in similar set of facts held in favour of the assessee holding that the activity will not fall under the category of ‘manpower recruitment and supply agency services’ - the impugned order is unsustainable and liable to be set aside - service not taxable - appeal allowed - decided in favor of appellant.
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2016 (2) TMI 942
Taxability - activity of excavation and disposal of soil on the site - whether the said service would fall under the head Commercial or Industrial Construction Services? - Held that: - the findings recorded by the first appellate authority that due to non clarity of the work under taken by the appellant, the classification of the services is under “Commercial or Industrial Construction Services” cannot be discarded, in the absence of any evidence to show that the work under taken by the appellant was in respect of the roads.
The appellant could have entertained a bonafide belief that being sub-contractor they need not discharge any service tax liability. In our view, this is the fit case for invoking the provisions of Section 80 of the Finance Act, 1994, for setting aside the penalty impose by the lower authority - the service tax liability and the interest thereof upheld, but penalties imposed set aside, by invoking the provisions of Section 80 of the Finance Act, 1994.
Appeal disposed off - decided partly in favor of appellant.
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2016 (2) TMI 941
Rejection of Rebate claim - service tax paid on services rendered in SEZ - whether the rejection of claim on the ground that the services were not exported and used outside India and payment for such services is received in convertible foreign exchange is justified? - whether rebate can be claimed on service tax paid and not claimed only in respect of the central excise duty paid - the decision in the case of SUJANA METAL PRODUCTS LTD. Versus COMMISSIONER OF C. EX., HYDERABAD [2011 (9) TMI 724 - CESTAT, BANGALORE] relied upon - Held that: - The said law squarely applies in the case in hand as the issue is similar, where it was held that after coming into force of SEZ Act, supplies made by DTA units to SEZ units are to be treated as export and entitled to benefits as such.
Since there is no dispute that the services were rendered to the units in SEZ area, the impugned order has correctly followed the law and sanctioned the rebate claim - appeal dismissed - decided against Revenue.
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2016 (2) TMI 940
Waiver of pre-deposit - exempted services as per the provisions of Rule 6(3) of Cenvat Credit Rules, 2004 - Banking and Financial Services - non-maintenance of separate books of accounts for taxable and exempted services - Held that: - there is no justification in the confirmation of demand with interest and penalties for the reason that the services rendered by the appellant are not exempted by Notification 29/2004-ST. The said Notification only excludes the value of the amount received by the appellant towards the interest of over-draft facility and cash credit facility. Learned Counsel was correct in pointing out to us that the issue may be covered by the judgement of the Tribunal in the case of M/s Vaidyanath Urban Co-operative Bank Ltd. Versus Commissioner of Central Excise, Aurangabad [2015 (11) TMI 952 - CESTAT MUMBAI] for the purpose of stay and we find it so. Accordingly, the application for waiver of pre-deposit of the amount involved is allowed and the recovery thereof is stayed till the disposal of appeal.
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2016 (2) TMI 939
Application for out-of-turn hearing - issue is covered by the decision of this Bench in the case of Ideal Road Builders P. Ltd. [2015 (8) TMI 592 - CESTAT MUMBAI] - Held that: - the issue is regarding the service tax liability on the appellant in relation to collection of toll as has been extended to them by National Highway Authority of India. The Bench has taken a call of the judgement of Ideal Road Builders P. Ltd. and held that the said activity does not amount to any service rendered and no service tax arises. We do not find any reason to deviate to such a view taken by this Bench (wherein one of us Shri M.V. Ravindran was a Member) - appeal allowed.
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2016 (2) TMI 938
Addition made on the basis of the confessional statement/surrender made before the authorities during the survey - Held that:- Once the assessee was unable to offer any plausible explanation for the sum surrendered during survey merely by relying on the retraction made on a later date, it does not absolve the assessee from its liability. Further, the CIT(A) while upholding the order of the Assessing Officer had recorded a finding that the surrender was made by the assessee based on the material alleged to be in the possession of the Assessing Officer collected during the course of the survey and the said surrender was made voluntarily. Even the bills, cash and supporting documents were found with the assessee which established that the assessee was in possession of assets over and above the assets declared in the books of account against which the surrender in question was made. Furthermore, the retraction is made after more than three months for which no satisfactory explanation has been furnished by the assessee. Retraction to be effective has to be made at the earliest opportunity when the pressure or coercion or undue influence on the person making confession ceases to be operative. Whenever there is delay in retracting from the concessional statement, the onus lies upon the person retracting to show the circumstances that existed for him not to retract earlier.
Assessing Officer, the CIT(A) and the Tribunal had concurrently adjudicated the issues against the assessee on appreciation of material on record. No illegality or perversity could be demonstrated in the findings of fact recorded by the authorities below warranting interference by this Court.
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2016 (2) TMI 937
Issues:
1. Rectification of mistake in the final order regarding the appeal amount.
2. Rectification of typographical errors in the order passed by the Tribunal.
Issue 1: Rectification of mistake in the final order regarding the appeal amount:
In this case, the Revenue filed an application for rectification of a mistake in the final order dated 12.08.2015, where the appeal was dismissed as the amount involved was considered less than Rs. 5,00,000. However, the Revenue pointed out that the actual revenue involved exceeded Rs. 5,00,000. After hearing the arguments, the Tribunal allowed the application for rectification of mistake. The Tribunal recalled its previous order and reinstated the appeal to its original status.
Issue 2: Rectification of typographical errors in the order passed by the Tribunal:
Another application was filed by the Revenue for rectification of typographical errors in the order dated 12.08.2015. The Tribunal found errors in para 6 and para 7 of the order. In para 6, the Tribunal corrected the sentence regarding the appellant's appeal against demands dropped by the first appellate authority. In para 7, corrections were made regarding demands confirmed under 'Business Auxiliary Service' for commission received from M/s. JCB. The Tribunal also deleted a sentence that was out of context. After rectifying the typographical errors, the Tribunal disposed of the application. The Registry was directed to list the appeal for further proceedings.
In conclusion, the Tribunal addressed the rectification of mistakes in the final order related to the appeal amount and corrected typographical errors in the order passed. The applications filed by the Revenue were considered, and necessary corrections were made to ensure the accuracy and clarity of the Tribunal's orders.
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2016 (2) TMI 936
Territorial jurisdiction of court - writ of mandamuss directing the respondent not to take any coercive steps against the petitioner company which is under the Board for Industrial & Financial Reconstruction (BIFR) as per the provisions of SICA invoking the provisions of Income Tax Act, 1961 - whether this Court lacks territorial jurisdiction to entertain the writ petition filed as against the respondent? - Held that:- The respondent at Chennai has not participated in any of the action of the petitioner. Though the petitioner had deducted TDS, the same has been remitted only to the Income Tax Office at New Delhi. When the respondent has no role to play in the acts of the respondent at Chennai, there is no cause of action arise for filing the writ petition at Chennai. Mr.P.S.Raman, learned senior counsel appearing for the petitioner, fairly submitted that it cannot be said that Delhi High Court shall not have jurisdiction to entertain the writ petition. Since there is no cause of action, either wholly or in part, occurred at Chennai, this Court has no jurisdiction to entertain the writ petition filed by the petitioner.
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2016 (2) TMI 935
Addition under section 69C - Held that:- Assessing Officer has not brought any material on record to conclusively establish the fact that purchases are bogus. Merely relying upon the information from the Sales Tax Department or the fact that parties were not produced the Assessing Officer could not have treated the purchases as bogus and made addition. If the Assessing Officer had any doubt with regard to purchases made, it was incumbent upon him to make further investigation to ascertain the genuineness of the transactions. Without making any enquiry or investigation the Assessing Officer cannot sit back and make the addition by simply relying upon the information obtained from the Sales Tax Department and issuing notices under section 133(6) of the Act. As the Assessing Officer has failed to make any enquiry or investigation to prove the fact that the purchase transactions are not genuine whereas the assessee has brought documentary evidences on record to prove genuineness of such transactions which are not found to be fabricated or non-genuine, the action of the Assessing Officer in ignoring them cannot be accepted.
Moreover, as rightly observed by the learned Commissioner (Appeals), when the payment to the concerned parties are through proper banking channel and there is no evidence before the Assessing Officer that the payments made were again routed back to the assessee, the addition made under section 69C cannot be sustained - Decided in favour of assessee.
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2016 (2) TMI 934
Penalty u/s 271 (1)(c) - non recording of satisfaction in the order of assessment - Held that:- The show cause notice u/s. 274 of the Act is defective as it does not spell out the grounds on which the penalty is sought to be imposed - Decided in favour of assessee
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2016 (2) TMI 933
Rejection of refund claim of double payment of duty - limitation bar - CENVAT credit reversal from the cenvat account - Held that: - the decision in the case of Precision Fasterns Ltd Vs CCE [2014 (12) TMI 655 - GUJARAT HIGH COURT] followed where it was held that the words without utilising cenvat credit in Sub Rule 3(A) of Rule 8 of the Central Excise Rule 2002 shall be rendered invalid. So the appellant rightly reversed cenvat credit during the relevant period from Cenvat account.
The Tribunal in the case of Kansai Nerolac Paints Ltd. Versus Commissioner of Customs (Imports), Mumbai [2013 (5) TMI 171 - CESTAT MUMBAI] on an identical situation allowed the refund even refund application was filed beyond the period of 6 months.
The appellant paid the amount in March 2009 in cash as pre-deposit is liable to be refunded. Refund of double payment of duty should not to be rejected - appeal allowed - decided in favor of appellant.
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2016 (2) TMI 932
Transfer pricing adjustment - selection of comparables - Held that:- (i) KALS Information Systems Ltd., (ii) eZest Solutions Ltd. and (iii) Bodhtree Consulting Ltd. were engaged in ITES services and hence, the same being functionally dissimilar, should be excluded from the final set of comparables.
Genesys International Corporation Ltd as not functionally similar to the assessee, the said concern is to be excluded from the final list of comparables and accordingly, we direct so.
Goldstone Technologies Ltd. was engaged in the activities related to Media & IP TV and further, the company had carried inventory of set top boxes and movie rights in its Balance Sheet for the previous year. In addition, the said company had some income from sale of industrial material. Looking at the services provided by the said concern, it is clear that the same are functionally dissimilar to the services provided by the assessee and there is no merit in comparing the results of the said concern while benchmarking the international transaction of the assessee. Accordingly, we direct the Assessing Officer to exclude Goldstone Technologies Ltd.
Working capital adjustment - Held that:- We direct the Assessing Officer to re-compute the working capital adjustment in the hands of assessee in line with the directions given by the Tribunal in assessment year 2007-08 wherein have given directions for allowing working capital adjustment as per OECD guidelines.
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2016 (2) TMI 931
Transfer pricing adjustment - comparable selection - Held that:- In view of the matter, following the decision of this Tribunal in the case of Pegasystems Worldwide India Pvt. Ltd. Hyderabad [2015 (10) TMI 2495 - ITAT HYDERABAD] we accept the contentions of the assessee in its appeal and direct the Assessing Officer/TPO to redetermine the transfer pricing adjustment, if any, warranted, after excluding the above three comparables [ E-Infochips Bangalore ltd., Kals information Systems ltd. and Tata Elxsi Ltd.(Seg)] from the TP study.
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2016 (2) TMI 930
Legalilty of import of gold biscuit confiscated - onus of proof as to legal import lies on person who possesses such goods or who holds to be the owner of such goods under section 123 of the Customs Act, 1962 - whether the biscuits recovered from the second respondents’ possession and claimed to have been imported by M/s. MMTC are the same and as to whether the respondents have been able to discharge the legal onus placed upon them under the provisions of section 123? - Held that: - The burden of proof lay on the petitioner to discharge in the matter of proving the gold biscuits said to belong to him were not smuggled goods. By producing documents, which could not be disputed, the onus shifted to the department. The department sought to trace the origin of the goods to the identified consignment imported by MMTC. However, the department must do something more to demonstrate that the gold biscuits confiscated belonging to the petitioner were not duly purchased by the petitioner under documents produced to enable confiscation thereof as smuggled goods.
The Tribunal to revisit the matter and give its finding as expeditiously as possible upon allowing opportunity of hearing - writ petition disposed off - matter on remand.
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2016 (2) TMI 929
Completion of the assessment proceedings pursuant to the pre-assessment notices - clarification sought in the earlier writ petition and till such time the clarification is issued, all matter was to be kept in abeyance - application for clarification could not be considered, since the adjudication order had already been passed in the matter - whether the adjudication order passed without receiving clarifications is maintainable and need to be complied with? - Held that: - since the intention of the Court while passing judgment was to ensure that an adjudication would follow the order passed by the authority for clarification under the KVAT Act, and the said object has not been materialised through the passing of orders by the 1st respondent, without waiting for clarifications, the orders passed should be quashed and the respondent directed to pass orders on merits in the application for clarification preferred by the petitioner. - adjudication orders passed without clarification is quashed and the respondent directed to pass fresh orders on the application for clarification submitted by the petitioner, after affording the petitioner an opportunity of hearing.
The respondent to pass fresh orders as directed, within a period of one month, after hearing the petitioner. The respondent shall pass fresh orders of assessment in relation to the petitioner, only after the issuance of clarification as directed earlier and after hearing the petitioner - petition disposed off - decided in favor of petitioner.
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