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Case Laws
Showing 441 to 460 of 1052 Records
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2011 (4) TMI 1112
Cost of drawing and design charges - Tribunal took a view that on merits the cost of drawing and design worked out @ 0.85% by Tata Motors is includable by the vendors. Therefore, the decision on which the learned counsel has relied upon goes against them on merits. Further, as regards the revenue-neutrality, the decision is in their favour – Held that:- decision of the Tribunal cited by the learned counsel was not considered by the lower authorities and the show-cause notice also does not give break up of the duty demanded we consider it appropriate that the stay petition has to be allowed, stay petition is allowed, the impugned order is set aside and the matter is remanded to the original adjudicating authority
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2011 (4) TMI 1111
Cenvat credit - relief under Section 80 of the Finance Act, 1994 - Counsel submits that the service tax paid on club membership subscriptions, catering services, business auxiliary services, GTA, Dasara Mandap, gift vouchers, library membership, etc., shall be admissible for adjustment against the excise duty liability or service tax liability – Held that:- Mere pleading without evidence does not get sanction of statutory provisions to grant relief to the appellants. Therefore, the appellant is liable to service tax for wrongful availment of the Cenvat Credit, appellant can only get concession in if it comes forward to pay the entire dues to the department within the stipulated time envisaged by law. For such purpose the authorities should grant an opportunity to the appellant to enable it to comply with the law within the stipulated period. If the appellant so complies within the stipulated period, the penalty shall be reduced to 25% of the service tax demand, appeal is thus partly allowed
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2011 (4) TMI 1110
Cenvat credit - show-cause notice to submit that the said notice merely states that Cenvat credit relating to certain items was not admissible. But reply to the show-cause notice appearing in pages 50 to page 62 of the paper book filed demonstrate the justification of each and every items for admissibility – Held that:- authorities are required to quantify the expenses and service tax relating to each item of service if any availed and examined each such service taking the evidence available on record into considerations affording reasonable opportunity of hearing to the appellants. Therefore, the matter is remitted back to the original authority
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2011 (4) TMI 1109
Refund - mere production of Chartered Accountant certificate shall not ipso facto grant right to refund - matter is therefore remanded back to the appellate authority for grant of an opportunity of hearing on the evidence that shall be adduced, matter is remanded to the first appellate authority, by setting aside the order
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2011 (4) TMI 1108
Refund claim - duty paid on physician samples cleared - original adjudicating authority had rejected the refund claim on the ground that the appellant had not furnished the relevant data - defence of the appellant is that they may be given an opportunity to submit the data, matter has to be remanded to the original adjudicating authority
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2011 (4) TMI 1107
Penalty equal to duty – Held that:- original adjudicating authority while imposing penalty equal to duty, did not indicate the relevant provisions of the statute which provided that if the payment is made within 30 days from the date of order the penalty stands reduced to 25%.Since this option has not been given by both the lower authorities, we consider it appropriate that such an opportunity should be given to the respondent, if the respondent deposits the interest, and the penalty to the extent of 25% of the duty, within 30 days from the date of receipt of this order, penalty shall stand reduced to 25% of duty
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2011 (4) TMI 1106
Captive consumption on payment of duty - department has taken a view that as per instructions issued under Section 37B of Central Excise Act, 1944, the gross profit of the preceding financial year as per audited balance sheet should have been added to determine the assessable value of the goods cleared for captive consumption – Held that:- in the case of the same respondent, while considering the appeal of the department on the very same issue, this Tribunal vide order No. A/109/09/EB/C-II dated 18/02/2009 had come to the conclusion that the appeal filed by the Revenue has no merit in view of the fact that the demand set aside by the Tribunal in another case on the ground of revenue-neutral was not contested. In this case also the situation was revenue-neutral. Since in a similar case involving a similar issue, in respect of the same respondent, this Tribunal has already taken a decision against the Revenue, by following the precedent decision of the Tribunal and reject the appeal filed by the Revenue
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2011 (4) TMI 1105
Classification - Technical Inspection and Certification Services - assessee preferred an appeal to the Tribunal contending that the services being rendered come under the category of testing and analysis of software which is covered under Section 65(105)(zzi) – Held that:- question falls squarely within the exception carved out in Section 35G, “not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment”, and the High Court has no jurisdiction to adjudicate the said issue, in the case of M/s. Mangalore Refineries and Petro Chemicals Limited (2010 - TMI - 206880 - KARNATAKA HIGH COURT) , the appeal is rejected as not maintainable
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2011 (4) TMI 1104
Duty demand with interest and penalty under Rule 173Q of Central Excise Rules, 1944 - appellants were found to have recovered excess amount from the customer which was not accounted under any head of expenditure admissible from the gross price to arrive at the assessable value - appellant carrying process of metalising/lacquering on duty paid polyester film. He submitted that during the relevant period the activity was considered as not amounting to manufacture and the classification lists filed were also approved – Held that:- lamination/metalising/lacquering polyester film does not amount to manufacture and therefore question of collecting duty, let alone differential duty, does not arise, appeal is allowed with consequential relief to the appellant
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2011 (4) TMI 1103
Compounded levy scheme - determination of annual capacity - Held that:- Commissioner observed that the abatement for closure of a stenter was available only when the factory was closed whereas the Commissioner while passing the order was not considering abatement request but was determining the annual capacity of production under the Rules 2000 based on the declaration filed by the appellant, matter is remanded to the original adjudicating authority who shall decide the annual capacity afresh in terms of Rule 5
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2011 (4) TMI 1102
SCN – two SCN on the same issue by the department for the same period and two orders-in-original were passed – Held that:- Commissioner (Appeals) in his order has held that the show-cause notice issued on 20/03/1996 is the same as the one issued on 29/02/1996 which apparently is not correct, Commissioner (Appeals)'s order is based on wrong appreciation of facts, the order is set aside and the matter remanded to the learned Commissioner (Appeals) for a fresh decision after correctly ascertaining the factual position and for a decision on merits in accordance with law
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2011 (4) TMI 1101
Whether Pizza manufactured by the appellants is classifiable under Chapter 19 as classified by the appellants or as classifiable under Chapter 16 as department sought to classify – Held that:- issue has been settled by this Tribunal in the case of Dodsal Corporation Pvt. Ltd. (2010 - TMI - 203831 - CESTAT, BANGALORE), wherein this Tribunal has held that Pizza cannot be brought under sub-heading 1601.10 for the reason that pizza has a topping of chicken along with other ingredients. It was held that paper carton bearing the logo of Pizza Hut is used mainly for packing and transportation of the pizzas from the outlet to the place where the pizza is consumed. Therefore, it was held that the pizza cannot be classified under Chapter 16 of the Central Excise Tariff Act, 1985, orders are set aside and the appeals are allowed with consequential relief, if any
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2011 (4) TMI 1100
Clandestine manufacture and removal – Held that:- production loss recorded in excess of such loss usually seen in another factory, in three months during the phase where a new factory is not reason enough to conclude that there was clandestine manufacture and removal. Considering the teething troubles that every factory faces in the initial months of commissioning in its production processes, something more will be required to shift the burden to the assesse to prove that there was no such clandestine activity, full waiver of deposit of the demand made in the impugned order for admission of the Appeal, stay on collection of such demand made by the impugned order till the disposal of the Appeal
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2011 (4) TMI 1099
Whether Tribunal is right in holding that the assessee is not liable to pay Service tax on the demurrage tax collected by it - question falls squarely within the exception carved out in Section 35G, “not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment”, and the High Court has no jurisdiction to adjudicate the said issue, in the case of M/s. Mangalore Refineries and Petro Chemicals Limited (2010 - TMI - 206880 - KARNATAKA HIGH COURT) , the appeal is rejected as not maintainable
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2011 (4) TMI 1098
Cenvat credit - items were used in the manufacture of capital goods and parts thereof and, as such, were eligible for CENVAT credit under Rule 2 of the CENVAT Credit Rules, 2002 - Counsel for Central Excise and Customs would submit that the CESTAT had misconstrued Rule 2 of CENVAT Rules and the Explanation thereof; and, in the light of the findings of the original authority that the goods in question were used for repairs of machinery, they did not fall within the ambit of “capital goods” under Rule 2 of the CENVAT Rules and, as such, no CENVAT credit could be claimed thereupon – Held that:- “capital goods” would not only include goods falling under Chapters 82, 84, 85 and 90 of the Central Excise Tariff Act but also components, spares and accessories of such goods, and moulds and dies which are used in the factory of the manufacturer of the final product, but not equipment or appliance used in an office, goods in question are, admittedly, used in the repairs of capital goods in the factory of the manufacturer and, as such, fall within the ambit of Section 2(b)(ii) of the CENVAT Credit Rules, order of the CESTAT, in rejecting the contention of the Revenue, though cryptic does not give rise to any substantial question of law necessitating interference in proceedings under Section 35G of the Act, appeal is dismissed
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2011 (4) TMI 1097
Penalty - on the ground that they had availed CENVAT credit on the capital goods and claimed depreciation under Section 32 of the Income Tax Act simultaneously - appellants filed revised income tax return and reversed the depreciation claimed by them – Held that:- error was bonafide and there was absolutely no intention to avail or take wrong credit, as soon as the omission was found, remedial steps were taken without any question, penalty on the appellant reduced from Rs. 5,00,000/- to Rs. 10,000/-
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2011 (4) TMI 1096
Whether Tribunal was right in holding that the activity carried on by the assessee comes within the category of ‘Scientific and Technical Consultancy Services’ - dispute regarding classification falls within the phrase “rate of duty” and therefore, this Court has no jurisdiction to go into the same. It is only the Apex Court under Section 35L of the Act, which is competent to decide the aforesaid question of law, appeal is rejected as not maintainable reserving liberty to the revenue to prefer an appeal to the Apex Court
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2011 (4) TMI 1095
Cenvat credit – disallowed - Whether CESTAT is correct in law by allowing the Cenvat Credit based on invoices, issued by dealers who did not exist at the address given in the invoices and which are not valid as per law - dealer who has issued the invoice has shifted the premises and that the premises from where the invoices were issued are the premises where the dealer did not have any office or business activity going on – Held that:- authority has not recorded any finding that there is no such dealer in existence or that no inputs were supplied by him or that any duty was paid on such inputs, there is also no finding that the inputs were not received in the factory premises or it was not used in the manufacturing process, decision in favour of the assessee and against the revenue
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2011 (4) TMI 1094
Whether Tribunal was right in law in holding that the service tax cannot be recovered based on the returns shown in the income tax returns, as the provisions of income tax requires declaration of amounts still due from the debtors, while in the case of service tax, the same has to be paid when recoveries are made – Held that:- assessee also contended that the amounts declared in the income tax returns cannot be made basis for levying the service tax. Therefore, the question involved in this appeal is regarding the valuation as well as the liability to pay service tax on the mount shown in the income tax returns – in the case of M/s. Mangalore Refineries and Petro Chemicals Limited (2010 - TMI - 206880 - KARNATAKA HIGH COURT) , the appeal is rejected as not maintainable
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2011 (4) TMI 1093
Whether the services rendered by the assessee falls within the ambit of “Consulting Engineers” and whether the training charges could be added as an element within the definition of ‘Consulting Engineers - question falls squarely within the exception carved out in Section 35G, “not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment”, and the High Court has no jurisdiction to adjudicate the said issue, in the case of M/s. Mangalore Refineries and Petro Chemicals Limited (2010 - TMI - 206880 - KARNATAKA HIGH COURT) , the appeal is rejected as not maintainable
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