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Showing 441 to 460 of 686 Records
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2009 (6) TMI 499
Evasion of duty- demand confirmed on the ground that units floated and controlled by two persons and materials and capital goods exchanged and cash seized. All six units were independent units having own manufacturing facility. Sale tax and CST and SSI registration available with units separately. Units considered dummy without considering case laws. Evidence not strong to conclude manufacture and clearance were on behalf of another person. Clearance of existing unit clubbed and duty confirmed on non existing unit. Law cannot prevent unit or group working for common benefit. Unit may be common in present case but evidence not produced to show “SP Group” as a legal entity. Mere controlling of operation of six units by few person not make group as a legal entity. Mere controlling of operations of six units by few persons not make group as “SP group” duty not demandable from such non-existent entity. Show cause notice served to all six units and duty not demanded from them independently. Demand on ‘SP Group’ jointly. Annexures showing year wise clearance by all independent units. Demand ought to have been confirmed against each independent unit based on figure in SCN. Held that- “SP Group” being non existent, demand confirmed on it not sustainable. Benefit of Notification No. 5/98-C.E. to be given to individual assessee and duty demand to be re determined. Matter remanded to adjudicating authority for confirmation of demand to be re-determined. Matter remanded to adjudicating authority for confirmation of demand against individual units. SSI exemption alleged as wrongly availed by fragmentation of units and goods clandestinely removed without payment of duty. Held that- as the Tribunal not able to give decision on clandestine removal as finding thereon absent in impugned order. Matter remanded to adjudicating authority to reconsider issue and pass fresh order.
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2009 (6) TMI 498
Cenvat Credit- The appellants herein had availed Cenvat credit of duty paid on the items like Steel and cement. It was the allegation of the Revenue in the Show Cause Notice that these items are used in the construction of civil structures and factory buildings and are not capital goods. Coming to such a conclusion, Show Cause Notices were issued for the period July, 2004 to December, 2004 seeking to deny the Cenvat credit availed by the appellant on these items. In the light of the various decisions, held that, the Revenue has not produced any evidence against the order of the adjudicating authority. It is seen from the factual findings of the adjudicating authority that the cement or steel are used by the appellant for the purpose of constructing Iron/Coke Storage tank, It is also seen from the records that there was an actual visit by the Assistant Commissioner to the factory premises of the appellant and vide his letter dated 27-12-2005, has confirmed that the said items were used only for the construction of Storage Tanks and Pollution Control equipments. In the case before us, the factual aspect of the inputs viz. steel and cement having been used for the manufacture of storage tanks is not disputed by the Revenue. In the absence of any contrary evidence to the factual evidence as noticed by the adjudicating authority during the visit to the factory premises, the impugned order is not sustainable. Accordingly, in view of the above legal positions and facts of the case, the impugned order is set aside and appeals are allowed with consequential relief, if any.
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2009 (6) TMI 493
Penalty- There was a delay in paying the duty for the month of October, 2006 only of 10 days and that too on account that the appellants had no knowledge about the bouncing of the cheque as the appellants were busy in attending the family member who was permanently ill during the said period, besides being the fact that the amount of duty remained to be paid for 10 days was only Rs.7,938/- which was debited from PLA. Being so, according to the appellants, there was no justification for the Commissioner (Appeals) to interfere with the order passed by the original authority. The appellants challenge the order passed by the Commissioner (Appeals), Mumbai. The interference by the Commissioner (Appeals) was in relation to the dropping of the demand of Rs.20,75,184/- and education cess of Rs.41,504/- and failure to order confiscation of the goods on the ground of the same was not available physically for confiscation. The Commissioner (Appeals) has held that the adjudicating authority should have imposed fine in lieu of confiscation. Held that- The intention of the Legislature being very clear from Rule 8 (3A) that, in case of failure on the part of the assessee to pay the duty within the specified period and further within the grace period certain consequences have to follow, the appellants cannot escape the liability thereunder. For the reasons stated above, therefore, we do not find any case having been made out for interference with the impugned order. Hence the appeal fails and is accordingly dismissed.
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2009 (6) TMI 490
SSI Exemption- The respondents M/s. Star Drive Bus Duct (P) Ltd. (SDBL) had manufactured and cleared bus ducts of varying capacities failing under Chapter Heading 8544 of the First Schedule to the CETA, 1985 without paying duty due on them during the period 1995-96 to June 2000. The respondents had also cleared scrap of aluminum, steel and copper without declaring the same in the classification list and without following other Central Excise formalities including payment of duty. A quantity of metal scrap was seized on 29-4-2000 and a quantity of bus ducts seized on 17-6-2000. Three trucks were also seized on 17-6-2000 as they were found laden with bus ducts found to have been cleared without payment of appropriate central excise duty due on them. Adjudicating a Show Cause Notice issued in this connection, the original authority found that the respondents had been clearing bus ducts bearing the brandname ‘STARDRIVE’ belonging to sister concern of the respondents M/s. Star Drive Engineers Pvt. Ltd. (SDEL). Held that- set aside the impugned order to the extent it relates to bus ducts and restore the order of the original authority. The appeal filed by the Revenue is allowed.
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2009 (6) TMI 489
Anti-dumping duty- landed value- Notification No. 8/98-Cus- The appellant imported 1000 MTs of Chinese Metallurgical Coke and cleared the same under DEEC licence and no Customs duty was paid. However, anti-dumping duty (ADD) was leviable on the imported coke under Notification No. 8/98-Cus., which stipulates that for calculating the liability of ADD, the landed value shall include all duties of Customs except those liabilities under Section 3, 3A, 8B and 9A of the Customs Tariff Act, 1975 (CTA). Since the clearance had been allowed, adding the Customs duty liability under Section 12 of the Customs Act, landed value was revised without adding the duty element and the Appellant have been held liable to pay differential ADD of Rs.5,43,000/-. The Appellant filed appeal against this decision. Revenue also is in appeal in view of the fact that Commissioner (Appeals) held that no interest is payable. Held that- We find that the notification clearly defined in the Explanation as to what is the landed value, it clearly stated that the landed value is assessable value as determined under the Customs Act, 1962 and includes all duties except those which are specified therein. The Commissioner (Appeals) has rightly observed that the assessable value is determined under Section 14 of Customs Act, 1962 and the assessable value under Section 14 of Customs Act, 1962 does not include any of the duties. Therefore, the landed value as defined in the notification cannot include the Customs duty leviable. As regards claim of levy of ADD amounts to discrimination, the Commissioner (Appeals) has rightly taken note of the Notification No. 41/97-Cus., dated 30-4-97 which provides exemption from ADD and has rightly observed that the appellants had not claimed exemption under that notification. We do not find any infirmity in the order of the Commissioner (Appeals). Further held for interest that- there is no provision for charging of interest on AD as the provision for charging of interest is in respect of duty determined under Section 28 of the Customs Act. Thus the appeal filed by the Revenue has no merit. In the result, both the appeals filed by Revenue as well as Appellant are rejected.
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2009 (6) TMI 485
Limitation- The appeal is filed by the appellant against the order of commissioner (Appeals). The issue involved in the instant appeals is regarding the duty demand on the samples, which were cleared by the appellants as waste and scrap. The appellants are the manufacturers of Flexible packaging material falling under chapter 39 and clearing the samples drawn, as waste & scrap on payment of duty. Consequent to EA 2000 audit, the duty is now demanded on the cost of production (CAS4) and in the last show cause notice on the sale price of the final product. The appellant assessee submits that demand is time barred. Held that- As regards invoking of the extended period of limitation is concerned, the appellants never informed the Department about drawl and manner of disposal of samples on or before this issue was raised by the Department during EA 2000 audit. Acquiring knowledge by the Department does not take away the period of five years provided by the Law Makers in the Act itself. They have suppressed the fact with intent to evade payment of duty on such samples. We also note that subsequently the appellants intentionally misrepresented the issue and avoided payment of duty on the samples. We do not find any ground to interfere with the impugned orders passed by the lower authorities below. Accordingly, we uphold the same and reject the appeals.
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2009 (6) TMI 483
Non declaration of brand name- suppression- whether CESTAT was justified in holding that non-declaration of brand name does not amount to suppression and hence the limitation period would not apply? held that – the answer of this question is negative against the assessee as the assesese was using a brand name or trade name on his goods admittedly which belonged to another and did not disclose them in the classification list. whether in the light of the fact that the assessee had full knowledge of brand name not belonging to them, have used the same and not disclosed to the department, amount to suppression of facts? held that- the answer of this question is affirmative in favour of the revenue and against the assessee. whether the CESTAT was justified in holding that proviso (2) of section 11 (A) of Central excise Act does not apply? held that- the answer of this question is in favour of revenue and against the assessee as the mark Ram’s belongs to the sister company of the respondent. However, the sister company was not eligible for exemption nor could the respondent knowing that the mark belongs to another use the same. Thus this case clearly a case of suppression.
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2009 (6) TMI 480
Services received from outside India- Reverse charges- The assessee, situated in Russia, had entered into an agreement with ‘J’ Ltd. in India for providing technical assistance by deputing highly qualified specialists. As the assessee had not taken the registration and not paid the service tax liability on the above services, the revenue issued a show cause notice demanding service tax from the assessee under category of ‘consulting engineer’ for the period of April, 1999 to march 2000. The adjudicating authority and Commissioner (Appeals) confirm the demand. In the light of the decision of Indian National Shipowners Association v. UOI 2009 -TMI - 32013 - HIGH COURT OF BOMBAY, held that- section 66A, was introduced from 18.4.2006, thus no liability to pay service tax before this period thus appeal is allowed.
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2009 (6) TMI 479
Seizure- The accommodation barge Morayo was imported but did not file IGM based on bill of lading and bill of entry. In these circumstances the barge is liable for confiscation under Section 111(f) and (m) of the Customs Act, 1962 and the importer M/s. Sarku Engineering Respondent No. 3 is liable for penalty under Section 114A of the Customs Act, 1962.held that- if the vessel is treated as seized as on today subject to whatever formal steps the respondents may take, the said barge is released on the following terms and conditions:
(1) The Petitioners to furnish bank guarantee in the sum of Rs.55 lacs. In favour of Respondent No. 2 and to keep it alive till the completion of the adjudication proceedings.
(2) The Petitioner also to furnish usual bond.
(3) On furnishing bank guarantee and bond, the respondent to forthwith allow the vessel to sail subject to Petitioners having other documentations from the concerned authorities.
(4) The respondent to release the documents whereby the vessel was converted from coastal run to foreign run after furnishing the guarantee and the bond. The document be released to the Petitioner.
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2009 (6) TMI 474
Cenvat Credit- Rent-a cab- The appellant herein engaged in the manufacture of aerated water and are availing Cenvat Credit facility. On scrutiny of the records, it revealed that they had availed Cenvat Credit on the input services i.e., canteen services and rent-a-cab services during the period May, 2006 to March, 2007. Lower authorities entertained a view that the appellant is not eligible for availing the Cenvat Credit on the Service Tax paid on the input services and hence, issue show-cause notice proposing to recover Cenvat Credit. The adjudicating authority after considering the submissions made by the appellant before him confirmed the demand and also imposed penalties. On an appeal, Commissioner (Appeals) also came to the same conclusion and rejected the appeal filed by the appellant. In the light of the decision of CCE v. Cable Corpn. of India Ltd. [2009] 19 STT 158 (Mum. - CESTAT) held that order of Commissioner (Appeals) is liable to set aside and appeal is allowed.
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2009 (6) TMI 473
Commercial and industrial construction services- The appellant has deposited full amount of service tax demanded and is challenging portion of the demand on the ground that the appellant is not a commercial concern and, therefore, tax was not leviable prior to 16-6-2005 and is also contesting the penalty. Held that – in the light of section 80 and the appellant was not a commercial concern and, therefore, tax was not leviable prior to 16.6.2005, waive the requirement of pre-deposit and allow stay application.
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2009 (6) TMI 468
Penalty- Courier Services- The appellants had urged before the authorities that the reasons for belated payment of tax and interest on courier service rendered by them was because they had engaged a local auditor for the purpose of service tax and filing returns and had handed over all the documents for verification to him but due to his prolonged illness, the auditor was not able to comply with the requirements of law within the prescribed period. Held that- there was a reasonable cause for the failure on their part, and applying the provisions of section 80 of the Finance Act, 1994, set aside the penalty and allow the appeal.
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2009 (6) TMI 466
Services received from outside India- reverse charges- The issue relates to liability of service tax of the appellant for the period from 1-1.2005 to 17.4.2006 on the services received outside India. In the light of the judgment of Indian National Shipowners Association v. Union of India 2009 -TMI - 32747 - BOMBAY HIGH COURT held that the section of reverse charges introduced w.e.f. 18.04.2006, thus the appellant is not liable to pay tax.
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2009 (6) TMI 465
Management, maintenance or repair services- The assessee company was awarded a contract by C’ Ltd. for annual maintenance of green belt in the garden. The scope of contract was restricted horticulture and landscaping, covering growing of grass, plants, trees, or fruits, vegetables, regular moving of lawns, procuring and trimming of shrubs and clearing of garden. Revenue confirms the demand under ‘maintenance or repair services’. Commissioner(Appeals) set-aside the order of original authority by holding that the assessee have not done any civil/electrical or mechanical work in relation to maintenance of park and green belt. Board’s Circular dated 27.07.2005 refers to maintenance of civil/electrical and construction work of park and green belt and not maintenance of grass, plants, trees or shrubs. Held that- there is no interfere with the order of Commissioner (Appeals), appeal filed by revenue is rejected.
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2009 (6) TMI 462
Cenvat Credit-Storage of input outside factory of manufacturer- Assessee, a manufacturer, closed down its unit and shifted to other place. Assessee removed inputs and finished goods by issue of invoice and availed credit in its new premises. The assessee in compliance to the directions of the jurisdictional Central Excise Officers debited the said amount. Thereafter, the assessee approached the Central Excise officer to allow them the re-credit of such amount by letter dated 18.06.2005. Commissioner(Appeals) allow the transfer of credit under rule 8 of the Cenvat Credit Rules in respect of the credit reversed by them on 26.02.2005. Held that- it is required to decide the present matter after considering the letter dated 18.06.2005 of the appellant, thus the matter is remanded back.
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2009 (6) TMI 461
Photography services- Notification No. 12/2003-ST, dated 20.06.2003- The assessee availed benefit of abatement of value of export materials consumed in providing photographic service as per Notification No. 12/2003-ST, dated 20.06.2003. The revenue denied the benefit on the ground that no material was sold but only consumed by it in rendering ‘photographic service’ and raised demand of service tax. In the light of the decision of Shilpa Color Lab v. CCE 2007 -TMI - 1022 - CESTAT,BANGALORE held that- the appellants are eligible to abatement of the value of the goods and materials consumed under the notification, hence set-aside the impugned order and allow the appeal.
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2009 (6) TMI 460
Photography services- valuation- Assessee was rendering photography services. The original authority held that the value of material, namely photography chemicals and papers which have been used in rendering the photography services should be included in the value of taxable service. Commissioner (Appeals) held that ‘in the service relating to photography, if certain goods and materials consumed, then the value of those goods and material cannot be included in the value of services for levy of service tax, thus allow the appeal. In the light of the decision of Shilpa Color Lab v. 2007 -TMI - 1022 - CESTAT,BANGALORE, held that- there is no merit in the appeal of the department, thus the appeal is rejected.
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2009 (6) TMI 459
Outdoor Catering Services- supply of foods to its factory employee- whether Cenvat Credit on outdoor catering service received by the appellant and utilized for supply of food to the factory employees is admissible? In the light of the decision of CCE v. GTC Industries Ltd 2008 -TMI - 31592 - CESTAT MUMBAI, in which held that credit is allowed if certain requirements are fulfilled, Tribunal set-aside the orders of the lower authority and allow this appeal by way of remand back.
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2009 (6) TMI 458
Transportation of goods- The assessee was a manufacturer of excisable products. it made a sale at the factory gate on FOR basis and claimed Cenvat Credit of service tax paid in respect of outward transportation of finished goods from the factory gate to the customer’s premises. The Assistant Commissioner disallowed the claim and confirms the demand against it. Commissioner(Appeals) set aside the order of Assistant Commissioner by holding that the outward transportation of finished goods from the factory gate to the customer’s premises is covered by the definition of input service. In the light of the judgment of ABB Ltd. v. CCE & ST 2009 -TMI - 34139 - CESTAT, BANGALORE Held that- there is no infirmity in the order of Commissioner (Appeals), thus the revenue appeal has dismissed.
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2009 (6) TMI 455
Cenvat Credit-Input service-outdoor catering services-whether the appellants are entitled to outdoor catering services? Commissioner (Appeals) in the light of the decisions of Larger bench in the case of CCE v. GTC Industries Ltd 2008 -TMI - 31592 - CESTAT MUMBAI, held that the appellant entitled to cenvat credit. Held that- the ratio of the above said case applicable in the present case and appeal is allowed.
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